dissenting:
I believe the majority correctly states the general rule of a court’s continuing and exclusive jurisdiction over child-custody disputes in divorce proceedings. In applying that rule, however, the majority ignores relevant data presented here, namely: (1) Mrs. Lowenthal’s acquiescence to the Lake County proceedings; (2) the greater degree of mobility in society today; and (3) Du Page County’s assumption of appellate review of Lake County’s orders.
Had Mrs. Lowenthal not acquiesced to the Lake County circuit court’s jurisdiction and participated in those proceedings for over a year, the majority would be on firmer ground. The circuit court of Lake County had personal jurisdiction over the parties and general subject matter jurisdiction over the dispute. (See People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 291; Cowles v. Cowles (1846), 8 Ill. 435, 437-38.) In Plume & Atwood Manufacturing Co. v. Caldwell (1891), 136 Ill. 163, 166, this court held that the “rule giving exclusive jurisdiction to the court first acquiring it, is one that the parties may waive ***.” In State ex rel. Beineke v. Littell (1966), 247 Ind. 686, 220 N.E.2d 521, the parents of a minor son were granted a divorce by the superior court of Marion County and the mother was awarded custody of the child. Two years later, the mother executed a written consent to have a third party appointed the son’s legal guardian (this consent also waived notice of the petition to appoint the guardian). The petition to appoint the legal guardian was allowed by the superior court of Morgan County. The mother remarried three years later and forcibly removed her son from Morgan County to Indianapolis. She then petitioned the Morgan County superior court to dissolve the guardianship. This was denied.
Subsequently the mother filed an original action in the Supreme Court of Indiana seeking a writ of prohibition restraining the Morgan County court from exercising jurisdiction. This was the first time she challenged the jurisdiction of the Morgan County court. In denying the writ, the court reasoned:
“The solution to the problem here presented would be quite simple were it not for the consent and waiver given many years ago by the natural mother, relatrix in this case, and the acquiescence therein by her for many years. We have said many times that the court granting the divorce and fixing the custody of the children has continuing jurisdiction thereof.” 247 Ind. 686, 690, 220 N.W.2d 521, 523.
The court continued:
“However, a court may lose jurisdiction of the subject-matter to another court where the parties sleep on their rights or acquiesce or consent to the jurisdiction of another court which has jurisdiction of the subject-matter. The Superior Court of Morgan County has the same jurisdiction of the subject-matter of guardianships and the custody of children as that of the Marion Superior Court ***.” 247 Ind. 686, 690, 220 N.E.2d 521, 523.
In this case, had Mrs. Lowenthal made a timely motion to dismiss the Lake County proceedings, based upon the continuing jurisdiction of the Du Page County court, the Lake County circuit court would have been obliged to do so. However, she voluntarily appeared and litigated the child-custody question to judgment and subsequently petitioned the same court for yet another change of custody. It was only after these actions that she sought relief from the Du Page County circuit court and moved to dismiss the Lake County proceedings. Through her actions she consented to the jurisdiction of the Lake County circuit court and should not now be permitted to protest that jurisdiction.
The very mobility of people in contemporary society, as evidenced by Dr. Sommer and Mrs. Lowenthal, necessitates a more convenient process for settling disputes, such as here, and for enrolling and enforcing judgments outside the jurisdiction of a decretal court. The Uniform Enforcement of Foreign Judgments Act has facilitated the enforcement of out-of-State judgments. Yet intrastate judgments are not provided for in the statutes. It is incongruous for one party to be able to move out of the State and enforce a judgment in the new State — and county — of residence and for the other party, who remains in the State but moves to another county, to be unable to do so. As the Lake County circuit court pointed out, there is no sound public-policy reason for affording one who moves out of State greater convenience than one who remains. To take a not-so-extreme example, it would be easier for a party to return to the decretal court in Du Page County from Beloit, Wisconsin, than for the other party to return from Cairo, Illinois. Yet, the Beloit party could remain in Beloit while the Cairo party, under the majority decision, would have to return to Du Page County for modification of a decree.
