Custody of Sexton, In re

• Decision Date: 18 March 1981
• Docket Number: No. 53424,53424
• Citation: 49 Ill.Dec. 709,418 N.E.2d 729,84 Ill.2d 312
• Parties: , 49 Ill.Dec. 709 In re CUSTODY of Charles SEXTON. (Donnie E. SEXTON, Appellant, v. Janice S. SEXTON, Appellee).
• Court: Illinois Supreme Court

Page 729

418 N.E.2d 729

84 Ill.2d 312, 49 Ill.Dec. 709

In re CUSTODY of Charles SEXTON (Donnie E. SEXTON, Appellant, v. Janice S. SEXTON, Appellee).

No. 53424.

Supreme Court of Illinois.

March 18, 1981.

Kritzer, Stansell, Critser & Whitman, Monmouth (Greg McClintock, Monmouth, of counsel), for appellant.

West Central Ill. Legal Assistance, Galesburg (Michael J. Mannino, Galesburg, of counsel), for appellee.

CLARK, Justice:

This case involves the validity of a child-custody modification under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 610). At the time of plaintiff's and defendant's divorce, custody of their son was awarded to defendant, Janice S. Sexton. After a hearing on plaintiff Donnie E. Sexton's subsequent petition for modification of the custody decree, the circuit court of Warren County found in part that "(t)he minor child's present environment endangers seriously his mental, moral and emotional health and the harm likely to be caused by a change in environment is outweighed by its advantages to the minor child." Accordingly, the divorce decree was modified and custody of the child was awarded to the plaintiff.

Defendant appealed the decision of the trial court, contending that the decision was against the manifest weight of the evidence, but a divided appellate court found (82 Ill.App.3d 482, 37 Ill.Dec. 887, 402 N.E.2d 889), sua sponte, that the trial court's decision was void because plaintiff had failed to file affidavits as required by section 610(a) of the Act (Ill.Rev.Stat.1977, ch. 40, par. 610(a)). We granted leave to appeal. We reverse.

The parties were divorced on August 10, 1976. Custody of their minor son was awarded to the defendant, Janice S. Sexton. On December 16, 1976, defendant's motion (agreed upon by both parties) to modify the visitation requirements was granted. (The motion's catalyst was a dispute, resulting in the filing of disorderly conduct charges against both parties, which arose on one occasion when plaintiff exercised his visitation privileges.)

On April 25, 1977, plaintiff petitioned to modify the decree. Alleging in a verified complaint that defendant was not a fit and proper person to care for the child, plaintiff prayed that the care, custody, and control of the child be awarded to him, with visitation rights granted to defendant. On that same day, a guardian ad litem was appointed for the child by the court. Defendant's motion for a continuance was granted over plaintiff's objection. Defendant petitioned for a rule to show cause on December 19, 1977. The court found, after a hearing on December 28, 1977, that plaintiff had not complied with the divorce decree, in that he had temporarily retained custody of the child against defendant's wishes, but it did not find plaintiff in contempt of court. At the same time, the guardian ad litem's motion to appoint the Warren County juvenile probation office to make an investigation of the parties was granted.

Defendant's answer and affirmative response to the petition to modify the decree was filed on March 27, 1978. On April 25, 1978, a hearing was held. After an objection was sustained as to evidence regarding occurrences happening after the date of plaintiff's petition, plaintiff moved for a continuance, and leave was granted for him to file an amended petition. The amended petition, filed on May 9, 1978, and verified by the plaintiff, stated in pertinent part:

"3. The present environment for Charles (the minor child) endangers seriously his physical, mental, moral and emotional health such that it is in his best interests that a change of custody to Donnie be made based on the following:

a. On October 22, 1976, Janice took Charles with her to the First Street Tap, a tavern, where they stayed for several hours while she consumed alcoholic beverages.

b. On October 22, 1976, Charles had fallen and received several stitches and despite his injury and contrary to his well-being Janice took Charles to the First Street Tap as alleged in Paragraph 3(a).

c. That on several occasions Janice has been late in dropping Charles off for visitation or picking him up for visitation, as much as one day late.

d. In the summer of 1977, Janice Sexton took Charles to C. J.'s Pub, a tavern, in Monmouth, Illinois, where she stayed for over an hour and consumed alcoholic beverages.

e. On October 27, 1977, Janice brought Charles to Donnie in a state of health which necessitated that Donnie take Charles to Community Memorial Hospital in the early morning hours of October 28, 1977, where Charles was hospitalized with pneumonia for six days.

