In Re Marriage of Oertel

576 N.E.2d 435, 216 Ill. App. 3d 806, 159 Ill. Dec. 766, 1991 Ill. App. LEXIS 1234
CourtAppellate Court of Illinois
DecidedJuly 19, 1991
Docket2-90-1229
StatusPublished
Cited by13 cases

This text of 576 N.E.2d 435 (In Re Marriage of Oertel) 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 Oertel, 576 N.E.2d 435, 216 Ill. App. 3d 806, 159 Ill. Dec. 766, 1991 Ill. App. LEXIS 1234 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Petitioner, Robyn Forister (Robyn), once known as Robyn Oertel, appeals from an order of the circuit court of Du Page County, denying her petition which sought modification of the custody provisions of the judgment dissolving her marriage to respondent, Bruce Oertel (Bruce). On appeal, Robyn contends that the trial court erred by: (1) failing to apply the best-interests-of-the-child standard pursuant to the parties’ agreement in ruling on the petition rather than the standard of serious endangerment to the child; and (2) ruling that she failed to meet her burden of establishing serious endangerment when there was evidence that Bruce was continuing to use alcohol and illegal drugs after the divorce despite prior alcohol and substance abuse problems. We reverse and remand.

Bruce and Robyn were married in 1985 shortly after they graduated from high school. Their daughter, Jessica, was born on June 28, 1985. On March 6, 1989, Robyn filed a petition for dissolution of marriage in the circuit court of Du Page County. Robyn and Bruce entered into a marital settlement agreement which was incorporated into the judgment for dissolution of marriage that the court entered on November 9, 1989.

The marital settlement agreement contained a joint-parenting agreement which provided that Bruce and Robyn would have joint custody of Jessica. Additionally, Bruce was to have physical possession of Jessica during the school year and Robyn would have physical possession of her during the summer months. The agreement also stated that “each parties’ [sic] right to physical possession of the child is expressly conditioned upon his or her residing with his or her parents.”

On January 24, 1990, Robyn filed an emergency petition for rule to show cause and for primary physical possession of Jessica. The petition was dismissed on February 5. On February 7, Robyn filed an amended petition for rule to show cause along with a separate petition for modification of joint custody. In these petitions, Robyn alleged that Bruce had entered an inpatient program at Mercy Hospital Center for drug and alcohol rehabilitation in January 1989 and had been diagnosed as an alcoholic and a chemically dependent individual. Robyn further alleged that Bruce left the program early and continued to drink alcoholic beverages thereafter. She also claimed in the petition that Bruce no longer lived with his parents and had moved into an apartment with his pregnant girlfriend.

Pursuant to the agreement of the parties, Judge Provenzale entered an order on February 8, 1990, awarding temporary custody of Jessica to Brace’s mother. The parties subsequently agreed to have the matter transferred to a different judge so it could be set for trial at an earlier date than Judge Provenzale could schedule it. The case was reassigned to Judge Cox and was set for trial on August 28, 1990.

On the first day of trial, Judge Cox entered an order pursuant to the agreement of the parties. The order stated that Robyn would withdraw her petition for modification of joint custody and her amended petition for rule to show cause and would waive her right to file a petition to vacate the judgment for dissolution pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The order further stated as follows:

“2. The custody, visitation and child support provisions of the Judgment for Dissolution of Marriage and Marital Settlement Agreement incorporated therein entered November 9, 1989, specifically Article III Joint Parenting Agreement and Article VII Allowance for Child Support are hereby vacated;
3. The custody, visitation and child support issues shall proceed to trial pursuant to section 602 of the Illinois Marriage and Dissolution of Marriage Act as though no judgment had been previously entered affecting said issues.”

The trial then commenced with the court hearing testimony from Robyn and two other witnesses.

The next day, Bruce’s attorney raised the issue of whether the trial court had jurisdiction to proceed under the circumstances. The trial judge then stated that he shared the same concern and vacated the agreed order of the previous day, ruling that a petition pursuant to section 2 — 1401 of the Code would be required before the joint-custody provisions of the judgment for dissolution could be vacated. Robyn filed a motion to reconsider this ruling, but the motion was denied.

In September 1990, Robyn filed a three-count petition with the circuit court. In count I, she sought to have the custody provisions of the dissolution judgment vacated pursuant to section 2 — 1401 of the Code because they resulted in part from Brace’s fraudulent promise to continue residing with his parents. In count II, Robyn asserted that Brace had violated the custody provisions of the dissolution judgment by moving away from his parents; therefore, his right to primary physical possession of Jessica should be terminated. Robyn contended in count III that, even if the court employed the serious endangerment standard, primary physical custody of Jessica should be transferred to her because Bruce’s continuing use of alcohol and drugs posed a threat to Jessica.

The trial on this petition commenced on September 19, 1990, with the parties agreeing that the testimony presented at the August 28 hearing could be considered. The following summary of the trial evidence therefore includes the August 28 testimony.

Robyn testified as follows at trial. While she was married to Bruce, he generally drank between 6 and 12 beers per day. Bruce also typically used marijuana every day and occasionally used cocaine, LSD, and PCR Once while the couple was still married, Bruce left some cocaine and a razor blade on a living room table overnight, and Jessica was in the room the next morning while these items were still present. Bruce entered an inpatient program at the Mercy Hospital Center for alcohol and drug rehabilitation in January 1989. During one of Robyn’s visits with Bruce at the hospital, Bruce stated that he was feeling good, he had admitted he was an alcoholic, and that was the first step to recovery. Bruce had Robyn pick him up from the hospital several days before the program was due to end, however, and he left the program at that point.

Robyn further testified that Bruce continued drinking alcohol after leaving the Mercy Hospital program. Several times after they became separated in March 1989, Robyn dropped Jessica off at the home of Bruce’s parents following visitation and saw Bruce with a beer in his hand. Bruce also admitted during various conversations with Robyn that he had been intoxicated on July 20, 1989, August 29, 1989, and once in October 1989. He told Robyn he had become intoxicated on July 20 because it was their wedding anniversary and it was the only way he could deal with it.

According to Robyn, Bruce took Jessica to Wisconsin on Memorial Day weekend in 1989. Jessica told Robyn when they returned that her head had been under water while she and Bruce were swimming in a lake. Bruce downplayed the matter and told Robyn that nothing serious had happened.

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Cite This Page — Counsel Stack

Bluebook (online)
576 N.E.2d 435, 216 Ill. App. 3d 806, 159 Ill. Dec. 766, 1991 Ill. App. LEXIS 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-oertel-illappct-1991.