Appeal from the City Court of Aurora, Kane county; the Hon.
WALTER R. O'MALLEY, Judge, presiding. The order of the trial
court is affirmed.
JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.
On September 24, 1950, the parties to this appeal were married at Aurora, Illinois, and thereafter, until June 1955, lived together as husband and wife. Two children were born of the marriage, Sherrill Elaine, now age five, and Robert Lee, now age two years and three months. In the action for divorce commenced by the plaintiff, the husband, on September 8, 1955, it was alleged that the wife was guilty of extreme and repeated cruelty.
A decree of divorce, granting the permanent care, custody, and control of the children, subject to reasonable visitation privileges of the defendant, was awarded the plaintiff on December 3, 1955.
Thereafter, on July 2, 1956, the defendant filed her verified petition to modify the decree of divorce asking that the custody of the children be awarded to her. No answer to the petition was filed.
Testifying in her own behalf defendant stated that at the time of the divorce proceedings she was not represented by counsel; that her husband's attorney prepared an answer in her behalf which she signed, believing that it was a legal thing that had to be done; that by agreement during the months of June through September, 1955, the children remained with the father in his apartment which was above her parents' apartment; that during that period her sister cared for the children; that she was there at least once a week on her day off, cleaned the house, took care of the children, cooked the dinner, and took them out; that during this same period her husband told her that she could have the children when she obtained a proper place for them; that she had no trouble about visitation until he remarried in February; and that thereafter she was permitted visitation only once a month, except on one occasion, and then only at times suitable to his present wife. Petitioner further testified that on an occasion in May, she discovered Sherrill Elaine had an infected ear and administered to it; that two weeks later when she next saw Sherrill, her ear was running and had been for two weeks; that she took her to a doctor for treatment and later for a check up; and that she took her to a dentist twice and to have cavities filled; that she had subsequent appointments with the dentist for her but that her husband on one occasion and his present wife on another refused her the right to take her to the dentist. Her evidence further disclosed that she had remarried in March of 1956, and that she had a suitable home for the children; and that on many occasions she was denied the right to see her children.
Merrill Dunning in his own behalf denied that he had promised the defendant that she could have the children when she obtained suitable quarters; and stated that Sherrill had been under the doctor's care for measles and the earache. He further testified that his present wife has two children by a former marriage aged five and eight years that are living with them at this time.
The court sustained objections to testimony offered to show the mother's conduct and condition of health prior to the divorce herein.
At the conclusion of the hearing, the chancellor awarded the custody of the children to the defendant. The order found among other things that the mother was a fit person with sufficient facilities for the proper care of the children; that the welfare and best interests of the children would be furthered by permitting them to be raised in their mother's home; and that the decree awarding the care and custody to the father should be modified because of the changed circumstances of the parties.
On appeal, the plaintiff contends that the decree in awarding custody of the children to him is res adjudicata; that the evidence does not support the trial court's finding that there has been a change of circumstances subsequent to the rendition of the decree which affects the welfare and best interests of the children; that a change in circumstances in the condition of the party deprived the custody in itself will not sustain an alteration in custody; and that the court erred in excluding evidence of the mother's misconduct and health prior to the divorce.
The plaintiff in support of his principle contention cites Wade v. Wade, 345 Ill. App. 170; Maupin v. Maupin, 339 Ill. App. 484; and Thomas v. Thomas, 233 Ill. App. 488.
In the Wade case, this court reviewed the other cases urged by the plaintiff, and we quote therefrom,
"A decree fixing the custody of children is final and res adjudicata and should not be altered or amended unless new facts have arisen since the entry of the decree that make it necessary for the welfare of the child that the custody be changed. (Thomas v. Thomas, 233 Ill. App. 488; Maupin v. Maupin, 339 Ill. App. 484; Liles v. Liles, 336 Ill. App. 159.) The welfare of the child is pre-eminently the thing to be considered. (Martinec v. Sharapata, supra.)"
In quoting Maupin v. Maupin in the Wade case, the court in the Maupin case quoted Thomas v. Thomas, which said;
"`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 ...