Appeal from the Superior Court of Cook county; the Hon.
THADDEUS ADESKO, Judge, presiding. Order reversed, and cause
remanded with directions for further proceedings.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:
Defendant appeals from an order of the Superior Court of July 1, 1960 which modified one of the provisions of a decree of divorce, entered in favor of plaintiff on September 29, 1955, with respect to the religious training of the two minor children. Plaintiff has not filed an appearance nor a brief in this court.
No evidence was adduced before the chancellor, but from the record it appears that the parties were married in Chicago on March 21, 1942 and lived together as husband and wife until April 23, 1954. Two children were born of the marriage, Dianne in 1943 and Steven in 1949. In June 1955 plaintiff filed her complaint for divorce, charging desertion, and defendant answered. While the suit was pending, the parties entered into a written agreement affecting their property rights, and providing specifically for the religious training of their children, subject to the approval of the court. By stipulation, the matter was then heard without contest. On September 29, 1955 the court entered a decree for divorce which incorporated the terms of the written agreement. It provided that plaintiff should have the care, custody, and education of the minor children, with reasonable visitation rights reserved to defendant. He was to pay $440.00 per month for alimony and child support, in equal proportions, the income tax chargeable to plaintiff on the alimony payments, and $1000.00 in cash twelve months after the entry of the decree. Child support was to continue until each of the children reached the age of twenty-one years. Defendant was to provide, at his expense, a college and professional education for both children if they so desired, regardless of their age. He was also to purchase an automobile for plaintiff's exclusive use and assume payment of State license fees, city vehicle taxes, and all insurance. Defendant was further required to maintain a $10,000.00 life insurance policy for the benefit of plaintiff, and he gave her a written unconditional guarantee, executed by a relative, of all future payments of alimony and child support, as set forth in the decree, as well as the payments of premiums on the $10,000.00 life insurance policy. Defendant was also required to pay and discharge all extraordinary medical, dental, and hospital expenses for the children. Plaintiff was permitted to remove the children from the State of Illinois in her discretion, which she has done from time to time. The household furniture and equipment was given to plaintiff. Each party released all interest in the property of the other, and defendant was to pay plaintiff's attorney's fees in the sum of $500.00. Defendant, on his part, faithfully carried out all the provisions of the decree; in fact, in 1957, he voluntarily increased the alimony and child support from $440.00 to $560.00 per month, and later in 1958, when Dianne took up residence with him, he reduced the payment to $500.00 a month, which he is presently paying.
The sole controversy arises over paragraph 13 of the agreement which was incorporated in paragraph 14 of the decree and reads as follows: "That the plaintiff, Mary Jane Gottlieb, raise Dianne Gottlieb and Steven Gottlieb, the children of the parties hereto, in the Jewish faith and the defendant, Jerry Robert Gottlieb, shall pay the annual temple dues." Notwithstanding this provision of the agreement and decree, shortly after its entry plaintiff enrolled Dianne as a student at Marywood School for Girls and Steven as a student at St. Nicholas School, both Catholic educational institutions. Dianne never attended Marywood School. She has almost reached her majority and is not involved in this proceeding. Steven, however, has uninterruptedly attended Catholic schools, and from 1958 the question of his religious upbringing was repeatedly brought before the chancellor in one form or another by means of various petitions, in some of which defendant sought to have plaintiff cited for contempt for violation of the decree. The issue, however, was continued generally, and determination thereof was not final until an order was entered on July 1, 1960 permitting plaintiff to enroll Steven "in a school of her [plaintiff's] own choosing." This is the order from which defendant appeals.
