Appeal from the Superior Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Affirmed in part and reversed in
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from an order denying her petition of September 6, 1961, and sustaining defendant's motion to strike her petition of November 10, 1961. The September 6th petition sought to vacate orders entered December 13, 1960, and June 30, 1961, concerning the custody and religious training of the eight-year-old child of the parties. The November 10th petition, in addition to seeking to vacate the prior court orders, also sought to change the custody provisions regarding the child on the grounds that the father, by reason of past conduct, was unfit to have custody or visitation rights.
The parties were married on October 13, 1951, and divorced on January 12, 1960. By the terms of the divorce decree, entered pursuant to a stipulation and covenant, the mother was given custody of Scott, the minor son, then six years of age, "during the usual school term of each year, being a period of approximately nine months," and the father was given custody, "for and during the customary period of vacation from school in each year, being approximately of three months duration." The mother was given permission to reside in Florida with the child during the period she was entitled to custody and each party was given reasonable visitation rights while custody was with the other party.
On December 13, 1960, an order was entered by Judge Hershenson which recited, that on the agreement of the parties by their respective attorneys, leave was granted both parties to withdraw their pending post decretal petitions and answers and the reference to the Cook County Bureau of Social Service was vacated; *fn1 both parties were restrained from taking the child beyond an area of seventy-five miles from Cook County, but specifically excluding Peoria, plaintiff's mother's residence; visitation rights of the father were modified to alternate Sundays from 9:00 a.m. to 7:15 p.m. with overnight visitation on the other alternate weekends from 5:00 p.m. Saturday to 7:15 p.m. Sunday; and the father was directed to arrange for attendance of the child at Sunday School on Sunday a.m. in accordance with the rules of the temple (B'nai Zion Congregation).
Thereafter, another order was entered by Judge Hershenson on June 30, 1961. This order recited that the matter came up on the respective oral motions of the parties; that the parties were present in open court; and that evidence was heard. The mother was given permission to take the child on vacation outside Illinois from July 1 to July 9, 1961, and defendant was allowed to phone the child twice each week (on Tuesday and Thursday) after the dinner hour. The order also stated that the defendant had permission to enroll Scott in B'nai Zion Hebrew Religious School, commencing with the September term, defendant to arrange transportation.
Plaintiff, in her petition of September 6th, denied she had consented to either the December 13, 1960, order or the June 30, 1961, order. She specifically objected to that portion of the order concerning the child's religious training, affirmatively alleging that when the June 30 order was entered, the court "definitely ruled that the request of the father to enroll the son of the parties hereto in a Hebrew School should be considered in the fall." She further alleged that constant bickering between the plaintiff and defendant over which church and school the child should attend is proving detrimental to the child; that plaintiff now attends St. Luke's Lutheran Church and she desires to enroll the child in Sunday School as a Protestant (as she did prior to the entry of the December 13 order), but that the school refuses to admit the child because he is enrolled in a Hebrew School. The petition prayed that the visitation rights of the father be modified to times other than Saturday night and Sunday and that the June 30, 1961, order be vacated and set aside.
Defendant's answer of September 22, 1961, contended that the plaintiff's petition was without legal foundation since the December 13th order was signed by plaintiff's counsel in her presence in open court; that plaintiff's consent to the June 30 order was not necessary since it was entered by the court after evidence was presented; that if there is bickering detrimental to the child's welfare, it is due to the provocative actions of plaintiff; that at the time of their marriage, plaintiff converted to Judaism, the faith of defendant; that the defendant was never deprived of the right to participate in the religious education of the child; and that the child had commenced to study Judaism and his best interests would be to be educated in that faith only. Defendant admitted that attendance in schools teaching different faiths would be detrimental to the child and prayed that plaintiff's petition be denied.
On September 18, 1961, defendant filed a petition for a rule to show cause because plaintiff failed to comply with the order of June 30, 1961, in that she had enrolled the child in St. Luke's Lutheran Church Day School in lieu of a public school and was keeping the child from attending Hebrew School. Plaintiff's petition of September 6th was allowed to stand as an answer to this petition.
Plaintiff's petition of November 10th repeated most of the allegations contained in the September 6th petition and further alleged that the order of June 30, 1961, was not entered in her presence, even though she was in court on that date; that defendant and his present wife had, on numerous occasions since the granting of the divorce decree, beat and struck plaintiff and used vile language in front of the child; that defendant and his present wife have entered upon a course of planned conduct of harassment and vituperation with the design of forcing plaintiff to relinquish custody of the child; and that defendant was not a fit person to have either custody or visitation rights. The petition prayed that all prior orders be vacated and the plaintiff be given sole and exclusive custody of the child.
Defendant moved to strike the petition as res judicata, or in the alternative, to strike as being insufficient to state a cause of action.
Both parties and the child appeared in court on November 27, 1961. Plaintiff was the only person to testify although the Chancellor spoke to the child out of the presence of the parents, but with their consent. In addition, the Chancellor heard arguments by the respective attorneys.
On examination by the court, plaintiff admitted she was converted to Judaism when she married defendant, that their son was born into the Jewish faith, but that after the divorce she changed her own religion to "something else." The court questioned plaintiff concerning the visitation rights and plaintiff told the Chancellor she was not working at present and the Chancellor stated he would not alter the father's visitation rights unless there was a change in circumstances. Objections to many of the questions propounded by her own counsel, concerning the December 13th and June 30th orders, were sustained.
The court's order, in addition to denying the petition of September 6th, and striking the petition of November 10th, also entered a rule to show cause upon plaintiff, returnable within seven days, conditioned upon her enrolling Scott in the Chicago Public School System in the school nearest her home and that Scott be enrolled in the B'nai Zion Hebrew School to attend pursuant to their rules. On January 15, 1962, an order was entered stating that on the agreement of the attorneys for the parties, plaintiff had complied with the conditions above mentioned.
Defendant contends that the agreed order of January 15th has settled the issue of the son's religious training and education. It is his contention that this matter is now moot. We do not agree. This is not a situation where the parties themselves have settled their differences. Plaintiff changed the child's school under order of court. Had she failed to so do she would have been ...