In Re Marriage of Diehl

582 N.E.2d 281, 221 Ill. App. 3d 410, 164 Ill. Dec. 73, 1991 Ill. App. LEXIS 1972
CourtAppellate Court of Illinois
DecidedNovember 22, 1991
Docket2-90-1217
StatusPublished
Cited by61 cases

This text of 582 N.E.2d 281 (In Re Marriage of Diehl) 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
In Re Marriage of Diehl, 582 N.E.2d 281, 221 Ill. App. 3d 410, 164 Ill. Dec. 73, 1991 Ill. App. LEXIS 1972 (Ill. Ct. App. 1991).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

This action involves a custody and visitation dispute between Barbara and Carl Diehl over their five-year-old daughter, Jenny. The trial court dissolved the marriage, divided the property, and awarded child support. At issue is the court’s ruling that it was in Jenny’s best interests to award custody to Carl and to restrict Barbara’s visitation rights. Barbara appeals, contending that the decision was improperly based on the factual finding that she is involved in a lesbian relationship and, furthermore, that the decision was against the manifest weight of the evidence. We affirm the award of custody to Carl and modify the visitation.

Barbara and Carl Diehl were married in Illinois in August 1985. Coincidentally, both had five children each by previous marriages. Jenny, the parties’ only child, was born on June 20, 1986. Barbara, 43 years old, filed for dissolution of the marriage and custody of Jenny on March 14, 1989. A two-day trial ensued in the spring of 1990 during which the trial court heard from 15 witnesses regarding the parties’ character, their respective relationships with the child, and their respective abilities to care for the child. The following testimony was admitted into evidence.

BARBARA’S TESTIMONY

Barbara testified that she is currently living in Oconomowoc, Wisconsin, and working as an assistant manager part time with the Milwaukee Journal. The family initially lived in Naperville, Illinois, and purchased a second home in East Troy, Wisconsin, in August 1986. After Jenny was born, Barbara worked part time for the Chicago Sun-Times from September 1986 to January 1987. To help with family expenses, Barbara secured part-time work in April 1987 in Milwaukee; the position required 30 to 35 hours per week and a daily commute from Naperville. She testified that she chose Milwaukee because Carl had told her that he would be retiring at the end of 1988, at which time the family would move permanently to Wisconsin.

From April to June 1987, Connie Irving baby-sat Jenny while the parents were at work. Barbara testified that she generally took Jenny to Connie’s and picked her up.

In June 1987, the family moved to their East Troy, Wisconsin, home for the summer. Barbara continued working in Milwaukee. Barbara testified that Carl was not working that summer and that Jenny attended day-care. Barbara also testified that during the summer of 1987 she had primary responsibility for Jenny.

In September 1987, the family returned to their Naperville home. Barbara quit her position in Milwaukee and testified that until January 1988 she was again primarily responsible for Jenny’s care. During January and February 1988, Barbara worked at a part-time job out of her house, and Jenny was with her.

Barbara formed a company with Peter Gould in Milwaukee in March 1988. She testified that she did so in anticipation of the family later moving to Wisconsin. Between March and June 1988, Barbara commuted between Naperville and Milwaukee on a daily basis. Barbara and Jenny spent the month of May at the East Troy home, and the whole family spent the summer there as well. Barbara testified that during the summer she was primarily responsible for Jenny’s care. She also testified that Carl was not working that summer and that Jenny attended day-care.

In September 1988, Carl returned to Naperville to his teaching position. From September through November 1988, Barbara and Jenny continued to reside at the East Troy home. During this period, Carl visited on Wednesdays and weekends. At the end of November, Barbara and Jenny moved back to Naperville when Carl was hospitalized for fainting spells. The family then spent a long Christmas and New Year holiday at the East Troy home.

In January 1989, Barbara started a new business with Jennifer Berger in Wisconsin, in anticipation of the family’s permanent move there in June. Barbara testified that during January and part of February she commuted to Naperville, delivering and picking Jenny up at day-care each day.

Barbara began divorce proceedings in February 1989. Jenny stayed with Barbara at the East Troy home until March 1989. An agreed order was filed on April 6, 1989, under which Jenny spent 3^2 days with Barbara in East Troy, and 3V2 days with Carl in Naperville. Sometime after the divorce proceedings began, Barbara moved into another Wisconsin home which she rented.

Barbara testified that during the course of the divorce proceeding she obtained a protection order after an incident in which Carl hit and pushed her when she went to pick up Jenny from the Naperville home. Barbara testified that, in reaction to the weekly custody transfer, Jenny would cry and cling to her. Barbara further testified that on two occasions in April 1989 Carl failed to follow her directions as to medical care for Jenny.

Barbara now lives in Oconomowoc, Wisconsin, with Jennifer Berger. The two split living expenses equally. Barbara denied having a past or present lesbian relationship with Berger. She testified that she has a good relationship with her daughter and that their activities include visits to the zoo and museums, pumpkin and apple picking, visits with friends, boating, swimming and playing. Barbara testified that she believes that she would be the better custodial parent because she does not spoil Jenny, is more aware of Jenny’s needs, has the ability to bring out the best in her daughter and takes Jenny to church on Sundays.

Regarding her life prior to her marriage to Carl in 1985, Barbara testified that she had been previously married. She had five children by that previous marriage, although she has not been in contact with them for 10 years. Barbara testified on cross-examination regarding her many different residences since her first divorce in 1976, including stays in Indiana, Pennsylvania, Germany, Rockford, Chicago and Fox Lake. She also testified as to her many different types of employment over the same period.

BARBARA’S WITNESSES

Connie Irving testified that she baby-sat Jenny from September 1986 until May 1987, approximately 20 hours per week. Additionally, she would visit the Diehl family at their East Troy home. Irving testified that she observed Barbara’s relationship with Jenny to be warm, fun, communicative and enjoyable. Irving testified that Carl’s relationship with Jenny appeared to be less enjoyable than that of Barbara and Jenny’s relationship. She observed that Carl would read and talk with Jenny but never seemed to be having fun with her.

Christina Lucas testified that she is the director of the Milwaukee day-care center that Jenny has attended on Thursdays and Fridays since 1989. Lucas sees Jenny for approximately 2% hours each day. Lucas testified that Barbara and Jenny’s relationship is open, happy and healthy. She also testified that Barbara participates in parent-child conferences.

Mary Jones, who lives next door to the Diehls’ East Troy home, testified that she saw the Diehls almost daily during the summer and on weekends during the winter. She testified that Barbara is a very good mother and opined that Jenny enjoys being with Barbara.

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Cite This Page — Counsel Stack

Bluebook (online)
582 N.E.2d 281, 221 Ill. App. 3d 410, 164 Ill. Dec. 73, 1991 Ill. App. LEXIS 1972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-diehl-illappct-1991.