Shoff v. Shoff

534 N.E.2d 462, 179 Ill. App. 3d 178, 128 Ill. Dec. 280, 1989 Ill. App. LEXIS 80
CourtAppellate Court of Illinois
DecidedJanuary 25, 1989
Docket5-88-0181
StatusPublished
Cited by18 cases

This text of 534 N.E.2d 462 (Shoff v. Shoff) 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
Shoff v. Shoff, 534 N.E.2d 462, 179 Ill. App. 3d 178, 128 Ill. Dec. 280, 1989 Ill. App. LEXIS 80 (Ill. Ct. App. 1989).

Opinion

PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Appellant, Cynthia L. Shoff, appeals from an order of the circuit court of White County, entered March 28, 1988, modifying a child custody order previously entered in a proceeding dissolving her marriage to appellee, Danny R. Shoff, and entering a judgment against appellee for past-due child support. We affirm.

The parties were divorced by a Nevada State court on July 22, 1981. Appellant was granted custody of the only child of the marriage, Christy, who was born December 18, 1979. Appellee was granted reasonable visitation rights and ordered to pay child support in the amount of $150 per month.

In March 1981, appellee and the minor child moved to White County, Illinois. Appellant moved there shortly thereafter, and the Nevada divorce decree was properly registered with the circuit court of White County on September 18, 1981. At the same time, the parties agreed to modify the visitation provisions of the divorce decree to accommodate appellant’s intention to move with the child to the State of Florida. The circuit court of White County accordingly ordered the divorce decree modified to allow visitation by appellee for 60 consecutive days between June and September of every year, and for reasonable visitation at other times. The child continued to live with appellee until November 1981, when she was sent to live with her mother in Florida. In November 1984, the child was returned to Elinois where she has continued to reside.

Between September 1983 and August 1986, appellant made numerous attempts to collect child support from appellee. Although appellee was repeatedly ordered by the circuit court of White County to pay past-due and future child support, appellee remained delinquent in his payments. Admittedly, the child has been in the exclusive physical custody of appellee since November 1984 and he has provided for all of her needs.

On November 3, 1986, appellee filed a petition for temporary and permanent custody of the parties’ minor child, Christy. Notice of the hearing on the petition for temporary custody was duly mailed to appellant by appellee’s attorney; however, appellant failed to appear at the hearing. On November 25, 1986, the circuit court of White County entered an order on both appellee’s petition for temporary custody and on appellant’s most recent petition for rule to show cause for appellee’s failure to pay child support. The court found that it was in the best interest of the minor child that temporary custody be placed with appellee, and so ordered. The order also found that appellee was in arrears in child support in the amount of $3,050 and entered judgment in that amount, but ordered that execution on the judgment be stayed for a period of 30 days. The cause was set for hearing on the petition for permanent custody.

On December 2, 1986, appellant filed a petition for rule to show cause for appellee’s failure to pay child support and for his wilful and contumacious refusal to return the minor child to the appellant. On the same date, appellant also filed a petition to vacate the temporary custody order, claiming that it was not in accordance with the law and that she had not received required notice of the hearing.

The cause came on for hearing on February 5, 1988. Appellee testified that he lives with his wife, Janice, his son, Aaron and his daughter, Christy, in Herrin, Illinois. They live in a three-bedroom house, where Christy has her own room. The house is fully furnished.

Appellee has worked at Marion penitentiary as a correctional officer since April 1984, where he earns a gross salary of $20,000 to $25,000 per year. Appellee has provided for all of Christy’s needs since November 1984.

Christy was eight years old at the time of the hearing and had lived with appellee and his family since November 1984. Appellant had made no request to have the child returned to her during that period of time. From October or November 1981 until November 1984, when Christy lived primarily with her mother in Florida, she also visited frequently and for extended periods of time with appellee.

Christy gets along very well in her new home and with her stepmother. Appellee explained that Christy was only four years of age when she came to live with appellee and his wife. Appellee and his wife had been married three years at the time of the hearing. Christy has a brother, Aaron, born October 8, 1984.

Christy has adjusted very well to her school and community. Christy was in the second grade and was a good student earning mostly B’s. She is a member of Brownies and is proud of the cookies she has sold. She has many friends in Herrin with whom she rides bicycles. She has friends stay overnight at her house and she stays overnight at their houses.

Appellee described his relationship with Christy as very good. He stated that she consults him on problems at school and other matters. He loves Christy very much. Appellee described Christy as happy.

With regard to child support, appellee testified that he could not prove that he had made any child support payments since November 1984. He admitted that appellant had made numerous attempts to collect child support. He testified that he had been unemployed from September 1981 until sometime in 1983.

Appellant testified as an adverse witness pursuant to section 2—1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1102). She stated that other than one weekend, appellee had never denied her visitation with Christy. She has never requested appellee to return the child to her. She admitted that Christy was well cared for at appellee’s home. She also admitted that in October or November 1984, while Christy was in appellant’s custody, the child welfare agency in Florida had taken custody of Christy because appellant had left her home alone too long. This is how Christy came to be in appellee’s custody in November 1984. Appellant testified that she receives approximately $600 every two weeks from her boyfriend in return for helping out in his seafood business. Her boyfriend gives her just enough money every two weeks to pay her household expenses.

Appellant also testified in her own case. She testified to her repeated efforts to collect child support payments from appellee. She explained the reason she had relinquished custody of Christy in the fall of 1984. In October 1984, she lost her job and was extremely upset. She picked Christy up from school and took her home. That evening, she left Christy home alone while she went for a drive to think things through. This was the reason the Florida child welfare agency took custody of Christy. Christy had been in bed, and appellant had assumed she would be all right, as Christy knew all the neighbors. Appellant explained, however, that she had already decided prior to this to allow Christy to come to Illinois to live with her father for a while. However, she did not intend for it to be permanent. Appellant lives alone in a furnished, two-bedroom home in Florida.

Appellant did not visit with Christy during 1985 or 1986. Appellant only visited with Christy in March 1987 for 7 to 10 days, and again in August 1987 for 7 to 10 days.

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Cite This Page — Counsel Stack

Bluebook (online)
534 N.E.2d 462, 179 Ill. App. 3d 178, 128 Ill. Dec. 280, 1989 Ill. App. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoff-v-shoff-illappct-1989.