{ "id": 279495, "name": "In re MARRIAGE OF GIOVANNA D. McGUIRE, Petitioner-Appellee, and BENJAMIN F. McGUIRE, Respondent-Appellant", "name_abbreviation": "In re Marriage of McGuire", "decision_date": "2001-01-01", "docket_number": "No. 2-00-0231", "first_page": "94", "last_page": "99", "citations": [ { "type": "official", "cite": "318 Ill. App. 3d 94" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "188 Ill. 2d 546", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536015 ], "year": 1999, "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0546-01" ] }, { "cite": "299 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221484 ], "year": 1998, "pin_cites": [ { "page": "1039-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/1034-01" ] }, { "cite": "18 S.W.3d 801", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11508954 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "806" }, { "page": "806" }, { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/sw3d/18/0801-01" ] } ], "analysis": { "cardinality": 473, "char_count": 12342, "ocr_confidence": 0.726, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.011368809532910992 }, "sha256": "d196306096d2547b325aff5f096d1ebfbe23666e8e5abd6eed8ad759ca1dc181", "simhash": "1:28e5a335066a3b94", "word_count": 2052 }, "last_updated": "2023-07-14T16:02:38.722215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF GIOVANNA D. McGUIRE, Petitioner-Appellee, and BENJAMIN F. McGUIRE, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nThe respondent, Benjamin Franklin McGuire, appeals the circuit court\u2019s dismissal of his petitions to, inter alia, modify visitation and establish supervised visitation between the petitioner, Giovanna Dionne McGuire, and the parties\u2019 son. We vacate the circuit court\u2019s order and remand for further proceedings.\nOn February 8, 1996, a judgment of dissolution was entered in the district court of Ector County, Texas, dissolving the parties\u2019 marriage. The parties had one child, a son born September 4, 1991. The court appointed the mother and father as joint managing conservators of their son, but it gave the father the exclusive right to establish the legal residence and domicile of the boy.\nIn December 1996, the father and son moved from Texas to Na-perville, Illinois. Subsequently, the father and son moved to Aurora, Illinois.\nOn December 3, 1998, the mother filed a \u201cFirst Amended Petition to Modify the Parent-Child Relationship\u201d in Texas. This petition sought to change certain travel arrangements regarding the boy and the allocation of the travel costs. The petition did not, however, seek to change the length of visitation or custody. This petition was not served on the father until April 1999.\nOn December 4, 1998, the father filed in the Kane County circuit court petitions to enroll the Texas decree, for rule to show cause and to increase child support, and to modify visitation and establish supervised visitation. The father asserted that these petitions were personally served on the mother by the Ector County sheriff in Texas on December 9, 1998.\nOn January 8, 1999, the mother filed a special and limited appearance in Kane County circuit court and filed a motion to dismiss the father\u2019s petition for lack of jurisdiction. The mother also sought a judicial conference between the Kane County, Illinois, court and the Ector County, Texas, court, pursuant to section 7 of the Uniform Child Custody Jurisdiction Act (750 ILCS 35/7 (West 1998)). On March 3, 1999, the Kane County circuit court took the matter under advisement.\nOn April 27, 1999, the mother filed a petition in Texas, seeking appointment as the sole managing conservator (sole custody) of the boy. The mother alleged in the petition that the father had denied the mother visitation and contact with their son.\nOn June 25, 1999, the father filed petitions in the Kane County circuit court seeking a temporary restraining order to prevent the boy from being removed from Illinois to visit his mother in Texas. The father also sought the appointment of a guardian ad litem and an in camera conference with the boy The Kane County circuit court found that the matter was not an emergency and set the matter over for a hearing. Two days later, the boy went to Texas to visit his mother.\nOn July 6, 1999, while the boy was in Texas with his mother, the Ector County, Texas, district court entered a default judgment against the father and in favor of the mother, awarding sole managing conservatorship (custody) of their son to the mother, with the right to, inter alia, establish the primary residence of the child.