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Levy v. Levy

DECEMBER 3, 1969.

BERNICE LEVY, PLAINTIFF-APPELLANT,

v.

HARVEY BURTON LEVY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. FRED G. SURIA, JR., Judge, presiding. Judgment affirmed.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

In a post-divorce decree proceeding the trial court ordered that the custody of the 12-year-old son of the parties be changed from plaintiff to defendant. Plaintiff, who is the mother, appeals from that order. Plaintiff argues:

(1) that the evidence did not establish a substantial change of circumstances affecting the welfare of the child to justify changing custody to defendant;

(2) that neither defendant's remarriage nor the child's preferences were sufficient to cause a change of custody;

(3) that the court erred in the admission of certain evidence and

(4) that defendant failed to sustain his burden of of proof.

The parties were married on April 5, 1951, and their son was born on September 4, 1955. On March 8, 1966, the parties were divorced and the decree granted plaintiff custody of their son. Prior to the parties' divorce, their son demonstrated severe emotional behavioral problems. Plaintiff went to live in Camden, New Jersey, and was granted leave to have her son live there with her. The court provided defendant have the right to visit and telephone his son and that the son visit defendant in Chicago during the summer months and vacation periods.

In the summer of 1968, the son visited defendant pursuant to the provisions of the decree of divorce, but the son did not return to plaintiff's custody.

Plaintiff then filed a petition demanding the return of the child and for a modification of the decree to provide that the child remain in school for the summer. Defendant filed an answer and a counterpetition to modify decretal provisions relative to custody by now awarding custody of their child to defendant.

EVIDENCE

BERNICE LEVY, plaintiff, testified:

She is a resident of Camden, New Jersey, and prior to the divorce the child lived with her, and was attending a school for emotionally disturbed children at the time the decree of divorce was entered. The child had been treated as a weekly outpatient at the Community Child Guidance Clinic of Camden, New Jersey for about 1 1/2 years before the divorce of the parties. Upon recommendation of the Clinic the child was enrolled in the Southern Home for Children, because he did not respond to plaintiff. The child was disobedient, started fires, hurt animals and destroyed his own and others' property.

Plaintiff visited the child twice a week. He would come home for Sundays and spend every other weekend with plaintiff at home.

In the spring the child returned from Chicago where he had been visiting defendant and plaintiff testified that the child seemed very despondent and unhappy telling plaintiff "Dad is going to have another baby" and "Oh, my father can keep his babies." Plaintiff further testified the child was upset over the fact that defendant was married and had a family and that he was not the only child anymore. She believed that this contributed to the child receiving low grades in school.

When the child is home from school plaintiff is always with him. After the divorce plaintiff purchased her own home and the child had his own room, and has a dog and a cat as pets.

At the present time plaintiff has no major problems with the child, but the child is unhappy, torn between plaintiff and defendant. He hates his school, but the Clinic people advised her that once the child commences to like the place then the child must be institutionalized. The school advised plaintiff that if the child does not return he will lose his place, because the school has a long waiting list.

On cross-examination plaintiff testified:

She is a waitress supplementing her income doing a musical novelty act which requires some travelling. The nightclub acts are on weekends and not more than 60 or 100 miles from home, allowing her to return. When she has club dates on weekends, when the child is home, plaintiff engages the services of a babysitter who has known the child since he was 5 years old. The babysitter handles the child fairly well.

The child is now obedient enough and regardless of any of the normal routines, he is able to accept them and the child has improved.

The child has indicated he would prefer to live with defendant and told the plaintiff that he would live with her if she would remove him from the school. The preference for defendant is based upon the fact the child has a good time when staying with the defendant because he is not living the day-by-day life he was in New Jersey but is in Chicago for a good time. She further testified that the defendant has always been a "good time Charley."

She never indicated a desire to be separated from her son and resisted placing the child into the Home, succumbing only because she was advised that it would be difficult to treat the child as an outpatient. The child has been enrolled at the Southern Home for Children for the past two years and is responding. Twice a week she has individual conversations with the caseworker. She stated that the child is aggravated with her because she keeps him at the Home and he is afraid of the fact that they might hit upon the truth.

Defendant has written letters to the school, but has never called them. He has visited the child at school and constantly receives reports regarding him.

JACOB H. MALTZ, called as a witness on behalf of plaintiff, testified:

He is a psychiatrist, licensed in the State of Illinois, and has been practicing for 20 years. He is board certified in psychiatry for 12 years, an examiner for the psychiatric creditation board and was Superintendent of the Chicago State Hospital. Pursuant to his duties at Chicago State he had any number of emotionally disturbed children under his care. At the present time he is Medical Director of Ridgeway Hospital, which is a private psychiatric facility which deals primarily with emotionally disturbed children, adolescents and emotionally disturbed adults. He had overall responsibility for the supervision and direction of the treatment program.

He saw plaintiff in his office and discussed the status of the parties' child with her. The witness telephoned the Southern Home for Children and talked to the child's psychiatric social worker. Plaintiff's Exhibit No. 1, a letter from the psychiatric social worker at Southern Home, which plaintiff delivered to the witness was admitted into evidence over defendant's objection.

The witness also produced a letter he received from the psychiatrist who was attending the child at the Southern Home for Children. This was admitted into evidence as plaintiff's Exhibit No. 2 over defendant's objection.

The witness then testified that based upon his conversation with the psychiatric social worker, plaintiff, and plaintiff's Exhibits Nos. 1 and 2, he formed an opinion as to the child's condition and what should be done for his future to help him. It was his opinion that the child has been making satisfactory progress at the Southern Home and is being handled on a daily basis with individual psychotherapy and that the prognosis is favorable if the child is permitted to continue in this setting. This witness has never talked to the child.

Over defendant's objection, Plaintiff's Exhibit No. 3, a progress report from the Philadelphia Public elementary school system, was admitted into evidence.

The witness testified that the child's grades for the first semester were excellent and good for most part, but after his visit to Chicago the grades declined and there were many unsatisfactory grades. The witness expressed another opinion that from glancing at the reports and the school records it was his opinion ...


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