Parker v. Parker

• Decision Date: 14 October 1948
• Docket Number: Gen. No. 10260.
• Parties: PARKER v. PARKER.
• Court: United States Appellate Court of Illinois

335 Ill.App. 293

81 N.E.2d 745

PARKER

v.PARKER.

Gen. No. 10260.

Appellate Court of Illinois, Second District.

Oct. 14, 1948.

Appeal from Circuit Court, DuPage County; Harry W. McEwen, Judge.

Suit in equity by Anna Winslow Parker, a minor, by her next friend, Virginia Rice Parker, and by Virginia Rice Parker on her own behalf, against Raymond Edward Parker to require defendant to contribute to minor plaintiff's support. From a decree dismissing the petition, plaintiffs appeal.

Reversed and remanded.

Perry & Elliott, of Wheaton for appellants.

Moore & Staehlin, of Chicago, for appellee.

BRISTOW, Justice.

This is an appeal from an order of the circuit court of DuPage County dismissing for want of jurisdiction a petition in equity filed on behalf of Anna Winslow Parker, a minor, by Virginia Rice Parker, her next friend, and by Virginia Rice Parker on her own behalf, to require the defendant, Raymond Edward Parker, to contribute to the support of his minor daughter, the said Anna Winslow Parker.

From the pleadings, upon which this appeal is predicated, it appears that the defendant, Raymond Edward Parker, and Virginia Rice Parker were married in December, 1937, and had one child, the petitioner, Anna Winslow Parker. They were divorced sometime thereafter in a court of general jurisdiction in the State of Indiana, and custody of the petitioner was granted to Virginia Rice Parker, but, inasmuch as the defendant, Raymond Edward Parker, was outside the jurisdiction of the court, and was served only by publication, no order for alimony or support was entered in that proceeding. The petition herein, as originally filed, and as amended, avers that Anna Winslow Parker is without funds for proper maintenance or support; and that Virginia Rice Parker does not possess sufficient money or property to support said minor, and prays that an order be entered requiring the defendant to contribute to the support of his child.

The circuit court sustained defendant's motions to strike the original petition filed on behalf of Anna Winslow Parker, by Virginia Rice Parker as her next friend, and the amended petition submitted in the name of Virginia Rice Parker, on the grounds that no cause of action was stated, and that the court had no jurisdiction of the subject matter. From these determinations of the court, petitioners have appealed.

The sole issue confronting this court is a question of law, whether a minor whose parents were divorced in another state in a proceeding where no support order could be entered, inasmuch as the defendant father was outside the jurisdiction of the court and served only by publication, can maintain a petition for support in a court of equity in Illinois, where the father has an established residence.

The petitioners contend that the circuit court erred in dismissing their complaint. They submit that defendant has a duty to support his child, which is enforceable only in Illinois, and that under the Illinois Constitution, which provides that every person ought to find a certain remedy in the laws for all injuries and wrongs of which he may be aggrieved, redress may be had in this state in a court of equity by virtue of its plenary jurisdiction over the interests and estates of minors.

Defendant, however, maintains that a court of equity may not take jurisdiction of a petition for support of minor children, unless it is maintained under the provisions of the Illinois Divorce Act (ch. 40, Ill.Rev.Stats.). Defendant argues, furthermore, that this proceeding presents the interests of the mother, Virginia Rice Parker, rather than those of the minor, Anna Winslow Parker, since the amended complaint superseded the original complaint filed on behalf of the child.

This court is constrained to consider the substance of the action, irrespective of pleading formalities. Szewczyk v. Szewczyk, 320 Ill.App. 562, 51 N.E.2d 801. The complaint involves the right of Anna Winslow Parker, a minor, to support from her father, Raymond Edward Parker, rather than any interests or rights of her divorced parents.

Inasmuch as there is no question of the bona fide nature of the domicile of the petitioner, Virginia Rice Parker, in the State of Indiana, where the divorce was granted, this court will recognize and will give full faith and credit to the divorce decree and custody order of the Indiana Court establishing the status of the parties. Williams v. North Carolina II, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366;Atkins v. Atkins, 386 Ill. 345, 54 N.E.2d 488; Rest. of Conflict of Laws, § 116; Powell, ‘And Repent At Leisure,’ 58 Harv.L.Rev. 930; 32 Va.L.Rev. 555.

The divorce of petitioner's parents, however, did not abrogate the moral and legal obligation of the defendant to support his minor child. Kelley v. Kelley, 317 Ill. 104, 147 N.E. 659;Panther Creek Mines v. Ind. Comm., 296 Ill. 565, 130 N.E. 321;Plaster v. Plaster, 47 Ill. 290;Hoover v. Hoover, 307 Ill.App. 590, 30 N.E.2d 940.

The binding character of this obligation was emphasized by the Illinois Supreme Court in Kelley v. Kelley, supra, 317 Ill. at page 110, 147 N.E. at page 661:

‘While the marriage relation may be dissolved and the marital rights and duties thereby brought to an end, the relation of parent and child cannot be destroyed. The obligation of the father to support his child begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Citation) His children are of his blood. It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves.’

In the instant case defendant's obligation to support his daughter could not be enforced by the Indiana court at the time the divorce was granted. For, although the court had power to award and modify orders for support of minor children (Burns, Ind.Stats., § 3-1219), nevertheless, it had no jurisdiction to enter a personal decree against defendant to support his child, since he was outside of the state and served only by publication. Personal judgments for alimony and support may not be rendered on constructive service. Sowders v. Edmunds, 76 Ind. 123;Lytle v. Lytle, 48 Ind. 200; 17 Am.Juris. § 518, p. 423; Proctor v. Proctor, 215 Ill. 275, 74 N.E. 145,69 L.R.A. 673, 106 Am.St.Rep. 168,2 Ann.Cas. 819.

Moreover, since defendant is presently residing in Illinois, the Indiana court is still without power to enter a personal decree requiring him to contribute to the support of his child. Any such order issued by the Indiana court would be void, and, therefore, not entitled to recognition in this state.

The foregoing facts and circumstances clearly distinguish this cause from the cases relied upon by defendant as authority for dismissing the petition. In Kelley v. Kelle, supra, the court recognized the obligation of a divorced father to support his minor child, but indicated that the proper procedure in that cause, where the divorce was obtained in Illinois and the parties were presently within the jurisdiction, was to present to the court which originally granted the divorce a petition to issue a citation requiring the father to show cause why he should not be required to assist in supporting his minor child. As hereinbefore stated, that procedure is not available or appropriate in the instant case, where the father has established residence outside of the state where the divorce was granted.

The case at bar, moreover, is clearly distinguishable from the case of Luczynski v. Luczynski, 327 Ill.App. 548, 64 N.E.2d 385, which followed Thomas v. Thomas, 250 Ill. 354, 95 N.E. 345, 35 L.R.A.,N.S., 1158, Ann.Cas.1912B, 344, wherein the court held that in a proceeding where a divorce was denied between the parties, the court was...