In Personam Jurisdiction

An Illinois judgment based on personal jurisdiction of both parties may be modified without reestablishing in personam jurisdiction of the parties. The legal precept of “continuing jurisdiction” has been limited to those situations in which modification of a judgment is sought in the judicial circuit in which it was originally entered. In a post-judgment proceeding to modify the judgment of one judicial circuit in another judicial circuit within this state, service of summons is necessary in order to obtain in personam jurisdiction even though there was in personam jurisdiction at the time the judgment was originally entered. In re Marriage of Hostetler, 124 Ill.App.3d 31, 463 N.E.2d 955, 79 Ill.Dec. 401 (1st Dist. 1984).

When a foreign judgment is sought to be modified, the Illinois Court must have in personam jurisdiction of the nonresident responding party in order to modify the judgment. In personam jurisdiction may be acquired by consent or by personal service of summons within the state. 735 ILCS 5/2-202. The court in In re Marriage of Pridemore, 146 Ill.App.3d 990, 497 N.E.2d 818, 100 Ill.Dec. 640 (4th Dist. 1986), held that in an Illinois proceeding to increase child support, personal service in Illinois on a nonresident obligor is sufficient to establish personal jurisdiction. When personal service cannot be made within the state, service outside the state may be appropriate pursuant to the long-arm statute. 735 ILCS 5/2-208. The failure of nonresident to support a child residing in Illinois does not enable an Illinois court to exercise in personam jurisdiction over the nonresident for either the enforcement or the modification of a judgment. Boyer v. Boyer, 73 Ill.2d 331, 383 N.E.2d 223, 22 Ill.Dec. 747 (1978). Moreover, a nonresident obligor’s mere consent to a child’s residence in a foreign state does not permit the exercise of jurisdiction in that state for the modification of a judgment. Kulko v. Superior Court of California in & for City & County of San Francisco, 436 U.S. 84, 56 L.Ed.2d 132, 98 S.Ct. 1690 (1978).

In Kulko, the United States Supreme Court addressed the issue of whether in a action for child support the California courts could exercise in personam jurisdiction over a nonresident, non-domiciliary parent of minor children domiciled with California. The Supreme Court held that California’s exercise of jurisdiction was impermissible under the due process clause notwithstanding the fact that the nonresident father had allowed his child to join her mother in California. The Court concluded:

It cannot be disputed that California has substantial interests in protecting resident children and in facilitating child-support actions on behalf of those children. But these interests simply do not make California a “fair forum,” Shaffer v. Heitner, [433 U.S. 186, 53 L.Ed.2d 683, 97 S.Ct. 2569, 2586 (1977),] in which to require appellant, who derives no personal or commercial benefit from his child’s presence in California and who lacks any other relevant contact with the State, either to defend a child-support suit or to suffer liability by default. 98 S.Ct. at 1701.

See In re Marriage of Weishaupt, 160 Ill.App.3d 563, 514 N.E.2d 788, 113 Ill.Dec. 6 (4th Dist. 1987); In re Marriage of Schuham, 120 Ill.App.3d 339, 458 N.E.2d 559, 76 Ill.Dec. 159 (1st Dist. 1983). See also McCormick v. McCormick, 623 S.W.2d 909 (Ky. 1981), in which jurisdiction to modify child support was decline on the basis of inconvenient forum in that both parents and the child were living in states other than Kentucky, where the original judgment had been entered, despite the fact that a series of prior orders was entered in Kentucky after departure of all the parties.

On the other hand, if a nonresident parent sends a child to live in Illinois effectively relinquishing custody to others who are residents of Illinois, an Illinois court has long-arm jurisdiction to order the father pay child support. In re Marriage of Highsmith, 111 Ill.2d 69, 488 N.E.2d 1000, 94 Ill.Dec. 753 (1986). In Highsmith, in personam jurisdiction of the nonresident father was based on his failure to support his child in Illinois, which was deemed to be tortuous conduct (within the meaning of the long-arm state) that subjected him to jurisdiction in this state. Further, the father’s contacts with Illinois were such that the exercise of jurisdiction did not offend “traditional notions of fair play and substantial justice.” 488 N.E.2d at 1003, quoting International Shoe Co. v. state of Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154, 158 (1945). Specifically, without seeking a modification of a judgment for dissolution in the State of California, the father in Highsmith purported to transfer custody to the maternal grandparents in Illinois without making provisions for the child’s support. These contacts were considered sufficient to satisfy the requirements of due process. 488 N.E.2d at 1003 – 1004.

If the responding party intends to object to the court’s personal jurisdiction, an appearance must be filed as required by 735 ILCS 5/2-301(a). The filing of a responsive pleading or a motion (other than for an extension of time to answer or otherwise appear) prior to a motion in compliance with §2-301(a) waives any objection to personal jurisdiction over the responding party. 735 ILCS 5/2-301(b).

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