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IN re Marriage of Lange v. Lange

September 03, 1999


Appeal from Circuit Court of Edgar County No. 93D96 Honorable Richard E. Scott, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH


Petitioner Susanna M. Lange, n/k/a Susanna M. Wassill (Susanna), appeals an order of the circuit court of Edgar County denying her petition to move the parties' minor children, Anna Louise Lange, born October 16, 1990, and James Albert-Galen Lange, born October 15, 1992, from Indiana to Texas. Susanna had custody of the children pursuant to a judgment of dissolution of her marriage to respondent Gayle A. Lange (Gayle), entered January 21, 1994. The only issue raised on appeal by Susanna is whether the trial court's findings were against the manifest weight of the evidence or, in the alternative, the trial court improperly considered the "necessity" of Susanna's move to Texas. We affirm.

The parties and this court are familiar with the facts, and only those facts necessary to an understanding of this court's Disposition will be discussed.

Although no court from another state has asserted jurisdiction and the parties have never challenged the trial court's jurisdiction or that court's authority to enter an order regarding removal of the children from Indiana to Texas, the Dissent addresses the issue, necessitating that this question be addressed. See In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994) (an order or judgment is void if the trial court lacked (1) jurisdiction of the subject matter or over the parties or (2) the inherent power to make or enter the order); In re Marriage of Fields, 288 Ill. App. 3d 1053, 1056-57, 681 N.E.2d 166, 169 (1997). The judgment of dissolution awarded custody to Susanna, subject to visitation agreed to in the marital settlement agreement. The judgment recited that Susanna resided in Terre Haute, Indiana, and Gayle resided in Metcalf, Illinois. The judgment further stated, "This court retains jurisdiction of this cause for the purpose of enforcing the terms of this Judgment of Dissolution of Marriage." The marital settlement agreement did not specify the visitation rights of Gayle except to say that he was entitled to "reasonable visitation *** with the restriction that no overnight visitations will be allowed without first acquiring approval of" Susanna. The testimony of the parties established that, by agreement, Gayle's visitation immediately following the dissolution of marriage was exercised weekly at Susanna's house. Sometime in 1996, after Susanna felt the children could handle overnight visitation, Gayle exercised visitation on Saturday and Sunday every other week, although he had requested the children from 5 p.m. Friday to 6 p.m. Sunday. The only periods of "extended" visitation exercised by Gayle were two 4-day periods in the summer of 1997; 10 days during the Christmas season in 1997 when Susanna visited her friend in Houston, Texas; and 11 days in July 1998 when Gayle and his fiancée, Barbara Windmiller, took the children to Orlando, Florida.

On July 11, 1998, Susanna filed a pleading entitled "MOTION FOR LEAVE TO REMOVE MINOR CHILDREN." The prayer for relief asked that (1) she be allowed to move the children to Texas, (2) visitation be modified "as the Court deems appropriate," and (3) the court grant other relief it deems appropriate. The petition alleged that "visitation can be adjusted to allow for extensive visitation for summertime and over extended holiday periods."

Even though the children were residing with Susanna in Terre Haute, Indiana, at the time the petition was filed, the trial court had jurisdiction. The trial court had jurisdiction of the parties. Both appeared and participated in the proceedings instituted in the trial court by Susanna. With regard to subject-matter jurisdiction, a circuit court has continuing jurisdiction in child custody matters such that the revestment doctrine need not be utilized. In re Marriage of Oertel, 216 Ill. App. 3d 806, 813-14, 576 N.E.2d 435, 441 (1991). The rationale in Oertel relied on section 601(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 601(a) (now 750 ILCS 5/601(a) (West 1996))). Section 601(a) of the Marriage Act in turn refers to section 4 of the Illinois Uniform Child Custody Jurisdiction Act (Illinois Act) (750 ILCS 35/4 (West 1996)). Section 4(b) of the Illinois Act provides:

"A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois." 750 ILCS 35/4(b) (West 1996). Section 4(b) is not part of the Uniform Child Custody Jurisdiction Act (Uniform Act) (Uniform Child Custody Jurisdiction Act, 9 U.L.A. 115 (1988)) and is unique to Illinois. See In re Marriage of Bueche, 193 Ill. App. 3d 594, 599-600, 550 N.E.2d 48, 51-52 (1990) (a Michigan court's declared retention of jurisdiction was not deemed effective to prevent an Illinois court from obtaining jurisdiction of a child living in Illinois).

