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Frees v. Frees

JULY 22, 1968.

PATRICIA FREES (ENGEL), PLAINTIFF-APPELLEE,

v.

GEORGE FREES, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. NORMAN N. EIGER, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 17, 1968.

This is a post-divorce decree proceeding involving the custody of two minor children. The decree entered August 17, 1962, awarded the permanent custody of Cynthia, then eight, and Terrance, then seven, to the plaintiff, their mother. The defendant, George Frees, their father, was given custody of the two children for one month during the summer vacation periods. He was ordered to pay for the care and support of the children. Defendant appeals from an order which denied his petition for permanent custody.

Defendant's petition, filed on August 30, 1965, alleged that plaintiff had failed and neglected to procure much-needed orthodontic treatments for Cynthia and had failed to secure proper medical attention for Terrance, who had had serious bowel trouble for some time.

On September 15, 1965, and after a hearing on defendant's petition, Judge Fred W. Slater entered an order that the divorce decree be modified "to provide that the defendant, George Frees, have the sole care, control, custody and education of the minor children of the parties until one week after the close of school in 1966 and that medical reports and dental reports be filed with the court at that time and that plaintiff and defendant have temporary custody on alternate holidays, defendant to have such custody beginning with the Thanksgiving holidays." It was further ordered "that this cause be and it is hereby continued to June 23, 1966, . . . without further notice." Judge Slater died on August 14, 1966.

On June 13, 1967, and after a number of continuances, a hearing was had before Judge Norman N. Eiger on defendant's petition for permanent custody. Counsel for plaintiff informed the court that the order of September 15, 1965, by Judge Slater was a temporary order, and that temporary custody was given to defendant for the purpose of securing orthodontic treatments and medical attention for the children, and that the burden was on defendant to show that plaintiff was an unfit mother. Thereupon, counsel for defendant sought to introduce into evidence a transcript of the hearing before Judge Slater, which resulted in his order of September 15, 1965. Judge Eiger rejected the offer and then proceeded with the hearing of defendant's petition.

Defendant, George Frees, testified that Cynthia would be fourteen in November (1967) and Terrance would be thirteen in August. He stated that he had made periodic trips to Florida, and that Terrance was suffering from a complete lack of care and pinworms were imbedded in his bowels. He further stated that a tooth was growing in the center of Cynthia's mouth, and it was deforming her. In February, 1965, he saw the children coming home from school, and "Terry" had a hole in the toe of his shoe the size of a half dollar and the toe was infected. He had long hair and was shabbily dressed. Defendant had been sending support for the children during this period. He made arrangements for a Florida orthodontist in 1965, and he offered to pay all bills, but the work was not done. He saw his children in Chicago in 1965, and at that time no orthodontic treatment had been given to his daughter. He took his daughter to an orthodontist. She is still being treated and wears braces.

Defendant further testified that he had remarried and lived in Lake Forest. His home had four bedrooms. Both children were attending school regularly and doing very well. His present wife had taken care of the children for the past two years and had indicated she was willing to continue. She had endeavored to correct Terrance's stuttering and bowel problem and had guided and helped Cynthia physically and mentally. School records were introduced in evidence.

Dorothy Frees testified that she had married defendant, George Frees, in September, 1963. She had been a school teacher and had a daughter of her own who would be eleven in July (1967). In 1963 Terrance had a serious bowel condition, and she took him to a doctor who prescribed "daily suppositories." The condition was now ended. She had the children for about two years, and the only time it was necessary to secure treatment for Terrance since they had custody was one time when he visited his mother in Florida. She took Cynthia to the orthodontist for treatments. She was willing to take care of the children if her husband was awarded permanent custody.

Plaintiff, Patricia (Frees) Engel, was called to testify under section 60 of the Civil Practice Act. She stated Terrance had been hospitalized for rectal problems while the divorce was pending. The doctor at that time prescribed suppositories and said that Terrance would outgrow the problem in a year or two. Terrance still had bowel trouble, and she took him to a doctor twice a year for periodic checkups. She did not realize her daughter had crooked teeth but thought she needed fillings. She took her to a dentist in Florida, and she paid the dentist. Both children had physicals in school. In November, 1964, defendant authorized her to take Cynthia to an orthodontist. No orthodontic work was done from November, 1964, until June, 1965, when she sent the children to their father.

Plaintiff, Mrs. Engel, testified that she owned a home in Pinellas Park, Florida. It had three bedrooms and two baths, and she resided there with her present husband since 1962. She was not employed, and her husband supported her very well. She had no children with her present husband, who had a married son.

Judge Eiger interviewed each child separately in his chambers. He stated to the parties that Cynthia told him she was getting along very well with her father and stepmother; also that she was getting along very well with her mother and stepfather. She liked living in Florida but had a preference to live in Lake Forest. It was the impression of Judge Eiger that she was a well-adjusted child and could easily adjust to either or both places. He stated that Terrance appeared to be a rather happy-go-lucky boy. He seemed to be well adjusted and enjoyed being with his father and stepmother and enjoyed being with his mother and stepfather. He didn't want to make a choice of parents.

After reviewing the foregoing testimony and after extended discussion with counsel for both sides, Judge Eiger on September 11, 1967, entered an order nunc pro tunc as of June 13, 1967, which confirmed the decree award to plaintiff of the custody of the two minor children and increased defendant's visitation rights to two months during the summer school vacation. Defendant was ordered to ...


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