In Re Marriage of Weaver

592 N.E.2d 643, 228 Ill. App. 3d 609, 170 Ill. Dec. 207, 1992 Ill. App. LEXIS 711
CourtAppellate Court of Illinois
DecidedMay 7, 1992
Docket4-91-0700
StatusPublished
Cited by18 cases

This text of 592 N.E.2d 643 (In Re Marriage of Weaver) 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 Weaver, 592 N.E.2d 643, 228 Ill. App. 3d 609, 170 Ill. Dec. 207, 1992 Ill. App. LEXIS 711 (Ill. Ct. App. 1992).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Petitioner Tamara Leigh Weaver, now Tamara Leigh Anderson, appeals from the Piatt County circuit court’s July 18, 1991, dismissal with prejudice of her petition to modify child custody. She argues the court erred by (1) dismissing her petition on grounds of res judicata, collateral estoppel, or because of deficient pleadings; and (2) ordering her to pay the attorney fees of respondent, Bobby Lee Weaver, Jr., pursuant to section 610(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610(c)). We reverse the circuit court’s dismissal of petitioner’s motion and its order requiring petitioner to pay respondent’s attorney fees. We also decline respondent’s request for attorney fees incurred in this appeal.

Petitioner and respondent were married in St. Louis, Missouri, on September 28, 1979. Petitioner, then 15 years old, and respondent, then 18 years old, resided in the State of Illinois. One child, K.W., was bom to the couple on January 23, 1980. The dismissal of petitioner’s request for modification of K.W.’s custody is at issue on appeal.

On January 12, 1982, the Piatt County circuit court entered a judgment of declaration of invalidity of the parties’ marriage. Petitioner was awarded custody of K.W. On August 27, 1988, petitioner relinquished custody of K.W. to respondent pursuant to a written agreement. The parties filed a joint petition and stipulation for modification of judgment on October 11, 1988. It provided in part that 'the judgment should be modified to award custody of K.W. to respondent. The court entered its order awarding custody to respondent on October 19,1988.

One year later, respondent filed a request to abate support. Both parties were present pro se at a December 11, 1989, hearing on this request. The court found the parties had agreed to temporary custody modification on August 27, 1988. It abated child support as of that date and set a hearing to review custody modification in June 1990. On June 11, 1990, both parties appeared pro se and sought permanent custody of K.W.; respondent also filed a pro se petition seeking child support.

On June 26, 1990, private counsel entered an appearance on behalf of petitioner. On July 23, 1990, respondent, by counsel, filed an amended motion for child support and a motion to dismiss and for other relief. Respondent argued petitioner’s oral request of June 11, 1990, for custody modification should be dismissed because petitioner did not file affidavits nor did the court make a finding of serious endangerment as to K.W., as required by section 610(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610(a)).

On August 16, 1990, the court granted respondent’s motion to dismiss; that same day, petitioner filed an affidavit and a verified petition to modify custody. The petition alleged, in relevant part:

“2. That there has been a substantial change of circumstances since the entry of the Order that seriously endangers the physical, mental, moral and emotional health of [K.W.], and to an[d] including the following particulars:
(a) That [K.W.] is 10 years of age, and is at such an age that it is more appropriate that she be in her mother’s custody for physical, mental, moral and emotional reasons.
(b) That [K.W.] has expressed a desire to reside with her mother.
(c) That the Respondent has had a live-in girlfriend for the most part of the time that the child has resided with the Respondent.
(d) That the minor child is a pre-teen and that mother/female supervision and guidance are critical in these formative times.
(e) That the minor child has been required to perform household chores in excess of what would normally be expected of a child 10 years of age.
(f) That the minor child desires to reside with her half-brother in the home of the Petitioner.
* * *
4. That the best interests of the child would be served by a permanent change of custody to the Petitioner.”

On September 4, 1990, respondent filed a motion to dismiss, arguing the verified petition was inadequate because (1) the allegations of the affidavit were not material to serious endangerment, and (2) the allegations were insufficient as a matter of law and were conclusory and immaterial.

On September 27, 1990, the court dismissed petitioner’s August 1990 verified petition to modify custody, stating an amended petition was to be filed within 10 days; the court did not state the reasoning upon which it granted respondent’s motion to dismiss.

On October 29, 1990, petitioner filed a motion to vacate, modify, or set aside the September 1990 dismissal order. On October 30, 1990, she filed a motion for leave to file an amended petition instanter and a proposed amended petition to modify custody. The petition alleged, in relevant part:

“2. That there has been a substantial change of circumstances since the entry of the Order that seriously endangers the physical, mental, moral and emotional health of [K.W.], and to and including the following particulars:
(a) That [K.W.] is 10 years of age, and is at such an age that it is more appropriate that she be in her mother’s custody for physical, mental, moral and emotional reasons.
(b) That [K.W.] has expressed a desire to reside with her mother.
(c) That the Respondent has a live-in girlfriend for most of the time that the child has resided with the Respondent; that the arguments and fighting, and moving in and out of the girlfriend upsets and disturbs the said child.
(d) That the relationship aforementioned does not provide a proper example for a pre-teenage girl of a relationship between males and females.
(e) That the Respondent is not able to provide proper female guidance and supervision.
(f) That the Respondent has been in possession of, and has used marihuana in the presence of the minor child which usage has caused her great concern and anguish.
(g) That the aforementioned items show that the present environment of the minor child endangers seriously her physical, mental, moral and emotional health.
* * *
4. That the best interests of the child would be served by a change of custody to the Petitioner.”

Respondent objected, arguing the court’s September 1990 dismissal order granted leave to file an amended petition within 10 days.

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Bluebook (online)
592 N.E.2d 643, 228 Ill. App. 3d 609, 170 Ill. Dec. 207, 1992 Ill. App. LEXIS 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-weaver-illappct-1992.