Doyle v. Doyle

379 N.E.2d 387, 62 Ill. App. 3d 786, 19 Ill. Dec. 723, 1978 Ill. App. LEXIS 3073
CourtAppellate Court of Illinois
DecidedAugust 4, 1978
Docket14810
StatusPublished
Cited by10 cases

This text of 379 N.E.2d 387 (Doyle v. Doyle) 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
Doyle v. Doyle, 379 N.E.2d 387, 62 Ill. App. 3d 786, 19 Ill. Dec. 723, 1978 Ill. App. LEXIS 3073 (Ill. Ct. App. 1978).

Opinion

Mr. PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case involves the interpretation of section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610) which governs the modification of custody judgments. Plaintiff Gladys Doyle appeals from an order of the circuit court of McLean County granting a petition to modify and awarding custody of the parties’ two minor children to defendant William Doyle. On appeal, plaintiff contends (1) the court improperly applied the standards set forth in section 610, (2) the decision was contrary to the manifest weight of the evidence, and (3) the court failed to make the findings necessary to support its decision.

Plaintiff and defendant were married on August 3, 1963, in Pennsylvania and had two children: William born 2/21/69 and Megan bom 2/9/73. On August 17,1976, in the circuit court of McLean County, plaintiff was granted a divorce from defendant on the grounds of mental cruelty. The divorce decree granted custody of the children to plaintiff subject to defendant’s right to reasonable visitation in accordance with the terms outlined in the property settlement approved by the court and incorporated into the decree.

On Sunday, December 5,1976, while defendant had taken the children on an outing, plaintiff had a seizure or a blackout related to her heavy consumption of alcohol and was taken to Mennonite Hospital in Bloomington. Defendant arranged for a friend to take care of the children that night, and the following day he purchased a home and the children moved in with Mm. On December 9, 1976, defendant was awarded temporary custody of the children pursuant to a petition for adjudication of wardship filed by the McLean County State’s Attorney in a juvenile proceeding. On January 12,1977, he filed a petition to modify the divorce decree as to custody of the minors. The petition alleged a substantial change in circumstances since the entry of the divorce decree which affected the children’s welfare and listed specific allegations of plaintiff*s lack of fitness to have custody. The children continued to live with defendant from December 6, 1976, until the time of the hearing on the petition, November 3-4, 1977.

The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101—802) became effective October 1, 1977. Defendant’s petition was pending at that time and thus was governed by the provisions of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 801). Section 610 of the Act provides in part:

“Modification.) (a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.” Ill. Rev. Stat. 1977, ch. 40, par. 610.

In compliance with section 610(a) of the Act, defendant filed an affidavit stating that there was reason to believe that the children’s environment with plaintiff would endanger their physical, mental, moral, and emotional health, and in support thereof referred to his earlier petition to modify. An identical affidavit signed by Benjamin Moore, a child clinical psychologist who had examined the parties’ minor children, was filed November 3, 1977, the date of the hearing.

Plaintiff argues that the terms “custody judgment” and “prior custody judgment” as stated in the statute refer to final rather than temporary orders of custody. The supreme court of Montana interpreting their similarly worded statute so held in Groves v. Groves (1977), _ Mont. _, 567 P.2d 459. We agree. The effective use of temporary custody orders would be greatly reduced if they could only be vacated or modified in conformity with the stringent requirements of section 610. Here the “prior custody judgment” was the original divorce decree.

Plaintiff also contends that the phrase “the child’s present environment” as used in subsection (b) (3) refers to the environment which she as the custodian under the “prior custody judgment” would be able to furnish the child at the time of the hearing on the petition for modification. The statute is not clear as to how this phrase is to be interpreted, particularly in cases where, as here, the child has been in the temporary custody of the other parent for a substantial period of time prior to the hearing.

A possible interpretation is that the phrase refers to the situation at the time of the filing of the motion to modify. Under somewhat similar circumstances in Groves where the child had been in the temporary custody of the noncustodial parent for Vk years before a hearing was held on the petition to modify, the Montana court stated:

“In the unique context of this case, in which the noncustodial parent was awarded temporary custody, ‘present environment’ must be taken to mean the environment of the child while with the parent who held the child under the prior decree and before custody was temporarily taken from him.” (567 P. 2d 459, 463.)

An argument in support of holding the situation at the time of the filing of the motion to control arises from the use of this phrase in both subsections (a) and (b)(3). In subsection (a), the reference is clearly to the time of filing the motion. A similar time reference would likely have been intended when the same phrase later appears in subsection (b)(3).

If “the child’s present environment,” as the phrase is used in subsection (b) (3), means the child’s environment at the time of the hearing on the motion and the subsection is given literal meaning, then in situations of this nature, the environment described is that of the child with the noncustodial parent who has temporary custody and is seeking permanent custody. Subsection (b) provides that “the court shall retain the custodian appointed pursuant to the prior judgment unless” one of the conditions in (b) (1) to (3) are met.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Marriage of Oertel
576 N.E.2d 435 (Appellate Court of Illinois, 1991)
In re Marriage of Neeld
420 N.E.2d 1080 (Appellate Court of Illinois, 1981)
Smart v. Smart
419 N.E.2d 695 (Appellate Court of Illinois, 1981)
In re Marriage of Batchelor
412 N.E.2d 49 (Appellate Court of Illinois, 1980)
In Re Custody of Harne
396 N.E.2d 499 (Illinois Supreme Court, 1979)
In Re Custody of Scott
394 N.E.2d 779 (Appellate Court of Illinois, 1979)
De Franco v. De Franco
384 N.E.2d 997 (Appellate Court of Illinois, 1979)
Harne v. Johnson
384 N.E.2d 460 (Appellate Court of Illinois, 1978)
Miller v. Miller
382 N.E.2d 823 (Appellate Court of Illinois, 1978)
Drury v. Drury
382 N.E.2d 608 (Appellate Court of Illinois, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
379 N.E.2d 387, 62 Ill. App. 3d 786, 19 Ill. Dec. 723, 1978 Ill. App. LEXIS 3073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doyle-v-doyle-illappct-1978.