Appeal from the Superior Court of Cook County; the Hon.
THADDEUS V. ADESKO, Judge, presiding. Judgment reversed and cause
is remanded with directions.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 25, 1961.
This is an appeal from an order modifying a divorce decree. The decree for divorce was entered on January 21, 1957. That decree adopted verbatim the entire agreement of the parties, wherein the parties declared that they considered it to their best interests to settle between themselves their respective rights and obligations. Each party had the advice, investigation and recommendations with reference to the subject matter of the agreement.
The dispute arises over the provision giving the plaintiff the right "to determine the religion in which each child shall be raised" and the defendant the right "to determine the education which each child is to have and the schools which each child shall attend."
Mr. Taylor, the defendant, is a Protestant; Mrs. Taylor, the plaintiff, is a Catholic. The parties have two children; Jacqueline, ten years old at the time of the divorce decree and Hunt Marshall, who was then eight.
Hunt Taylor, the younger child, has been attending Chicago Latin, a private, nondenominational institution and is not involved in these proceedings. Jacqueline the daughter, was attending a grade school maintained by the parish of Our Lady of Mount Carmel. In the spring of 1958, the defendant made arrangements to have Jacqueline attend the Ferry Hall School for Girls, a boarding school in Lake Forest, Illinois. Jacqueline visited the school at that time and returned in the fall of 1958 to take her entrance examinations and other tests. Upon receiving notice that his daughter passed these entrance examinations, the defendant made a financial commitment in excess of $2,000 to cover the expenses involved in matriculating her at Ferry Hall.
Plaintiff objected to the defendant's choice of school on the ground that Ferry Hall was not a Catholic institution and thereafter, in the fall of 1959, contrary to the terms of the divorce decree, enrolled Jacqueline at Immaculata, a Catholic day school. The defendant sought relief from the court to enforce his rights as to the selection of the proper school for his daughter.
The proceedings were held and upon the conclusion of the testimony, the Chancellor ordered that the petitioner's right to determine the education of his children, which had been incorporated in the divorce decree, be stricken; he further ordered the defendant to pay for the cost of the Catholic education and to pay the plaintiff's attorney $350 for their expenses in changing the original decree.
The Chancellor was evidently motivated by the lack of judgment in dividing the responsibility for religion and education between the parties. In his words: "It is my considered opinion that this decree is going to cause trouble of all kinds. I am going to modify it. It is my opinion, gentlemen, that the line between education and religion is so thin, it is so easy to step over this line either way. . .".
The Chancellor did not base his opinion on any change in the circumstances since the entry of the decree, although he did recognize that the conflict between the parents over the question of the child's schooling was affecting the child academically since her enrollment at Immaculata. He did not regard the decree as being inherently defective.
It is well settled in Illinois that a decree for divorce cannot be modified or amended unless there has been a material change of circumstances since the entry thereof. Dunning v. Dunning, 14 Ill. App.2d 242, 144 N.E.2d 535; Wade v. Wade, 345 Ill. App. 170, 102 N.E.2d 356; Wick v. Wick, 341 Ill. App. 478, 94 N.E.2d 602; Maupin v. Maupin, 339 Ill. App. 484, 90 N.E.2d 234; Thomas v. Thomas, 233 Ill. App. 488. To paraphrase Wade v. Wade, supra, a decree fixing the education of children is final and res judicata and should not be altered or amended unless new facts have arisen since the entry of the decree which make it necessary for the welfare of the child to be changed. "The changing circumstances must be, obviously, those that affect the children, not those that concern the parents." Dunning v. Dunning, 14 Ill. App.2d 242, 246, 144 N.E.2d 535.
Nothing has occurred in the instant case which would warrant the court in modifying the divorce decree. There were no changes of circumstances, other than those which resulted from the plaintiff's violation of the decree. The plaintiff cannot treat this violation, the enrollment of the daughter in a Catholic School, as a fait accompli, and use that as a basis for her contention that it would be in the best interest of the child to remain in the Catholic School.
Neither can the plaintiff argue that the defendant's right "to determine the education which each child is to have and the schools which each child shall attend" is impliedly limited to a Catholic School. Had that been the intention, it would certainly have been stated in unmistakable language. The instrument shows the signs of careful draftsmanship and due deliberation over the parties' respective rights. It should therefore not be set aside so easily, particularly where there has been no change of circumstances. That is the law and that should be controlling for us.
The defendant was not limited to selecting a day school for the children. Paragraph 3(f) of the agreement, incorporated in the decree, provides that when and if Mr. Taylor decided to send either or both children to boarding school, he shall pay the expenses incident to the education of each such child, but that the children ...