Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

05/26/94 MARRIAGE LINDA BUCHANIO N/K/A LINDA

May 26, 1994

IN RE THE MARRIAGE OF: LINDA BUCHANIO N/K/A LINDA SCHNEIDER, PETITIONER-APPELLEE, AND CHARLES BUCHANIO, RESPONDENT-APPELLANT.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD KELLY, JUDGE PRESIDING.

Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Hoffman, Cahill, Theis

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The marriage of Linda and Charles Buchanio was dissolved by an out-of-state judgment, after which Linda moved to Illinois with the parties' three children. Several years later, Linda filed petitions in the circuit court of Cook County seeking to modify visitation arrangements, to increase Charles's child support payments, and to hold Charles in contempt for failing to pay the children's outstanding medical bills. The petitions were granted, and Charles now appeals, raising the following issues: (1) whether the court erred in finding that it had in personam jurisdiction over him; and (2) whether the court acted improperly in vacating an earlier dismissal for want of prosecution.

A judgment dissolving the marriage of Charles and Linda Buchanio was entered in Lebanon County, Pennsylvania, on September 13, 1983. The dissolution decree granted Linda custody of the parties' three minor sons and required Charles to provide the boys' health insurance coverage and pay any medical or dental bills not covered under his policy. In January of 1984, Linda and the boys moved to Illinois, and Linda initiated proceedings to enroll the Pennsylvania dissolution judgment in this State. Although Charles was personally served with notice of the enrollment proceedings, he failed to appear at the hearing. The Pennsylvania judgment was enrolled in Illinois on January 17, 1986.

On April 22, 1986, Linda filed a petition in the circuit court of Cook County for modification of visitation. Charles moved to dismiss the petition for lack of jurisdiction under section 2-619 of the Code of Civil Procedure ("Code") (Ill. Rev. Stat. 1985, ch. 110, par. 2-619), citing a prior visitation ruling made by the Pennsylvania court and an appeal then pending in that State. In conjunction with his motion to dismiss, Charles served Linda with notice for her deposition, and sought leave to depose experts upon which she had relied in her modification petition. The court ultimately reserved ruling on Charles's motion, and there was no further activity in the Illinois case for nearly two years.

On March 21, 1989, the circuit court entered an order noting the registration of the Pennsylvania dissolution decree and striking the case from the trial call as "completed." On January 16, 1990, however, an order was entered dismissing the "complaint for dissolution" for want of prosecution. Upon learning of this erroneous order, Linda sought vacatur of the dismissal on August 21, 1991, with a "Motion to Correct Clerical Error." The motion indicated that the case had accidentally appeared on the January 1990 status call as a pre-judgment dissolution proceeding, and that when no one appeared for the status hearing, the case had been dismissed. Finding that the dismissal was entered in error, the circuit court vacated it on August 21, 1991, and reinstated the case on the post-decree call.

On April 2, 1992, in the circuit court, Linda filed petitions for (1) modification of child support, (2) a new visitation schedule, and (3) a rule to show cause as to why Charles should not be held in contempt for his failure to pay the boys' uninsured medical and dental bills (hereinafter "rule to show cause"). In response to these petitions, Charles filed a special appearance and motion to dismiss for lack of jurisdiction. The motion contained no allegations regarding the circuit court's in personam jurisdiction; instead, it consisted merely of statements regarding Linda's submission to Pennsylvania jurisdiction and that State's alleged continuing jurisdiction over visitation and support matters in light of its prior rulings on these issues.

In response to the motion to dismiss, Linda disputed Charles's challenge to subject matter jurisdiction, and additionally asserted that the circuit court had personal jurisdiction over Charles because he had generally appeared during the April 1986 proceedings on her petition to modify visitation.

In his reply memorandum, Charles argued that the court lacked subject matter jurisdiction over all three of Linda's petitions under the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1989, ch. 40, par. 2101 et seq.). In addition, Charles alleged for the first time that the court lacked personal jurisdiction over him due to his insufficient contacts with this State. Charles's prayer for relief requested that "all matters pending in the instant action be dismissed for lack of jurisdiction."

At a hearing on the motion to dismiss, Charles's arguments again pertained to subject matter jurisdiction, and also to collateral estoppel. The court subsequently entered an order requiring the parties to brief several points, including Pennsylvania statutory issues; the vacatur of the January 1990 dismissal for want of prosecution; the status of Charles's appearance in 1986; and an alleged failure to give proper notice to "parties" regarding motions filed and orders entered after April 25, 1986.

On July 2, 1992, the Judge entered an order in which he, in relevant part: (1) found that Charles had entered a general rather than special appearance, and that the court had personal jurisdiction over him and subject matter jurisdiction over the visitation issues; (2) reversed the vacatur of the dismissal for want of prosecution on the basis that it had been entered ex parte; and (3) granted Charles leave to respond to Linda's motion to vacate the dismissal for want of prosecution.

The parties filed their respective memoranda addressing the merits of the motion to vacate the dismissal for want of prosecution. Charles's memorandum recited that it was not intended as a personal appearance, but was to preserve his opportunity to object to the erroneous reinstatement of this action. A hearing was held, and on July 21, 1992, the court entered an order vacating the dismissal for want of prosecution finding that it was a "nullity" and that it had no effect on jurisdiction. The order also ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.