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Flanagan v. Flanagan

MARCH 25, 1970.

JOSEPH J. FLANAGAN, PLAINTIFF-APPELLEE,

v.

ROSEMARIE T. FLANAGAN, N/K/A ROSEMARIE T. NOVAK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. NORMAN N. EIGER, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Defendant appeals from an order modifying the visitation provisions of a divorce decree.

The parties were divorced on April 29, 1959, in the State of Florida and defendant (plaintiff in the divorce proceeding) was awarded custody of their two sons, now age 12 and 13, subject to plaintiff's right of visitation at all reasonable times and places.

The parties remarried, plaintiff and his wife reside in New York City, and defendant and her husband live with the minor children in Skokie, Illinois.

On August 25, 1967, plaintiff filed a petition in the Circuit Court of Cook County and registered the foreign judgment of divorce. Plaintiff also requested the court to modify the visitation provisions of the decree so that the minor children could visit plaintiff in New York City, and plaintiff also requested the court to direct defendant to show cause why she should not be held in contempt for failure to afford plaintiff rights of visitation.

The record reflects that the proceedings consisted primarily of the statements of both counsel and brief testimony by the parties. Counsel apparently adopted each other's statement as stipulations of fact, except when infrequently an objection was interposed.

The issue before this court is whether the trial court abused its discretion in ordering that plaintiff have the right to visit with the children at his residence in New York City for 3 weeks each summer, 5 days during each alternate Christmas vacation, and for 5 days during alternate spring vacation.

Plaintiff is employed as a roofer and resides with his wife in New York City, where they occupy a 3 1/2-room apartment with sleeping facilities for the children.

In 1957 plaintiff was intoxicated and was arrested for fighting. In 1958 his license was suspended for one year for driving a motor vehicle while intoxicated.

Plaintiff visited with the children for 4 months in 1959; there is no evidence to show whether he visited with them in 1960, but plaintiff did not visit with them in 1961. Plaintiff visited with them in 1962 and 1963, and in 1964 he visited with them in Florida and at his home in New York City. In 1965 the children again visited with plaintiff in New York City for one month and their maternal grandmother, a resident of New York City, participated in caring for them during this visit.

Defendant remarried in 1966 and her husband sought plaintiff's consent to adopt the children. Plaintiff's efforts to exercise his visitation rights in 1966 were denied him by defendant and in 1967 the parties appeared in court and the Chancellor granted plaintiff 4 days' visitation with the children and admonished the parties to amicably resolve the problems of plaintiff's visitation. In 1968 the bickering between the parties regarding visitation persisted and plaintiff then initiated the instant litigation.

OPINION

Defendant contends that plaintiff is practically a stranger to the children and his visits were not frequent enough to demonstrate any fondness, love or affection. This contention is not supported by the record. The chronology of plaintiff's visits do not evince conduct that could be construed as abandonment or lack of interest as is found in Huber v. Huber, 26 Ill. App.2d 207, 167 N.E.2d 431 (1960) relied upon by defendant.

The two instances of plaintiff's difficulties with the police as a result of his drinking both took place before the parties' divorce and almost 9 years prior to the instant proceedings. There is no evidence of any consequence that the children will be adversely affected by visiting their father ...


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