\nOn July 29, 1999, the Kane County, Illinois, circuit court indicated that it had attempted to contact the Ector County, Texas, district court for a judicial conference, but the Texas court had not returned its phone call. On October 19, 1999, the Illinois court held that, because it was unsuccessful in conducting a judicial conference with the Texas court, it must defer to the Texas court regarding custody and visitation and dismissed the case. The Kane County, Illinois, court then denied the father\u2019s motion to reconsider on January 31, 2000.\nOn February 25, 2000, the father appealed the Texas court\u2019s default order, which granted sole managing conservatorship to the mother. On March 30, 2000, the Texas Court of Appeals reversed the Texas district court\u2019s default judgment, holding that the Texas court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 1998)). to modify the joint managing conservatorship. McGuire v. McGuire, 18 S.W.3d 801, 806 (Tex. Ct. App. 2000). In the opinion, the Texas appellate court stated that Illinois, not Texas, was the boy\u2019s home state. McGuire, 18 S.W3d at 806.\nOn May 26, 2000, the mother filed an \u201cAmended Petition to Modify Parent-Child relationship\u201d in the Ector County district court. In the petition the mother sought, inter alia, the right to establish the domicile of her son and a \u201cStandard Possession\u201d visitation order for the father\u2019s visitation. The mother also sought a temporary order granting her the right to establish the domicile of her son, ordering the father to pay child support to the mother while the case was pending, granting the mother temporary managing conservatorship, and enjoining the father from, inter alia, removing the boy from Ector County, Texas, hiding the boy from the mother, changing the boy\u2019s current place of abode from the mother\u2019s Texas home, or \u201cdisturbing the peace of the child or of another party.\u201d\nOn June 1, 2000, the Ector County, Texas, district court granted the mother\u2019s request for a temporary restraining order enjoining the father from, inter alia, removing the boy from Ector County, Texas, hiding the boy from the mother, changing the boy\u2019s current place of abode from the mother\u2019s Texas home, or \u201cdisturbing the peace of the child or of another party.\u201d The Ector County district court ordered the father to appear for a hearing 10 days after the service of the temporary order. The court granted the mother\u2019s request for the appointment of a process server in Illinois. The following day, on June 2, 2000, the mother filed a full appearance in the Kane County, Illinois, circuit court.\nOn June 6, 2000, the mother filed a motion to dismiss this appeal and a motion to supplement the record with evidence that the mother had filed a full appearance in the Kane County, Illinois, circuit court on June 2, 2000. This court took the motions with this case.\nOn June 6, 2000, the mother filed a motion to dismiss the father\u2019s appeal of the Illinois court\u2019s October 19, 1999, order. The mother states in her motion that she \u201cwithdraws her objections to jurisdiction within the state of Illinois, and seeks dismissal or remand of this appeal to permit the parties to proceed in the trial court as soon as possible.\u201d The mother also stated that her attorney representing her in Texas spoke with the father\u2019s attorney and they both \u201cagreed to dismiss all petitions pending in Texas to permit proceedings in Illinois to commence.\u201d\nOn June 13, 2000, the father filed his answer to the mother\u2019s motion to dismiss this appeal. In his answer, the father explained that he did not agree to dismiss the appeal because, as of June 13, 2000, petitions seeking the modification of the custody and visitation order filed by the mother were still pending in the Texas district court and had not been withdrawn.\nOn appeal, the father argues that the trial court erred when it dismissed his petitions, finding that it had to defer to the Texas district court and to decline jurisdiction over the matter. The mother now concedes that Illinois, not Texas, has jurisdiction over this matter.\nIt is well settled that dismissal based on the lack of jurisdiction is subject to de novo review when the facts are not in dispute. See Gai- dar v. Tippecanoe Distribution Service, Inc., 299 Ill. App. 3d 1034, 1039-40 (1998). Further, a trial court\u2019s interpretation of a statute is also reviewed de novo. County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 551 (1999).