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12/29/97 MARRIAGE JANE ELIZABETH TATHAM N/K/A JANE

December 29, 1997

IN RE MARRIAGE OF JANE ELIZABETH TATHAM, N/K/A JANE ELIZABETH MYRE, PETITIONER-APPELLANT, AND JONATHAN EDWARD CHASE TATHAM, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Johnson County. No. 84-D-31. Honorable James R. Williamson, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Chapman and Maag, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Petitioner, Jane Elizabeth Tatham, now known as Jane Elizabeth Myre, appeals from orders of the circuit court of Johnson County finding her in contempt, imposing sanctions, and awarding attorney fees against her in favor of respondent, Jonathan Edward Chase Tatham. On appeal, petitioner contends that (1) under the Uniform Child Custody Jurisdiction Act (the Act) (750 ILCS 35/1 et seq. (West 1994)), the trial court lacked jurisdiction and the various orders finding her in contempt and imposing sanctions are void, (2) assuming, arguendo, that the trial court had jurisdiction, the trial court erred in finding petitioner's conduct wilful and contumacious, (3) the sanctions imposed on petitioner constitute an abuse of the trial court's discretion, and (4) the trial court erred in awarding attorney fees in the July 2, 1996, order. We affirm in part, vacate in part, and remand with directions.

I

The parties have been engaged in protracted custody, visitation, and support disputes stemming from their 1987 divorce. A brief review of the procedural history will suffice for purposes of this appeal. The parties were married on June 25, 1977. One child was born to the parties, Kathryn Elizabeth, born on April 15, 1981. On July 19, 1984, petitioner filed for dissolution. A judgment of dissolution was entered on July 21, 1987. The custody of Kathryn was awarded to petitioner, with respondent receiving certain visitation rights. Ultimately, respondent was ordered to pay $750 per month in child support, reduced by $175 per week during the period of respondent's summer visitation with his daughter. Respondent filed an appeal, which was soon followed by a cross-appeal by petitioner. On August 22, 1988, this court issued an opinion affirming in part and reversing in part the determination of the trial court. In re Marriage of Tatham, 173 Ill. App. 3d 1072, 527 N.E.2d 1351, 123 Ill. Dec. 576 (1988). The opinion left intact the trial court's rulings regarding child custody, visitation, and support. On September 18, 1990, the trial court entered an order modifying visitation, increasing respondent's visitation with Kathryn during the summer. Respondent was allowed visitation with Kathryn beginning on the eighth day of her summer vacation from school through the eighth day prior to her return to school.

On December 7, 1994, petitioner filed a motion for order to show cause, alleging that respondent failed to pay one-half month of child support ($375) and refused to pay $1,718.24 in medical expenses incurred on behalf of Kathryn. On January 12, 1995, respondent filed a petition to modify the judgment of dissolution concerning medical expenses for Kathryn. Respondent specifically asked that petitioner be required to obtain a comprehensive medical policy for Kathryn from the child support paid by respondent. On February 14, 1995, the trial court entered an order finding that respondent owed $352 in outstanding medical bills for Kathryn and ordered respondent to pay that amount and provide medical coverage for Kathryn. The trial court did not find respondent in wilful contempt for failure to pay medical bills. Thereafter, on March 29, 1995, respondent's child support obligation was reduced from $750 per month to $685 per month due to respondent providing health insurance for Kathryn.

On April 24, 1995, an amended order was entered which ordered respondent to immediately send an insurance card for Kathryn and file it with the clerk of the circuit court. The order also provided that respondent was required to pay support on or before the first business day of each month. The order specifically provided, "All matters contained in the Order of March 29, 1995, shall remain in full force and effect."

On June 14, 1995, respondent filed a petition for rule to show cause, alleging that petitioner had wilfully and contumaciously violated the visitation order of the trial court by refusing to allow Kathryn to visit respondent until and unless respondent paid child support for the month of June, in violation of the preexisting order finding no obligation on the part of respondent to pay child support for the months of June, July, and August. The trial court entered an order for rule to show cause and set a hearing for July 13, 1995. On July 5, 1995, petitioner filed a pro se special appearance, "without admitting to the personal or subject matter jurisdiction", in which she claimed that she never conditioned respondent's visitation with Kathryn on the payment of money. Incorporated in the special appearance was the affidavit of Ann Oldfather, a Louisville, Kentucky, attorney.