From the petitions of record, there emerges a discernible design on plaintiff's part to repudiate and breach the agreement and decree. Steven has always attended Catholic schools, a practice to which defendant objected. Steven's mother petitioned the court to deprive the father, who maintained a Jewish household, of custody during the 1959 Christmas vacation for the reason that "to deprive the said minor child of the festivities usually and ordinarily indulged in by a Christian household during that period is unfair and detrimental to the best interests and well-being of said child." Plaintiff's possessive attitude toward Steven is evidenced by her unwillingness to allow him to continue any relationship with his father. It appears from one of the petitions that after she had established temporary residence in Lansing, Michigan, defendant made a trip there to visit his son; she refused to allow him to be with his son, except in the presence of a town constable. In open court plaintiff informed defendant that she intended to send Steven to a Catholic camp; he expressed his willingness to send the boy to a nonsectarian camp and to defray all expenses. In answer to one of defendant's petitions, when Steven was nine or ten years old, plaintiff averred that "the said minor child . . . presently chooses to practice the Roman Catholic faith," and about a year later, when plaintiff filed a petition to modify the decree, she alleged that "subsequent to the entry of said decree of divorce the minor child Steven Gottlieb embraced the Roman Catholic religion, that said minor child is presently enrolled and has so been for a long period of time, in a Roman Catholic Parochial school, that he is practicing said religion regularly, and that as an integral part of the practice of said religion the education in a parochial school is of utmost importance." She further contended that the choice of religion is guaranteed under the Constitution and is extended to minors as well as adults, and that the choice of religion of the children "falls within the prerogative of the said petitioner [plaintiff]." She asked that an order be entered modifying the decree of divorce "in that Paragraph 14 of said decree be vacated; and that in lieu thereof, a provision be made providing that the minor children of the parties hereto be allowed to follow the religion of their own choosing, to-wit, the Roman Catholic religion, without interference from the defendant and respondent." No specific cognizance was taken of this request; the final order provided, as heretofore detailed, that plaintiff be allowed "to enroll the minor child . . . in a school of her own choosing."
[1-3] Section 19 of the Divorce Act (Ill. Rev. Stat. 1959, ch. 40) provides that "the court may, on application, from time to time, make such alterations in . . . the care, custody and support of the children, as shall appear reasonable and proper." Notwithstanding this statutory provision for the modification of a decree, the courts of this state have consistently held that such authority may not be invoked or exercised unless circumstances have arisen after the entry of the original decree which would require the modification thereof. This is so because the decree itself is determinative of all issues which have been raised and of the factual situation which was made known to the court prior to its entry. The Supreme Court, in Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300 (1952), in discussing a requested modification of a decree with respect to custody of children, states the rule as follows (p. 416): "The decree is res judicata as to the facts which existed at the time it was entered but not as to facts arising thereafter. (People ex rel. Stockham v. Schaedel, 340 Ill. 560.) In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order. (Cormack v. Marshall, 211 Ill. 519.) New conditions must have arisen to warrant the court changing its prior custody determination. (Stafford v. Stafford, 299 Ill. 438,) where the court was not imposed on by perjury or collusion of the parties." (Emphasis added.) This rule is likewise enunciated in Dunning v. Dunning, 14 Ill. App.2d 242, 246, 144 N.E.2d 535 (1957), Peraza v. Tovar, 13 Ill. App.2d 405, 410, 142 N.E.2d 165 (1957), and Harms v. Harms, 323 Ill. App. 154, 158, 55 N.E.2d 301 (1944). Custody may, and frequently does, embrace provisions for religious training, and a modification of a custody order of this kind would, we think, be governed by the same rules.
Even though the decree granted plaintiff the care, custody, control, and education of the children, the provision for their religious rearing was a determination that their well-being would be best served by raising them in the Jewish faith. Both parties by written agreement had assented to this, secured the court's approval thereto, and caused the agreement to be incorporated in the decree. Why should not the same court, at a subsequent date, have given great weight to that determination, and permitted it to be modified only if it could be shown that Steven's best interests would be served by modification? It should be noted that no evidence of any kind was taken on any of the petitions which constitute part of the record of this case. There was nothing before the trial court to indicate whether the best interests of Steven could be served by bringing him up in the Jewish religion or in a different religion. No change of circumstances affecting the best interests of Steven was shown. Plaintiff demonstrated by her petitions that she herself had created this troublesome position by violating, not only her solemn agreement, but the plain condition under which custody was decreed to her. To sanction the continued violation of the decree as a basis for modification was manifestly an abuse of discretion.
