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Rosenberger v. Rosenberger

JULY 12, 1974.

ROBERT ROSENBERGER, JR., PLAINTIFF-APPELLANT,

v.

KATHLEEN ROSENBERGER, N/K/A KATHLEEN EVANS, DEFENDANT-APPELLEE.



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

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

This appeal arises from three separate judgment orders entered by the trial court. The first order granted defendant's petition to modify a divorce decree by changing the custody of the divorced couple's two minor children to defendant. The second order awarded attorney's fees to defendant for the prosecution of the petition, and the third order granted attorney's fees to defendant for the purpose of defending the appeal of the first two orders.

On appeal, defendant raises three issues: (1) was the custody award properly changed to suit the best interests of the children involved; (2) was the award of attorney's fees to defendant-petitioner's attorney a proper exercise of the court's discretion; (3) was the allowance of attorney's fees to defend this appeal a proper exercise of the court's discretion?

Plaintiff and defendant were married on October 24, 1953, and separated on July 10, 1959. On November 15, 1960, a decree of separate maintenance was granted to Mrs. Rosenberger and she was awarded custody and support for their three children.

On August 16, 1961, a decree of divorce was entered which incorporated a written settlement agreement pursuant to which plaintiff was awarded custody of his three minor children. Defendant was granted visitation rights. The divorce proceedings were heard as a default matter and there was no hearing on the question of custody.

Soon after the divorce, defendant married Ronald Evans, presently an insurance agent. They are still married. Currently, defendant is unemployed and has no source of income. Since the divorce, plaintiff has not remarried. He is employed by Motorola, and his gross income in 1972 was $21,668.30.

For a period of 12 years following the divorce decree, plaintiff maintained custody of his three children. During that time, Robert, the oldest, reached majority. Since the commencement of this action, Diane, the second eldest child, has also reached majority. Currently at issue, therefore, is the custody of the youngest child, Barbara.

Before defendant filed her petition, Barbara lived with her father, sister and brother in Chicago. The two girls shared a bedroom. Testimony showed that Diane was unable to communicate with her father and felt that he did not understand her. Although testimony conflicted, there were indications that Barbara had run away from home 2 years prior to the court proceedings. Robert, the brother, testified that plaintiff was unable to control the girls. Considered in its entirety, the record showed that the relationship between the two girls and their brother was fraught with hostility and antagonism. At one point the trial court stated:

"Let me tell you something that I find here that really bothers me because it relates to this boy and his sisters. I think there is much friction that already exists between the boy and his sisters. I only hope and pray that it won't stay that way and somehow he and his sisters can get right together again. Right now there is very little feeling."

On April 9, 1973, defendant filed a petition to modify the original divorce decree by changing custody of the two minor daughters, Diane (then age 17) and Barbara (then age 15). The petition stated that it was in the best interests of the minor children to permit and allow them to live with their mother.

At the court hearing on April 9, 1973, the court ordered the girls to return to their father's home until a further hearing could be held. The girls resisted going with their father and stood crying in open court. The outburst was such as to warrant special notice by the court:

"I want the record to clearly show that there have been some outbursts on both sides and that the girls here are resisting going with the father. They are standing here crying."

By agreement of the parties, Diane and Barbara moved in to their mother's home on May 14, 1973. Both girls stated that they desired to live with their mother, and felt that a girl should be with her mother.

The court found that the best interests of the children would be served by changing custody of the two ...


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