Kelly v. Warner

• Decision Date: 09 November 1983
• Docket Number: No. 3-83-0236,3-83-0236
• Citation: 460 N.E.2d 329,77 Ill.Dec. 273,119 Ill.App.3d 217
• Parties: , 77 Ill.Dec. 273 Daniel F. KELLY, Petitioner-Appellant, v. Diane WARNER, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 329

460 N.E.2d 329

119 Ill.App.3d 217, 77 Ill.Dec. 273

Daniel F. KELLY, Petitioner-Appellant, v. Diane WARNER, Respondent-Appellee.

No. 3-83-0236.

Appellate Court of Illinois Third District.

Nov. 9, 1983 Motion for Supervisory Order Denied by the Supreme Court, Jan. 17, 1984.

Daniel F. Kelly, Indianapolis, Ind., for petitioner-appellant.

Florence L. Bennett, Peoria, for respondent-appellee.

HEIPLE, Justice:

This is the second time this case has come before us. On August 23, 1977, a Peoria County circuit court entered an order dissolving the marriage of Daniel and Diane Kelly. Custody of the couples' two children was given to Diane who remarried and, with the court's permission, moved to Indianapolis, Indiana in August of 1981. Daniel's visitation rights were modified accordingly.

Diane filed her own motion to modify visitation and on December 1, 1981, the court entered an order reducing the visitation rights of Daniel Kelly who appealed to this court.

In an unpublished order, we reversed the trial court holding that the modification of visitation was unreasonably restrictive and manifestly unjust to Mr. Kelly. (Warner v. Kelly, 109 Ill.App.3d 1220, 71 Ill.Dec. 890, 451 N.E.2d 1044 (1982)). Recognizing that some adjustment in the visitation schedule was necessary, we remanded the cause for further proceedings in accord with our opinion. The trial court was directed to hear additional evidence in order to take into account any changed circumstances since the last hearing.

On remand, Diane Warner moved to have jurisdiction transferred to Marion County, Indiana because all of the parties now lived in Indiana. Daniel had moved to Indianapolis in June of 1982. The court granted the motion finding it no longer had jurisdiction and that Peoria was an inconvenient forum. Mr. Kelly appeals arguing that the court did not lose its jurisdiction and that by transferring the cause, the trial court failed to obey our mandate on remand. We reverse.

The first question is whether the court was deprived of jurisdiction in this matter because all of the parties live in another state. If the trial court no longer had jurisdiction, it was powerless to act. Therefore, transfer of the cause would not have been contrary to our mandate.

The trial court found that it had lost jurisdiction pursuant to the terms of sections 4(b) and 8 of the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA) (Ill.Rev.Stat.1981, ch. 40, pars. 2104(b) and 2108). Section 2104(b) provides that:

"(b) A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois."

Jurisdiction to enter the custody modification order of December 1, 1981, was obtained pursuant to section 2104(a)(1)(ii):

"2104. Jurisdiction

§ 4. Jurisdiction. (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

* * * (ii) had been the child's home state within 6 months before 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 reasons, and a parent or person acting as parent continues to live in this State; or * * *."

The court also found that Peoria was an inconvenient forum in accord with section 2108 which need not be quoted here.

We are aware that the UCCJA and section 2104(b) in particular are intended to operate as limitations on a court's continuing jurisdiction in custody matters. (Siegel v. Siegel (1981), 84 Ill.2d 212, 221, 49 Ill.Dec. 298, 417 N.E.2d 1312.) However, we do not believe that section 2104(b) was intended to divest a court of jurisdiction in the midst of a custody modification proceeding based on a change in circumstances occurring after the proceeding had commenced but prior to final determination.

The jurisdiction of a court over the subject matter and parties in a case, once fully attached, continues until all issues of fact and law have been decided. Once jurisdiction has been vested, it cannot be divested by subsequent events. Generally, a court's jurisdiction ceases upon rendition of a final judgment except for such purposes as the enforcement or correction of the judgment. Fiore v....