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08/18/97 MARRIAGE MARCY L. HOWARD FORMERLY KNOWN AS

August 18, 1997

IN RE MARRIAGE OF MARCY L. HOWARD, FORMERLY KNOWN AS MARCY L. BAILEY, PETITIONER-APPELLEE, AND DAVID J. BAILEY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Madison County. No. 94-F-2193. Honorable James Hackett, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Hopkins, J., concurs. Justice Chapman, specially concurring.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Respondent, David J. Bailey, appeals from an order of the circuitcourt of Madison County which found that personal jurisdiction existed over respondent. The issues on appeal are: (1) whether respondent had sufficient minimum contacts with Illinois to satisfy due process and establish in person am jurisdiction in Illinois; (2) whether the trial court erred in finding that the requirements of the long-arm statute (735 ILCS 5/2-209 (West 1992)) had been met, thereby establishing in personam jurisdiction; and (3) whether the child's "home state" is Florida pursuant to the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 1994)). We reverse the trial court's ruling for the reasons set out below.

On or about November 29, 1988, the Superior Court of Lowndes County, Georgia, entered a final judgment and decree dissolving the marriage between respondent and petitioner, Marcy L. Howard, formerly known as Marcy L. Bailey. The decree, granted as a default judgment, awarded respondent sole custody and control of the parties' minor child, David Macon Bailey. The decree granted petitioner visitation with David Macon in respondent's home. Petitioner testified she was unable to exercise her visitation rights because respondent had a restraining order against her prohibiting her from staying at the marital residence where David Macon resided and that when she attempted to visit the child at the marital residence, respondent called the police to exclude her. Shortly after her exclusion from the marital residence, petitioner returned to Madison County, Illinois. Petitioner further testified that she next attempted to contact David Macon by telephone in Georgia on Christmas of 1988 but the telephone was disconnected. Petitioner was eventually able to locate respondent and David Macon and visited with the child at the former marital residence in Georgia for a week in 1989. In 1990, respondent relocated to Florida. There was no contact between David Macon and petitioner for two years. Eventually, petitioner learned of respondent's address in Florida and resumed corresponding with David Macon; however, petitioner did not visit with the child.

In August 1994, respondent sent David Macon to a private, educational facility known as Mooseheart, near Aurora, Kane County, Illinois. Mooseheart is administered by the Loyal Order of the Moose. Respondent decided to send David Macon to Mooseheart because of the superior quality of the education respondent believed David Macon would receive there. Petitioner was not informed of nor consulted regarding the child's placement at Mooseheart. Upon learning of the child's enrollment at Mooseheart, petitioner resumed contact with David Macon, visited with him once at Mooseheart, andhad a three-week visit with the child at her home in Granite City. Respondent makes several trips a year to Mooseheart to visit David Macon, and the child returns to his home in Florida during lengthy school holidays. Respondent maintains regular telephone contact with David Macon.

On November 9, 1994, petitioner filed a petition to register the case in Illinois, asking the court to register the Lowndes County, Georgia, divorce decree in Madison County for purposes of modifying the decree. A petition for ex parte emergency order of protection was also filed but was later denied when found to be facially deficient. Petitioner failed to give notice to respondent regarding the pleadings filed in Illinois until nearly a year later, after filing a second petition for ex parte emergency order of protection on October 6, 1995. That petition was summarily dismissed, and David Macon was returned to Mooseheart.

On November 2, 1995, respondent filed a special and limited appearance challenging the court's jurisdiction over the case. A hearing was held on January 18, 1996. The trial court denied respondent's special and limited appearance and assumed jurisdiction, indicating that respondent consented to jurisdiction by voluntarily placing David Macon in the State of Illinois. Respondent filed a motion to reconsider on February 15, 1996. The trial court subsequently denied the motion. Respondent appeals.

II

We first address respondent's contention regarding the long-arm statute.

Respondent contends that the trial court erred in finding that the requirements of the Illinois long-arm statute were met when respondent, by sending his minor child to a residential facility in Illinois, designated presumed Illinois residents as long-term custodians of the minor child and erred in finding that by sending David Macon to a charitable institution, respondent failed to adequately provide support for his son. We agree.

Two requirements must be satisfied for Illinois courts to exercise jurisdiction over a nonresident. In re Marriage of Cody, 264 Ill. App. 3d 160, 163, 636 N.E.2d 1114, 1116, 201 Ill. Dec. 682 (1994). First, the nonresident must have committed some act enumerated in the long-arm statute that would submit such person to the jurisdiction of Illinois. 264 Ill. App. 3d at 163, 636 N.E.2d at 1116. Second, the nonresident must satisfy the "minimum contacts" federal due process requirement, i.e., there must be "sufficient contacts between the nonresident and the forum State so as to make it fair to require that personto defend the action in the forum State." 264 Ill. App. 3d at 163, 636 N.E.2d at 1116.

Section 2-209 of the Code of Civil Procedure, the long-arm statute, provides in pertinent part:

"ยง 2-209. Act submitting to jurisdiction--Process. (a) Any person whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts ...


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