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Marcus v. Marcus

APRIL 21, 1969.




Appeal from the Circuit Court of Cook County; the Hon. ROBERT L. MASSEY, Judge, presiding. Decree reversed.


Plaintiff and defendant were divorced on December 12, 1957. Custody of their minor son, Jeffrey, then aged 3 years, was given to the mother, Beverle Marcus. She remarried twice thereafter. Her second husband died. Subsequently she married a Mr. Tickman, with whom she had two children. Jeffrey appeared to have some emotional problems which caused Judge Robert L. Hunter to appoint Dr. Seymour R. Steinhorn, acceptable to both parents, to examine him. The boy stayed away from his mother's home and expressed a preference to stay with the father or Ruth Marcus, his paternal grandmother.

The mother presented a petition for an increase of child support and for her attorney's fees. The father countered with a cross petition for custody of the child, which was denied by the court. On July 7, 1967, Judge Robert L. Massey ordered the Sheriff of Cook County to place Jeffrey in the Audy Home, a juvenile detention home, after the boy ran away from his mother's home. On July 14, 1967, the decree of divorce was modified by Judge Massey by placing legal custody, care and supervision of Jeffrey with Ruth Marcus, the paternal grandmother. No appeal was taken from this order.

On July 21, 1967, Beverle Marcus, hereinafter referred to as Beverle Tickman, filed a petition, without notice to the defendant or his counsel, in the office of the Clerk of the Court for a rehearing of the July 14, 1967, order.

On August 8, 1967, Bernard B. Rinella, the guardian ad litem previously appointed by the court to represent the boy, received a letter from Robert Hoffman, a unit director of the R. McCormick Chicago Boys' Club, which Jeffrey attended, addressed "To Whom It May Concern." The letter described Jeffrey to be a boy who is spoiled, dislikes taking orders, is a cry baby, has a superior attitude and is a smart aleck. Similar information was sent to one of the attorneys for the mother. The guardian ad litem mentioned the letter to Judge Massey but took no further action until he talked to Robert Hoffman on October 19, 1967, in Judge Massey's Court. This information was not given to Ruth Marcus, Stanley Marcus or their attorney who demanded that said information be presented to the court by written petition. No such petition was ever presented. Judge Massey then granted a rehearing of Beverle Tickman's petition of July 21, 1967, almost 90 days after said petition was filed in the Clerk's office.

Judge Massey heard several witnesses and personally talked to Jeffrey. There was no petition to vacate the July 14 order. There was no evidence of unfitness of Ruth Marcus to have custody of Jeffrey. She did not carry out the court's directive to arrange for psychiatric treatment for the boy, but in her opinion the boy did not need such treatment and was doing well at school and at home under her supervision.

On November 24, 1967, Judge Massey announced in open court that Jeffrey be sent to St. John's Military Academy and directed the guardian ad litem to procure a transfer of his grades from Lake View High School to St. John's Military Academy and arrange for an interview with the boy at St. John's. The following discourse then took place:

"MR. BERKSON: May I answer this?

"THE COURT: That would be the Court's finding. That would be the Court's order, and at this point, if we can get the co-operation of the mother and father to see this boy gets out there as early as possible, he probably can start the new semester.

"MR. BERKSON: May I now answer this Court? This Court is not making a recommendation he go to St. John's?

"THE COURT: This Court is making an order.

"MR. BERKSON: An order. I don't want to minimize it in any way. I want something that is final so I can take it from that step further.

"MR. ROSS: May I say ____ ____

"MR. BERKSON: May I finish?

"MR. ROSS: I just want to make a suggestion. You are not going to make closing ____ ____

"MR. BERKSON: What says you can make a suggestion?

"THE COURT: I think the Court made the order.

"MR. BERKSON: Would the Court set an appeal bond, if the Court please?

"MR. ROSS: May I just suggest to the Court ____ ____

"MR. BERKSON: May I have an answer, for legally, what I can advise my client ____ ____

"THE COURT: You can proceed in accordance ____ ____

"MR. BERKSON: I am asking the Court to set an appeal bond. Does ...

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