Godwin v. Godwin

• Court: Appellate Court of Illinois
• Writing for the Court: ALLOY
• Citation: Godwin v. Godwin, 433 N.E.2d 310, 104 Ill.App.3d 790, 60 Ill.Dec. 513 (Ill. App. 1982)
• Decision Date: 09 March 1982
• Docket Number: No. 81-498,81-498
• Parties: , 60 Ill.Dec. 513 In re the Marriage of David GODWIN, Petitioner-Appellee, v. Patricia GODWIN, a/k/a Patricia Hostens, Respondent-Appellant.

Page 310

433 N.E.2d 310

104 Ill.App.3d 790, 60 Ill.Dec. 513

In re the Marriage of David GODWIN, Petitioner-Appellee, v. Patricia GODWIN, a/k/a Patricia Hostens, Respondent-Appellant.

No. 81-498.

Appellate Court of Illinois, Third District.

March 9, 1982.

Joseph D. Sheahan, McGehee, Boling & Whitmire, Ltd., Silvis, for respondent-appellant.

Dennis A. DePorter, Braud, Warner, Neppl & Westensee, Ltd., Rock Island, for petitioner-appellee.

ALLOY, Justice:

This is an appeal from an order of the trial court placing custody of the parties' nine-year-old son with the petitioner, David Godwin.

David and Patricia Godwin were divorced in May of 1977. In December of 1977, the trial court awarded custody of the couple's minor son, Bruce, to Mrs. Godwin (now Mrs. Hostens). The court also ordered extensive visitation rights to Mr. Godwin. In the time between the divorce and the original custody hearing, both parties remarried.

In April, 1981, Mr. Godwin filed a petition to modify the custody order. Ten days later he filed an amended petition to modify the custody order. The petitioner claimed circumstances and facts materially changed since entry of the original order. He asserted that: The respondent moved to Florida with the child without the court's permission; the child lives with stepsiblings that have been convicted of crimes, producing a harmful home environment; the child witnessed acts of violence between the respondent and her second husband and the stepsiblings; the child failed one grade in school; the child committed retail theft while under the supervision of Mrs. Hostens; the child is now combative, abusive and depressed due to his present home environment; and Mrs. Hostens is neglecting the child by failing to properly clothe and feed him. Mr. Godwin asked the court to change custody in his original petition. In his amended petition, he reiterated his allegations, and also asked the court to prohibit Mrs. Hostens from leaving Illinois with the child.

The sheriff of Rock Island County personally served the original petition to modify on Mrs. Godwin at the Rock Island County Courthouse on April 16, 1981. A hearing on the petition was set for May 28, 1981. The record is unclear as to service of the amended petition. Mrs. Hostens was with her attorney, Lane Evans, at the time she was served. She immediately retained him in this matter, and he later entered an appearance on her behalf.

On the day of the hearing, Evans told the trial court the respondent asked him to obtain a continuance. The record indicates she wanted time to arrange to return from Florida for the hearing. Evans also told the court, however, that he agreed with opposing counsel to proceed with the hearing. Evans stated he tried to reach Mrs. Hostens by telephone, but her number was disconnected. Evans also sent a letter to her by express mail two days before the hearing. Apparently, Mrs. Hostens had not contacted him by the date of the hearing. The court treated Evans's statement as a motion for a continuance and denied it.

The trial court suggested to Mr. Godwin's counsel that he call the petitioner and simply have him swear that the allegations in the petition are true. Counsel took this suggestion, directed his client's attention to the petition and had him state the allegations were true. Mr. Godwin added he and a private detective investigated this case, and that this investigation supported his conclusions. The court gave respondent's counsel an opportunity to cross-examine, but he did not do so. The petitioner had additional witnesses at the courthouse, but chose to rest his case. The respondent called no witnesses and made no final argument.

The trial court ordered a change in custody from Mrs. Hostens to Mr. Godwin. Subsequently, the trial court rejected motions to vacate the order and to stay enforcement of the order. The respondent, Mrs. Hostens, now appeals.

The respondent challenges the jurisdiction of the court to make a change in custody. She claims none of the jurisdictional bases outlined in the Uniform Child Custody Jurisdiction Act, Ill.Rev.Stat.1979, ch. 40, par. 2104(a) are satisfied in this case. In support of the contention, she argues there is nothing in the record indicating Illinois is the child's home state or had been the home state within six months prior to the motion for modification. In addition, she argues there is no significant connection with Illinois, no abandonment and no emergency situation apparent from the record.

It is true that this record is deficient in many respects. The record does indicate, however, that the respondent removed herself and the child from this State without the court's permission. One of the stated purposes of the Act is to deter such unilateral action by a parent. (Ill.Rev.Stat.1979, ch. 40, par. 2102(a)5.) If a court lost its jurisdiction because of such actions, the respondent would subvert the clear intention of the General Assembly as well as profit from her own misbehavior. This cannot be condoned. On the record before us, therefore, the trial court properly exercised jurisdiction.

The respondent next challenges the trial court's refusal to grant a continuance in this case. A motion for continuance is addressed to the discretion of the court and its decision is reversible only for abuse of that discretion. (Ruskin v. Rodgers (1979), 79 Ill.App.3d 941, 954, 35 Ill.Dec. 557, 399 N.E.2d 623.) In the case at bar, the respondent did not ask for a continuance until the day of the hearing. Respondent's counsel made no claim that he was unprepared. In fact, he indicated he was ready to proceed with the hearing. The petitioner assembled his witnesses in anticipation of a hearing. Respondent claims she needed time to arrange to be at the hearing. She had six weeks, however, to make such arrangements. Additionally, the court noted that her move to Florida without the court's permission is one of the allegations against her. A continuance on the ground that respondent was in another State would, again, permit her to benefit from her own misbehavior. The trial court did not abuse its discretion in...