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Elble v. Elble

OCTOBER 12, 1968.

FRANCES ELBLE, NOW FRANCES HEUER, PLAINTIFF-APPELLEE,

v.

JAMES ELBLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. FRED P. SCHUMAN, Judge, presiding. Order affirmed.

GOLDENHERSH, J.

Defendant, James Elble, appeals, and plaintiff, Frances Heuer, formerly Frances Elble, cross-appeals from the order of the Circuit Court of Madison County entered upon plaintiff's petition to modify the decree of divorce previously rendered and entered in this cause.

The record shows that on March 18, 1955, the circuit court granted defendant a divorce on his counterclaim and awarded him custody of Gail Lynn, the 5-year-old daughter of the parties, hereafter called Gail.

In December 1966, plaintiff filed a petition to modify the decree and alleged therein that "during the past few years" Gail has resided with plaintiff, and plaintiff has provided for her "special needs and attention, education and religious training and guidance." Plaintiff also alleged that she is a fit person to have custody, Gail desires to live with her, defendant has paid very little child support during the time Gail lived with her mother, and defendant is unfit to have custody of Gail "by reason of his ignoring" her welfare. The petition prays that plaintiff be awarded custody, that defendant be ordered to pay reasonable support money and provide for her college education.

Defendant answered the petition, denying the material allegations and stating further that plaintiff had "defied orders of this court respecting custody of the child," that it has become impractical, if not impossible, physically to coerce Gail to remain with him, that to "maintain peace" he has allowed her a wider latitude in association with plaintiff but because of "plaintiff's habits, manner of life and associations" it would be hazardous to Gail's welfare to vest absolute control of her in the plaintiff and "to deprive him of legal custody and the consequent right to exercise some degree of restraint in connection with her upbringing."

The trial court heard testimony and filed a comprehensive memorandum and order.

In the memorandum the court stated that although Gail had chosen to leave her father and live with her mother, the evidence failed to show a change of circumstances which would warrant a modification of the provision of the decree awarding her custody to the defendant. It denied plaintiff's petition for a change of Gail's custody but stated that it could not, and would not, "force a 17-year-old girl to live with her father if she does not desire." The defendant was ordered to pay plaintiff $100 per month for Gail's support during her minority, and an attorney's fee in the amount of $150. In the order the court stated that although it was in its discretion so to do, it would not, under the circumstances shown by the evidence, order defendant to provide for Gail's college education.

Plaintiff appeals from those portions of the order which continue custody in defendant, deny the prayer for provision of a college education, and from the support money order, arguing that in view of defendant's wealth and income the sum ordered is inadequate.

Defendant appeals from the portions of the order which provide for payment of support money and an attorney's fee, and from the court's holding that it was vested with discretion to require a divorced parent to provide for the college education of his child beyond attainment of the child's majority.

Defendant's principal argument for reversal is that in view of the trial court's denial of the prayer for a change in the custody order he should not be required to pay support money, and in ordering him to do so, the court, in effect, confirmed the unlawful custody and control being exercised by plaintiff.

[1-3] In reviewing an award of custody of a minor child we are governed by the rule stated in Miezio v. Miezio, 6 Ill.2d 469, at page 472, 129 N.E.2d 20: "In awarding custody of minor children to one parent or the other, the paramount consideration must necessarily be the welfare and best interest of the children. (Nye v. Nye, 411 Ill. 408; Buehler v. Buehler, 373 Ill. 626.) Although the discretion of the trial court in matters relating to the custody and support of minor children is a judicial one and subject to review. (Nye v. Nye, 411 Ill. 408,) the determination should not be disturbed upon appeal unless manifest injustice has been done."

From our review of the record we find no change of circumstances since the entry of the decree which would require a reversal of the court's denial of a change in Gail's custody. The fact that Gail now prefers to live with her mother is not sufficient to warrant a transfer of custody. Stickler v. Stickler, 57 Ill. App.2d 286, 206 N.E.2d 720; Strouse v. Strouse, 75 Ill. App.2d 362, 220 N.E.2d 485.

The Appellate Court has previously considered the question of whether a court may include in a divorce decree, an order directing a parent to pay the expenses of a child's college education. (See Strom v. Strom, 13 Ill. App.2d 354, 142 N.E.2d 172; Maitzen v. Maitzen, 24 Ill. App.2d 32, 163 N.E.2d 840; O'Berry v. O'Berry, 36 Ill. App.2d 163, 183 N.E.2d 539; Crane v. Crane, 45 Ill. App.2d 316, 196 N.E. 27; 1962 Law Forum 612.)

Since the amendment to section 19 of the Divorce Act (c 40, § 19, Ill Rev Stats) effective August 31, 1967, there appears to be no question that such order may be entered with respect to both ...


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