dissenting:
I must respectfully dissent from the majority opinion in the above case. The motion in this case for a change of custody, as shown by the record, was filed on April 25, 1977, with respect to a decree which had been entered on August 10,1976. The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) became effective on October 1, 1977, about five months following the filing of a motion for a change of custody in this case. No issue was raised by the parties to this case as to the form and substance of the motion filed or as to the issue which was considered and determined in the trial court. The issue which was presented tó the court and specifically contested by the parties was based on the question as to whether or not the trial court found sufficient evidence that the then present environment endangered seriously the mental, moral or emotional health of the child and that the harm likely to be caused by the change in environment was outweighed by its advantages to the child. The form of the motion was not challenged in any respect.
Clearly, in this case, if an objection was made to the motion as filed, prior to the effective date of the Marriage and Dissolution of Marriage Act, the court would have denied any such opposing motion and permitted the parties to proceed. If an issue as to the nature of the motion and support therefor was made after the effective date of the Marriage and Dissolution of Marriage Act, the court could clearly have indicated to the moving party that affidavits were needed in support of the motion or the court would grant the request of the objector and deny a hearing on the merits of the issue. Neither party raised any issue with respect to the nature of the motion, nor did the trial court, and the trial court found, in fact, that adequate evidence had been presented to justify the change of custody under the standards set forth in the Marriage and Dissolution of Marrige Act.
The majority opinion, however, is based upon a “search of the record” by the appellate court, after the determination of the issue on the merits in the trial court, and raises now, on appeal, sua sponte by the court, a contention that the failure to support the motion which was filed in the circuit court before the effective date of the Marriage and Dissolution of Marriage Act was deficient in failing to have supporting affidavits, and that, therefore, apparently, the appellate court, on review, is now asserting that, even though not challenged in any manner on appeal or otherwise, the trial court had no jurisdiction to adjudicate the matter. This is premised on the assertion that the trial court lacked “jurisdiction.”
Obviously, the court had jurisdiction to consider the motion at the time it was filed and, if the operative section to which the majority opinion refers would have been involved in a challenge on the part of the respondent to the motion, claiming that no affidavits were filed in support of the motion, the trial court could certainly have granted leave to the moving party seeking change of custody to support the motion by affidavits in accordance with section 610(a). It is also apparent from the record that the allegations which were made and proof presented would have permitted the moving party to file such supporting affidavits in accordance with the provisions of the section. No challenge was made, however, to the nature of the motion or to the right of the parties, in the court, to proceed with the hearing, nor is any contention made on appeal that there was any deficiency in the procedure undertaken by the parties in the trial court.
Under the facts and circumstances in the instant case, I do not believe that the trial court lacked “jurisdiction” in a sense which would permit the court on review at this time to search the record and, without any request by any party for such relief, reverse and vacate the order entered in the instant case.
The trial court did not lose jurisdiction of the parties and the subject matter in the motion pending in the trial court. The provisions of section 610(a) are available, to an adversary for challenge, if a challenge is made, as previously indicated, but a court, on review, should normally not “search the record” for the purpose of reversal but only to affirm. Under the facts and circumstances inthe instant case, the court on review, at the very least, should give the moving party the opportunity to supplement the motion by affidavits and remand solely for that purpose, if deemed essential, and permit the supporting proof to stand for determination by the trial court and the court of review, if appealed, as to whether or not the evidence at the trial was sufficient to support the court’s finding that the then present environment endangers seriously the mental, moral or emotional health of the child and that harm likely to be caused by a change in environment was outweighed by its advantages to the child.
As noted in the majority opinion, the legislative intent of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 102) is shown by the statement that the Act shall be “liberally construed and applied to promote its underlying purposes.” It is nowhere contemplated in the Act that a court of review should search the record, for the purposes undertaken in the instant case, to reverse and to apply a purely technical and inequitable procedure which arbitrarily reverses the finding of the trial court order as to a change of custody actually made consistent in its findings with the purposes of the Act. Such procedure is not required by the Act and should not be undertaken, particularly where it may do great harm to a child involved in a change of custody order, notably on the record in the instant case.
Are all “change of custody” orders within two years of divorce decree, entered after October 1, 1977, pending on petitions filed prior to October 1, 1977, void for “lack of jurisdiction”? To support a conclusion such as outlined in the majority opinion would mean that in all cases where a change of custody proceeding was pending before the effective date of the Act, a trial court’s decision on the issue of a change of custody, even though properly supported by evidence showing that the mental, moral or emotional health of the child would be affected (and when no challenge is made to the form of the petition for change of custody filed prior to the effective date of the Act) would result in a vacation of the order entered by the trial court, even though not requested by the parties on a conclusion that the court had no “jurisdiction” to enter the order. Such result is neither rational nor required.
For the reasons stated, therefore, I do not agree with the majority opinion disposition in this case and believe that the order of the trial court in the instant case should be affirmed.