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Peo. Ex Rel. Edwards v. Livingston

OPINION FILED MARCH 27, 1969.

THE PEOPLE EX REL. ROY ROBERT EDWARDS, APPELLEE,

v.

ALVIN (ELVIN) LIVINGSTON, APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. JOHN T. CULBERTSON, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Roy Robert Edwards on September 12, 1967, filed a petition for a writ of habeas corpus in the circuit court of Peoria County seeking custody of Roy Elvin Edwards, his 12-year-old son, from Alvin (Elvin) Livingston, the child's maternal grandfather. The petition set forth that the appellee, Roy Robert Edwards, was the father of Roy Elvin Edwards and that the appellee and Marie Edwards, the mother of Roy Elvin Edwards, had been divorced on April 21, 1958, and that custody of Roy Elvin Edwards had been awarded to Marie Edwards. The appellee stated that Marie Edwards had died on August 7, 1967, (the actual date of death appears to have been July 27, 1967) and that the appellee, being the natural father of the child, was entitled, therefore, to the custody of Roy Elvin Edwards. The appellant, Alvin Livingston, filed a return on September 22, 1967, which denied that the appellee was entitled to custody of the child, alleged that the appellee was not a fit person to have the care and custody of the child, claimed that he had forfeited his right to custody of the child by abandoning him and declared that the best interest of the child required that he remain in the care and custody of the appellant. After hearing evidence, the trial court found the appellee to be a fit person to have the care and custody of Roy Elvin Edwards and concluded that under the law and in the best interest of the child that custody should be awarded to the appellee. Pursuant to this, custody of young Roy was transferred to his natural father at the close of the academic year 1967-1968. The appellant has appealed here under our Rule 302(a)(3). Ill. Rev. Stat. 1967, ch. 110A, par. 302(a)(3).

The appellee, Roy Robert Edwards, and Marie Edwards were married in 1954. They lived together in the home of the appellant, Mrs. Edwards' father, until August 1956. Roy Elvin Edwards, the only child of the marriage, was born in 1955. Apparently, during this time that the appellee and his wife lived with her father he was not steadily employed and, on August 15, 1956, he moved from the appellant's home leaving his wife and young Roy, then 17 months of age. The appellee admitted that during the period he and his wife lived with the appellant no rent was paid by them. The appellant claimed, that for about a year before the appellee moved away from his wife and child, he contributed only nominally to the support of his wife and young Roy, and he stated that, after two or three months in which the appellee contributed nothing, the appellant told him either to obtain a job to help to pay expenses or leave the house. The appellee moved.

After leaving the appellant's home on August 15, 1956, the appellee did not communicate with his wife until 1958 when he approached her concerning a divorce. On April 21, 1958, a decree of divorce was entered granting Mrs. Edwards a divorce on the grounds of desertion and adultery and providing for $10 a week as a child-support award. The appellee never did make any child-support payments either before or after the divorce decree. Following the divorce in 1958, the appellee did not visit young Roy and, except for a Christmas card which he sent to his son in 1960, which was returned to the appellee, he did not otherwise communicate with the child. The appellee saw his son for the first time, following the separation and divorce in 1958, at his former wife's funeral in July of 1967, when he was introduced to young Roy by the appellant.

At the hearing in the trial court, the appellee testified that at no time did he consult an attorney regarding his right to visit his child and that no one had told him he could not see the child. He stated that prior to the death of the child's mother he believed that it would be best to leave the child with his mother, but after her death, he considered that the child should be with him. He further testified that he was a stranger to the boy and that he did not know anything that would reflect unfavorably on the appellant's ability to provide for the child. He contended that when he attempted to visit his son after the death of the mother, the appellant told him the boy was not at home and asked him to leave and not return.