In the case at bar, the judgment of dissolution expressly stated the circuit court of Edgar County retained jurisdiction for enforcement of the judgment. That judgment did not concede jurisdiction to any other state, and Gayle remained a resident of Illinois. On that basis alone, the trial court had subject-matter jurisdiction. See In re Marriage of Stafeil, 169 Ill. App. 3d 630, 634-35, 523 N.E.2d 1003, 1005-06 (1988) (courts once having obtained jurisdiction do not lose it unless it is conceded to a foreign state, and it was undisputed that the Illinois court never conceded jurisdiction). This court in In re Marriage of Arulpragasam, 304 Ill. App. 3d 139, 146, 709 N.E.2d 725, 730 (1999), in referring to the Illinois Act, stated: "Under the Uniform Act, it is possible for several states to have jurisdiction. '[T]he first such [s]tate to exercise jurisdiction has the exclusive right to proceed.' In re Marriage of Schoeffel, 268 Ill. App. 3d 839, 843, 644 N.E.2d 827, 830 (1994). The first step in a case arising under the Illinois Act is for the circuit court to determine whether jurisdiction is possible under one of four bases (750 ILCS 35/4(a) (West 1996)); only after this has been done will the circuit court decide whether the court of another state is a more appropriate forum."

Here, the parties never questioned jurisdiction of the Illinois court, and no simultaneous proceedings existed in courts of other states (see 750 ILCS 35/7(a) (West 1996)).

In addition, section 4(a)(2) of the Illinois Act gives the trial court jurisdiction if it is in a child's best interests that the Illinois courts assume jurisdiction because (1) the child and at least one contestant have a significant connection with Illinois and (2) substantial evidence is available in Illinois concerning the child's present or future care, protection, training, and personal relationships. 750 ILCS 35/4(a)(2) (West 1996). The significance of the connections and the substantialness of the evidence are questions to be decided in the event one of the parties challenges the jurisdiction of the trial court. Here, whether significant connections and substantial evidence exist that are sufficient to confer jurisdiction is never raised in the circuit court, and the custodial parent has conceded the question of the trial court's jurisdiction by filing the petition in a circuit court in Illinois.

Furthermore, the evidence that was presented in this case would support a finding of jurisdiction under section 4(a)(2) of the Illinois Act: (1) the children's father is a lifetime resident of Illinois; (2) the children visit him in Illinois on a regular basis; (3) numerous extended family members with whom the children have close relationships live in Illinois; (4) the parties lived in Illinois during their marriage; (5) the children lived in Illinois until the dissolution of their parents' marriage; and (6) an Illinois court dissolved the marriage and made the original custody and visitation determinations. Five of the seven witnesses who testified in this matter were Illinois residents. Although the mother and children lived in Indiana, their home and those of the mother's principal witnesses were less than an hour's drive from the father's Illinois home.

In re Marriage of Kitchen, 126 Ill. App. 3d 192, 467 N.E.2d 344 (1984), is helpful. In Kitchen, nobody lived in Illinois. The dissolution was obtained in the circuit court of Bureau County, Illinois. Subsequently, the non-custodial father moved to Texas. The custodial mother took the daughter to Nebraska and then filed a petition seeking authorization for removal from Illinois in the circuit court of Bureau County. The father tried to get a Texas court to take jurisdiction, but the Texas court deferred to the Illinois court. The Kitchen court held that the circuit court of Bureau County had jurisdiction. Kitchen, 126 Ill. App. 3d at 196-97, 467 N.E.2d at 348. In Kitchen, nobody tried to invoke the jurisdiction of a Nebraska court, and here nobody tried to invoke the jurisdiction of an Indiana or Texas court. See also In re Marriage of Ballegeer, 236 Ill. App. 3d 941, 942, 602 N.E.2d 852, 853 (1992) (at the time of the agreed order allowing removal of the children from Illinois to Iowa, the parties agreed that jurisdiction would remain with the courts in Illinois).

Finally, if all else fails, the parties have revested the trial court with jurisdiction. In In re Marriage of Demond, 142 Ill. App. 3d 134, 137, 491 N.E.2d 501, 504 (1986), the court discussed the revestment of jurisdiction doctrine as follows:

"[L]itigants may revest a court which has general jurisdiction over the matter with both personal and subject[-]matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. (People v. Kaeding (1983), 98 Ill. 2d 237, 240, 456 N.E.2d 11, 14.) 'In order for the rule to apply, the parties must actively participate without objection in ...

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