Jarrett v. Jarrett

• Decision Date: 20 May 1953
• Docket Number: No. 32660,32660
• Citation: 39 A.L.R.2d 254,112 N.E.2d 694,415 Ill. 126
• Parties: , 39 A.L.R.2d 254 JARRETT v. JARRETT et al.
• Court: Illinois Supreme Court

Page 694

112 N.E.2d 694

415 Ill. 126, 39 A.L.R.2d 254

JARRETT v. JARRETT et al.

No. 32660.

Supreme Court of Illinois.

May 20, 1953.

L. A. Mehrhoff, of Carrollton, Wiseman & Chapman, of Alton, and Roberts & Kepner, of Springfield, for appellants.

John B. Harris, of Granite City, for appellee.

SCHAEFER, Chief Justice.

The sole question in this case concerns the jurisdiction of a circuit court to modify the custody provisions of a divorce decree after the death of the spouse to whom custody of the child was awarded by the decree.

A decree of the circuit court of Greene County entered on May 26, 1949, granted Nellrose Jarrett a divorce from her husband, Robert Nelson Jarrett, upon the ground of desertion, and awarded her the custody of their son, David Nelson Jarrett, then two and one-half years of age. From his birth the child lived with his maternal grandmother, Ada Boggess, and her husband, Ernest Boggess, except for a short time when he lived with his great-grandmother. Each of the child's parents remarried in 1950. The child's mother died in 1951 and his father filed a motion to amend the divorce decree to provide that custody be awarded to him until the further order of the court. The maternal grandmother and her husband filed an intervening petition seeking anorder modifying the divorce decree so as to grant the custody of the child to them. The father answered the intervening petition, evidence was heard, and an amended decree was entered awarding custody to the maternal grandmother. Upon appeal, the Appellate Court for the Third District reversed the amended decree and remanded the cause, with directions to modify the original decree and grant the custody of the child to his father. Jarrett v. Jarrett, 348 Ill.App. 1, 107 N.E.2d 622. We have granted the intervenors' petition for leave to appeal.

The contention of the intervenors is that upon the death of a party to a divorce action the proceeding terminates so far as questions relating to the custody of children are concerned, and that the court thereafter lacks jurisdiction to determine the custody of a child upon a petition filed in the original divorce action, seeking to modify or amend the divorce decree. They contend that habeas corpus is the proper remedy. This jurisdictional issue was not raised in the trial court but was urged for the first time by the intervenors in their petition for rehearing in the Appellate Court. The question of jurisdiction of the subject matter may, however, be urged at any time either in the trial court or in the reviewing courts. Martin v. Schillo, 389 Ill. 607, 60 N.E.2d 392; Burroughs v. Donner, 282 Ill. 299, 118 N.E. 400. To sustain the judgment of the Appellate Court, appellee urges that the Divorce Act has conferred upon the court granting a divorce a continuing jurisdiction to make whatever changes in the custody of the child are necessary to his welfare, and that no time limits are placed upon the exercise of this jurisdiction.

Section 18 of the Divorce Act, to the extent relevant, provides that when a divorce shall be decreed, the court may make such order with respect to the care, custody and support of children as, in the circumstances of the parties and the nature of the case, shall be fit, reasonable and just. It specifically declares: 'The court may, on application, from time to time, make such alterations in the * * * care, custody and support of the children, as shall appear reasonable and proper.' (Ill.Rev.Stat.1951, chap. 40, par. 19.) There is no express limitation of this authority to the lifetime of one or both parties to the divorce action.

The intervenors' position rests upon authorities from other jurisdictions to the effect that the court which grants a divorce decree loses jurisdiction to amend the custody provisions of the decree upon the death of one of the parties. Many courts have so held, although the result is frequently influenced by the provisions of their own constitutions or statutes. Hughes v. Bowen, 193 Okl. 269, 271, 143 P.2d 139; Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348; Lindblad v. Peterson, 119 Neb. 511, 229 N.W. 885 (guardianship proceeding); In re DeLeon, 70 Cal.App. 1, 232 P. 738 (adoption proceeding); Stone v. Duffy, 219 Mass. 178, 106 N.E. 595 (habeas corpus); Barry v. Sparks, 306 Mass. 80, 27 N.E.2d 728, 128 A.L.R. 983 (action for board and lodging furnished the child of divorced parents.) This view is described as 'the prevailing rule' in an annotation in 74 A.L.R. 1352, 1357. That annotation also states that the contrary rule is supported by decisions from five jurisdictions, including Illinois. Stafford v. Stafford, 299 Ill. 438, 132 N.E. 452, 20 A.L.R. 827. Other courts recognize, either expressly or impliedly, the continuing power of divorce courts to amend the custody provisions of their decrees after the death of one of the parties to a decree. Ellenburg v. Woodson, 131 Or. 440, 283 P. 27; Purdy v. Ernst, 93 Kan. 157, 143 p. 429; Hill v. Hill, 49 Md. 450.

Two cases give the flavor of the conflicting lines of authority. In Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 250, 74 A.L.R. 1348, a divorce decree had awarded custody of two of four children to the father and two to the mother. Following the father's death, his sister petitioned the court which had granted the decree for custody of the two children awarded to the father. The mother sought custody of all four children. An order was entered awarding the custody to a third party. The Supreme Court of New Hampshire said: 'When the joint rights of the parties were terminated by the death of the father, the problem of custody, so far as it concerned the divorce court, ceased to exist, * * *. The divorce laws gave the court no authority to consider new questions then arising, although similar in nature to those previously passed upon, nor did they make the children the permanent wards of the court. * * * For the purpose of deciding who should have the custody of the Leclerc children after the death of their father, the divorce proceeding was dead and the defendant's (mother's) exception to the attempt of the trial court to make further orders therein must be sustained.'

In Purdy v. Ernst, 93 Kan. 157, 143 P. 429, the statutory language with respect to modifying the custody provisions of a divorce decree was substantially the same as that of section 18 of our Divorce Act. After the death of the father to whom custody had been awarded by a divorce decree, the mother made a motion in the original divorce action asking that the divorce decree be modified by awarding her the custody of the child. Sustaining the propriety of that procedure, the court said: 'While the power to provide for the custody of minor children will be exercised in the first instance as a necessary incident to the granting of a divorce, the welfare of the children thenceforth becomes an independent subject, over which the court possesses a continuing jurisdiction. This jurisdiction may be invoked by any one interested in the children, or may be exercised by the court on its own motion, should...