{ "id": 456126, "name": "In re MARRIAGE OF MARCY L. HOWARD, f/k/a as Marcy L. Bailey, Petitioner-Appellee, and DAVID J. BAILEY, Respondent-Appellant", "name_abbreviation": "In re Marriage of Howard", "decision_date": "1997-08-18", "docket_number": "No. 5\u201496\u20140449", "first_page": "675", "last_page": "682", "citations": [ { "type": "official", "cite": "291 Ill. App. 3d 675" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "625 N.E.2d 1122", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1124" } ], "opinion_index": 0 }, { "cite": "255 Ill. App. 3d 1099", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2988958 ], "year": 1993, "pin_cites": [ { "page": "1102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/255/1099-01" ] }, { "cite": "436 U.S. 84", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490667 ], "weight": 3, "year": 1978, "opinion_index": 0, "case_paths": [ "/us/436/0084-01" ] }, { "cite": "488 N.E.2d 1000", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166726 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/111/0069-01" ] }, { "cite": "636 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "1116" }, { "page": "1116" }, { "page": "1116" }, { "page": "1116" }, { "page": "1116" } ], "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680601 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "163" }, { "page": "163" }, { "page": "163" }, { "page": "163" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0160-01" ] }, { "cite": "572 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "213 Ill. App. 3d 675", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2606132 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/ill-app-3d/213/0675-01" ] } ], "analysis": { "cardinality": 619, "char_count": 13747, "ocr_confidence": 0.767, "pagerank": { "raw": 8.763619687709588e-08, "percentile": 0.4952715389970612 }, "sha256": "beb7aecced1e24d23b9e25537fac48917abb49b5b0bc3b122c3000f5e0a80a8e", "simhash": "1:a43c4c8e73431d5c", "word_count": 2186 }, "last_updated": "2023-07-14T16:38:08.144333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF MARCY L. HOWARD, f/k/a as Marcy L. Bailey, Petitioner-Appellee, and DAVID J. BAILEY, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nRespondent, David J. Bailey, appeals from an order of the circuit court of Madison County which found that personal jurisdiction existed over respondent. The issues on appeal are: (1) whether respondent had sufficient minimum contacts with Illinois to satisfy due process and establish in personam jurisdiction in Illinois; (2) whether the trial court erred in finding that the requirements of the long-arm statute (735 ILCS 5/2\u2014209 (West 1992)) had been met, thereby establishing in personam jurisdiction; and (3) whether the child\u2019s \"home state\u201d is Florida pursuant to the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 1994)). We reverse the trial court\u2019s ruling for the reasons set out below.\nI\nOn or about November 29, 1988, the superior court of Lowndes County, Georgia, entered a final judgment and decree dissolving the marriage between respondent and petitioner, Marcy L. Howard, formerly known as Marcy L. Bailey. The decree, granted as a default judgment, awarded respondent sole custody and control of the parties\u2019 minor child, David Macon Bailey. The decree granted petitioner visitation with David Macon in respondents home. Petitioner testified she was unable to exercise her visitation rights because respondent had a restraining order against her prohibiting her from staying at the marital residence where David Macon resided and that when she attempted to visit the child at the marital residence, respondent called the police to exclude her. Shortly after her exclusion from the marital residence, petitioner returned to Madison County, Illinois. Petitioner further testified that she next attempted to contact David Macon by telephone in Georgia on Christmas of 1988 but the telephone was disconnected. Petitioner was eventually able to locate respondent and David Macon and visited with the child at the former marital residence in Georgia for a week in 1989. In 1990, respondent relocated to Florida. There was no contact between David Macon and petitioner for two years. Eventually, petitioner learned of respondent\u2019s address in Florida and resumed corresponding with David Macon; however, petitioner did not visit with the child.\nIn August 1994, respondent sent David Macon to a private, educational facility known as Mooseheart, near Aurora, Kane County, Illinois. Mooseheart is administered by the Loyal Order of the Moose. Respondent decided to send David Macon to Mooseheart because of the superior quality of the education respondent believed David Macon would receive there. Petitioner was not informed of nor consulted regarding the child\u2019s placement at Mooseheart. Upon learning of the child\u2019s enrollment at Mooseheart, petitioner resumed contact with David Macon, visited with him once at Mooseheart, and had a three-week visit with the child at her home in Grarite City. Respondent makes several trips a year to Mooseheart to visit David Macon, and the child returns to his home in Florida during lengthy school holidays. Respondent maintains regular telephone contact with David Macon.