Appeal from the Circuit Court of Madison County, Third
Judicial Circuit; the Hon. FRED P. SCHUMAN, Judge, presiding.
Judgment reversed and remanded with directions.
Rehearing denied October 4, 1968.
This case arises as an aftermath of a divorce proceeding awarding the custody of a one and one-half year-old baby girl (now six years old) to its mother, which custody the father now seeks to have transferred to him, on the sole grounds that the mother has moved to the State of Ohio.
The basic question here involved is to what extent shall a child be treated as a pawn subject to the vacillating of parents unwilling to accept the full responsibilities of parenthood. Two gardeners produced the tender roots of a promising new rose in the garden of life. Then they disagreed and separated, and now each seeks to have this tiny rose transplanted to his private garden. But science teaches that in order for this rose to reach its fullblown maturity and beauty it cannot be transplanted from garden to garden, but must be given permanency in location, accompanied with best of loving and tender care. In recognition of this principle the courts have consistently said:
"the paramount question as to custody of children in divorce proceedings is not what the parents wish, not who was wrong or who was right when the decree was entered dissolving the marriage, not the punishment of the father or the mother, but what is best for the child at the time the custody is fixed," Schmidt v. Schmidt, 346 Ill. App. 436, 105 N.E.2d 117.
The determining question is whether the petitioning defendant-father has established such a change in circumstances as would render it to the best interest of the child to change its custodian. A brief outline of the case history will be helpful in reaching a conclusion.
Plaintiff and defendant were married June 25, 1960, and resided together as husband and wife in Granite City. Their domestic life was not one of continued and uninterrupted matrimonial bliss. To this marriage was born, on September 12, 1962, Julie Moore Trtanj. At the time of the child's birth the parents were living separate and apart, the father living in Granite City, where he practiced dentistry, and the mother living with her parents in Carbondale. Later there was a temporary reconciliation. which terminated with the wife filing a complaint for divorce charging extreme and repeated cruelty. This was filed February 5, 1964, wherein plaintiff sought custody of the child, together with child support and alimony. The defendant filed a general denial.
Subsequently, on a petition by plaintiff for temporary custody and support, the court granted temporary custody and support to the plaintiff. The terms are not material to the issues here. On March 31, 1965, defendant filed a counterclaim for divorce upon the ground of desertion, to which plaintiff filed her denial. On June 8, 1965, an amended complaint for divorce was filed by plaintiff charging desertion instead of extreme and repeated cruelty. On June 15, 1965, sixteen months after the filing of the original complaint, the cause came on for trial. According to the docket entries it came on for trial on an amended complaint for separate maintenance and defendant's counterclaim. However, no complaint for separate maintenance is included in the transcript. On April 1, 1966, another amended complaint was filed which is a duplicate of that filed June 8, 1965. Evidence was heard on behalf of both plaintiff and defendant, and the case was taken under advisement.
On June 13, 1966, one year following the trial, the court entered its decree finding the equities with the plaintiff; that the defendant was guilty of wilful desertion, and that the "plaintiff is the fit and proper person to be awarded the future care, custody, education and future control of the minor child." The court further decreed certain amounts for child support and for gross alimony to be paid by defendant, and fixed visitation privileges. Defendant's counterclaim was denied.
On August 17, 1966, two months following the divorce, and approximately fourteen months following the trial, the plaintiff married Captain Robert Jingling, a career army officer. Captain Jingling was stationed in Japan from September 1966 until May 17, 1967, at which time he was transferred to Wright-Patterson Air Force Base, Dayton, Ohio.
One thing is especially noteworthy, that is that it is conceded by all parties and their attorneys that both the plaintiff and defendant were morally fit and competent persons to have the custody of the child. Likewise no criticism was directed against Captain Jingling.
While there had been some criticism on the part of the defendant that on one or two occasions the plaintiff had not strictly complied with the court's visitation orders, no serious question arose until after plaintiff moved and took the child to Ohio to live with her and her husband. Prior to going to Ohio the plaintiff had petitioned the court (May 15, 1967) for leave to take the child to Ohio, and requested the court to fix a new visitation schedule. Defendant on May 29th countered with a petition to change the custody of the child to him, which he followed on June 30, 1967, with a petition for rule on plaintiff to show cause why she should not be held in contempt for removing the child from Illinois, and also petitioned to suspend payments of child support and gross alimony.
All these matters were set down for hearing on August 15, 1967. A hearing was had and on August 29, 1967 the court entered its order:
1. Modifying the decree by changing the custody of the child to the defendant with certain visitation rights to the plaintiff, and finding this to ...