Siegel v. Siegel
| Citation | 400 N.E.2d 6,80 Ill.App.3d 583 |
| Decision Date | 19 December 1979 |
| Docket Number | No. 78-1738,78-1738 |
| Parties | , 35 Ill.Dec. 869 Jan S. SIEGEL, Plaintiff-Appellant, v. Arnold SIEGEL, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Sherwin & Sherwin, Chicago, for plaintiff-appellant; Theodore R. Sherwin, Chicago, of counsel.
Schiller & Schiller, Ltd., Chicago, for defendant-appellee; Donald C. Schiller, Cathy A. Buge Higgins, Chicago, of counsel.
This matter arises out of the attempts of defendant, Arnold Siegel, to enforce the provisions of certain post-judgment orders entered by the circuit court of Cook County. Plaintiff, Jan S. Siegel, appeals from an order of the trial court finding her in contempt of court and terminating child support.
The parties were divorced on September 21, 1972. At that time both parties were residents of Illinois. Plaintiff was awarded custody of the parties' two minor children subject to defendant's visitation privileges. The judgment provided that the circuit court of Cook County would reserve jurisdiction of the subject matter and of the parties in order to enforce the terms of the judgment and of a marital settlement agreement.
On June 28, 1974, an agreed order was entered permitting plaintiff and the two children to move to California. As a condition, plaintiff was required to post a bond of $5,000 with her father as surety, to guarantee her compliance with defendant's visitation privileges. The order set forth those visitation privileges as follows: for a period of six weeks each summer, the specific date to be determined by defendant sending written notice to plaintiff by April 1; one week during the children's Christmas vacation; and at such other times when defendant is in Los Angeles, upon prior notice to plaintiff. The order further provided:
"That the minor child 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."
On June 13, 1975, plaintiff petitioned the trial court to discharge the requirement of a surety bond since she had exhibited her compliance with the prior order. On April 5, 1976, an order was entered discharging the requirement of a bond. As security for plaintiff's compliance with the order of June 28, 1974, the order provided that if defendant was denied visitation rights, he had the right to deposit support payments with his attorney, rather than send them directly to plaintiff. If defendant did withhold funds from plaintiff, he was obligated, under the order, to seek a judicial determination whether his action was proper.
In June, 1977, a dispute arose concerning accrued child support arrearages and visitation. On June 24, 1977, plaintiff filed a petition, and, on June 29, an order was entered requiring defendant to pay past-due support. The order also provided that the children were to spend the month of July and their Christmas vacation with defendant.
On October 1, 1977, the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 101 et seq.) became effective. Section 801 provides that the Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to that date. Section 601 governing child custody proceedings, provides in pertinent part that a court of this state has jurisdiction to make a child custody determination by initial or modification judgment, if:
In December 1977, plaintiff commenced an action in California to domesticate the Illinois judgment and to modify its visitation provisions. On December 22, 1977, the superior court of Los Angeles County vacated all orders regarding visitation and set a hearing for January 11, 1978, on plaintiff's request for a termination of visitation. The order restrained defendant from removing the children from Los Angeles and from annoying or harassing plaintiff or the children. A private investigator served defendant with the order on December 29 when he arrived at plaintiff's home to pick up the children. Defendant was unable to contact the children during the remainder of his stay and he did not see them during their Christmas vacation. On January 11, 1978, the California court conducted a hearing on plaintiff's petition. Defendant was not present nor represented by counsel. The California court reiterated its prior order restraining defendant from removing the children from Los Angeles County. It further ordered that any and all visitation of the children by defendant must be under the direct supervision of the children's psychiatrist and under such terms and conditions as the psychiatrist might set forth.
Meanwhile, on January 4, 1978, defendant had mailed written notice to plaintiff that a petition for a rule to show cause against her would be presented to the circuit court of Cook County on January 10, 1978. The petition alleged that plaintiff had failed to comply with the visitation provision of the order of June 28, 1974. It also set forth that defendant was halting support payments. Notice of this petition was also mailed to plaintiff's counsel in California, and Mr. Foster Schlutz, a Chicago attorney who had formerly represented plaintiff but was no longer retained by her. On January 10, 1978, Schlutz and plaintiff's father appeared in response to the notice and informed the court that plaintiff's father had engaged Mr. Donald E. Schiller to represent her, but that Schiller was out of the country. Schlutz requested a continuance, and an order was entered granting plaintiff 30 days to respond to defendant's petition and restraining her from proceeding in California until further order of court.
On February 10, 1978, Schiller filed a special appearance, supported by affidavit. The affidavit recited that plaintiff had not received sufficient prior notice of the proceedings in Illinois. It also stated that the Illinois court lacked jurisdiction of the subject matter of defendant's petition by virtue of section 601 of the Illinois Marriage and Dissolution of Marriage Act quoted above and that jurisdiction over the cause was properly exercised in California.
On the same day, defendant filed a second petition for a rule to show cause. Defendant set forth the order entered in the California court on January 11, 1978. He requested that as a result of plaintiff's actions, he be relieved of his obligation to pay child support.
On May 2, 1978, a hearing was held on plaintiff's special appearance. The circuit court of Cook County found that it had properly retained subject matter jurisdiction by virtue of the order of June 28, 1974, and that it was not deprived of jurisdiction by the enactment of section 601 of the Act. Plaintiff's special appearance was denied and she was given leave to file an answer to defendant's petition.
A hearing on defendant's petition for a rule to show cause was held on June 12, 1978. Plaintiff's counsel was present, but informed the court that plaintiff elected to stand on her special appearance and would not participate in the proceedings. No witnesses were sworn and no evidence was submitted. On the basis of statements made by defendant's attorney regarding plaintiff's violation of visitation provisions, the court ordered the termination of support payments retroactive to January 10, 1978. On June 28, 1978, the trial court entered an order holding plaintiff in contempt of court for failure to comply with prior orders.
On appeal, plaintiff initially contends that, by virtue of section 601 of the Act, the Illinois court lacked subject matter jurisdiction to enforce the visitation provisions of the prior order after October 1, 1977. Since California has been the home state of the children since 1974 and all available evidence relating to their care and protection is located in that state, plaintiff maintains that California is the only proper forum. She argues, therefore, that a finding of contempt by a court without subject matter jurisdiction is null and void.
We believe the Illinois court properly retained and exercised its continuing jurisdiction to enforce its orders arising out of the original cause of action. We also believe that plaintiff misapprehends both the scope of section 601 and the relief requested in defendant's petition for a rule to show cause. The jurisdictional language of section 601 pertains to the power of the circuit court "to make a child custody determination by initial or modification judgment." Defendant's 1978 petition in no manner sought to modify or alter the child custody provisions of the prior post-judgment orders. Rather, defendant merely requested enforcement of those orders. It seems beyond argument that the Illinois court, by virtue of its continuing jurisdiction over matters arising out of the original decree, was within its power in entering the orders of June 28, 1974, and June 28, 1977. (Crawley v. Bauchens (1973), 13 Ill.App.3d 791, 300 N.E.2d 603, aff'd 57 Ill.2d 360, 312 N.E.2d 236 (1974); McClellan v. McClellan ...
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