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06/30/89 In Re Marriage of Lanae Silvestri-Gagliardoni

June 30, 1989

IN RE MARRIAGE OF LANAE SILVESTRI-GAGLIARDONI,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Petitioner-Appellant, and CESARE GAGLIARDONI,

Respondent-Appellee

542 N.E.2d 106, 186 Ill. App. 3d 46, 134 Ill. Dec. 106 1989.IL.1050

Appeal from the Circuit Court of Cook County; the Hon. Samuel S. Berger, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., concurs. JUSTICE BUCKLEY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Petitioner, Lanae Silvestri-Gagliardoni, appeals from the dismissal of her action in the trial court for dissolution of marriage from respondent, Cesare Gagliardoni, on the basis that the jurisdiction of the matter was governed by the courts of Milan, Italy, where a prior decree had been entered. On appeal, Lanae contends that (1) the trial court abused its discretion by dismissing her petition for dissolution of marriage and ordering all future matters be litigated in Milan, Italy; and (2) the trial court abused its discretion by failing to conduct an evidentiary hearing on the issue of the jurisdiction of the Italian court and the validity of the Italian decree.

Lanae and Cesare were married in Chicago, Illinois, on April 12, 1981. A son was born to the parties on November 20, 1981, in Cook County, Illinois. The marital residence of the parties was in Milan, Italy. During the course of the marriage, Lanae would travel to Chicago with her son for extensive visits with her parents and friends. On September 12, 1986, Cesare served Lanae in Italy with a petition requesting judicial separation which required her to appear in court on September 23, 1986. That same day she retained an Italian attorney to represent her in the proceedings. Lanae's father, Arnold Silvestri, an Illinois attorney, who is fluent in Italian, travelled to Italy to advise her and was present at the proceedings. At the hearing on September 23, 1986, after an attempt at reconciliation by the court failed, the parties presented a separation agreement to the court which they had signed and which the court accepted.

The separation agreement provided that the parties would have joint custody of the child and that the child would reside with the mother in Milan, Italy. The agreement permitted Lanae to travel with the child to the United States three times a year with each visit not to exceed one month, except the first visit in September 1986, which could be up to two months. The cost of the first two trips annually was to be borne by Cesare. Under the terms of the agreement, child support and maintenance were set at $2,800 per month with $2,250 specifically designated as child support. Cesare would pay Lanae $15,000 to furnish an apartment in Milan and would receive an Oldsmobile automobile. Cesare was required to pay Lanae's attorney $2,800 in fees and Lanae was required to agree that the child would travel on an Italian passport. The agreement further required that Lanae was to sign a sworn statement before the United States Consulate certifying her obligation to return to Italy with the minor child under the terms of the agreement. On September 25, 1986, Lanae appeared before the United States Consulate and stated that she intended to be bound by the separation agreement. Thereafter, she returned to the United States with the child of the parties.

On October 17, 1986, Lanae filed a petition for dissolution of marriage in the circuit court of Cook County. In her petition, she requested the court to declare the separation agreement void on the basis that it was entered into under duress and fear. In addition to her petition, Lanae also filed a petition for a temporary restraining order and preliminary injunction seeking temporary custody of the child. On October 17, 1986, an ex parte order was entered without notice enjoining Cesare from visiting with the child. Upon his arrival in Chicago to visit with the child, Cesare was personally served with a summons and a copy of the pleadings. On October 24, 1986, Cesare filed a special and limited appearance and two motions to dismiss. One motion to dismiss was based on the existence of the prior Italian court decree. Lanae was granted leave of court to file an amended petition for dissolution during the pleading defects raised by Cesare.

On November 24, 1986, following a hearing, the court granted Cesare's motion to dismiss based on the prior Italian decree. The trial court ruled that the Italian court had jurisdiction of both Cesare and Lanae and that Italy was the home of both parties. The trial court found that when the parties came to Chicago with their child to visit, they did so to enable the child to see his grandparents. The court further found that Lanae had made a decision some years earlier to live in Italy and had never attempted to convince Cesare to move their residence to the United States. The court stated that Lanae had been "well represented in Italy" by counsel, including both retained Italian counsel and Lanae's father, Arnold Silvestri. Lanae had not shown that the amount of notice given to her prior to the Italian court proceedings was unusually short. The judicial proceedings and the manner in which they were conducted were not unusual and demonstrated no prejudice by the Italian court. The court noted that the agreement covered all issues relating to child custody and property and that, under the terms of the agreement, the child was permitted to visit the United States just about as often as he had done during the five years prior to the agreement.

During oral argument on this matter on February 22, 1988, counsel for Lanae advised this court that Cesare had filed an enforcement action under the Italian judgment requesting that Lanae and the minor child of the parties be ordered to return to Italy. This court requested a report from the parties on the status of the proceedings in the Italian court. Subsequently, counsel for both parties have been granted numerous motions for extension of time to file the status report, advising that the parties were engaged in settlement negotiations, and requesting a suspension of consideration of the appeal. On January 18, 1989, counsel for Lanae filed a status report advising this court that the settlement negotiations between the parties had not been successful and we now proceed with the Disposition of this appeal.

Lanae first argues that the trial court abused its discretion when it dismissed Lanae's petition for dissolution of marriage and ordered all future matters to be litigated in Milan, Italy. Adjudication of interstate and international custody issues involved in child custody proceedings before courts in the State of Illinois is governed by the Uniform Child Custody Jurisdiction Act (UCCJA or Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 2101 through 2126). Since the case at bar involves the custody decree of a foreign nation, the provisions of the UCCJA became operational to determine whether the trial court had jurisdiction. Section 2 of the Act specifically ...


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