Sharpe v. Sharpe

• Decision Date: 13 December 1966
• Docket Number: Gen. No. 10737
• Citation: 77 Ill.App.2d 295,222 N.E.2d 340
• Parties: Sharon Lou SHARPE, Plaintiff-Appellant, v. Jean Clarence SHARPE, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 340

222 N.E.2d 340

77 Ill.App.2d 295

Sharon Lou SHARPE, Plaintiff-Appellant, v. Jean Clarence SHARPE, Defendant-Appellee.

Gen. No. 10737.

Appellate Court of Illinois, Fourth District.

Dec. 13, 1966.

James N. Keefe and Howard L. Snowden, Quincy, for appellant.

Schmiedeskamp, Jenkins, Robertson & House, Quincy, for appellee.

SMITH, Justice.

The unhappy saga we have to relate begins on April 11, 1963, when the circuit court of Adams County divorced the parties and gave custody of their only child, Keith, age 5, to the mother, with the right 'take said child out of the jurisdiction of the court'. She did just that on January 28, 1965, and in so doing, she argues, the court lost jurisdiction to further modify custody. The father, assuming the law to be otherwise--that 'out of the jurisdiction' was not synonymous with 'ousting jurisdiction'--petitioned for a change of custody. A hearing was held and he was directed to notice the mother to appear on May 10, 1965, and show cause why his various custodial requests should not be granted. Notices were sent to her, as per direction, to her last Illinois address, and to her parents' residence in Missouri. On May 10, she did appear, but limited her appearance to challenging the court's jurisdiction on the ground that Keith was now a resident of Taxas, and subject to its jurisdiction. Indeed, an affidavit recited the intelligence that Texas had taken jurisdiction of Keith on a proceeding being appositely entitled, 'Application for Modification of Visitation and Custody'. On June 21 (or maybe June 23), the father's petition was granted, custody was transferred to the grandparents (paternal) and the mother was ordered to return Keith to the 'jurisdiction of the court' so that the changeover could be effected. Apparently, on the same day, Texas, in the proceedings noted, gave the mother 'exclusive custody' and barred the fathr from 'all visitation rights' until further order. This part of the Taxas proceedings comes into the record via her petition for a rehearing, which, needless to say, was denied, as she now appeals.

To a limited few, a tug-o-war such as this, may have its intriguing aspects, but surely they are the only ones edified by this spectacle of courts of sister states, as the expression has it, going in opposite directions on a very touchy matter indeed. That such happenstances are something of a commonplace to lawyers, unavoidable in our federal system, provides little solace to the parties involved, and even less to the children caught in the crossfire. It is a grotesquery. To paraphrase Mr. Justice Jackson's statement in Estin v. Estin, 334 U.S. 541, if there is one thing the people are entitled to expect from their lawmakers, it is rules of law that will enable children, or those acting for them, to tell to whom they belong, and if they don't know, where they can find out.

We can narrow their respective contentions to this: The mother's, that domicile controls jurisdiction, Keith is domiciled in Texas, Ergo, Texas has exclusive jurisdiction, Vis-a-vis the father's, that the court first acquiring jurisdiction retains it, Illinois first acquired jurisdiction, Ergo Illinois has jurisdiction today.

For our purposes, we can assume that Keith's domicile (using the term loosely) is in Texas, because we assume the mother's is, and yet not be inexorably drawn to her conclusion. Of course, we can accept as fact, that Illinois first acquired jurisdiction of Keith, and again we need not be inexorably drawn to the father's conclusion. The major premises of both are not, as it were, dictated by logic, the laws of nature, or nature's God. Both have their appealing aspects. 'Domicile' rings of 'home', and it is pleasant to think that perhaps the courts of the home-state are in the best position to determine the child's home. So, too, with the father's 'continuing of single jurisdiction' theory--a child should grow up with one court, after all, the 'home courts' might theoretically number as many as fifty, without even leaving the country.

The mother cites a plethora of cases for her theory, in the main, opinions of courts of sister states, which do hold as she contends. The father, on the other hand, directs us to § 19 of the Divorce Act: 'The court may, on application, from time to time, make such alterations in the * * * custody * * * of the children, as shall appear reasonable and proper.' Ill.Rev.Stat.1965, ch. 40, § 19. There are cases, including Illinois cases, that support this view.

There is, too, a seeming simplicity to the 'domicile theory', but our use of the pejorative is merited, we think, when we realize that 'domicile' is, in the words of Walter Wheeler Cook, 'an ambiguous verbal symbol' that has 'varied with the nature of the problem presented'. See The Logical and Legal Basis of the Conflict of Laws, Walter Wheeler Cook, Harvard University Press, 1942. Furthermore, this 'domicile theory'...