This squarely presents the question as to how far an agreement for the religious training of children binds the parties. We find no Illinois cases similar on the facts. In Frank v. Frank, 26 Ill. App.2d 16, 167 N.E.2d 577 (1960), where the plaintiff father appealed from an order transferring custody of the child to the remarried defendant mother, the reviewing court said (p. 19) that "implicit in the modification order changing custody from the father to the mother, is a finding that there were changed conditions since the divorce decree, and that in the light of the changed conditions, the best interests of the child were being served in entering the order." The parents were of different religious faiths, but they were in accord as to the religious upbringing of the child and no religious agreement between the parties was at issue. The chancellor evidently considered the religious issue as one factor to be weighed in determining the best interest of the child, and the reviewing court concluded (p. 20): "We cannot say that the chancellor abused his discretion in not giving the question of religion greater weight in this case."
In Smith v. Smith, 340 Ill. App. 636, 92 N.E.2d 358 (Abst. 1950), the decree provided, by agreement of the parties, that the minor child be brought up as a Catholic. Subsequently the petitioner (the father) filed a petition alleging that respondent made no provision for the child's upbringing as a Catholic, and praying that the decree be modified by awarding sole custody to petitioner. An order was entered modifying the decree as prayed for in the petition, but later that same day respondent's counsel moved to vacate the order of modification. Upon interrogation by the chancellor in open court, the respondent agreed to comply with the religious provisions of the decree, and the chancellor vacated his order of modification, thus restoring the provisions of the original divorce decree. On appeal, the reviewing court held that under the circumstances the chancellor had not abused his discretion, saying: "A decree fixing the custody of the child is final on the conditions then existing and should not be changed afterward 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," citing Illinois decisions.
Courts of other states have had occasion to consider and pass on the question whether agreements for the religious training of children, either in contemplation of separation of the parties or by prenuptial agreement, should be enforced. The problem has been resolved in varying ways a reflection of its complexity.
Until Martin v. Martin, 308 N.Y. 136, 123 N.E.2d 812 (1954), the New York cases consistently held that a parental agreement as to the religious training of children was an enforcible contract. Shearer v. Shearer, 73 N.Y.S.2d 337 (Sup. Ct. 1947); Ramon v. Ramon, 34 N.Y.S.2d 100 (Dom. Rel. Ct. of City of N.Y. 1942); Weinberger v. Van Hessen, 260 N.Y. 294, 183 N.E. 429 (1932). In the Martin case a divided court affirmed an order entered on a decision of an official referee modifying a judgment whereby a complaint by the plaintiff husband, in an action to annul the marriage of the parties, had been dismissed, and the defendant wife had been granted a separation on her counterclaim, and custody of their child upon condition that he be brought up in the Roman Catholic religion and be required to attend a parochial school, in compliance with an antenuptial agreement. The modification consisted of the direction that the child be permitted to attend the church of his own choice and, if he so desired, to transfer from a parochial school which he was attending to a public school. The husband appealed. The court, per curiam, held that there was ample evidence to support both the finding that the youngster was old enough to testify intelligently (he was twelve at the time of the hearing), and the conclusion that the modification was for his best interests and welfare. One of the justices wrote a dissenting opinion, in which another justice concurred. The opinion pointed out (pp. 812-813) that there was no finding and no testimony that enforcement of the religious-training provision of the trial court's judgment, and of the agreement which it confirmed, would damage or had damaged the boy mentally, physically, or in any other way, and that "all statements as to his becoming `unhappy' or `mentally disturbed' or `ill-adjusted'" were taken from the mother's ex parte affidavit which was a mere pleading, not proof; that the referee's decision made no such finding; that the referee amended the decree solely because, as he found, "this twelve-year-old boy `has a mind of his own,' because failure to amend the decree `would strip him of his independent judgment in matters of this kind,' and because (so held the Referee) `neither the mother's wishes nor the father's wishes should control what is here to be done.' True, at the end of the decision, the Referee said he was doing what `is best for the boy' but it is impossible to read the decision as based on anything except the boy's own