Crawley v. Bauchens

• Decision Date: 06 August 1973
• Docket Number: No. 71--224,71--224
• Citation: 300 N.E.2d 603,13 Ill.App.3d 791
• Parties: Carolyn L. CRAWLEY, Formerly Carolyn L. Bauchens, Plaintiff- Respondent-Appellant, v. Robert N. BAUCHENS, Defendant-Petitioner-Appellee.
• Court: United States Appellate Court of Illinois

Page 603

300 N.E.2d 603

13 Ill.App.3d 791

Carolyn L. CRAWLEY, Formerly Carolyn L. Bauchens, Plaintiff- Respondent-Appellant, v. Robert N. BAUCHENS, Defendant-Petitioner-Appellee.

No. 71--224.

Appellate Court of Illinois, Fifth District.

Aug. 6, 1973.

James W. McRoberts, Jr., East St. Louis, for appellant.

Thomas Carter O'Brien, Chicago, for appellee.

EBERSPACHER, Presiding Justice:

This is an appeal from an injunction order entered by the Circuit Court of Madison County, against Carolyn Crawley pursuant to post-divorce petitions filed by Robert Bauchens, her former husband. This was a non-jury proceeding, the subject matter of which was the parties' minor child, Eric.

The parties herein were divorced in August, 1969. They had one child, Eric, who was 16 months old when the parties separated. The divorce decree of the Circuit Court of Madison County awarded custody of Eric to Carolyn, reasonable visitation to Robert, and Robert was ordered to pay $25 per week in support. For eleven months following the divorce, Robert lived near Chicago and Carolyn lived in Madison County. Carolyn allowed Robert to visit Eric whenever he asked. Robert visited three or four times for part of two or three days each time.

In March 1970, Carolyn met Major Joseph B. Crawley, a career army officer. Major Crawley had received orders in January 1970 transferring him to the Canal Zone as of April 5, 1970 for three years. Major Crawley is not a resident of Illinois but may be considered a resident of either Florida or the Canal Zone or both.

Beginning in May 1970, correspondence was exchanged between Carolyn and Robert wherein she advised him, first, that she was considering remarriage and, then, that she had decided to go to the Canal Zone and marry Major Crawley. Robert's reaction was solicited and he wrote, with regard to going to the Canal Zone, that he would not 'counter' what Carolyn felt was the proper course of action. On this basis Carolyn's lawyer advised her that it was unnecessary to petition the court for leave to remove Eric from the state. No such petition was filed. In July 1970, Carolyn and Eric went to the Canal Zone where Carolyn married Major Crawley. They have resided in the Canal Zone continuously since that time.

In May 1970, Carolyn received a letter from Robert's attorney stating that definite visitation arrangements should be made, considering her possible remarriage and residence at a distance. The suggestion was made by Robert's counsel that Eric return for several weeks in the summer to visit Robert. Carolyn and Eric did not return to Illinois from July 1970 to June 1971. On or about June 21, 1971, Carolyn advised Robert through their respective attorneys, that Eric was in Madison County and available for visitation from June 21 to June 28 and from July 5 to July 11.

A month or two after Carolyn and Eric initially went to the Canal Zone, Robert stopped paying child support. When asked about the arrearage, Robert told Carolyn he had opened a bank account for Eric with himself as trustee. Since August 1970, Major Crawley has provided the sole support of Eric.

In March 1971, Major Crawley and Carolyn saw a lawyer about Major Crawley adopting Eric. Carolyn gave her consent to the adoption. Major Crawley filed a petition for adoption March 30, 1971 in the United States District Court for the Canal Zone, together with Carolyn's consent. Notice of the adoption proceeding was served on Robert April 23, 1971. On April 30, 1971 Robert filed a petition in the Circuit Court of Madison County, Illinois for citation of Carolyn Crawley for removing Eric from Illinois to the Canal Zone ten months previously. Carolyn's motion to dismiss was denied.

June 15, 1971 Robert appeared by counsel and filed responsive pleadings in the Canal Zone adoption proceedings, challenging the jurisdiction of the United States District Court on the grounds of Major Crawley's non-residence. On July 8 and 9 1971, additional petitions were filed by Robert in the Circuit Court of Madison County to enjoin Carolyn from proceeding with the adoption in the Canal Zone, to require her to withdraw her consent filed in the adoption and to restrain her from removing Eric from Illinois. Carolyn's motions to dismiss were denied.

The trial court found that:

(1) Robert Bauchens was $1250 in arrears for child support but that such arrearage was not contemptuous;

(2) Carolyn Crawley's removal of Eric to the Canal Zone was not contemptuous.

