Appeal by defendant from the Circuit Court of Madison county;
the Hon. EDWARD F. BAREIS, Judge, presiding. Heard in this court
at the October term, 1949. Reversed and remanded. Opinion filed
January 19, 1950. Released for publication February 20, 1950.
MR. JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.
On January 17, 1947, the appellee (Mary Lee Maupin) secured a divorce from appellant (William H. Maupin) by default upon the ground of desertion. The decree awarded custody of two minor children, Marilyn and William, aged three and two, to the defendant, the father of said children "without any interference on the part of the said plaintiff." The decree contains no findings or recitals explanatory of this disposition.
On May 19, 1947, when the father had placed the girl in a hospital for a tonsillectomy, the mother went to the hospital, and when the child was discharged took the child, Marilyn, to her own home. Two days later appellant filed a contempt proceedings against appellee for violating the decree. Appellee answered and filed a counterpetition for modification of the decree, praying that she be given custody of both children. Within a month the cause was heard, at which time appellant voluntarily dismissed his contempt petition and contested modification of the decree.
The appellee testified in the latter contest that, at the time of the divorce hearing, she was ill and had been operated on for kidney trouble, that she had not established a home, and was in a nervous condition. She stated that all she could then think about was getting a divorce. She says that she has now regained her health and has a suitable home and a job. So far as any attack upon the appellant is concerned, the evidence was wholly insufficient to make any adverse finding against him, either as to his character or as to his home. In fact, appellant's evidence concerning his home and the care given the children was interrupted by the chancellor with the statement that the evidence on these subjects was sufficient. The chancellor stated he was satisfied the children "had been getting very good care out there."
The chancellor purported to reserve final decision in the case pending an investigation of the homes by a probation officer. Nevertheless, an order was immediately entered granting "temporary custody" of Marilyn to appellee, contrary to the provisions of the decree then in effect, which had awarded both children to appellant.
A year later the court entered a decree reciting that the probation officer had reported both parties were fit parents and both had homes which were clean, neat, and suitable for children, and concluding with an order that Marilyn remain in the custody of the mother, and William in the custody of his father, the appellant.
This appeal was first taken to the Supreme Court upon the ground that appellant had been deprived of his constitutional rights when the circuit court used a report as basis for a decree, which report was not in evidence and no part of the record, and its author was neither sworn nor subjected to cross-examination. The Supreme Court ruled that the contention merely concerned evidence which affected the propriety of the judgment, but presented no constitutional question. Accordingly, the cause was transferred to this court. Maupin v. Maupin, 403 Ill. 316, 320.
Appellee has pointed out that, when the matter was referred to the probation officer, appellant stood silent and made no objection. As to this, the appellant replies: "The contention of appellant is not that the court had no right to have an investigation made by the probation officer the lower court's error was in adjudicating the case on a report not of record or in evidence."
It would seem this contention may have merit, but it should be noted the final order of the court purports to recite the substance of the officer's report, and if such was the report, it certainly was innocuous as to appellant. As a result, taking the order at face value, it merely purports to find that both parents are fit and both homes are suitable; therefore, one child is awarded to each parent. Such a finding and order might have been proper on the original hearing, but in this case there had already been a final adjudication awarding custody to the father, and the only thing properly subject to decision by the chancellor on this proceeding was whether there had been such a change in conditions, in the few months elapsed, that the best interests of the children required a change in the order.
The Illinois Divorce Act authorizes the court from time to time to make alterations in the custody of children and in allowances for alimony and support as shall appear reasonable and proper. Ill. Rev. Stat. ch. 40, sec. 18, par. 19 [Jones Ill. Stats. Ann. 109.186]. However, it has long been recognized that the decree in the divorce case is final as to conditions then existing. This was the decision of the Supreme Court in Cole v. Cole, 142 Ill. 19, with respect to alimony, for the reason that, if this were not the rule, then the same or some succeeding chancellor, presiding in the same court, would have power to review, and to reverse, alter, or modify a decree, upon the facts existing at the time of its entry.
The same principle applies to a final and unconditional award of custody of children. Thomas v. Thomas, 233 Ill. App. 488. The latter case also cites 9 R.C.L. 476, and asserts the following rule:
"A decree fixing the custody of a child is final on the conditions then existing and should not be changed afterwards, unless on altered conditions since the decree, or on material facts existing at the time of the decree, but unknown to the Court, and then only for the welfare of the child."
We call particular attention to the last phrase in the above-stated rule. It should be plain, in any case, that the mere fact there has been a change in conditions is not sufficient in itself to modify a decree, unless those changed conditions affect the welfare of the child. As stated by another chancery court: "But the changing circumstances must be, obviously, those that affect the children, not those that concern the parents." Dixon v. Dixon, 76 N.J. Eq. 364, 367, 74 A. 995. Another court has said: "In determining whether there have been changed conditions the court must keep in view primarily the welfare of the child. The custody of the child is not awarded for the purpose of gratifying the feelings of either parent or with any idea of punishing or rewarding either parent." Hamilton v. Anderson, 176 Ark. 76, 2 S.W.2d 673.
The provision in the original decree, "until the further order of the court," adds nothing to its effect, since such power always exists pursuant to ...