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In re Marriage of Paula D. Blanchard

June 10, 1999

IN RE MARRIAGE OF PAULA D. BLANCHARD, PETITIONER-APPELLEE, AND JAMES C. BLANCHARD, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of McHenry County. No. 91--D--644 Honorable Sharon L. Prather, Judge, Presiding

The opinion of the court was delivered by: Justice Galasso

The respondent, James C. Blanchard, appeals from an order of the circuit court of McHenry County dismissing his petition for a rule to show cause against the petitioner, Paula D. Gill, formerly known as Paula D. Blanchard. We affirm the order of the trial court.

On August 7, 1991, a judgment for dissolution of marriage was entered dissolving the marriage of the parties. Pursuant to the terms of that judgment, custody of the parties' minor child, Destiny Nicole Marie Blanchard, was awarded to Paula. Paula was also granted the right to move to the state of Virginia. James' visitation rights with Destiny contemplated Paula's relocation to Virginia on a permanent basis.

On May 22, 1998, James filed a petition for a rule to show cause and order for the return of the child. In his petition James alleged that in 1992 Paula and Destiny had moved back to Illinois from Virginia. Subsequently, however, Paula, without leave of court, had moved with Destiny to the state of Georgia. James specifically alleged as follows:

"12. That [Paula] has removed [Destiny] in violation of the Judgment of Dissolution granting [James] visitation with [Destiny] and in prohibition of this court's orders concerning removal of [Destiny] from the state.

13. That [Paula] has wilfully and wantonly failed and refused to grant [James] reasonable visitation with [Destiny] in violation of court orders."

James further alleged that Paula had told him that she would never permit Destiny to leave Georgia no matter what the court ordered. James requested that Paula be held in contempt of court and punished for her failure to comply with the removal and visitation portions of the judgment for dissolution of marriage and that the court order that Destiny be returned to Illinois.

Paula filed a special and limited appearance and a motion to dismiss for lack of jurisdiction. In her motion, Paula alleged that pursuant to the Uniform Child Custody Jurisdiction Act (the Act) (750 ILCS 35/1 et seq. (West 1996)), Georgia, rather than Illinois, was the appropriate forum for the litigation of James' petition. In her affidavit in support of her motion to dismiss, Paula stated that Destiny and she had resided in Douglasville, Georgia since October of 1994; that since 1994, she had not been in Illinois other than in connection with Destiny's visitation periods with James; and that she had filed a motion in a Georgia court to enroll the Illinois judgment for dissolution of the parties' marriage. However, no case number or other proof that such a motion had been filed in Georgia was provided. In response, James argued that the Act was not relevant to these proceedings because custody was not at issue. In addition, he neither admitted nor denied that Paula had filed a motion to enroll the Illinois judgment for dissolution of marriage in Georgia but demanded strict proof of that fact. However, he affirmatively stated that he had not received any notice of such motion as required by law.

The trial court found that, while Illinois had jurisdiction over the issues of custody and visitation in this case, Illinois was an inconvenient forum and that Georgia was the appropriate forum for the litigation of these issues. The trial court conceded jurisdiction to Georgia pursuant to the Act. This appeal followed.

The general purposes of the Act are inter alia to (1) avoid jurisdictional competition and conflict with courts of other states in matters of child custody; (2) promote cooperation with the courts of other states to the end that a custody judgment is rendered in that state that can best decide the case in the interest of the child; (3) assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and her family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available, and that courts decline the exercise of jurisdiction when the child and his family have a closer connection with another state; and (4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child. 750 ILCS 35/2(a) (West 1996). Section 4 of the Act grants jurisdiction to circuit courts to make a child custody determination by initial or modification judgment if certain criteria are met. 750 ILCS 35/4(a) (West 1996).

The question of jurisdiction of the appellate court must be decided prior to addressing the merits of an appeal. MarCement, Inc. v. Diorio Builders, Inc., 153 Ill. App. 3d 798, 800 (1987). We have a duty to consider our jurisdiction even if the parties do not raise the issue. Ferguson v. Riverside Medical Center, 111 Ill. 2d 436, 440 (1985). This court has jurisdiction only of appeals from final orders. Nelson v. United Airlines, Inc., 243 Ill. App. 3d 795, 799 (1993). An order or judgment is final only if it terminates the litigation between the parties on the merits or disposes of the rights of the parties upon the entire controversy. First Chicago Gary-Wheaton Bank v. Gaughan, 275 Ill. App. 3d 53, 58 (1995).

In response to Paula's motion to dismiss for lack of jurisdiction, the trial court, in effect, denied the motion when it found that it had jurisdiction over the issues of custody and visitation raised in this case. However, the court then ruled that, pursuant to the Act, Georgia was the appropriate forum in which to litigate these issues. The trial court did not specifically mention that James' petition for a rule to show cause was dismissed. However, since James' petition sought to have Paula held in contempt for her actions in connection with the visitation and removal issues, the trial court's concession of jurisdiction to Georgia was tantamount to a dismissal of the petition for a rule to show cause. Therefore, we determine that we have jurisdiction of this appeal, and we turn to the issues raised therein.

James contends, first, that the Act does not extend to this cause because he is not seeking to modify the custody or visitation provisions of the original judgment; rather, he is requesting that the court exercise its contempt powers to punish Paula for violating the terms of the judgment for dissolution of their marriage.

Section 3.02 of the Act defines "custody determination" as "a court decision and court orders and instructions providing for the custody of a child, including visitation rights but such term does not include a decision relating to child support or any other monetary obligation of any person." 750 ILCS 35/3.02 (West 1996); In re Marriage of Buchanio, 262 Ill. App. 3d 910, 915 (1994). The Act further defines "custody proceeding" as "proceedings in which a custody ...


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