The trial court ordered:

(1) Robert Bauchens to pay the arrears and in future pay the child support directly to Carolyn Crawley:

(2) Carolyn Crawley be enjoined from removing Eric until $2500 bond is posted, bond further conditioned on (3), (4) and (5);

(3) Eric be returned to Madison County for a one week visit in each of the months of September, December and July of every year at Carolyn's expense;

(4) Carolyn to withdraw her consent filed in the adoption proceeding in the U.S. District Court for the Canal Zone;

(5) Carolyn to do nothing further to cause or permit Eric's adoption.

These are two broad, basic issues:

(1) Did the Circuit Court of Madison County have jurisdiction of Carolyn Crawley and Eric Bauchens in this cause? and,

(2) Did the Circuit Court of Madison County have the right and authority to order Carolyn Crawley to withdraw her consent and to do nothing further to cause or permit Eric's adoption?

The initial question to be answered, the sine pua non, is whether the Circuit Court of Madison County has jurisdiction over Carolyn Crawley (formerly Bauchens), Eric Bauchens and Robert Bauchens. The answer, briefly, is that the Illinois Circuit Court maintains jurisdiction over all three. It is true that the domicile of Carolyn is that of her new husband, Major Crawley, (Hildebrand v. Hildebrand, 105 Ill.App.2d 261, 244 N.E.2d 866; U.S. ex rel. Boraca v. Schlotfeldt (7 Cir.) 109 F.2d 106). The general rule is that the domicile of a minor child of divorced parents is that of the parent to whom custody has been granted although the question would not appear to have been specifically decided in Illinois. (Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, 90 A.L.R. 924, 13 A.L.R.2d 313; State Tax Com. v. Felt, 331 Mass. 63, 117 N.E.2d 166; Bergen v. Bergen, (C.A.3) 439 F.2d that subsequent to a divorce decree, the court granting such decree retains continuing that subsequent to a divorce decree, jurisdiction of the parties with regards to children of the marriage, custody and support. (Eggemeyer v. Eggemeyer, 86 Ill.App.2d 224, 229 N.E.2d 144; Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.) Illinois courts have but recently reiterated the specific rule that a party may not avoid this continuing jurisdiction of the trial court which entered the original divorce decree by moving outside the court's geographical jurisdiction. (McClellan v. McClellan, 125 Ill.App.2d 477, 261 N.E.2d 216; Sharpe v. Sharpe, 77 Ill.App.2d 295, 222 N.E.2d 340.) Further, it is to be noted that Eric Bauchens is a ward of the Circuit Court of Madison County, Hale v. Hale, 5 Ill.App.2d 90, 124 N.E.2d 596.

Since the Circuit Court of Madison County had acquired jurisdiction over these parties, the salient interrogatory becomes whether that court had the authority to issue the orders that it did. Appellant prays that the entire order of the Circuit Court be reversed or alternatively that it be reversed in those parts (1) ordering appellant to withdraw her consent filed in the U.S. District Court in the Canal Zone, (2) ordering that she post $2500 bond to guarantee visitation and (3) ordering visitation at appellant's expense for one week at a time in the months of September, December and July in Madison County each year.

The first and third orders deal solely with issues of support and visitation. Under the Divorce Act, 40 SHA § 14, § 19, the court is given authority to fix and amend on petition visitation (custody) and child support. The court's jurisdiction over these matters, as arising out of the original divorce grant, is continuous and at least arguably exclusive. Eggemeyer, supra; Carlson, supra; McClellan, supra; Sharpe, supra; Hale, supra, respectively. The setting of the terms of support and custody (visitation) is discretionary with the court, (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Froman v. Froman, 73 Ill.App.2d 421, 218 N.E.2d 808). The general rule is that this judicial discretion is subject to review by an appellate court only for abuse thereof. (Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Scalfaro v. Scalfaro, 123 Ill.App.2d 23, 259 N.E.2d 644; Carroll v. Carroll, 116 Ill.App.2d 172, 252 N.E.2d 759.) No cases have been discovered which indicate that such a visitation order as this constitutes an abuse and certainly no cases indicate that enforcement of a child support order made in the original decree is an abuse. On the other hand, in Schmidt v. Schmidt, 346 Ill.App. 436, 105 N.E.2d 117, an order similar in terms to this circuit court's order on custody, visitation and payment therefor by the parent with custody was held not to constitute an abuse of judicial discretion. We note from the record that Carolyn Crawley testified that visitation, such as this would be 'unwise' because Robert Bauchens is a musician and is absent from home in the evenings and because of the extreme length of the journey in light of the child's tender age. However, the Report of Proceedings reveals that, Carolyn Crawley, through her attorney, agreed with the court and the defendant/appellee, Robert Bauchens, on the terms of visitation in the court's order.

The second order of the Circuit Court ordered Carolyn Crawley to post a security bond in the sum of $2500 to assure that Eric would be returned in compliance with the visitation order and to assure her compliance with the fourth and fifth orders. Under the Divorce Act, 40 SHA § 14, the court may require the party removing the child from...