Appeal from the Circuit Court of Cook County, Divorce
Division; the Hon. RICHARD J. FITZGERALD, Judge, presiding.
Reversed and remanded with directions.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This appeal is taken from a judgment order of the Circuit Court of Cook County, giving permanent custody of a minor child, Carol Louise Mackie, to her grandmother, Marie June Carmon, and denying Harvey C. Mackie, father of the child, any rights of visitation.
Louise Mackie, a resident of Chicago, Illinois, filed a divorce action against her husband, Harvey C. Mackie, a resident of Washington, D.C., on September 4, 1962. Harvey C. Mackie, the defendant in the present case, was served by publication and did not then file an appearance. On December 6, 1962, the court, having jurisdiction of the parties and the subject matter, entered a default decree on the grounds of extreme and repeated cruelty and awarded the plaintiff, Louise Mackie, the custody of Carol Louise Mackie, the minor child of the parties. The court reserved jurisdiction with respect to alimony and child support.
On June 8, 1960, Louise Mackie and her daughter Carol (then eleven years of age) resided with Louise's mother, Marie June Carmon (third-party defendant), and with Louise's father, Lee Carmon, who died on December 30, 1963. Louise Mackie died on October 5, 1964. From June 8, 1960, until Louise's death, the defendant saw Carol only once, in an unexpected encounter in October 1961.
On December 21, 1964, the defendant commenced these custody proceedings by filing a petition in the Circuit Court of Cook County in the original divorce proceedings, to obtain custody of Carol. On January 15, 1965, the defendant filed a further petition alleging that Carol's maternal grandmother, Marie June Carmon, had been made a third-party defendant in the proceedings at his petition and that she had been served with summons, and praying that she be required to answer the petition, and that the petition be set down for hearing on January 28, 1965. In response to the defendant's petition, the trial court ordered that the two contestants for the custody of the minor child present themselves for depositions on January 26, and that a hearing be held on January 28, 1965. On January 28, the third-party defendant filed her answer to the defendant's petition and prayed that the custody of Carol be awarded to her.
On January 29, the trial court ordered that the custody matter be referred to Cook County Department of Public Health to investigate the respective parties and their homes and to report back to the court in sixty days and that the hearing be continued to April 8, 1965. On the same day, the court ordered that the defendant be permitted to see Carol on the entire days of January 29 and 30, on the weekend of February 20, and on two nonconsecutive weekends in March. The defendant exercised his visitation rights on January 29 and 30 and again on the weekend of February 20. He next saw the child on March 20, 1965, when he picked her up and took her out of the jurisdiction of the State of Illinois, to Washington, D.C., without the knowledge or permission of the third-party defendant.
On March 23, the third-party defendant filed a petition praying that 1) the child be returned to the petitioner at Chicago; and 2) a rule to show cause be entered against the defendant to show cause why he should not be held in contempt of court. On the same day the trial court ordered the defendant to return the child to the third-party defendant immediately. On March 26 the defendant had not complied with the order of March 23, whereupon the third-party defendant prayed that the defendant show cause why he should not be adjudged in contempt. The court ordered defendant to appear on April 8, 1965, to show cause why he should not be adjudged guilty of contempt of court for having violated the court's order of March 23. The defendant answered the third-party defendant's petition on April 2, 1965, and answered the petition for a rule to show cause on April 7.
On April 8, the defendant failed to appear as ordered by the court on March 26, and the court ordered that a writ of attachment issue, directed to the Sheriff of Cook County, commanding him to produce the body of the defendant before the court. The hearing which had been set by the court for April 8 was held on that date. The defendant did not appear, nor was the child returned at that time.
One witness, Dr. Nils J. Tunestan, a pediatrician, testified on behalf of the third-party defendant at the April 8 hearing. He stated that after the death of the child's mother the child was very upset and he prescribed tranquilizers for her. He added that it would be normal "to a certain extent" for her to be upset at that time. The court then continued the hearing so that the defendant might appear. The hearing was resumed on April 15, although the defendant again did not appear. On this date, seven witnesses appeared; three on behalf of the defendant, and four additional witnesses on behalf of the third-party defendant.
Othelia Henning, the defendant's mother, stated that she had gone to Washington when her husband died in December 1964, where she shared an apartment with her son; that Carol seemed very happy in this apartment, and that she took care of the child when the defendant was working during the day.
Jerry Sagat, a friend of the defendant, stated that he was with the defendant when he picked Carol up on February 20, 1965; that there was some confusion about getting her to go with them, and the defendant said they would leave and return in an hour to pick her up. The defendant and Carol spent the day at Sagat's home with his family. Sagat testified that when they left they were on their way back to Mrs. Carmon's home.
Judith Martin, an investigator for the Cook County Department of Public Aid, whose services had been requested by the trial court by its order of January 29, 1965, testified that she investigated the third-party defendant's home and "the home was a suitable place for a child of this age and the child would have a room of her own."
The third-party defendant, Marie June Carmon, testified on her own behalf that she had maintained a home for her daughter, Louise, until her death, and her granddaughter, Carol, from June 8, 1960, for almost five years when the defendant had taken the child away. During those five years the defendant had contributed $250 in two payments of $150 in 1961 or 1962 and $100 in September of 1964. The defendant had sent Carol six or seven dresses and these were the only gifts she received from her father. The defendant lived in a basement apartment from 1959 until early 1965. Mrs. Carmon had been present when the defendant had struck her daughter on two occasions and "on February 15, 1959, when I was sitting with the baby, he hit me with a wine jug . . . when Mr. Mackie was drinking wine."
Anna Caestecker and Julian Caestecker testified as to Carol's pleading not to be made to leave with the defendant on the second occasion ...