Appeal from the Circuit Court of Madison County. No. 92-F-157. Honorable Robert Hennessey, Judge Presiding.
The opinion of the court was delivered by: Lewis
PRESIDING JUSTICE LEWIS delivered the opinion of the court:
Petitioner, David Cody (David), appeals from the trial court's ruling that it had in personam jurisdiction over him in the above-captioned case. Respondent, Margie Feher (formerly Cody) (Margie), did not file a brief in this matter, but since David's brief and the record are sufficient to resolve this issue, we will consider this appeal pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493. We reverse the trial court's ruling for the reasons set forth below.
Basically, the facts of this case are as follows: David and Margie were married in the State of Washington, and three children were born of this marriage. During the marriage, the parties resided in the State of Washington. Subsequently, in 1987, the parties were divorced in Pierce County, Washington. Under the divorce decree, Margie was awarded custody of the minor children, and David was ordered to pay child support in the amount of $267 per month per child (a total of $801 per month) Sometime in 1989, Margie moved to Illinois, bringing the parties' three minor children with her. On February 21, 1992, Margie filed in Madison County, Illinois, a petition to enroll a foreign judgment and a petition to increase child support. A notice to appear and produce certain documents was also filed by Margie on that date.
David was served in the State of Washington with the documents and with a summons to appear pursuant to section 2-209(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-209(a)(2) (West 1992)). On March 17, 1992, David filed a special and limited appearance, objecting to the court's personal jurisdiction over him. A hearing was held on David's objection on May 4, 1992. That same day, Margie filed an amended petitionto enroll foreign judgment and an amended petition to increase child support. Following the arguments of counsel, the court ruled that it had in personam jurisdiction over David, as well as subject matter jurisdiction.
On November 10, 1992, a hearing was held on Margie's petition to enroll foreign judgment, her petition to increase child support, and her notice to appear and produce. David did not appear, and the court entered a default judgment against him, increasing his child support obligation to $1,800 per month. David appeals, raising as his sole issue that the court erred in ruling that it had in personam jurisdiction over him, as he committed no acts which submitted him to the jurisdiction of the courts of the State of Illinois, nor did he have sufficient contacts with the State to justify the assertion of jurisdiction.
From the pleadings and from the arguments of counsel, it was established before the court that Margie allegedly came to Illinois with her minor children at the suggestion or direction of David, since this would place her near her family, thus providing her help and extra support. However, it also appears that Margie removed the children from the State of Washington without the leave of court. There were no allegations in Margie's petition that David was delinquent in his court-ordered child support. In addition, counsel argued that David has had visitation with his children since they came to Illinois, by him providing airplane tickets to the children so that they could fly to Washington and spend the summers with him. When the court ruled that it had in personam jurisdiction over David, it found the case of In re Marriage of Highsmith (1986), 111 Ill. 2d 69, 488 N.E.2d 1000, 94 Ill. Dec. 753, to be controlling. The court explained its ruling as follows:
Essentially, as both counsel know, the Highsmith case stands for the proposition that an individual who takes it upon himself to place the children in the State of Illinois is thereby performing sufficient acts which would subject that individual to in personam jurisdiction. Highsmith is somewhat different than the particular factual allegations as contained in the pleadings in that there is no allegation in the particular case before the Court that Mr. Cody himself placed the children in the State of Illinois. However, there are sufficient allegations to indicate that Mr. Cody suggested that Mrs. Cody remove herself and the children from the State of Washington and take up residency in the State of Illinois.
Further, the allegation that this transfer or relocation occurred approximately two and a half years ago, and there being no allegation in the pleadings before the Court that Mr. Cody objected to the removal of the children from the State of Washington to the State of Illinois, nor has [he] taken any action subsequent to September of '89 to effect a return of the children to the State of Washington, those factors considered, it appears to this Court that Mr. Cody has, or his conduct, has constituted tortious conduct within the contemplation of the statute.
Having concluded that[,] then it is up to this Court to determine whether the exercise of jurisdiction does not offend traditional notions of fair play and substantial Justice, and ultimately whether the defendant's contacts with the State of Illinois are such as to make it reasonable to require him to defend the particular action and whether due process is satisfied, and depending upon the quality and nature of the activity and the jurisdiction, that being Petition to Increase Child Support.
The Court finds it reasonable to believe that as alleged, an individual who would suggest and agree to removal of the children from one state, that being Washington, to the State of Illinois, would or should also have contemplated that the needs of those children would change within the future. It is therefore the decision of this Court that Mr. Cody's conduct in the subject matter of this particular proceeding does constitute sufficient contacts to satisfy the requirements of due process."
From the foregoing, it is clear that the court attempted to apply the law as it exists in these matters; however, we find that the court erred in its ruling.
Under the "long arm" statute (735 ILCS 5/2-209(a)(2) (West 1992)), a court can obtain in personam jurisdiction on an out-of-State party if that party committed a "tortious act within this State." However, under the law in Illinois, obtaining jurisdiction under the "long arm" statute is not the only criteria to be met. A court must also consider whether its exercise of in personam jurisdiction over the nonresident violates due process, i.e., was the party afforded reasonable notice of the proceedings and were there sufficient contacts between the nonresident party and the forum State so as to make it fair to require that person to defend the action in the forum State. ( Kulko v. Superior Court (1978), 436 U.S. 84, 56 L.Ed.2d 132, 98 S.Ct. 1690.) In determining whether the exercise of in personam jurisdiction violates due process, each case must be considered on its own facts, and the "quality and nature" of a defendant's activities must be reviewed to see if the exercise of the jurisdiction is fair and reasonable. ( Kulko, 436 U.S. 84, 56 L.Ed.2d 132, 98 S.Ct. 1690.) While a party may have established in personam jurisdiction through the "long arm" statute, such as was done here, it has been held that if a nonresident had insufficient contacts with the forum State, ...