The majority correctly points out that sister county decrees or intrastate judgments may not be registered elsewhere in the State under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1975, ch. 77, par. 88 et seq.). (Jackson v. Jackson (1965), 55 Ill. App. 2d 77.) The majority then asserts that the common law method for enrollment and enforcement of sister county decrees is not in point. (See Jackson and Fuhrer v. Fuhrer (1968), 91 Ill. App. 2d 358.) The common law procedure for enrollment and enforcement, the majority says, is appropriate for final orders but not for a custody order which is, “by its nature, an interlocutory order and not a final one.” I must disagree.
The Uniform Enforcement of Foreign Judgments Act allows for the registration of “any judgment, decree or order” (Ill. Rev. Stat. 1975, ch. 77, par. 88). In Light v. Light (1957), 12 Ill. 2d 502, 509, this court held that, in a proceeding for the registration of a decree under the Act, a custody decree is “entitled to full faith and credit until a different order as to custody is entered by a court of competent jurisdiction.” (See People ex rel. Halvey v. Halvey (1946), 330 U.S. 610, 614, 91 L. Ed. 1133, 1136, 67 S. Ct. 903, 906.) I believe this is analogous to the registration of child-custody decrees by sister counties under the common law procedure.
By dismissing Mrs. Lowenthal’s appearance and participation in the Lake County proceedings as meaningless and by ignoring the contemporary need for a convenient forum for disputing parties in a mobile society, the majority’s decision is ultimately reduced to an approval of the assumption of appellate review by a sister county court. For these reasons, I would award the writ.
MORAN and DOOLEY, JJ., join in this dissent.
Supplemental Opinion on Denial of Rehearing.
In his petition for rehearing the petitioner notes that on October 1, 1977, four days prior to the date on which we announced our decision in the present case, the Illinois Marriage and Dissolution of Marriage Act (Pub. Act 80 — 923) became effective. The petitioner contends that, as a result of sections 512(a) and (c) of the Act, the circuit court of Lake County had jurisdiction. We do not agree that the new law is applicable.
Section 801 of the new act is as follows:
“(a) This Act applies to all proceedings commenced on or after its effective date.
(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.
(c) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.
(d) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”
Section 801(d) governs appeals which were pending prior to October 1. Such appeals are governed by the law which was in effect at the time of the order “sustaining the appeal.” The latter phrase does not mean the judgment entered by the reviewing court upon the appeal, but rather the order of the trial court which forms the basis of the appeal. That this is the meaning of subsection (d) is clear from the fact that subsections (a), (b) and (c) each describe situations in which the new act is applicable. That this is the correct construction of subsection (d) is also evidenced by the Commissioners’ Note to section 502(d) of the Uniform Marriage and Divorce Act (9 Uniform Laws Annotated 514-15 (1973)), from which section 801(d) has been drawn. That note provides:
“Subsection (d) provides that this Act does not apply to appeals that had been perfected and thus were pending at its effective date, to new trials ordered prior to its effective date, or to any subsequent appeals or new trials resulting from these pending appeals or new trials. The purpose of this provision is to allow the correction on appeal or in a new trial of errors made in applying the law in effect at the time of the original hearing pursuant to that law. Changing the rules on appeal or at the new trial seems unfair to the party prejudiced by the error. A similar provision was included in the California Family Law Act of 1969.”
See also Dockum v. Dockum (1974), 34 Colo. App. 98, 101, 522 P.2d 744, 746, in which the court held that the provisions of Colorado’s Uniform Dissolution of Marriage Act, which applies only to actions commenced on or after the effective date of the Act (Colo. Rev. Stat. sec. 14 — 10—133 (1974)), did not apply to a proceeding brought to modify a custody order which had been entered prior to that date. Cf. Spurling v. Spurting (1974), 34 Colo. App. 341, 343, 526 P.2d 671, 672.
While the present case involves a petition for an original writ of mandamus, rather than an appeal, we believe the same principle should be applicable. Such an interpretation is consistent with subsection (b), for the Commissioners’ Note to section 502(b) makes it clear that the reference there made to “pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered” refers to proceedings pending at the trial court level, not those pending in a court of review. See 9 Uniform Laws Annotated 514.
CLARK and MORAN, JJ., dissenting.