Siegel v. Siegel

• Decision Date: 20 January 1981
• Docket Number: No. 53256,53256
• Parties: , 49 Ill.Dec. 298 Jan SIEGEL, Appellee, v. Arnold SIEGEL, Appellant.
• Court: Illinois Supreme Court

Page 1312

417 N.E.2d 1312

84 Ill.2d 212, 49 Ill.Dec. 298

Jan SIEGEL, Appellee, v. Arnold SIEGEL, Appellant.

No. 53256.

Supreme Court of Illinois.

Jan. 20, 1981.

Rehearing Denied March 27, 1981.

Sherwin & Sherwin, Chicago (Theodore R. Sherwin, Chicago, of counsel), for appellant.

Schiller & Schiller, Limited, Chicago (Donald C. Schiller and John F. Martoccio, Chicago, of counsel), for appellee.

UNDERWOOD, Justice:

Arnold Siegel (father), on January 10, 1978, filed in the circuit court of Cook County (circuit court), his petition for a rule upon Jan Siegel (mother), to show cause why she should not be held in contempt. The mother's allegedly contemptuous conduct consisted of applying to the superior court of California, County of Los Angeles (California court), for a modification of the child-visitation provisions contained in the circuit court's 1972 decree dissolving the father and mother's marriage. In orders of June 12 and June 28, the circuit court found the mother in contempt and provided that all child-support payments by the father cease retroactively to January 10, 1978. The mother appealed and the appellate court (80 Ill.App.3d 583, 35 Ill.Dec. 869, 400 N.E.2d 6) affirmed the circuit court's finding that it had jurisdiction, but reversed the termination of child support and remanded the cause for a hearing on the issue of contempt. We granted the father's petition for leave to appeal.

The 1972 marriage dissolution decree awarded custody of the two children, then aged approximately 5 years and 31/2 years, to the mother with detailed visitation privileges for the father. Paragraph (h) of that judgment provided "(t)hat this Court reserves jurisdiction of the subject matter of this case and of the parties hereto for the purpose of enforcing the terms of this Judgment and the terms and provisions of the Agreement incorporated herein."

In June 1974 the mother's application to the circuit court for permission to move herself and the children to California was granted, conditioned upon the posting of a $5,000 bond guaranteeing compliance with the terms of the order, one of which was:

"That the minor children shall remain solely under the jurisdiction of the Circuit Court of Cook County, Illinois, and both the Plaintiff and the Defendant are enjoined from petitioning any other Court for relief concerning the welfare of the minor children, or the modification of this ORDER."

In April 1976 the circuit court released the mother's bond. A dispute about 1977 summer visitation resulted in a June 29, 1977, circuit court order detailing visitation procedures.

On December 22, 1977, the mother filed in the California court her petition seeking to domesticate and modify the visitation provisions of the circuit court's orders. Among the supporting papers filed by the mother was a report of the children's psychiatrist, Dr. Maurice Zeitlin, describing what he saw as the children's troubled relationship with their father and suicidal tendencies of the older child. The California court, on the filing date, entered an order restraining the father from harassing the mother and children or removing the children from the State of California and terminating his visitation privileges pending the court's further order. On December 29, when the father was in California to see the children, he was personally served with notice of those proceedings and directed to appear on January 11 to show cause why orders requested by the mother to limit his visitation to that recommended by the psychiatrist should not be made. The father did not appear at the hearing, and the California court ordered the judgment of the circuit court adopted as its own and modified it as requested by the mother.

On January 10, following his return to Illinois, the father applied to the circuit court for a rule requiring the mother to show cause why she should not be held in contempt for violating the June 28, 1974, and June 29, 1977, orders. He also sought a mandatory injunction requiring her to cause the California court order to be vacated and that case dismissed. On January 10 the circuit court ordered that the mother be restrained from proceeding in the California court. On February 10 the mother's attorney entered a special appearance in the circuit court, contesting the court's jurisdiction over her person and the subject matter. On that date counsel for the father filed a petition for a rule requiring the mother to show cause why she should not be held in contempt for also violating the circuit court's January 10 order. On May 2 the circuit court "denied" the mother's special appearance and her counsel "stood on the special appearance." On June 12 the circuit court entered an order terminating child-support payments, retroactively to January 10, "until further order of this court" and set June 27 as the return date on the contempt rule. On June 28 that court entered its order finding the mother in contempt and discontinuing all child-support payments "until further order of this court." This appeal followed.