The appellee stated that he had been steadily employed on a full-time basis at a foundry since 1960 and before that time he had held various odd jobs. The appellee related that in 1958 he had pleaded guilty to a charge of contributing to the delinquency of a minor and had been sentenced to 90 days in jail. He testified that the charge had been based on a claim that he had gotten a 16-year-old girl pregnant. The girl, whom he had met at the appellant's home, was the niece of Marie, then his wife. He stated that he had never had any other difficulty with the law and had been in no financial difficulty since 1960.

The appellee and his present wife, Verna Jean Edwards, were married in 1960. He stated that they are purchasing a 4-bedroom home on contract for $4200 and that he and his present wife have 7 children residing with them. Five of the children are his wife's by a prior marriage and two were born to them. The appellee and his wife sleep in one bedroom with their 14-month-old baby girl. Three girls, ages 15 years, 4 years and a 17-year-old married daughter sleep in another bedroom. Two boys, ages 16 and 13, sleep in a third bedroom and a 12-year-old boy sleeps in the fourth bedroom, where the appellee intended that young Roy would sleep.

The appellee further testified that his usual take-home pay is between $80 and $90 a week. He also stated that his wife worked as a manager at a dairy products stand from 6:00 P.M. to 11:00 P.M. six days a week and that she earned $80 per week. In his testimony he stated that he wants to provide for his son's home and education. Although the appellee had never lived a greater distance than 30 miles from his son, he admitted that he never made any effort to see the child other than his attempt to visit following his wife's death.

Mrs. Verna Edwards stated that she had been married to the appellee for about 7 years. She testified that he had accepted the responsibility for her 5 children by a previous marriage, has treated them well and has supported them. During the seven years of their marriage he had been a good father and had given them love. Mrs. Edwards testified she met the child, young Roy, at his mother's funeral. She stated that the appellee had never proposed that they visit the child and to her knowledge he had never supported Roy. She further stated that she was willing to take the boy into their home and to be a substitute mother for him because he was the appellee's son and she thought he needed a mother.

Livingston, the appellant, was 76 years old at the time of the hearing, was a widower and semi-retired. He owned a 2-story, 4-bedroom house on a half acre in Elmwood, Illinois, free from any encumbrance. Two granddaughters, Doris, 18 and Colleen, about 14, children of the deceased Marie by other marriages, occupied one bedroom in the house, his grandson, young Roy, had his own room, and another room, which had been occupied by the boy's mother, was used as a guest room and the appellant occupied the fourth bedroom.

The appellant testified that he had never been in any difficulties with the law, had no debts except his daughter's funeral expenses and two remaining payments due on a 1965 automobile he was purchasing. He stated that he had not been ill for some years, that his most recent annual physical examination did not reveal any health problems and that he believed he was in excellent health considering his age. The appellant did not use tobacco or alcohol and was licensed to drive an auto without the use of glasses.

He receives a pension from a tractor manufacturer, where he had been employed for 15 years, of $69.55 a month and receives Social Security payments of $115 each month. He testified he served as a part-time caretaker at a cemetery, and earned approximately $42 per month for this work. He stated that his late daughter, Marie, had received $120 per month from the Veteran's Administration and the Social Security Administration for his granddaughter, Colleen, and apparently he would now obtain these benefits as Colleen's guardian.

The appellant had been the principal support of his daughter and young Roy during the time they lived with him. He testified that he had assumed the role of father to the child and treated him as a son. He had attended some of the activities in which the child had participated and had tried to help the boy in these activities. He also had shared with the mother the responsibility of disciplining the child. He stated he loved the boy and wanted to keep him, but that if the child, by his own volition, decided to live with his father he would be understanding.

The appellant's adopted daughter, Dora, daughter of the late Marie, who testified on behalf of the appellant, was 18 years old at the time of the hearing and was attending a key punch operator's training school in Peoria, Illinois. She stated that since the death of Marie Edwards, she had taken over Marie Edwards's role in the family and that the shared the cooking and other household chores with Colleen. However, in the oral arguments ...


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