wishes and his supposedly mature and considered choice of a religion for himself. That was not within the Referee's competency, in the face of a Supreme Court judgment as to the place and nature of his religious training, based on a solemn prenuptial agreement." Commenting further, the dissenting judges said (p. 813): "The idea that a child of twelve is competent to make a choice binding on the Supreme Court and on his parents in such a matter, is not only contrary to our decisions, see Bunim v. Bunim, 298 N.Y. 391, 83 N.E.2d 848, and contrary to all human experience, but is directly opposed to the parens patriae public policy of New York [citing various New York statutes]. This sort of prenuptial agreement is enforcible like any other, unless and until its enforcement is shown to be harmful to the child." Of especial significance to the situation in the case at bar is the following comment of the dissenting judges (also p. 813): "Particularly must this be so when the agreement has been confirmed by, and written into, a judgment. Although the child's welfare is a paramount consideration in every custody case, we cannot close our eyes to fundamental principles as to judgments and agreements, and we cannot forget ancient maxims denying equitable relief to suitors whose hands are unclean. Respondent failed to prove that an amendment to the decree was suggested by anything except the boy's own desires. She did prove affirmatively that she herself had created this troublesome position by violating not only her solemn agreement, but the plain condition under which custody was decreed to her." (Emphasis added.) We quote at length from the dissent because it poses the question whether or at least when a child has the maturity to make a wise decision affecting his entire future.
In Hehman v. Hehman, 13 Misc.2d 318, 178 N.Y.S.2d 328 (Sup. Ct. 1958), the court left the choice of religion to a thirteen-year-old child, notwithstanding the terms of the separation decree incorporating the substance of an antenuptial agreement providing that two of the children of the marriage should be raised as Catholics and one as a Lutheran. In commenting on this opinion, the writer of an article in Recent Developments, Court Leaves Choice of Religion to Thirteen-Year-Old Child Notwithstanding Terms of Separation Decree Incorporating Substance of Antenuptial Agreement, 59 Colum. L. Rev. 680 (1959), referred to the earlier Martin decision and stated (p. 682) that it was "unclear whether the [Martin] decision has completely reversed the New York position on antenuptial agreements or whether the agreement would have been enforced if it had been found consistent with the child's welfare," referring to Ross v. Ross, 4 Misc.2d 399, 149 N.Y.S.2d 585 (Sup. Ct. 1956), which, two years after the Martin case, enforced a religious prenuptial agreement. In the discussion pertaining directly to the Hehman case, the author questions the wisdom of allowing the child, in effect, to dictate the religious terms of the custodial provisions (pp. 682-683): "Although the emergence of the child's will is appropriately viewed as a factor to be considered in promoting his welfare, it would seem that the possibility that the child's religious attitudes may be immature renders it inadvisable for a court to submit the matter to an official referee with instructions for so limited a scope of inquiry that the child in effect is given an absolute veto over plans that may in the total circumstances of the case appear to be in his best interests. The fact that a child's parents have separated suggests that he may need the security of more rather than less parental guidance, and should not be the sole basis for allowing him to exercise independent judgment as to matters which are normally the responsibility of parents."
Cases in other jurisdictions are indicative of the various resolutions of this problem. The majority of the courts which have considered the question have held that an agreement between the parents as to the religious training to be given their children has of itself no binding effect where other circumstances affecting the best interests of the child are shown to outweigh the parental agreement.
In Stanton v. Stanton, 213 Ga. 545, 100 S.E.2d 289, 66 ALR2d 1401 (1957), allegations of the defendant husband as to an antenuptial agreement of the parties to rear the children in his religious faith were stricken by the trial court from the answer. On error for review sought by the husband, the judgment of the trial court, granting the divorce and awarding custody of the three children to the wife, was affirmed, the Georgia Supreme Court holding that the antenuptial contract would not be enforced so as to require an award of custody of the children to the husband, or as to bind the parent to whom the custody is awarded. In commenting on this case in Recent Cases of Interest, Divorce Religious Training as an Element of a Child's Best Interest and Welfare in Awarding Custody, 20 Ga. B.J. 546 (1957-58), the writer states (p. 547): "Of course, ...