\nOn November 9, 1994, petitioner filed a petition to register the case in Illinois, asking the court to register the Lowndes County, Georgia, divorce decree in Madison County for purposes of modifying the decree. A petition for ex parte emergency order of protection was also filed but was later denied when found to be facially deficient. Petitioner failed to give notice to respondent regarding the pleadings filed in Illinois until nearly a year later, after filing a second petition for ex parte emergency order of protection on October 6, 1995. That petition was summarily dismissed, and David Macon was returned to Mooseheart.\nOn November 2, 1995, respondent filed a special and limited appearance challenging the court\u2019s jurisdiction over the case. A hearing was held on January 18, 1996. The trial court denied respondent\u2019s special and limited appearance and assumed jurisdiction, indicating that respondent consented to jurisdiction by voluntarily placing David Macon in the State of Illinois. Respondent filed a motion to reconsider on February 15, 1996. The trial court subsequently denied the motion. Respondent appeals.\nII\nWe first address respondent\u2019s contention regarding the long-arm statute.\nRespondent contends that the trial court erred in finding that the requirements of the Illinois long-arm statute were met when respondent, by sending his minor child to a residential facility in Illinois, designated presumed Illinois residents as long-term custodians of the minor child and erred in finding that by sending David Macon to a charitable institution, respondent failed to adequately provide support for his son. We agree.\nTwo requirements must be satisfied for Illinois courts to exercise jurisdiction over a nonresident. In re Marriage of Cody, 264 Ill. App. 3d 160, 163, 636 N.E.2d 1114, 1116 (1994). First, the nonresident must have committed some act enumerated in the long-arm statute that would submit such person to the jurisdiction of Illinois. 264 Ill. App. 3d at 163, 636 N.E.2d at 1116. Second, the nonresident must satisfy the \"minimum contacts\u201d federal due process requirement, i.e., there must be \"sufficient contacts between the nonresident party and the forum State so as to make it fair to require that person to defend the action in the forum State.\u201d 264 Ill. App. 3d at 163, 636 N.E.2d at 1116.\nSection 2\u2014209 of the Code of Civil Procedure, the long-arm statute, provides in pertinent part:\n\"\u00a7 2\u2014209. Act submitting to jurisdiction\u2014Process, (a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:\n* * *\n(9) The failure to support a child, spouse or former spouse who has continued to reside in this State since the person either formerly resided with them in this State or directed them to reside in this State.\u201d 735 ILCS 5/2\u2014209(a)(9) (West 1992).\nHere, the trial court held that respondent placed the minor child in a charitable residential facility, thereby designating presumed Illinois residents as custodians. The trial court further held that respondent failed to provide for the child\u2019s support. Relying on the long-arm statute and the decision in In re Marriage of Highsmith, 111 Ill. 2d 69, 488 N.E.2d 1000 (1986), the trial court concluded that the requirements for obtaining jurisdiction over a nonresident party were met.\nIn the record before us, there is no evidence to support the trial court\u2019s conclusion that Mooseheart is a charitable institution and that respondent sent David Macon there to evade his responsibility to provide support for his child. Rather, the evidence indicates that Mooseheart is a private boarding school administered by the Loyal Order of the Moose. Respondent chose the facility because of the superior quality of education he believed the school would offer his son. David Macon returns to his home in Florida during school vacations, and respondent visits David Macon regularly at Moose-heart during the school year. Further, sending a minor child to a private boarding school in another state is not indicative of relinquishing custody of that child and designating the administrators of the facility as custodians.\nAdditionally, respondent has not caused his minor child to reside in the State of Illinois without providing for his support. David Macon has resided with respondent since the divorce in 1988 and returns to respondent during school vacations. Nothing suggests that respondent has neglected his duty to provide support for his son. Accordingly, we conclude that because respondent has not failed to provide support, there is no basis in the record by which the court could exercise in personam jurisdiction over respondent based upon the failure to support a child.\nRespondent next contends that in personam jurisdiction does not exist because his contact with the State of Illinois, sending David Macon to a private boarding school in Kane County, is insufficient to satisfy the \"minimum contacts\u201d federal due process requirement. Respondent contends that he committed no act to purposefully avail himself of the privilege of conducting activities in Illinois or to invoke the benefits and protections of the laws of Illinois. Respondent insists that, other than sending his child to a private educational facility that happens to be located here, he has no connection with Illinois from which he should reasonably anticipate being hailed into court here. We agree.