Ehr v. Ehr

Decision Date19 October 1979
Docket NumberNo. 78-249,78-249
Citation396 N.E.2d 87,77 Ill.App.3d 540,33 Ill.Dec. 11
Parties, 33 Ill.Dec. 11 Jackie M. EHR, Appellant, v. Allen B. EHR, Appellee.
CourtUnited States Appellate Court of Illinois

Cooper & Cooper, Richard L. Cooper, Geneva, for appellant.

Murphy, Griffin & Dixon, Patrick J. Dixon, Aurora, for appellee.

SEIDENFELD, Justice:

The respondent, Jackie M. Ehr, appeals from an order which modified a decree of divorce by transferring custody of Todd Ehr, the minor child of the parties, from her to the petitioner, Allen B. Ehr. She raises questions of the jurisdiction of the trial court and alternatively contends that the judgment is against the manifest weight of the evidence.

The parties were married in 1973. Todd, the only child of the marriage, was born November 15, 1974. On November 5, 1975, the marriage was dissolved by a decree in the Circuit Court of Kane County and the custody of Todd was awarded to the respondent, mother. The child lived with her in Kane County until they moved to Texas; and on the mother's petition an agreed order was entered in Kane County on September 17th, 1976, permitting respondent to remove the child to Texas with visitation rights being granted to the father. The father filed a motion on December 17, 1976 seeking, among other things, a change in custody. The motion alleged that respondent had "not cooperated in or permitted visitation", had "placed the minor child in an immoral climate" and had "permitted the child to remain unattended and unsupervised." The only evidence presented at the hearing, however, concerned petitioner's plans and capacity to care for the child and his unsuccessful efforts to contact respondent. The trial judge found this insufficient to justify a modification and denied the motion on February 9, 1977.

The petitioner filed another motion for change of custody on October 28, 1977, alleging that respondent led a "vagabond life with no stable residence," resided in a "crowded environment * * * not conducive to early child development", and openly lived with a man in a relationship that is "adulterous and deleterious to the moral education of the child." In support of the allegation of promiscuity, Susan Reichardt testified that she lived with respondent and the child in a mobile home in Aurora from September 19, 1975 until March, 1976. She testified that a number of men visited respondent during this time and that respondent had sexual relations with at least two of them on several occasions when the child was present. She also testified that she observed respondent smoking marijuana about six times in the presence of Todd. Respondent admitted to living with her present husband, Kenneth Bufkin, from June 22, 1976, until their marriage in October of 1977.

As to the allegations of a "crowded environment", respondent testified that she and her child shared a two bedroom, one bath apartment with four other adults from May, 1976 until July, 1977. Respondent, her husband and Todd shared one bedroom, while her brother and his wife shared the other bedroom. Respondent's mother slept on the couch. Respondent moved out of the apartment and into a three bedroom, two bath home in July, 1977. She lived in this home at the time of the hearing with Todd, Kenneth Bufkin and an infant Holly to whom she gave birth in September, 1977.

At the conclusion of the hearing, the trial judge found that there had been a change in circumstances and that modification of the original decree was in the child's best interests. An order was entered on October 28, 1977 transferring custody to petitioner from which this appeal has been taken.

Since the petition for modification was filed and heard after October 1, 1977, the case is governed by the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 801(a), (b).) We therefore consider the question of jurisdiction pursuant to that Act. Section 601(a) of the Act (Ill.Rev.Stat.1977, ch. 40, par. 601(a)) provides that Illinois Courts have "jurisdiction to make a child custody determination by initial or modification judgment" if:

"(1) this State is the home state of the child at the time of commencement of the proceedings, or had been the child's home state within 6 months before the commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this State; or

(2) it is in the best interest of the child that a court of this State assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child's present or future care, protection, training and personal relationships; or

(3) the child is physically present in this State and has been abandoned, or is neglected or dependent, or it is necessary in an emergency to protect him because he has been subject to or threatened with mistreatment or abuse; or

(4) no other state has jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on its determination that this State is the more appropriate forum to determine custody of the child; and it is in the child's best interest that the court assume jurisdiction."

Section 601(a) is virtually identical to the Uniform Child Custody Jurisdiction Act (UCCJA) provisions on jurisdiction. (Sec. 3(a)) 9 U.L.A. 122 (1979). Decisions in other states which have adopted the Uniform Act have supported the view that jurisdictional requirements should be met at the time a modification petition is filed even if the same court rendered the original decree. (In Re Marriage of Settle, 276 Or. 759, 556 P.2d 962 (1976); Clark v. Superior Court, 73 Cal.App.3d 298, 140 Cal.Rptr. 709 (1977); Bosse v. Superior Court, 89 Cal.App.3d 440, 152 Cal.Rptr. 665 (1979).) While prior legislation in Illinois has been interpreted by Illinois courts to provide continuing jurisdiction with regard to child custody in the court initially entering the custody decree (See, e. g., Wells v. Wells, 36 Ill.App.3d 91, 94, 343 N.E.2d 215 (1976)), the new Act appears to require that jurisdiction must be separately tested in connection with the modification petition by the reference in Section 601 to "initial or modification judgment". It would therefore appear that a legislative intention similar to that described in the cases under the Uniform Act would apply.

The intention of the framers of the Uniform Act has been stated "That question was resolved by Professor Bodenheimer, the reporter for the committee which prepared the uniform law, as follows: 'A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in state B may not hear the wife's petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the "home state" under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years.' (Bodenheimer, Uniform Child Custody Jurisdiction Act (1969) 22 Vanderbilt L.Rev. 1207, 1237.)" Clark v. Superior Ct. In And For County of Mendocino, 140 Cal.Rptr. at 713.

Clark in a footnote also quotes from the "Commissioners' Note" to the Uniform Act as stating in part:

" 'Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law. Courts in other states have in the past often assumed jurisdiction to modify the out-of-state decree themselves without regard to the preexisting jurisdiction of the other state. (Citation.) In order to achieve greater stability of custody arrangements and avoid forum shopping, subsection (a) declares that other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3. The fact that the court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.' (9 U.L.A., supra, p. 122.)" Clark v. Superior Ct. In And For County of Mendocino, 140 Cal.Rptr. at 713.

The courts in interpreting the Uniform Act in the light of its purposes and the Commissioners Notes and Comments have found a clear preference for exercising continuing jurisdiction in cases where there is any significant connection remaining with the home state at the time the modification is sought. For example, in Carson v. Carson, 565 P.2d 763, 767 (Or.App.1977), Aff'd 282 Or. 469, 579 P.2d 846 (1978), a California divorce decree awarded custody to the father. Subsequently, father and child became residents of Oregon, while the mother remained a resident of California. In June, 1976, the child was sent to California for an agreed two month visit with the mother. When the father picked up the daughter to return her to Oregon, he was served with the mother's motion to modify the custody decree in the Superior Court of California. That court granted custody to the mother and four days later the father began custody proceedings in Oregon. In affirming the trial court's...

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