Faris v. Faris, 39767

Citation220 N.E.2d 210,35 Ill.2d 305
Decision Date23 September 1966
Docket NumberNo. 39767,39767
PartiesWilam FARIS, Appellee, v. Harry FARIS, Appellant.
CourtSupreme Court of Illinois

Theodore L. Anderson, Sycamore, for appellant.

HERSHEY, Justice.

Wilma Faris filed a petition in the circuit court of De Kalb County for writ of Habeas corpus to secure from her former husband, Harry Faris, their three-year-old daughter, Wendy Faris. Upon respondent's failure to produce the child as ordered by the trial court, he was adjudged in contempt and ordered committed to the county jail pending compliance. Claiming violation of his constitutional rights, respondent has appealed directly to this court.

It appears that the parties were married in Tulsa, Oklahoma, in 1961, and later moved to De Kalb County, Illinois, where they resided with their two children until November 1964, when petitioner returned to Oklahoma with only one of her daughters, leaving Wendy with respondent in Illinois. On August 3, 1965, after a third child had been born of the marriage, petitioner instituted a suit for divorce in Oklahoma and a divorce decree was entered on Septembr 20, 1965. The Oklahoma decree found that service of process upon respondent had been obtained by publication and granted custody of all three children to the mother. Shortly thereafter petitioner resumed her residence in Illinois and on November 2, 1965, commenced the instant Habeas corpus proceeding.

Pursuant to the petition, a writ of Habeas corpus issued directing respondent to produce Wendy Faris in open court on November 4, 1965. He entered his unqualified appearance on November 5 and at the same time moved to quash the writ on the principal ground that the Oklahoma court had at no time acquired jurisdiction over the person of respondent or Wendy Faris. Upon denial of his motion to quash, respondent filed his return to the writ of Habeas corpus, stating that on May 6, 1965, he had surrendered the custody and control of said child to Reverend and Mrs. George Karney of Bristol, Connecticut, whereupon the court ordered respondent to produce her in open court on November 12. When he refused to comply, he was found in contempt of court.

It has long been established that Habeas corpus is a proper proceeding to determine the custody of minor children. (People ex rel. O'Connell v. Turner, 55 Ill. 280; Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 158 N.E.2d 613.) And although divorce decrees of sister States, and their related child custody determinations, will be given full faith and credit if based upon proper jurisdictional ground, (People ex rel. Koelsch v. Rone, 3 Ill.2d 483, 121 N.E.2d 738) our courts are not precluded from further considering such matters where the foreign court did not have proper jurisdiction over the parties, or where circumstances have arisen since the divorce which would warrant a review of the custody issue. (People ex rel. Stockham v. Schaedel, 340 Ill. 560, 173 N.E. 172; May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221; 16 I.L.P., Divorce, § 244.) When the latter issue is reconsidered by our courts, the best interest of the child is of prime consideration. Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 158 N.E.2d 613.

The instant petition for writ of Habeas corpus, in addition to pointing out the Oklahoma child custody determination, alleged that 'said child is of tender years and requires a mother's care for her proper upbringing, and that petitioner is financially able to adequately care for, support, maintain, and educate said child, and that she is a woman of good moral character.' When appearing before the trial court on November 5, respondent maintained that the Oklahoma decree was void insofar as it related to this child's custody, whereupon the court, in accordance therewith, ruled that it was 'not bound to award the custody in accordance with the decree' but would 'hear the case here and determine what is for the best interests of this child.' The court went on to say, however, that if such a hearing was to be held 'then this court has got to insist on the production of the body of this child here.' Respondent's counsel in open court indicated that his client wished to proceed with hearing in the Illinois court, and respondent was then ordered to appear with the child for hearing on November 12. However, the child was not produced at the subsequent hearing and, upon inquiry by the court, counsel stated it was their opinion that the Illinois court was without jurisdiction and need not be obeyed, whereupon the following remarks occurred between the court and respondent:

'THE COURT: As far as this court is concerned, having this matter before it, the court is compelled to insist that this child be presented here, and I am giving you an opportunity to bring the child in here and have a full and complete hearing here in this court. * * * What do you intend to do? Do you intend to bring this child in here or not?

'THE DEFENDANT: Your Honor, the answer is 'No,' I do not intend to bring the child to Illinois until I am instructed to do so by my attorney.'

In view of the fact that the Illinois court had decided not to be bound by the Oklahoma decree, but rather to conduct a full hearing upon the child custody issue, it is unnecessary for us to determine the validity of the divorce decree. Rather, the principal question now presented is whether, under the facts of the case, a contempt occurred in the Illinois court.

One is justified in refusing to comply with a court order only if such order is utterly void, but it is no defense in a contempt proceeding to show that the order was merely erroneous. (Cummings-Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368, 54 N.E.2d 462; 12 I.L.P., Contempt, § 31.) If the court had jurisdiction of the subject matter and of the parties to the proceeding, then its order must be obeyed until such time as it is set aside by the issuing or...

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    ...matter jurisdiction refers to the power of the court to adjudge concerning the general question involved (see Faris v. Faris (1966), 35 Ill.2d 305, 309, 220 N.E.2d 210), as well as the power to grant the particular relief requested (People ex rel. Rice v. Appellate Court (1971), 48 Ill.2d 1......
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