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In re Marriage of Darini S. Arulpragasam

April 09, 1999

IN RE: THE MARRIAGE OF DARINI S. ARULPRAGASAM, PETITIONER-APPELLANT, AND CRAIG S. EISELE, RESPONDENT-APPELLEE


No. 96CH80

The opinion of the court was delivered by: Justice Garman

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Appeal from Circuit Court of Champaign County

Honorable Harry E. Clem, Judge Presiding

Petitioner mother, Darini S. Arulpragasam, appeals from the February 23, 1998, order of the circuit court of Champaign County, arguing that the circuit court abused its discretion by dismissing her petition for modification of custody. We reverse and remand.

I. BACKGROUND

The mother and respondent father, Craig S. Eisele, are the parents of two daughters, ages seven and nine at the time of this appeal. The parties' marriage was dissolved by order of a court of the Commonwealth of Massachusetts in 1993. In April 1993, the parties were awarded joint custody of the girls, pursuant to their agreement, and the mother was given physical custody. Their dissolution agreement also contains a provision requiring the mother to obtain "permission" of the Berkshire County, Massachusetts, court prior to removing the children from the State of Massachusetts. Massachusetts law does not mandate that a custodial parent seek such permission before removing children from the state, except in certain circumstances that do not apply to these children. See Mass. Ann. Laws ch. 208, §30 (Law. Co-op. 1994).

In May 1994, the father filed a petition in the Massachusetts court seeking sole custody of the girls and, in August 1994, the mother filed a petition seeking permission to remove the girls to Champaign, Illinois, where she had obtained employment. Without resolving either pending motion, the court granted her permission to temporarily remove the children to Illinois. The mother and daughters moved to Champaign, Illinois, in late 1994 and continue to reside there.

After granting several continuances on the father's motions, the Massachusetts court dismissed both petitions on May 24, 1996. With regard to the petition for removal, the court found that it did not have jurisdiction to hear the matter. The Massachusetts statute governing removal applies only when the child who is the subject of the petition was either born in Massachusetts or has resided in that state for five years. See Mass. Ann. Laws ch. 208, §30 (Law. Co-op. 1994). Neither provision applied in this case. Thus, the court concluded, it was without authority to enter a permanent order either allowing or denying the mother's request for permission to remove the girls to Illinois, the "permission" provision in the parties' dissolution order notwith-standing.

With regard to the May 1994 petition for modification of custody, the court found that it could exercise jurisdiction because Massachusetts was the home state of the children (see Mass. Ann. Laws ch. 209B, §1 (Law. Co-op. 1994)) at the time the petition was filed. However, the Massachusetts court exercised its option under Massachusetts law to decline jurisdiction upon finding that its assumption of jurisdiction would constitute an inconvenient forum and that the court of another state would provide a more convenient forum. See Mass. Ann. Laws ch. 209B, §7(a)(iii) (Law. Co-op. 1994). The Massachusetts court held that because the mother and children were, by then, Illinois residents, and because the father no longer lived in Massachusetts, it should decline jurisdiction in favor of an Illinois forum.

The Massachusetts court also noted that the father lived in Connecticut at the time the dissolution order was entered in 1992, lived in Pennsylvania when the petitions were dismissed in May 1996, and had resided in Massachusetts with the children for only a few months.

On June 12, 1996, after the matter had been dismissed by the Massachusetts court, the mother filed a petition for modification of custody in the circuit court of Champaign County, Illinois. On August 6, 1996, she filed a petition to enroll the Massachusetts judgment.

The father filed a timely motion to reconsider the May 24, 1996, dismissal of his custody petition. That motion was denied by the Massachusetts court on July 9, 1996. The father did not appeal the July 1996 denial of his motion to reconsider the Massachusetts court's ruling. He did, however, file multiple complaints in the Massachusetts state court that were returned to him in November 1996 because he failed to comply with local rules of practice. The father has also filed lawsuits in the federal courts of Massachusetts, Pennsylvania, and Illinois, naming as defendants the mother, her employer, her attorneys, Judges, and others. The father continued to file petitions and motions in the Massachusetts court throughout the pendency of the proceedings in Illinois. He also filed several petitions in the Illinois action, including a petition to set visitation. After a hearing on this petition, the Illinois court issued a temporary order permitting the mother, over the father's objections, to travel to Canada with the children for a vacation. The father subsequently filed a motion for dismissal in the Illinois court, pursuant to the Illinois version of the Uniform Child Custody Jurisdiction Act (Illinois Act) (750 ILCS 35/1 et seq. (West 1996) (enacting the Uniform Child Custody Jurisdiction Act (Uniform Act) (Uniform Child Custody Jurisdiction Act, 9 U.L.A. 115 (1988)))), section 8 of which permits dismissal on the basis of an inconvenient forum (750 ILCS 35/8 (West 1996)).

On October 20, 1997, the circuit court of Champaign County granted the father's petition to dismiss, stating that Illinois is not a proper forum for the resolution of the disputes between these parties and, further:

"The exercise of jurisdiction by this Court over these disputes is antithetical to the purpose and provisions of the [Uniform Act] and violative of [the father's] [d]ue [p]rocess rights."

The mother's motion to reconsider was denied after a hearing on February 23, 1998. The circuit court opined that the home state of the children, for purposes of the Uniform Act (Uniform Child Custody Jurisdiction Act §2(5), 9 U.L.A. 133 (1988)), is the home state of the children at the time a custody proceeding is commenced. "Otherwise," the court stated:

"[T]here is every incentive to drag out the proceeding, relocate with the children and[,] if you can stay in somewhere other than the jurisdiction in which the case is initially filed for some period of time, divest that jurisdiction of the ability to hear the case." The circuit court also explained its reasoning that the children were in Illinois under an interim order of the Massachusetts court and, although Massachusetts law did not require the mother to seek leave to remove the children, the parties' settlement agreement did require her to seek such permission. The circuit court concluded that the father's due process rights were violated by the Massachusetts court's: "granting the [mother's] request to remove based on the temporary order[,] which it then bootstrapped into a permanent order[,] and now because the children have lived in Illinois under the temporary order[,] which was now a permanent order, jurisdiction had been ceded to the State of Illinois."

The circuit court further stated that it is "prohibited from granting full faith and credit to an order that's been entered in another state *** in violation of *** due process rights":

"Massachusetts still has jurisdiction of this case on a continuing jurisdiction basis. If they [sic] want to conclude their [sic] hearing and determine that it's all right for these children to be removed to the State of Illinois and then cede jurisdiction to Illinois, I believe that to be a proper exercise of the way things are supposed to operate under the [Uniform Act]."

The mother argues on appeal that (1) Massachusetts properly declined jurisdiction and, in any event, the father failed to appeal the ruling of the Massachusetts court; (2) jurisdiction in Illinois is not barred by virtue of simultaneous proceedings in another state (750 ILCS 35/7 (West 1996)); (3) jurisdiction in Illinois is proper under section 4 of the Illinois Act (750 ILCS 35/4 (West 1996)); and (4) the purposes of the Uniform Act would be best served by Illinois assuming jurisdic-tion in this matter (750 ILCS 35/2 (West 1996)). Thus, the mother con-cludes, the circuit court abused its discretion by declining to accept jurisdiction.

The father's pro se brief does not cite the Uniform Act, any statute of Illinois or Massachusetts, or any case law of either state. He argues that the circuit court did not abuse its discretion and, alternatively, that because the mother continues to submit to the jurisdiction of the Massachusetts court by participating in proceedings there ...


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