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06/04/97 PARENTAGE MICHAEL J. FROST v. DEBORAH L.

June 4, 1997

IN RE: THE PARENTAGE OF MICHAEL J. FROST, MANUEL ZELAYA, PETITIONER-APPELLANT,
v.
DEBORAH L. FROST, RESPONDENT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DAVID DELGADO, JUDGE PRESIDING.

Released for Publication July 21, 1997.

The Honorable Justice Gordon Delivered The Opinion OF The Court. Cahill And Leavitt, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON DELIVERED THE OPINION OF THE COURT:

Petitioner, Manuel Zelaya, brought the instant action to establish paternity, custody, visitation, and child support for the minor, Michael J. Frost. The respondent and mother of the child, Deborah L. Frost, filed a special and limited appearance and moved to dismiss the petition for lack of subject matter jurisdiction or, in the alternative, to defer to the state of California, where she and the minor resided, on the basis of forum non conveniens. The trial court granted respondent's motion and dismissed the petition on the basis of lack of subject matter jurisdiction. The petitioner appeals.

On appeal, the petitioner raises several issues regarding the court's personal jurisdiction over the respondent. Those issues are not controlling since petitioner's action was not dismissed on the basis of lack of personal jurisdiction but on the basis of lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (the UCCJA) (750 ILCS 35/1 et seq. (West 1994)). See In re Marriage of Bueche, 193 Ill. App. 3d 594, 550 N.E.2d 48, 140 Ill. Dec. 566 (1990) (distinguishing personal jurisdiction from jurisdiction under UCCJA). Therefore, petitioner's contentions that the respondent waived her special or limited appearance are of no consequence since no special or limited appearance is required to preserve objections to subject matter jurisdiction. See, e.g., Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977, 170 Ill. Dec. 297 (1992); Malmberg v. Smith, 241 Ill. App. 3d 428, 607 N.E.2d 1370, 180 Ill. Dec. 857 (1993) (the issue of subject matter jurisdiction cannot be waived and can be raised at any time). Accordingly, the only issue we will address in this appeal is whether the trial court erroneously dismissed the petition for lack of subject matter jurisdiction pursuant to the jurisdictional provisions of the UCCJA.

In his verified petition to establish paternity, custody, visitation and child support, filed on January 9, 1995, the petitioner alleged that he and respondent, Deborah Frost, resided together in Chicago beginning in 1986 and that a child, Michael J. Frost, born on September 28, 1988, resulted from that relationship. He further alleged that in May 1994 the respondent travelled to California with Michael to spend the summer with her mother and brother. The petitioner alleged that he visited Michael and the respondent in California in June, September and December of that year. He also alleged that, in September 1994, the respondent became undecided as to whether she would return to Chicago and that the respondent enrolled Michael in a California school. He alleged that, on December 27, 1994, he first became aware that the respondent intended not to return to Chicago. The petitioner further alleged that since May 1994 he had been the sole source of support of Michael and the respondent; that the respondent maintained a personal checking account in Chicago through which she obtained funds from the petitioner; and that Michael was covered by petitioner's medical insurance policy.

In her motion to dismiss for lack of subject matter jurisdiction, the respondent argued that California and not Illinois was Michael's home state. In support of that contention, she alleged that in May 1994 she and Michael took all of their personal possessions and moved to California; that in May 1994 the petitioner had actual knowledge of her intent not to return; and that in duly 1994 she enrolled Michael in a California school. The respondent also alleged that the petitioner had visited Michael and her in California on four occasions and that on those occasions the petitioner knew of the permanency of their California residency. The respondent alleged that on January 13, 1995, prior to her being served in petitioner's action, she filed a parentage action in the state of California.

In his verified response to the respondent's motion to dismiss, the petitioner alleged that he took no legal action to prevent the "relocation" of Michael and the respondent from Chicago to California because the respondent had indicated that she would return to Chicago in September 1994. As proof of respondent's intent to return, the petitioner attached copies of electric and gas bills in respondent's name for the months of December 1994 and January 1995 for utility usage at the Chicago apartment where the petitioner and respondent had resided; respondent's voter's registration card, dated September 1994, showing the Chicago apartment as her residence; petitioner's affidavit; and the affidavit of the landlord of the Chicago apartment. The landlord averred that the respondent never discussed with him the termination of her lease; that she told him in May 1994 that she was going to live with her brother in California on a temporary basis; and that she told him that she was going to return to Illinois. In his affidavit, the petitioner reiterated the allegations made in his petition and response to respondent's motion to dismiss.

In her reply to petitioner's response, respondent denied that she told the petitioner that she was going to California on a temporary basis. She denied that her failure to make address changes with her creditors and bank evidenced an intent to return. She argued that her intent not to return was evidenced by her transfer of all of her possessions to California and by her leaving a "longtime good paying job." She further stated that the landlord of the Chicago apartment was petitioner's "good friend"; that there was no written lease to recessitate her obtaining a release; and that the petitioner remained in the apartment thus obviating the need to terminate the lease. She denied telling the landlord that her move was temporary.

Section 4(a) of the UCCJA lists four possible jurisdictional bases for determining the forum in which to litigate child custody issues. It provides in pertinent part as follows:

"The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

(i) is the home state of the child at the time of commencement of ...


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