Pawlik v. Pawlik , 2 Ark. App. 257 ( 1981 )

Tom Glaze, Judge.

This appeal involves the Uniform Child Custody Jurisdiction Act and is the result of divorce and child custody actions filed in Illinois and Arkansas. The appellant, John Pawlik, first filed his action in McHenry County Circuit Court in Illinois, and appellee, Geneva Pawlik, subsequently filed a similar action in Conway County Chancery Court in Arkansas. The Conway County Chancery Court held that the Illinois court failed to obtain personal jurisdiction of the appellee and entered an order awarding permanent custody to appellee. The appellant contends on appeal that (1) the Arkansas court erred in its decision that the Illinois court had no jurisdiction over appellee and (2) since the Illinois action was pending before appellee filed her action, the Arkansas court erred in exercising jurisdiction.

The relevant facts are not in dispute. The parties and their two minor children lived in Illinois until 1979- The parties separated in October, 1979, and the appellee and the children moved to Conway County, Arkansas, in March, 1980. In May, 1980, appellant filed the Illinois action, and since he did'not know the whereabouts of appellee, appellant obtained sendee by publication. In June, 1980, appellee filed her action in Conway County, Arkansas. Appellant entered his special appearance in the Arkansas action, contending that the Illinois court had jurisdiction of the parties and subject matter and requested the Arkansas court to dismiss appellee’s action for want of jurisdiction. On August 1, 1980, the Arkansas court rejected appellant’s contention and entered a temporary custody order awarding appellee the parties’ children.

On August 28, 1980, the Illinois court entered a final judgment, granting appellant a divorce, denying alimony and awarding personal property to the respective parties, and awarding custody of the children to appellant. On September 5, 1980, appellant petitioned to register the Illinois decree in the Arkansas action and requested the Arkansas court to recognize the Illinois judgment and to dismiss the Arkansas action. The Arkansas court held the Illinois judgment was not entitléd to full faith and credit as it related to custody of the parties’ children, and entered an order granting permanent custody to the appellee.

Contrary to appellant’s contention, we believe the Arkansas court was correct in holding that service by publication was not sufficient to vest the Illinois trial court with jurisdiction to decide the child custody issue. Both Arkansas and Illinois have enacted the Uniform Child Custody Jurisdiction Act, and, under the Act and the facts of this case, either state may have acquired jurisdiction of this custody action between the parties. Each party (parent) has a legally protected personal interest in their children’s custody and the due process clause will not permit them to be cut off by a court which has no jurisdiction over the objecting parent. See, R. Leflar, American Conflicts Law, § 243 (3d ed. 1977); May v. Anderson, 345 U.S. 528 (1953), and Cooper v. Cooper, 229 Ark. 770, 318 S.W. 2d 587 (1958). The primary issue before us is whether the Illinois court acquired personal jurisdiction of the appellee.

In the instant case, appellant obtained constructive service on appellee through publication in Illinois in accordance with Section 14 of the Civil Practice Act (Ill. Rev. Stat. 1975, Ch. 110 Par. 14). However, in the case of Lain v. John Hancock Mutual Life Insurance Company, 79 Ill. App. 3d 264, 398 N.E. 2d 278, 34 Ill. Dec. 603 (1979), the Illinois Appellate Court held that Section 14, by its own terms, is limited to in rem actions. The Illinois court stated further:

... The law is well settled that a purely personal decree is not binding against a nonresident who is notified of the proceeding by publication and who does not appear. Wilson v. Smart (1927), 324 Ill. 276, 155 N.E. 288; Killebrew v.Killebrew (1947), 398 Ill. 432, 75 N.E. 2d 855. [Emphasis supplied.]

Here, appellee was residing with the children in Arkansas, and appellant sought to deprive appellee of her personal right to possessory custody of the parties’ children. Since appellant notified appellee of the Illinois proceeding by publication under Section 14 of the Illinois Civil Practice Act, we conclude this was not sufficient notice to vest the Illinois court with the personal jurisdiction necessary to award appellant the parties’ children.

Next, we must decide whether the service and notice obtained by appellant in the Illinois action might be authorized under the Uniform Child Custody Jurisdiction Act.¹ As noted earlier, Arkansas and Illinois have adopted the Uniform Child Custody Jurisdiction Act, and each has, with one deviation, enacted the provision concerning the manner in which notice must be served on persons outside the state before the state can exercise jurisdiction over the non-resident persons. Interestingly enough, the Arkansas law permits notification by publication if directed by the court and in cases where other means of notification are ineffective. The Illinois law does not provide for publication. See Ark. Stat. Ann. § 34-2705 (Supp. 1981), and Ill. Rev. Stat. 1979, Ch. 40, Par. 2106. Both Arkansas and Illinois, however, adopted the Uniform Child Custody Jurisdiction Act’s provision that authorized the notice to be served in the manner prescribed by the law of the place in which the service is made. Ark. Stat. Ann. § 34-2705(a)(2), and Ill. Rev. Stat. 1979, Ch. 40, Par. 2106(b)(2).

Since the Uniform Child Custody Jurisdiction Act as adopted in Arkansas appears to permit notification by publication, we must look to the Arkansas law to determine if the service by publication obtained by appellant in Illinois complies with Arkansas constructive service.² We find that it does not.

Rule 4(f) and 4(i) of the Arkansas Rules of Civil Procedure provide for service upon defendants whose whereabouts are unknown and for defendants who are served by mail or warning order and who have not appeared. Basically, Arkansas law requires a warning order to be published in a newspaper for four (4) consecutive weeks, and Illinois law requires only three (3) such publications. More importantly, Arkansas law requires a copy of the complaint and warning order be mailed, by return receipt requested, to the defendant, and an attorney ad litem must be appointed to defend the defendant and to inform him of the action. These procedures are not required under Illinois law, nor did the publication procedures followed by the appellant remotely comply with the Arkansas law.

We conclude that the Illinois court never acquired jurisdiction over the appellee under Illinois or Arkansas law to empower it to decide the issue of custody. Therefore, we hold the Arkansas trial court was not required to give full faith and credit to the Illinois custody order nor defer jurisdiction to the Illinois court action under the Uniform Child Custody Jurisdiction Act.

We affirm.

Affirmed.

Cooper, J., concurs. Mayfield, C.J., dissents.

1 Like Arkansas; Illinois has adopted a long-arm statute which requires personal service on persons outside the state. Since the appellant attempted to effect service only under Section 14 of the Illinois Civil Practice Act, it is not necessary for us to consider whether appellant could have acquired jurisdiction under the Illinois long-arm law.

2 The constitutionality of notice by publication is not raised by the parties and it is unnecessary for us to consider this constitutional question in reaching a decision in this case. See, Commissioner’s Note, Uniform Child Custody Jurisdiction Act (U.L.A.) § 5, and In re Marriage of Blair, 42 Colo. App. 270, 592 P. 2d 1354 (1979).