Appeal from the Superior Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Reversed and remanded.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
This appeal is taken by defendant from an order denying the father's petition for change of custody of a minor child twelve years of age and for other relief.
The parties were divorced on June 21, 1956, and the care, custody, and control of Camille Maureen Richton, then six years of age, was given to the mother. The decree provided, amongst other things, that the defendant father shall have all reasonable visitation rights; that in the event the mother elected to remove the child permanently from the jurisdiction of the court, the defendant was entitled to have custody of Camille for a period of three months during the usual and customary vacation period, and that the parents "shall have alternate annual custody" of the child during the Christmas vacation period, the transportation to be borne equally between them. Subsequently, a petition was filed by defendant concerning visitation rights and an order was entered on December 6, 1956, providing alternate weekend visitation and alternate holiday visitation to defendant, and on plaintiff's petition permitted her to take the child to California from December 20, 1956, to December 30, 1956. Thereafter, the question of visitation and other matters were again put in issue by the father's petition and this matter and other controversies between the parties were referred to Master in Chancery Nathan M. Cohen, who, in part, recommended on July 30, 1959, "that except for vacation period during which either of the parties may in accordance with any modification of the Decree entered as a result of this report, be permitted to take the child on vacation trips, neither party shall remove the child from the State of Illinois without prior order of Court permitting such removal." These findings were later approved by a general order of Judge Ezra Clark which was entered on June 27, 1961, and the exceptions of the mother on this point were overruled.
On December 22, 1961, Beverly Richton filed her petition to remove Camille to California setting forth that it would be for the best interest of the child, as well as being better for the petitioner's welfare, that she be permitted to remove the child to California in accordance with the decretal provision for that purpose. In answer to the petition, the father's answer, filed on January 24, 1962, set forth the Master's recommendations and alleged that Camille was now twelve years of age and attended the North Shore Boarding School where she remains overnight except for weekends and vacations when she lives alternately with one parent or the other. The answer also alleged that it was in the child's best interest not to interrupt her schooling and further that the father would be denied his alternate weekend visitations. The answer further alleged that the mother was using the child as a pawn and had previously threatened to institute proceedings to remove Camille to California and that on August 23, 1961, she sent him the following telegram ". . . [p]ursuant to our phone conversation at 7:45 p.m. tonight in which I demand return of Camille immediately and your refusal to do so I am requesting my attorney to institute proceedings for a request to leave the State with Camille. Said circumstances will be outlined in petition."
The mother, by her reply filed on January 24, 1962, alleged that the transcript of testimony taken by Master Cohen revealed that at no time was there a petition pending or testimony introduced for the purpose of modifying the rights granted to the plaintiff to remove the child from the State of Illinois, and that the Master's recommendation on that point was merely dictum. The mother further denied that the child remained at school overnight except on occasions of emergency or occasionally at the child's request and that the child would have no difficulty making new friends in California. The mother denied she was using the child as a pawn and alleged that one of the prime factors in the decree was her right to remove the child to California where she formerly resided. On February 14, 1962, this matter came on for hearing before Judge Daly who entered an order continuing the hearing on plaintiff's petition to permanently remove the child from the State of Illinois, to June 7, 1962.
While the aforementioned proceedings were pending the father filed a petition on April 11, 1962, in which after realleging the matters heretofore mentioned, he alleged that Judge William V. Daly, on January 24, 1962, ordered the mother to complete the discovery deposition; that on February 14, 1962, Judge Daly, after examining the pleadings and after hearing argument of counsel, stated he would not interrupt the child's schooling at that time and therefore would not then permit the mother to take the child to California; that on April 2, 1962, without any knowledge on his part, the plaintiff mother obtained a transcript of Camille's credits from the North Shore School and upon information and belief he believes she went to California with Camille; that the plaintiff did not intend to return Camille to the State of Illinois in disregard of the orders of court; that the plaintiff is not a fit and proper person to have the care, custody, control and education of Camille and prayed that the decree be modified by giving custody of the child to the defendant and that the plaintiff be held in contempt of court for removing the child out of the State of Illinois, contrary to the order of court.
On April 13, 1962, an order was entered by Judge Daly directing the appearance of plaintiff in court on April 19, 1962, and to show cause why she should not be held in contempt of court by reason of her failure and refusal to comply with the order of that court entered therein on June 27, 1961, approving the recommendation contained in the Master's Report that "neither party shall remove the child from the State of Illinois without prior order of court permitting such removal." On April 19, 1962, Judge Daly ordered each party to file briefs and continued the matter to May 4, 1962. The plaintiff answered the petition and alleged she had the right to remove the child under the decree for divorce.
The plaintiff contends that she had the legal right granted to her by the divorce decree to remove the child from the State of Illinois "and the fact that she at one time misapprehended her rights and filed a petition asking for that which she already had, did not alter her rights. There was never an order modifying the decree and divesting the plaintiff of the right of removal."
Plaintiff properly argues that the power of a Master in Chancery is ministerial and not judicial. He cannot make recommendations on matters not referred to him. Almar Forming Mach. Co. v. F. & W. Metal Forming Mach. Co., 301 Ill. App. 591, 23 N.E.2d 229.
It is argued that the only matters referred to the Master in Chancery were matters relating to an alleged change in defendant's income, defendant's petition relating to visitation and return of personal property and plaintiff's petition for a rule to show cause on the allegations of plaintiff that the defendant failed to comply with the orders and the decree of divorce; therefore the Master had no jurisdiction to recommend a modification of the divorce decree wherein the plaintiff was given the right to remove the child permanently from Illinois.
The Master saw and heard many witnesses, including the parents, and then made a comprehensive report on July 30, 1959, which contained a summary of the evidence as well as his conclusions and recommendations. With regard to visitation the Master specifically found:
"(1) The child of the parties, Camille, is nine years of age.
(2) The distance between the residence of the mother where Camille resides and that of the father, defendant herein, is 35 to 40 miles.
(3) The parties herein have bickered and quarreled over visitation to the inevitable detriment of the welfare of the child, Camille, and have permitted animosity toward one another to take precedence over the unselfish devotion owed to the child by each of the parties hereto.
(4) Both parties are fit and proper parents and each should be permitted to the enjoyment ...