Siegel v. Siegel , 80 Ill. App. 3d 583 ( 1979 )

Mr. PRESIDING JUSTICE SIMON,

specially concurring in part and dissenting in part:

I concur in the result except that I differ with the conclusion that this case should be remanded for further hearings on the contempt citation. My divergence is based upon disagreement with the majority’s interpretation of section 601 of the Illinois Marriage and Dissolution of Marriage Act. In particular, I find untenable the majority’s effort to circumvent the Act by characterizing the circuit court action from which this appeal is taken as enforcement of a prior order rather than as a modification order.

Section 601 specifies the circumstances in which Illinois courts should make a child-custody determination. Although the statute deals with jurisdiction, I do not believe it refers to subject matter jurisdiction. Instead I regard the statute as referring to jurisdiction over the res, namely the children’s status; or, less fictionally, the statute may be regarded simply as imposing a special jurisdictional limitation. However described, the statute is not designed to protect the parents, and its requirements cannot be waived by them. The parents cannot even by agreement seek orders affecting custody or visitation from a court which does not meet the statutory requirements for making such orders. Neither can a court, by order, confer upon itself jurisdiction denied it by section 601.

Section 601 recognizes American mobility and the advantages of having custody and visitation disputes decided by courts in States where children live rather than by courts in States perhaps hundreds of miles away, where they once came from. This case was once properly in Illinois, but that should make no difference. After the children are lawfully gone from this State, Illinois has no more interest in affording the father a convenient forum than if the rest of the family had never lived here. And certainly our courts should have no interest of their own in hanging on to cases forever. Thus when the new act took effect on October 1, 1977, more than 3 years after the children left for California, the circuit, court of Cook County lost its old “continuing jurisdiction” to modify its order providing for their custody. Thus far the majority appears to agree.

The majority’s view however is that the circuit court of Cook County was not circumscribed by section 601 in this case because it did not modify custody, but only adhered to and enforced its original judgment. But, that original judgment was not the last word on the subject; a Calfomia court had entered a subsequent order. If the Illinois court cannot recognize the California judgment, and is compelled on the father’s demand to enforce its original order, Illinois is taking the position that the original order is not modifiable anywhere. This result would conflict with the rule accepted in both Illinois and California that visitation or custody orders are never final but may always be modified when necessary in the interest of the children; and this result is a sure recipe for interstate conflict. If, on the other hand, Illinois courts are not compelled to enforce the original order, but have discretion to abandon it and instead recognize and enforce the California order or to reject the California order, they are in effect “making a child custody determination” just as if they were entering an entirely new order. This is in effect what section 601 bans. Section 601 exists to guard children from ill-advised and conflicting decisions; it addresses the decision, not the form of the order.

The majority then implies that, given sufficient evidence, it would be proper to hold Jan in contempt for trying to get the order modified in California. Where Illinois courts have no jurisdiction to modify custody and visitation orders, punishing litigants for going elsewhere to seek modification, even to the very State the Illinois statutory scheme favors as a forum, is unreasonable. It leaves children in the control of a court which itself is precluded by section 601 from modifying its visitation or custody orders, while denying children the protection of any other court by forbidding a parent to seek modification from a court that could grant it.

The children had been in California for 3M years when their mother applied to the California court. California is clearly their home State. They no longer have any significant connection with Illinois, and the evidence necessary for an intelligent determination of what is in their best interests is in California. Both the comity of States and the best interest of the children, as declared by the Illinois statute (section 601), require that Illinois let go of this case, and defer to California.

There may perhaps be some interval after children have left Illinois and before they become involved with other courts, during which an Illinois court might, in the interest of affording a forum with experience in the case and jurisdiction over the parties, enforce an old judgment even after Illinois could no longer modify it. But once another, more competent, court has properly assumed jurisdiction of the case, certainly once such a court has entered a modification judgment, section 601, in my view, precludes the Illinois courts from either modifying or enforcing the obsolete order. The inescapable logic of section 601 is that it leaves no loopholes through which Illinois courts may retain continuing jurisdiction to meddle with visitation aspects of custody related matters once the custodial parent is given leave to remove children from the State and another court has properly modified the arrangements originally ordered by the Illinois court.

As for the contempt issue: The Cook County circuit court had personal jurisdiction over Jan. In asking the California court to modify visitation, she disobeyed the circuit court order forbidding her to apply to any other court. An order has something of a life of its own, and on occasion may even survive the law that originally justified it. But the order here is now not merely no longer supported by the law, but positively incompatible with it. I believe it would be;an abuse of discretion to hold Jan in contempt for trying to protect hei children by resorting to the forum the Illinois statute declares is the only proper one. The contempt sanction should be a means to the end of enforcing the law, not a spasmodic reaction to every personal affront to the court’s dignity or expression of dissatisfaction with what the court ordered when different rules of law prevailed.

Jan was also held in contempt for violations of various substantive provisions of the order, dealing with visitation, report cards, and so forth. But taking advantage of the court’s personal jurisdiction over Jan to hold her in contempt is in effect enforcing the order of the court when, as demonstrated above, enforcement is inconsistent with section 601 or the rule that visitation and custody orders must be modifiable. Under section 601, it is inappropriate for an Illinois court to concern itself with collateral squabbles better left for resolution in California. The Illinois court should leave all questions affecting visitation or custody to the California court which has already assumed jurisdiction over the children. We should, therefore, put an end to the contempt proceeding, instead of, as the majority directs, remanding it for a hearing.