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01/10/95 TERESA L. MCGUANE v. GARY D. MCGUANE

January 10, 1995

TERESA L. MCGUANE, PETITIONER-APPELLEE,
v.
GARY D. MCGUANE, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 93-MR-389. Honorable R. Peter Grometer, Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court: Inglis and Geiger, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The petitioner, Teresa McGuane, filed a habeas corpus petition in the circuit court of Kane County, Illinois, seeking the enforcement of child custody orders entered in Germany and North Carolina. The respondent, Gary D. McGuane, filed a motion to dismiss the petition claiming that it was barred by a prior pending action in Du Page County, Illinois. The trial court denied Gary's motion and, following a hearing on Teresa's petition, awarded temporary custody of the parties' two minor children to Teresa. The court further ordered that Gary relinquish physical custody of the children to Teresa that same day. This court stayed the trial court's order to change custody pending the outcome of Gary's appeal.

The record reveals that the parties were married in 1984 in Aurora, Illinois. Two children were born during the course of themarriage. In 1987 the parties moved to Naperville, Illinois, where they remained until December 1991. In December 1991, Gary, who was an attorney, accepted a commission in the United States Army on the condition that he be stationed in Germany near Teresa's family. Pursuant to that commission, the parties left for Germany in December 1991. The parties lived together in Germany until August 1992, when Teresa and the children moved from the marital home to Teresa's parents' home, which was also in Germany.

On January 15, 1993, Gary filed in Du Page County, Illinois, a petition for dissolution of the marriage and a motion for temporary custody of the children. In support of his pleadings, he filed an affidavit stating that: all parties were and are residents of Illinois; the parties were temporarily absent from Illinois pursuant to government orders; they intended to return to Illinois; he is an attorney licensed to practice law in Illinois; and that both parties and the children all had substantial contacts with Illinois. Gary sent notice of his Du Page County petition to Teresa by certified mail, return receipt requested. The return receipt shows that Teresa received the notice on January 21, 1993.

Four days after Gary filed his petition, Teresa filed a petition for dissolution of marriage and a motion for temporary custody in Germany. On March 5, 1993, the German court held a hearing on the matter. Gary presented the court with the pleadings filed in the Du Page County case. The German court refused to take jurisdiction over the petition for dissolution but then found that it had jurisdiction over the issue of temporary custody based on terms of the Hague Convention for the Protection of Minors. The court awarded "preliminary" custody of the children to Teresa and ordered that an investigation be conducted and a hearing held on April 8, 1993.

On March 16, 1993, Gary gave Teresa notice of a motion for default judgment in the Du Page County case. Two days later, Teresa filed a special and limited appearance in that case contesting personal and subject-matter jurisdiction in Illinois. On March 23, 1993, the Du Page court found that it had jurisdiction over the case because Illinois was the children's home State, it had the closest connection with the children, and no other State had jurisdiction. The Du Page court entered a default judgment and ordered that temporary custody of the parties' oldest child be granted to Gary and that Teresa not leave Germany with the youngest child until the German court concluded a subsequent hearing in the matter. The Du Page court set the case for a status hearing on May 5, 1993.

On April 1, 1993, Teresa took the two children from Germany to North Carolina even though a further hearing had not been held in Germany. When the Du Page court learned at the May 5 status hearing that Teresa had moved to North Carolina in violation of its previous order, it issued a rule to show cause and ordered her to appear before the court on May 26, 1993. Summons was issued in the case on May 5.

On May 14, 1993, a North Carolina process server attempted to serve the summons, the notice of the rule to show cause, and the various pleadings that had already been served by certified mail on Teresa. Upon seeing the process server, she fled into her parents' home where she was staying, and the papers were then delivered to her mother. When Teresa failed to appear for the hearing in Du Page County on May 26, 1993, the court entered an order of contempt and awarded temporary custody to Gary.

On June 7, 1993, Gary registered the Illinois judgment in North Carolina and sought enforcement there. The next day, Teresa registered the German judgment in North Carolina. In July 1993, the North Carolina judge conferred with the other courts involved in the case and indicated that it wanted jurisdiction transferred from Germany. It then entered an order granting Gary 24 hours of visitation and ordering him not to remove the children from North Carolina. Thereafter, Gary removed the children to Illinois in violation of the North Carolina court's order.

On August 23, 1994, the North Carolina court entered an order enforcing the German custody order granting Teresa temporary custody of the children. The next day, the Du Page County court entered an order finding it continued to retain jurisdiction over the case. It further ordered that the children remain in Gary's temporary custody and restrained all Illinois agencies from removing the children from his custody.

In September 1993, Teresa filed a habeas corpus petition in Kane County seeking to enforce the North Carolina judgment. Gary filed a motion to dismiss based on the prior pending action in Du Page County. In an amended motion to dismiss, he argued that since the Kane County proceeding was a collateral attack on the Du Page County judgment, Teresa had the burden to show from the face of the record in the Du Page proceeding that the Du Page court lacked jurisdiction. The Kane County trial court denied Gary's motion to dismiss and eventually entered an order granting Teresa's petition to enforce the North Carolina custody judgment. The court further ordered that Gary relinquish custody of the children to Teresa by 2 p.m. that day. That portion of the order was stayed by the appellate court pending the outcome of this appeal.

On appeal, Gary first argues that the Kane County court should have dismissed Teresa's habeas corpus petition because she failed to demonstrate solely from the Du Page County record that the Du Page court did not have jurisdiction over the custody matter. Gary points out that Teresa had the burden to show that the first court order was void for lack of jurisdiction and that this must be shown from the face of ...


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