f. While Charles was in the hospital as set out in Paragraph 3(e) Janice came to visit Charles for no more than 5 minutes per day with the exception of Sunday when she stayed with Charles for approximately 15 minutes.

g. During the winter of 1977-1978, Charles has consistently had colds while in Janice's custody and would be delivered to Donnie for visitation without medication.

h. In March of 1978, Janice was hospitalized at Community Memorial Hospital for a period of approximately one week during which time she refused to disclose to Donnie the whereabouts of his son, Charles, and told him that Chuck's well-being was none of Donnie's business.

i. While in the custody of Janice, Charles has been neglected, in that he is not properly washed, does not have clean clothes and is not properly fed.

j. While in the custody of Janice, Charles has received scratches and bites about the face, head, ears, and hands apparently from a dog.

k. Since at least October of 1977, to the present Janice has lived in an open and notorious relationship with another man not her husband, to-wit: Gary Peterson.

l. In open court, while under oath, Janice committed the criminal offense of perjury on December 22, 1977, in that she lied when she said that she did not at that time live with Gary Peterson.

m. Gary Peterson, with whom Janice lives, has a serious criminal record as shown by the records of the Warren County Circuit Clerk, and has, in fact served time in prison for the offense of forgery and is currently on parole.

4. The petitioner, Donnie, has remarried and can provide a suitable home for Charles.

5. Courtney Cox, an officer of the Court, has conducted an investigation of the homes and persons of Donnie E. Sexton and Janice S. Sexton and found that it is in the best interests of Charles that custody of Charles be changed to Donnie.

WHEREFORE, Donnie E. Sexton, asks that the Court enter an Order modifying the Decree to provide that the custody, care and control of Charles be placed with Petitioner."

A response to this amended petition was filed on May 19, 1978, and hearings were held on June 15 and 19 of that year. No objections to this petition grounded on the affidavit requirement of section 610(a) were ever filed in this case by the defendant or the guardian ad litem. The order changing custody was signed on June 20, 1978, after which the instant appeals were taken.

Section 801(b) of the Act (Ill.Rev.Stat.1977, ch. 40, par. 801(b)) provides for the Act's application "to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered." Subsection (c) of this same section (Ill.Rev.Stat.1977, ch. 40, par. 801(c)) specifically indicates that the new act is applicable "to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act." The effective date of the Act, October 1, 1977, fell between the filing of the original and the amended petition in this case. Here, no judgment was rendered on the plaintiff's original motion for custody modification before October 1, 1977. Therefore, we must apply the new act.

The provision of the new act primarily at issue is section 610(a) (Ill.Rev.Stat.1977, ch. 40, par. 610(a)), which states: "No motion to modify a custody decree may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health." Section 610(a) parallels section 409(a) of the Uniform Marriage and Divorce Act (9A Unif.Laws Ann. sec. 409(a) (1973).) It represents a legislative policy strongly favoring the finality of child-custody judgments. See In re Custody of Harne (1979), 77 Ill.2d 414, 420-21, 33 Ill.Dec. 110, 396 N.E.2d 499.

Defendant contends, and the appellate court held, that the affidavit requirement of section 610(a) was jurisdictional and, therefore, that the trial court's modification order was void. This section is a mandatory, rather than a directory, provision, because the consequence of noncompliance, that the child-custody modification motion be disallowed, is clearly provided in the Act. (See Hernandez v. Department of Labor (1981), 83 Ill.2d 512, 48 Ill.Dec. 232, 416 N.E.2d 263; Zimmerman Brush Co. v. Fair Employment Practices Com. (1980), 82 Ill.2d 99, 106, 44 Ill.Dec. 308, 411 N.E.2d 277, and authorities therein cited.) Holding the provision mandatory, however, does not establish that section as a jurisdictional requirement in the sense that it cannot be waived. See, e. g., Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1978), 71 Ill.2d 61, 68-69, 15 Ill.Dec. 623, 373 N.E.2d 1307 (mandatory statutory provision subject to waiver).

"Jurisdiction is of two kinds, jurisdiction of the subject matter and of the person, and both must concur or the judgment will be void in any case in which a court has assumed to act. The difference is that jurisdiction of the subject matter is given by law and cannot be conferred by consent, but jurisdiction of the person may be obtained by consent." (Rabbitt v. Frank C. Weber & Co. (1921), 297 Ill. 491, 497, ...