\nInterstate custody disputes are governed by the Uniform Child Custody Jurisdiction Act (Act) (750 ILCS 35/1 et seq. (West 1998)). The Illinois version of the Act provides in pertinent part:\n\u201c\u00a7 7. Simultaneous Proceedings in Other States, (a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.\u201d (Emphasis added.) 750 ILCS 35/7(a) (West 1998).\nAnd:\n\u201c\u00a7 15. Modification of Custody Judgment of Another State, (a) If a court of another state has made a custody judgment, a court of this State shall not modify that judgment unless: ***\n2. the court of this State has jurisdiction.\u201d 750 ILCS 35/15 (a)(2) (West 1998).\nThe Illinois Act provides four alternative circumstances in which an Illinois circuit court has jurisdiction. Most notably, section 4(a) (l)(i) provides:\n\u201c\u00a7 4. Jurisdiction, (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:\n1. this State\n(i) is the home state of the child at the time of commencement of the proceeding!.]\u201d 750 ILCS 35/4(a)(l)(i) (West 1998).\nThus, under the Illinois Act, an Illinois court has jurisdiction to modify a child custody order of a foreign state if Illinois was the home state of the child when the petition to modify was filed in Illinois. This' applies to visitation orders as well, since the definition of \u201ccustody determination\u201d includes court orders providing visitation rights. See 750 ILCS 35/3.02 (West 1998).\nIn this case, the Kane County, Illinois, circuit court refused to exercise jurisdiction and dismissed the father\u2019s petitions because the Texas court had not declined jurisdiction. The Kane County circuit court noted in its orders that it had attempted to contact the Texas district court on two occasions and was unsuccessful. We recognize that, when a party seeks the modification of a custody or visitation judgment of a foreign state court, an Illinois court may be required to defer to the foreign state, unless the foreign state court declines jurisdiction. 750 ILCS 35/15(a)(l) (West 1998). Further, an Illinois court may be required to defer jurisdiction to a foreign state court when simultaneous proceedings are pending in that foreign state. 750 ILCS 35/7(a) (West 1998). However, this deference is due only if the foreign state court continues to have subject matter jurisdiction over the matter. See 750 ILCS 35/15(a)(l) (West 1998). In this case, the circuit court, without first considering this issue, assumed that the Texas district court continued to have jurisdiction.\nRegardless, certain facts have since come to light that demand the vacation of the circuit court\u2019s dismissal of the father\u2019s petitions. After the father filed his notice of appeal in this case, the Texas Court of Appeals reversed the default judgment against the father entered by the Texas district court. McGuire v. McGuire, 18 S.W.3d 801 (Tex. Ct. App. 2000). The Texas Court of Appeals expressly held that Texas did not have jurisdiction and that Illinois, not Texas, was the home state of the boy. McGuire, 18 S.W.3d at 806. Further, the mother now concedes that Illinois, not Texas, is the home state of the child and that the Kane County, Illinois, circuit court has jurisdiction over this matter. We recognize that these facts were not before the Illinois circuit court. However, this court has the power to \u201center any judgment and make any order that ought to have been given or made\u201d by a circuit court. 155 Ill. 2d R. 366(a)(5). Therefore, we determine that Illinois was the home state of the parties\u2019 son and that the Kane County, Illinois, circuit court had jurisdiction to modify the Texas court\u2019s custody and visitation judgment. Thus, we vacate the circuit court order dismissing the father\u2019s petitions and remand this cause for further proceedings.\nWe also grant the mother\u2019s motion to supplement the record and deny her motion to dismiss this appeal.\nThe judgment of the circuit court of Kane County is vacated, and the cause is remanded for further proceedings.\nVacated and remanded.\nGEIGER and HUTCHINSON, JJ., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "Steven A. Miner, of Barrington Hills, for appellant.", "Cynthia Lee Carter, of Geneva, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF GIOVANNA D. McGUIRE, Petitioner-Appellee, and BENJAMIN F. McGUIRE, Respondent-Appellant.\nSecond District\nNo. 2\u201400\u20140231\nOpinion filed January 1, 2001.\nSteven A. Miner, of Barrington Hills, for appellant.\nCynthia Lee Carter, of Geneva, for appellee." }, "file_name": "0094-01", "first_page_order": 114, "last_page_order": 119 }