Appeal from the Circuit Court of St. Clair County; the Hon.
FRANCIS E. MAXWELL, Judge, presiding. Reversed and remanded.
Rehearing denied June 25, 1969.
Plaintiff, Deanna M. Akin, appeals from a divorce decree of the Circuit Court of St. Clair County, awarding her husband, Robert F. Akin, custody of Sheila Akin, the minor child of the parties. She also appeals from a denial of her petition to modify the decree so as to grant her custody of Sheila. These appeals have been consolidated in this court for review.
Plaintiff filed a complaint for divorce on February 15, 1967, charging defendant with extreme and repeated cruelty and asking for custody of their seven-year-old minor child, Sheila. Defendant filed a counterlcaim for divorce and asked for custody of the child. Both plaintiff and defendant alleged that they were separated November 22, 1966. The trial of this cause commenced on March 16, 1967 and at the conclusion of the hearing on that date, the defendant withdrew his counterclaim for divorce and the parties agreed to a stipulation as to the property rights between them whereby plaintiff waived all right to alimony or support for herself and agreed to pay all of her own costs and attorney's fee. The only matter left in dispute was the final custody of Sheila and therefore our discussion of the evidence will be confined to that issue.
Deanna Akin, plaintiff, testified that Sheila had been residing with plaintiff's mother and father in Collinsville, Illinois since the November 22, 1966 separation; that defendant was never close to Sheila and that he never had time for her when she wanted him to read or play with her; that he had a habit of looking at pictures of nude women in front of Sheila and leaving them lie around the house and when she would complain to him about this he would say, "She has to learn some day, anyway." She also testified that her husband drank a lot, causing his temper to become uncontrollable and that he had beaten her at various times. She further testified that Sheila had improved quite a bit since the separation, was not nearly so nervous as she had been, and seemed happy in her new surroundings; that Sheila had been held back a year in school while living with plaintiff and defendant, but her grades had improved and she had been attending school regularly since November of 1966.
On cross-examination plaintiff testified that she had lived with her sister and her sister's husband for about five weeks immediately after the separation; that she then went to Sparta, Illinois, where she stayed with a friend for about a week until she got her own apartment which she has had since about December. She stated that she had not worked since the separation. She also testified that it was possible that she, herself, could have been partially responsible for the nervousness of the child; that she had been in Alton State Hospital for a couple of weeks and had been treated for nervousness for the past two years. She said that the reason her daughter lost a year in school was because she had been sick and absent.
The trial judge asked plaintiff what plans she would make if the custody would be awarded to her. She answered that she had been looking for work and had just moved back with her mother and father the past week. She had not been looking for work in Collinsville where her mother and father live, but rather in Sparta.
Robert Akin, defendant, was called under Section 60 and testified that he had spanked his daughter only three times in her life and then only to correct her; that he had never beaten her, just spanked her. He further stated that his wife had been sick quite often with nervous disorders throughout their married life; that he had a good job and a three bedroom mobile home and that if awarded the child he intended to have his eighteen year old niece, who had a five months old baby, live in his home and take care of Sheila.
At the conclusion of this hearing, the court entered the following order:
"Defendant's counterclaim for divorce withdrawn. Cause heard. Divorce granted to plaintiff on grounds of cruelty. Custody of minor child to remain with Lorena Elliott, grandmother, pending investigation in re final custody of minor child.
ENTER: Francis E. Maxwell Judge of the Circuit Court"
Deanna Akin testified again and stated that at times her husband displayed affection for the child and at other times did not bother or want to be bothered; that he was not home very much; that he was generous with Sheila at times and at other times he was not; that her husband quarreled often with her mother and did not want her mother to keep the child; that she had seen Sheila every Sunday and had called her throughout the week while she was living ...