APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
This is an appeal by the plaintiff, Myrna A. Braunfeld Golden, from an order of the circuit court of Champaign County modifying a divorce decree to change custody of her two children, Kenneth and David Braunfeld, to their father, Peter George Braunfeld, the defendant in the instant case.
Myrna and Peter were married in August, 1959. Kenneth was born in November 1963, and David was born in October 1966. Myrna and Peter separated in November 1968, at which time Peter voluntarily relinquished custody of the boys to Myrna. The parties were divorced on February 7, 1972, at which time Peter consented to a decree indicating that Myrna was a "fit and proper person" to have custody of the children and awarding custody of the children to Myrna subject to liberal visitation rights. Several weeks after the divorce Myrna married William Golden. In May 1973, Peter, who had remained single, petitioned for a change of custody. A lengthy hearing was then held. We find that there would be no useful purpose served by reciting the facts elicited at that hearing. After the hearing, the trial court, on January 7, 1974, modified the original divorce decree and changed custody of the two children from Myrna to Peter finding that "it is in the best interests of said minor children that their care, custody, control and education be awarded to [Peter], with the same rights of liberal visitation in the mother that have heretofore been exercised by the father. Child support to terminate."
Upon taking the case under advisement the trial court stated that because of the agreed custody provisions of the original divorce decree no evidence had been heard on the child custody issue in February 1972, and, therefore, "[i]t is as though there had been no hearing or no ruling by the court of a discretionary nature regarding the custody of the children * * * There is no burden on either party to show a material and substantial change of circumstances." On appeal, plaintiff contends that the trial court erred in failing to make a specific finding as to the existence of a material change of circumstances since the entry of the original decree. We agree.
In Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, the supreme court of this state held that while the modification of a divorce decree to change custody of children is a matter of discretion on the part of the trial court, such a change must be supported by a change of circumstances adversely affecting the best interests of the children, the rationale being that the original decree is res judicata as to the facts which existed at the time of the original decree but not as to facts which arise thereafter. In Nye there was an express finding in the stipulated decree of "best interests." Both the appellate court (343 Ill. App. 477, 481, 99 N.E.2d 475) and the supreme court (411 Ill. at 415, 416) in Nye considered that decree to also contain an implicit finding of "fitness."
It is contended here by the defendant, and the trial court so found, that the finding of change of circumstances required by Nye before modification is not necessary when the custody provisions of the original decree are based on the stipulation of the parties, the idea being that in that situation the court receives no evidence concerning fitness or the best interests of the children, and does not exercise its discretion in awarding custody. We find Nye to be dispositive because that case also involved an original stipulated decree, and the court, nevertheless, required a finding of change of circumstances to modify that decree. Hence, in affirming the appellate court the supreme court stated:
"No different conduct has allegedly occurred that the husband does not declare he was generally aware of at the time of the decree. At that time he voluntarily entered into a custody agreement which accepted her as a fit person. The decree of the court accepted her as a fit person." (Emphasis added.) 411 Ill. at 415-416.
In the instant case the original consent decree stated that plaintiff was a "fit and proper person" to have custody of the children. Under our reading of Nye this is also implicitly a finding of best interests. Defendant is then bound by such a determination unless he can affirmatively show a material change of circumstances adversely affecting the best interests of the children occurring after the original decree. Indeed, although there is dictum to the contrary in our opinion in McDonald v. McDonald, 13 Ill. App.3d 87, 299 N.E.2d 787, this court there still found a change of circumstances which subjected the original custody order to modification even though the custody provisions of the original decree were stipulated. Also see Clark v. Clark, 1 Ill. App.3d 69, 273 N.E.2d 26 (4th Dist.) for a similar finding where the original custody provisions were likewise stipulated. We find then that Nye and the prior decisions of this court require that one who seeks to modify the custody provisions of a divorce decree, whether those provisions are based upon stipulation or are the results of a trial court determination after a contested hearing, must carry the burden of showing a material change of circumstances adversely affecting the best interests of the children occurring after the entry of the original decree. The trial court erred in holding otherwise.
In the context of the present record, whether defendant proved the existence of a material change of circumstances adversely affecting the interests of the children during the relevant period or whether defendant sufficiently proved the existence of conduct on the part of plaintiff that he was not generally aware of at the time of the original decree which likewise adversely affected the interests of the children, are factual determinations for which the trial court is in a better position to resolve than is this court. Accordingly, this cause is hereby reversed and remanded to the trial court for a specific finding in that regard.
Reversed and remanded with directions.
Mr. PRESIDING JUSTICE TRAPP dissenting:
It is oft repeated that in matters of child custody the "guiding star" is and must be at all times the best interests of the child. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300.) This case suggests and illustrates that the unconsidered application of a rule of res judicata that requires a showing of altered or changed circumstances since the date of decree fixing custody may greatly erode, if not completely nullify, the ability of the court to make an advised determination of the best interests of the children.
This dissent is directed to the proposition that the neglect or failure of the parties to a divorce, ill-advised or otherwise, to initially present to the court relevant facts concerning the "best interests" of the child or children should not bar the court from considering such interests ...