Oldfather asserted that she filed a verified petition on behalf of petitioner on April 6, 1995, in which it was asserted that Kentucky is the home state of Kathryn and petitioner and that it is in the best interests of Kathryn for Kentucky to have jurisdiction of all custody matters. Oldfather further explained that both petitioner and Kathryn had contact with respondent in June 1995 and attempted to work out visitation. A possible two-week visitation was arranged from June 19, 1995, through July 3, 1995. Petitioner asked respondent to pay the unpaid dental bills he owed because she would have no child support in June to take care of Kathryn. Oldfather denied that petitioner has ever said that respondent could not have visitation unless he paid the outstanding medical and/or dental bills. Oldfather also stated that she was contacted by another Louisville attorney, Mr. Haynes, who indicated that respondent was considering retaining him. In a later conversation with Haynes, Oldfather emphatically informed Haynes that visitation was not conditioned on respondent's compliance with his monetary obligations to petitioner. Oldfather further explained that she had various other conversations with Haynes concerning visitation, culminating in an agreement to talk via telephone the weekend of June 17, 1995, in order to finalize the June 19, 1995, visitation. Oldfather did not hear from Haynes over that weekend or even into the next week, so she sent him a letter, in which she asked whether respondent planned to exercise visitation. Oldfather sought to get an emergency hearing in Kentucky on the verified petition to modify visitation but was unable to procure a hearing date before June 30, 1995. Oldfather further asserted that she repeatedly asked Haynes to have respondent make arrangements for visitation and that it was not until petitioner was served with the motion to show cause regarding contempt that she first heard that respondent was claiming that petitioner conditioned visitation upon payment. Again, Oldfather stated that this was never the case. Finally, Oldfather asserted that Illinois no longer had subject matter jurisdiction to make rulings on visitation and that under section 7 of the Act (750 ILCS 35/7 (West 1994)) a court is required to decline to exercise jurisdiction, even if it had it, if there is pending at the time the proceeding is commenced a custody determination in another state. Oldfather pointed out that on June 14, 1995, when respondent signed the affidavit for a motion to show cause, a custody proceeding was pending in Kentucky, precluding Illinois from exercising jurisdiction. The verified petition regarding visitation rights and an increase in child support filed by petitioner in Oldham, Kentucky, on April 6, 1995, was attached to the petition and alleged that Kentucky had been the home state of Kathryn since June 1991 and that it was in the best interest of Kathryn for a Kentucky court to assume jurisdiction. A June 14, 1995, letter from Oldfather to Haynes was also attached to this special appearance and response. The letter states, inter alia, "It is my desire to facilitate, not hinder, visitation." A June 21, 1995, letter was also attached, in which Oldfather expressed her disbelief that Haynes failed to contact her. The final sentence asks whether respondent is even interested in having summer visitation.

On July 13, 1995, respondent appeared with counsel, but petitioner did not. The trial court noted for the record that it had received some documents from petitioner, but petitioner was nevertheless found in contempt. The trial court ordered respondent's attorney to prepare an order. On July 31, 1995, the trial court entered an order finding that when petitioner filed a petition in Kentucky on April 6, 1995, she sought relief related to matters still pending in Illinois, while Illinois had jurisdiction. The trial court further found that petitioner wilfully refused to obey the trial court's order concerning visitation between respondent and Kathryn beginning in June 1995 and that such actions constituted contempt. The trial court reserved a ruling on sanctions until August 22, 1995, when petitioner would be allowed to appear to purge herself of the contempt. The hearing on sanctions was ultimately held on October 3, 1995.

Petitioner's attorney at that time was Norma Minor, who referred the trial court to a June 30, 1995, Kentucky order which found that Kentucky had jurisdiction under the Act. The Kentucky court noted that even though there was an action pending before the circuit court of Johnson County, it did not prevent the Kentucky court from going forward on the April 16, 1996, verified petition because petitioner established that she and Kathryn had resided in Kentucky since 1991. The Kentucky court scheduled visitation between respondent and Kathryn to begin either Friday, July 14, 1995, or Saturday, July 15, 1995, through Friday, August 11, 1995. At the October 3, 1995, hearing, Minor argued that it would be improper for petitioner to be held in contempt in Illinois when Kentucky had jurisdiction of the child visitation issues in question. Minor also asserted, inter alia, that petitioner did not appear at the July 13, 1995, hearing on the order for rule to show cause because she assumed the issue was moot following the entry of the June 30, 1995, Kentucky order scheduling visitation between Kathryn and respondent. Respondent's attorney made numerous admissions at the October 3, 1995, hearing, most notably that there was an agreement and a modification order signed on June 30, 1995, in Kentucky in which respondent was allowed visitation with Kathryn. Respondent's attorney also stated that respondent understands that "his daughter is a teenager and she is going to have other things outside and can't spend all the time with him." Ultimately, the trial court determined that petitioner wilfully and contumaciously violated its order with respect to visitation, and the court stated this finding in an order dated October 12, 1995. The trial court stated that it was "going to impose a sanction" of increased visitation for respondent with Kathryn for the 1995 Thanksgiving and Christmas holidays. During a discussion on making it petitioner's responsibility to transport Kathryn to respondent, Minor pointed out that petitioner was in poor health due to a recent stroke and that she might suffer from cerebral brain damage. Minor insisted that because of petitioner's poor health, it might be impossible for petitioner to comply with transporting Kathryn to petitioner for increased visitation.

Petitioner and her attorney also noted that because of petitioner's stroke, petitioner had been unable to work full time for the previous 18 months. Accordingly, petitioner had no savings and no money with which to pay attorney fees. In the October 12, 1995, order, the trial court ordered petitioner to pay $1,500 in attorney fees at the rate of $100 per month. The trial court stated that in order for petitioner to "purge" herself of contempt, petitioner was required to comply with the visitation schedule and payment schedule.

On January 9, 1996, respondent filed a petition for rule to show cause, alleging that petitioner had not complied with the visitation scheduled for Christmas 1995 or with the attorney fees sanction. On January 10, 1996, the trial court entered an order for rule to show cause. On April 9, 1996, a hearing was held on respondent's petition for rule to show cause. Following the hearing, the trial court entered an order finding petitioner in "indirect civil contempt." The trial court found that respondent had incurred additional attorney fees in the ...


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