Gasaway v. Gasaway

616 N.E.2d 610, 246 Ill. App. 3d 531, 186 Ill. Dec. 420, 1993 Ill. App. LEXIS 1024
CourtAppellate Court of Illinois
DecidedJuly 1, 1993
Docket3-92-0891
StatusPublished
Cited by8 cases

This text of 616 N.E.2d 610 (Gasaway v. Gasaway) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gasaway v. Gasaway, 616 N.E.2d 610, 246 Ill. App. 3d 531, 186 Ill. Dec. 420, 1993 Ill. App. LEXIS 1024 (Ill. Ct. App. 1993).

Opinion

JUSTICE BRESLIN

delivered the opinion of the court:

The petitioner, Lori Gasaway, filed a petition for an order of protection against the respondent, Danial Gasaway, in the circuit court of Knox County. The trial court granted the order of protection. Danial appeals. We affirm as modified.

The record reveals that the parties were married in 1987 and had two children during the course of the marriage. They lived in Hammond, Indiana, until they were separated in December of 1991. At that time, Lori moved with the children to Knoxville, Illinois. The parties were divorced on June 30, 1992, by an order entered in an Indiana State court. The Indiana divorce decree awarded custody of the two minor children to Lori and granted Danial visitation.

Thereafter, Danial apparently had problems with visitation so he filed petitions for modification of visitation and for contempt against Lori in Lake County, Indiana. Lori did not appear, and on October 7, 1992, the Indiana court entered an order granting Danial temporary custody and issued a warrant for Lori’s arrest. One week later, Danial drove to Knox County, Illinois, and showed the custody order to an assistant State’s Attorney and was eventually told that the Knox County State’s Attorney’s office would not honor the Indiana order granting Danial custody. From there, Danial went to Lori’s home, but Lori would not relinquish custody of the children to Danial. Danial then returned to Hammond, Indiana. On October 15, 1992, Lori filed her petition for an order of protection against Danial.

On October 20, 1992, Danial went to the grade school in Knox County of the parties’ minor daughter, Whitney, and took her into his car after she exited the school bus. He then attempted to transport the child back to Indiana, but was stopped by a State trooper near Interstate 80 in Henry County, Illinois, and arrested on charges of child abduction.

The record further indicated that Danial made some threatening remarks to Lori over the phone in early 1992. There was also some evidence that the parties had a dispute over visitation in May 1992. The dispute eventually led to a “high speed chase” in which Lori’s brother pursued Danial’s truck down the highway while one of the children was a passenger in Danial’s vehicle.

On November 5, 1992, the court conducted a hearing on Lori’s petition for an order of protection at which it heard all of the above-mentioned evidence. At that hearing, Danial also presented Judge James B. Stewart with a certified copy of the Indiana custody order granting him temporary custody. Judge Stewart specifically asked Danial whether he intended to enforce the Indiana judgment by filing a petition to enroll it, and Danial responded that he did not. Judge Stewart then stated that he would not give effect to the Indiana custody order. He then entered a judgment granting Lori an order of protection which in relevant part prevented Danial from removing the children from the physical care of Lori or from the jurisdiction.

On appeal, Danial first argues that the trial court erred in not giving effect to Indiana’s modified temporary custody judgment even though he refused to enroll that judgment. He contends that section 7 of the Uniform Child Custody Jurisdiction Act (Custody Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2107) prevented the trial court from exercising its jurisdiction in this case.

We disagree. Section 4(a)(1)(i) of the Uniform Child Custody Jurisdiction Act provides that Illinois has jurisdiction to make a child custody determination if Illinois is the child’s home State at the time of the commencement of the proceeding. (Ill. Rev. Stat. 1991, ch. 40, par. 2104(a)(1)(i).) Section 7 of the Uniform Child Custody Jurisdiction Act provides that a court of this State shall not exercise its jurisdiction under the Act if at the time of the filing of the petition a proceeding concerning custody of the child was pending in a court of another State exercising jurisdiction substantially in conformity with the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 2107(a).) Section 7 of the Act further provides that if the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another State before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum. Ill. Rev. Stat. 1991, ch. 40, par. 2107(c).

For a plenary order of protection to issue, the petitioner must establish jurisdiction under section 208 of the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2312 — 8). (In re Marriage of Los (1992), 229 Ill. App. 3d 357, 593 N.E.2d 126.) Section 208 of the Domestic Violence Act specifically states that personal jurisdiction is determined by the Uniform Child Custody Jurisdiction Act; thus, the same jurisdictional requirements for a custody modification order or enforcement of a custody order under the Custody Act apply to a proceeding for a plenary order of protection. (In re Marriage of Los (1992), 229 Ill. App. 3d 357, 593 N.E.2d 126.) However, the threshold question of whether Illinois has jurisdiction under section 4 of the Custody Act is separate from the question of whether Illinois should decline to exercise that jurisdiction under section 7 of the Custody Act. Under the Domestic Violence Act, the provisions for declining to exercise jurisdiction listed in section 7 of the Custody Act do not apply to the decision of whether jurisdiction is proper for an order of protection. (See Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 1 et seq.) In other words, as long as jurisdiction is established under section 4 of the Custody Act, the trial court may enter an order of protection even though it might have been required to decline to exercise its jurisdiction under section 7 of the Custody Act if it had instead been faced only with a petition to modify an out-of-State custody judgment. This is in accord with the requirement that the Domestic Violence Act be liberally construed to promote the underlying purpose of the Act, which is to support the efforts of victims of domestic violence to avoid further abuse by promptly entering and diligently enforcing court orders which prohibit abuse so that victims are not trapped in abusive situations. (Ill. Rev. Stat. 1991, ch. 40, par. 2311 — 2(4).) Accordingly, we find that Danial’s reliance on section 7 is misplaced.

Here, Danial in essence sought to enforce an out-of-State custody judgment. The proper procedures to follow in enforcing an out-of-State custody judgment are found in section 511(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 511(c); see also Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Thomas v. Thomas (1974), 23 Ill. App. 3d 936, 321 N.E.2d 159), and section 16 of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1991, ch. 40, par. 2116; see also In re Marriage of Mauro (1989), 187 Ill. App.

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616 N.E.2d 610, 246 Ill. App. 3d 531, 186 Ill. Dec. 420, 1993 Ill. App. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gasaway-v-gasaway-illappct-1993.