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June 13, 1996


Appeal from the Circuit court of Lake County. No. 93--D--196. Honorable Wallace B. Dunn, Patrick N. Lawler, Judges, Presiding.

Rehearing Denied July 16, 1996. Released for Publication July 23, 1996.

The Honorable Justice Colwell delivered the opinion of the court: Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

This case involves appeals and cross-appeals in two consolidated dissolution and custody actions. In appeal No. 2--95--0918, respondent-appellant and cross-appellee, Michael Rose, contends that the trial court erred: (1) in finding that it had subject matter jurisdiction over the parties' marital dissolution and the custody of Garrett Anthony Rose, the couple's minor son; (2) in finding that it had jurisdiction to dissolve the parties' marriage; (3) in determining that grounds (i.e., irreconcilable differences) for marital dissolution existed; (4) in bifurcating the dissolution from distribution of the parties' property (over which it found no jurisdiction); (5) in finding that if Michael chose to participate in the custody hearing he would waive his special and limited appearance; and (6) in awarding sole custody of Garrett to Martha rather than joint custody.

In the same case, petitioner-appellee and cross appellant, Martha Stack, contends that the trial court erred: (1) in finding that it did not have personal jurisdiction over Michael; (2) in finding that it did not have jurisdiction to distribute the parties' property; and (3) in granting Michael summary judgment on Martha's dissolution count alleging mental cruelty. Each party has also brought a motion to dismiss the other's appeal as untimely, and we ordered both motions taken with the case.

In appeal No. 2--95--0300, Michael contends that the trial court erred: (1) in finding that Michael's motion for an order finding that he could not be served with process in Illinois if he came here to exercise his visitation rights was a request for an advisory opinion; and (2) in refusing to "modify" its previous visitation order. In the same case, Martha contends that Michael's actions in seeking the enumerated relief waive his contention that Illinois courts have no personal jurisdiction over him.

[The following material is nonpublishable under Supreme Court Rule 23].

[The preceding material is nonpublishable under Supreme Court Rule 23].


We turn now to the substance of the parties' appeals. The following facts are derived from the record. Michael, Martha, and Garrett are all United States citizens. Martha and Michael met while both were employed by Merrill Lynch in its London office. They married in the State of Rhode Island in September 1990. The parties came to Illinois, where Martha's parents live (and where she apparently lived until she left for college) and executed a variety of estate and tax-planning documents drafted by a Lake County attorney in accordance with Illinois law. Both parties were transferred to Merrill Lynch's Tokyo office shortly after the marriage.

Martha testified that she unexpectedly found that she was pregnant in May 1991. She said she was increasingly unhappy in the marriage and unhappy that Michael seemed disinterested in addressing her concerns. Martha told Michael she wished to give birth in the United States because she was concerned about the language barrier in Japan and she would feel more comfortable in America. Michael derided her concerns and insisted that she have the baby in Tokyo. Nonetheless, Martha returned to Illinois and Garrett was born November 7, 1991, in Highland Park.

Martha testified that in March 1992 she told Michael that she was having a hard time adjusting to motherhood and life in Japan. Michael responded that perhaps they should move from their Tokyo apartment to a house in a more rural area of Japan. Martha said that she told Michael she wanted to return to the United States, and she suggested that New York would be the easiest place for Michael to transfer to. She said Michael responded that he did not want to work in New York and that he planned to stay in Japan.

In May 1992, Martha was preparing to leave with Garrett for a six-week visit in the United States. Martha told Michael that he should view the trip as a separation, and he should:

"Think long and hard about what commitment to marriage and a child meant. And [sic] he should think about whether or not I was important enough to him to start making the attempt to come home early [from work], spend weekends with us and meet us, being Garrett and I [sic]. And that I hoped he would give it some serious thought while I was gone."

Martha said that Michael laughed and asked if she was threatening not to come back. She responded that she intended to return, but that he should be "aware of the fact that we have severe difficulties in our marriage and they need to be addressed."

The parties discussed the subject of separation again in September 1992. Martha said she told Michael that "a separation was in order." Michael responded that if she felt that way, she should leave immediately. Testifying that she was "shocked" at his reaction, Martha said she asked Michael, "Do you understand what I'm proposing?" Michael said yes. Martha then said, "I don't think you understand. I mean to take Garrett with me to the United States and not to come back to physically live here." She testified Michael said, "I don't think I could bear the sight of you and Garrett during the next three months knowing that you're going to leave me anyway. So I suggest you change your flight and leave right away."

Martha testified that she and Garrett flew directly to Chicago and moved in with her parents in Highland Park. They lived with her parents from September 1992 until January 17, 1994, when they moved into a nearby home that Martha purchased. She said the home is owned by a land trust, of which she is the sole beneficiary, with Garrett as the remainderman in the event of her death. She used funds she had withdrawn from the parties' joint account in Japan to purchase the home. She obtained an Illinois driver's license in November 1992, registered to vote in Lake County in January 1993, and voted in two elections there. She said she relinquished her own and Garrett's Japanese alien registration cards on or about December 15, 1992. Martha filed for divorce in January 1993. She took Garrett to visit Michael in Japan in February 1993, and at that time she served him with notice of the divorce and custody proceedings.

Martha testified that the last time she had sexual intercourse with Michael was July or August 1991 and that she last shared a bed with him in November 1992. She said that she and Michael had met with the court-appointed conciliator and that ...

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