APPEAL from the Circuit Court of Lake County; the Hon. THOMAS
R. DORAN, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 26, 1973.
Myrna Muriel Finn, for purposes herein referred to as plaintiff, and Lawrence Martin Finn, hereinafter referred to as defendant, were married in December, 1956. They resided in Pennsylvania where two children were born, Norman Jeffrey Finn on November 20, 1957, and Natalie Ruth Finn on October 25, 1958. In 1969 the defendant left his employment in the east and moved to California. Two months later his wife joined him with the children and very shortly thereafter the defendant advised his wife that he wanted a divorce. A decree of divorce was entered in California on August 26, 1970 after they had complied with the residence requirement of the State of California. The plaintiff requested custody of both children and the decree awarded custody to her allowing the defendant to have the children six weeks during the summer. It was stipulated by the parties in the California divorce decree that the defendant would pay the plaintiff $1.00 a month for a period of two years for her support and $108.33 thereafter. It was also stipulated that the wife was to have custody of the two children subject to the aforementioned six weeks vacation with the husband and that the wife could reside outside of the State of California. About a week after the decree became final the defendant remarried and three or four months later, moved to Lake Zurich, Illinois, where he purchased a home and adopted the two children of his new wife. The following summer, the defendant went to California and under the provisions of the decree brought the children with him to Illinois for the six weeks vacation period authorized by the decree. The children shortly thereafter wrote their mother in California and advised her that they preferred to reside with their father and his new wife and children in Lake Zurich, Illinois. In August, 1971, the mother petitioned the Circuit Court of Lake County to register the foreign judgment of divorce in Illinois and the same was filed in Lake County, Illinois. The mother came to Illinois and a hearing was had on the custody of the children in the Lake County Circuit court under the provisions of the divorce decree entered in California. The Lake County trial court specifically found that both of the parties were proper persons to have the custody of the children. However, based solely on the preference of the children, the Lake County court modified the California decree by changing custody to the defendant father. The plaintiff mother appeals from that judgment.
The primary question presented to this court is whether the order of the trial court in Illinois in changing custody from the mother as ordered in the trial court of California, to the father, is against the manifest weight of the evidence. The mother contended that the father purposely embarked upon a scheme to deprive her of the custody of her children by planting in their tender minds the ideal of living with him and his new wife. The case of Stickler v. Stickler (1965), 57 Ill. App.2d 286, 206 N.E.2d 720, is strikingly similar to the situation before us. In Stickler the father obtained custody of the children by agreement of the parties and the preference of the children. The mother sought to modify the decree by changing the custody of the daughter, aged sixteen, from the father to her. She had previously expressed a desire to reside with the father but then changed her preference to that of the mother. The trial court found both parties were fit and proper persons for the custody of the minor daughter and changed the custody to the mother. The Appellate Court in reviewing the change of custody order stated at page 289:
"We believe that the instant case presents the first occasion in Illinois that the courts have been called upon to decide whether a change in the child's preference is, in itself, a sufficient change in circumstances to warrant modification of the custody award. We are aware of the difficulty a trial judge has in making child custody decisions and we are hesitant to disagree with him in these matters. Nevertheless, we are of the opinion that the welfare of a child will not be served best if a change in custody is granted solely upon the child's own change in preference."
and further went on to say on page 291:
"Under all these circumstances it is our conclusion that the mere change in a child's preference as to the parent with whom she would like to live is not a sufficient change in circumstances to warrant transfer of the child's custody. The trial court's order will, therefore, be reversed."
The defendant father herein has cited the case of Hirth v. Hirth (1965), 59 Ill. App.2d 240, 207 N.E.2d 114, as authority for the preference of the children as being controlling in a custody hearing. In Hirth the children were awarded to the mother; both parties remarried; the mother was divorced from her second husband, was unable to care for the children; and pursuant to stipulation of the parties she relinquished temporary custody to the defendant under the agreement that he would return them upon the completion of the school year. The defendant-father complied and returned the children to the plaintiff and then filed a petition for change of custody. The trial court found that both of the parties were proper persons to have custody of the children. The older of the two children expressed a preference to live with her mother. The Appellate Court held that placing upon the plaintiff the burden of sustaining the custody provisions of a divorce decree was improper, and where the defendant was seeking to modify the custody provisions of the divorce decree, the burden was upon him to show why such change should be made. The court held that the father had failed to establish that the plaintiff was less fit to have custody of the children or that their welfare required the change of such custody to him, and further held that the order of the trial court changing the custody to the father was against the manifest weight of the evidence. We find that to be the situation in the instant case before us.
In Arden v. Arden (1960), 25 Ill. App.2d 181, 166 N.E.2d 111, custody of the minor child was awarded to the plaintiff and upon a post decretal petition of the father, the custody of the child was changed to that of the defendant father. The court stated at page 186:
"In all matters concerning the custody of the child, the paramount issue and the guiding star for the court is the welfare of the child. The fact of changed conditions, is not sufficient. Before a court has the authority to modify a decree as to custody, those changed conditions must be such that affect the welfare of the child."
The court went on to state at page 190:
"And since the decree of divorce is res adjudicata as to the fitness of the plaintiff at the time of the decree, there must be convincing proof that the fitness of the plaintiff to have the custody of the child has so materially changed, as to affect the welfare of the child. We do not find such proof in the record."
And that is the situation in the case before us. While Arden dealt with a child of younger years and while the question of preference of the child was not presented, the principles enunciated therein are controlling nonetheless.
The same is true in the case of Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300. In Nye the custody of the minor child was awarded to the mother. Subsequently, in a petition for change of custody the trial court found that the mother was unfit to have custody of the child. The Appellate Court reversed, and the Supreme Court in affirming the opinion of the Appellate Court which had held that the change in custody was improper, stated at page 416:
"In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order. [Citation.] New conditions must have arisen to warrant the court changing its prior custody ...