The father initially argues that the orders finding the mother guilty of contempt and terminating support payments as of January 10 are not, in the absence of the imposition of a sentence for contempt, final and appealable. We believe, however, that sanctions rendering contempt judgments appealable are not limited to fines and imprisonment. It is apparent here that the action of the circuit judge was intended, at least in part, as punishment for what he viewed as the mother's contemptuous conduct in violating that court's prior orders. In these circumstances we believe the judgment appealable. Bulandr v. Bulandr (1959), 23 Ill.App.2d 299, 162 N.E.2d 585; Szczawinski v. Szczawinski (1962), 37 Ill.App.2d 350, 185 N.E.2d 375.

The statutory provisions relevant to our consideration of this case are contained in the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 101 et seq.) (the Act), which became effective on October 1, 1977. Section 801 (Ill.Rev.Stat.1977, ch. 40, par. 801) of the Act provides:

"Sec. 801. Application.

(a) This Act applies to all proceedings commenced on or after its effective date.

(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.

(c) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.

(d) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal."

It is apparent from these provisions, particularly subsections (a) and (c), that the Act is applicable to these proceedings, which were commenced subsequent to its adoption.

Prior to the enactment of the Act, it had been a basic principle of Illinois child-custody law that custody decrees were modifiable, as the best interests of the children demanded. (Jarrett v. Jarrett (1979), 78 Ill.2d 337, 400 N.E.2d 421, cert. denied (1980), 449 U.S. ----, 101 S.Ct. 329, 66 L.Ed.2d 155; Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300.) Section 610 of the Act indicates that it, too, contemplates modifiable custody decrees although it makes modification more difficult. (See In re Custody of Harne (1979), 77 Ill.2d 414, 33 Ill.Dec. 110, 396 N.E.2d 499.) It was the general rule in Illinois, prior to the effective date of the Act, that the court which entered the original child-custody decree retained "continuing jurisdiction" of the subject matter and the parties for modification purposes. (Sommer v. Borovic (1977), 69 Ill.2d 220, 13 Ill.Dec. 1, 370 N.E.2d 1028; Crawley v. Bauchens (1973), 13 Ill.App.3d 791, 300 N.E.2d 603, aff'd (1974), 57 Ill.2d 360, 312 N.E.2d 236; McClellan v. McClellan (1970), 125 Ill.App.2d 477, 261 N.E.2d 216; Sharpe v. Sharpe (1966), 77 Ill.App.2d 295, 222 N.E.2d 340.) However, Illinois courts have never viewed "continuing jurisdiction" as limitless. This court, in People ex rel. Strand v. Harnetiaux (1970), 46 Ill.2d 424, 429, 263 N.E.2d 30, denied full faith and credit to a California modification decree, noting that the desire for finality often conflicts with the best interest of the child. There a California court, in April 1967, granted custody to the father, who moved the child to Illinois. After the father was killed in a September 1967 accident, paternal grandparents in Illinois were appointed guardians by an Illinois court. In January 1968, after registered mail notice to the grandparents, the California court modified its decree to grant the California mother custody. This court stated:

"In this case the child was taken from the plaintiff by order of the California court and has since resided in the home of the defendants, except for the month of July, 1967. Neither the child nor the defendants, however, were heard at the California hearing to grant custody to the plaintiff, and we think any determination which purports to be guided by the best interests of the child is under a serious handicap when the child and the people with whom he has been living are not present. * * * Other courts when confronted with a foreign custody decree which has been modified at the request, and in favor, of a parent who is still a domiciliary of the foreign State, when the other parent and child are now domiciled in the forum State, have generally refused to grant full faith and credit to the modified decree on the ground that the foreign State no longer had jurisdiction over the other parent and child."

It directed the Illinois trial court to hold a hearing to determine custody. In Beaulieu v....