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Mikrut v. Mikrut

SEPTEMBER 18, 1969.

MARY ESTHER MIKRUT, PLAINTIFF-APPELLANT,

v.

STEPHEN MIKRUT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Boone County, Seventeenth Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding. Reversed and remanded.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

The judgment of the trial court modifying an initial divorce decree, which awarded custody of four small children to their mother, by removing two of the children to their father's custody is challenged on this appeal.

Custody was originally determined in a contested hearing on August 10th, 1967. The children are Katherine, then age 3 1/2 years, Stephen, 2 1/2 years, Carol, 1 year, and Cherryl, age 2 months. The court, in awarding custody in connection with the decree of divorce commented that he was doing so "on the basis of the Probation Officer's report, and the report from the H. Douglas Singer Psychiatric Center."

At this hearing the probation officer, who had been directed by the court previously to investigate the homes of the parties, was present in court and gave as his opinion that the mother should have custody. He was precluded from further explanation by the judge who indicated he had read the full report. Neither this report nor that referred to as the one from the Psychiatric Center were filed of record. Other testimony was taken which indicated that the mother was unemployed and living with her parents and planned to seek job training and secure a home of her own.

A decree of divorce was signed on September 15th, 1967, incorporating the award of custody to the mother, the plaintiff here.

On April 19th, 1968, defendant filed a petition alleging that "plaintiff has mistreated said children, kept them ill-clothed, kept them ill-fed, and on numerous occasions has inflicted physical harm to said children," and further alleging that he had "a suitable home to adequately and properly take care of said children."

On August 21st, 1968, a full hearing on the petition was held before the trial judge below, who was not the judge who had heard the previous proceedings.

Defendant testified, without objection,

". . . on February 7th, Carol was taken to Beloit Hospital, and Mary said she fell out of the high chair and she had her arm in a sling for two weeks. And then on March 3rd, we picked the children up and Kathy had a black and blue mark on her butt. She said her mother beat on her with a stick.

". . . On March 31st when we picked up the children, Stephen's nose, forehead and chin were bruised. There were no scratches on the rest of his body. Mary said he fell out of a go-cart, but he looked like he was badly beaten, and he said his mother beat on him."

The father further testified, without objection, that the children told him that at some earlier date plaintiff was sleeping with her boyfriend (now her present husband) in one room, and that the children were two and three in a bed and one had to sleep on the floor.

Small photographs showing a mark on one of Katherine's buttocks and a mark on Stephen's face were admitted. These are in the record before us and are inconclusive. Defendant described a "black and blue mark" on Katherine, and as to Stephen, "a bad bruise on his chin and forehead, and his nose was black and blue."

Defendant described the adequate farm home where he lived with his parents and testified that the ...


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