\nIn Cody, this court stated, \"In determining whether the exercise of in personam jurisdiction violates due process, each case must be considered on its own facts, and the 'quality and nature\u2019 of a [respondent\u2019s] activities must be reviewed to see if the exercise of the jurisdiction is fair and reasonable.\u201d Cody, 264 Ill. App. 3d at 163, 636 N.E.2d at 1116, quoting Kulko v. Superior Court, 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978).\nEven though a party may establish in personam jurisdiction through the long-arm statute, \"it has been held that if a nonresident had insufficient contacts with the forum State, the exercise of in personam jurisdiction violates due process and the nonresident party cannot be reasonably held to defend the action in the forum State. [Citations.]\u201d Cody, 264 Ill. App. 3d at 163, 636 N.E.2d at 1116.\nIn electing to send David Macon to Mooseheart in order to further the child\u2019s educational opportunities, respondent did not purposefully avail himself of the benefits and protections of Illinois\u2019s laws. Mooseheart is not a public entity or charitable institution where public funding by Illinois taxpayers may be implicated. Respondent\u2019s act of sending his child to Mooseheart is not of such quality and nature as to be sufficient minimum contacts with Illinois. Further, as mentioned above, there is no evidence that respondent has failed to support David Macon while the child attends school at Mooseheart. Significantly, respondent has not spent any time in Illinois other than to visit his son at Mooseheart. Consequently, respondent\u2019s personal activities are insufficient to meet the \"minimum contacts\u201d requirement. To require respondent to defend this action in Illinois is unreasonable and unfair. Accordingly, the trial court erred in exercising in personam jurisdiction over respondent.\nLastly, respondent contends that pursuant to the Uniform Child Custody Jurisdiction Act (the Act) (750 ILCS 35/1 et seq. (West 1994)), Florida is the \u201chome state\u201d of the minor child and therefore the State of Illinois lacks subject matter jurisdiction. We agree.\nSection 3.04 of the Act defines \u201chome state\u201d as follows:\n\"\u00a7 3.04. 'Home state\u2019 means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ***; however, periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.\u201d 750 ILCS 35/3.04 (West 1994).\n\"In deciding whether a child 'lived\u2019 in a particular State for purposes of determining whether that State qualifies as the child\u2019s home State, a court must [examine not only] whether the child was physically in that State[ ] but also[ ] under what circumstances the child came to and remained in the State. *** The word 'temporary\u2019 means ' \u201c[t]hat which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.\u201d \u2019 [Citations.] The word 'absence\u2019 means '[t]he state of being absent, removed, or away from one\u2019s domicile, or usual place of residence.\u2019 [Citation.] 'Temporary absence\u2019 does not connote a particular length of time. Under appropriate circumstances, the term can apply to a period of many months. [Citation.]\u201d Richardson v. Richardson, 255 Ill. App. 3d 1099, 1102, 625 N.E.2d 1122, 1124 (1993).\nDavid Macon moved to Florida with respondent in 1990 and remained in Florida until he came to Illinois to attend a private school. When respondent sent the child to Illinois to attend Moose-heart, it was clearly not with the intent that David Macon remain in Illinois. The temporary nature of David Macon\u2019s presence in Illinois is further evidenced by his return to respondent\u2019s home in Florida during school vacations. Within the context of the facts of this case, we find that the minor child\u2019s absence from Florida for educational purposes is temporary and does not divest Florida of jurisdiction as the child\u2019s \u201chome state.\u201d\nFor the foregoing reasons, the judgment of the circuit court of Madison County is reversed.\nReversed.\nHOPKINS, J., concurs.", "type": "majority", "author": "JUSTICE GOLDENHERSH" }, { "text": "JUSTICE CHAPMAN,\nspecially concurring:\nI agree with the majority that the record reflects that there is no evidence of a failure to support. I disagree, however, that we need to reach the due process issue. Because the long-arm requirements were not met in this case, there is no need to determine whether jurisdiction is constitutionally permissible under the due process clause. See Ideal Insurance Agency, Inc. v. Shipyard Marine, Inc., 213 Ill. App. 3d 675, 572 N.E.2d 353 (1991).", "type": "concurrence", "author": "JUSTICE CHAPMAN," } ], "attorneys": [ "Erin E. Reilly, of Lucco, Brown & Mudge, of Edwardsville, for appellant.", "Rand S. Hale, of Unsell, Unsell, Schattnik & Hale, of East Alton, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF MARCY L. HOWARD, f/k/a as Marcy L. Bailey, Petitioner-Appellee, and DAVID J. BAILEY, Respondent-Appellant.\nFifth District\nNo. 5\u201496\u20140449\nOpinion filed August 18, 1997.\nCHAPMAN, J., specially concurring.\nErin E. Reilly, of Lucco, Brown & Mudge, of Edwardsville, for appellant.\nRand S. Hale, of Unsell, Unsell, Schattnik & Hale, of East Alton, for appellee." }, "file_name": "0675-01", "first_page_order": 693, "last_page_order": 700 }