dissenting:
I must dissent from the majority opinion, because I do not believe that the Illinois long-arm statute (Ill. Rev. Stat. 1983, ch. 110, par. 2—209) applies under these circumstances or that sufficient minimum contacts exist here to satisfy the requirements of due process. For both reasons I would have reversed the trial court’s decision that it had personal jurisdiction over the defendant.
First, I do not agree that sending his daughter to live with his parents in Illinois was “tantamount to abandonment” and, therefore, constituted a tortious act. There is no evidence that the grandparents were unwilling to take custody of the child or that they did not voluntarily support her. If we consider the failure to support the child the tortious conduct, People v. Flieger applies. The majority rationale in this case, like the trial court’s in Flieger, presumes as true what the plaintiff is attempting to prove. Here, we must presume that defendant violated a legal obligation when in fact this proceeding was brought to determine what his legal obligations are. The question here is not whether this court can enforce the support order but whether the Illinois court had jurisdiction initially when it placed custody with the plaintiff and ordered the defendant to pay support. Because at that time no breach of a legal duty, i.e., the duty to support the child, had occurred, I would have held that jurisdiction over defendant cannot be established by section 2—209 of the Code of Civil Procedure of 1963, because, as in Flieger, there was no tortious conduct.
Nor do I believe that the minimum-contacts test was satisfied in this case. Unlike the majority, I find the facts in this case nearly identical to the facts in Kulko v. Superior Court of California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690. I would not have held, as the majority did, that by “dumping his child in this State” he consented to the jurisdiction of Illinois courts. This is precisely what happened when the father in Kulko sent his daughter to California to live with her mother. I read the Illinois Supreme Court in Boyer v. Boyer (1978), 73 Ill. 2d 331, 340, 383 N.E.2d 223, 226, to support my position that Kulko denies jurisdiction when the only contact with the forum State is the fact that the ex-wife and child reside there and defendant “derived no commercial or personal benefit from [their] presence * * * in Illinois.” (See also Duncan v. Duncan (1981), 94 Ill. App. 3d 868, 419 N.E.2d 700.) Furthermore, the Illinois Supreme Court in Boyer declined to decide whether failure to pay support constituted a tortious act in Illinois, because the minimum contacts test of Kulko was not satisfied. What I find most significant in the United States Supreme Court’s discussion in Kulko is the statement that not only could the wife “vindicate her claimed right in a New York court but also the uniform acts will facilitate both her prosecution of a claim for additional support and collection of any support payments found to be owed by appellant.” (Kulko v. Superior Court of California (1978), 436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.) The acts referred to are the Revised Uniform Reciprocal Enforcement of Support Act. Illinois has adopted this act (Ill. Rev. Stat. 1983, ch. 40, par. 1201 et seq.) and has therefore manifested a substantial interest in “protecting resident children and in facilitating child-support actions on behalf of those children.” (436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.) Therefore, this plaintiff could have resorted to the Uniform Act to obtain jurisdiction over the defendant, as the Illinois Supreme Court pointed out in Boyer, Having chosen not to do so, I believe, on the basis of the Supreme Court’s holding in Kulko and the Illinois Supreme Court’s interpretation of that holding in Boyer v. Boyer, that Illinois is not a “fair forum” to either force defendant to defend this action or suffer liability by default. 436 U.S. 84, 100, 56 L. Ed. 2d 132, 146, 98 S. Ct. 1690, 1701.
I would have reversed the trial court’s finding that it had personal jurisdiction over the defendant.