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Garland v. Garland

MAY 3, 1974.

NATALIE GARLAND, PLAINTIFF-APPELLEE,

v.

NORMAN GARLAND, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID LINN, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal arises from an order allowing plaintiff to retain custody of her two children and to remove them to Oxford, Mississippi. Defendant initially filed a petition seeking an order restraining the removal and requesting custody. Plaintiff then filed a counter-petition seeking a modification of the judgment for divorce to allow her to remove the children.

On appeal, defendant contends that (1) the judgment was based on sexual discrimination in violation of the United States and Illinois constitutions; and (2) the judgment was contrary to the manifest weight of the evidence.

Plaintiff was divorced from defendant and was granted the sole care, custody, control and education of the couple's two minor children, subject to defendant's reasonable visitation rights. Defendant's petition asserted that the welfare of the children would best be served by transferring their custody to him. In support thereof, defendant called plaintiff and her fiance, Ronald Schroeder, as adverse witnesses. Both were then teaching in the evening division of Northwestern University and were working toward their doctorate degrees at that school. At that time, Schroeder was 26 years old, approximately 6 years younger than plaintiff, and had never been married. He testified that he had known the children since 1971 and that they responded well to him. He had accepted a teaching position for the fall of 1973 at the University of Mississippi in Oxford, Mississippi, where plaintiff had also been assured that she would be able to find employment. A marriage between Schroeder and plaintiff was to take place after they moved there.

Although defendant informed plaintiff that he would contest the removal of the children, she sold her Evanston residence and used the proceeds as down payment for a house in Oxford. The title and the mortgage to that house were in Schroeder's name, even though plaintiff had made the $1,000 earnest money payment. She was also to provide the balance of the $15,000 deposit money but, in return, was to receive from him a promissory note secured by a mortgage.

The next witness called by defendant was his present wife, Marilyn Garland. At the time of her marriage to defendant in November, 1972, she was 21 years old. She had had limited experience dealing with children.

Dr. John Loesch, a psychiatrist called by defendant, testified that the children had a strong attachment to defendant and that he acted as a paternal and maternal figure to them. It was Dr. Loesch's belief that the children preferred being with their father over their mother, and that separation from defendant would be more traumatic to them than to most children.

Around the time of the divorce, Dr. Loesch saw defendant professionally for approximately 10 months. He observed the children for 3 to 4 hours on one afternoon, individually and with their father. He had not known them prior to this meeting.

On cross-examination, Dr. Loesch testified that neither child wanted to be put in a position of having to decide which parent he preferred for custody, which he stated was indicative of consideration for both parents.

Defendant testified that he was a law professor at Northwestern University. He indicated that he was a concerned and loving father who wanted custody of his two children. He believed this would be in their best interest, because they needed his love and guidance, particularly because plaintiff was away from them quite often due to her teaching and school activities and this would probably continue in Mississippi.

OPINION

I.

Defendant first contends that the judgment was based on sexual discrimination, because in denying defendant's petition, the judge stated:

"I can't for the life of me find that it would do any great good to either of these youngsters to take them from their mother with whom they ...


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