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Marcus v. Marcus

NOVEMBER 18, 1974.




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


Bradley Marcus, the child who is the central figure in this regrettable litigation, was born August 31, 1970. On January 13, 1972, in the circuit court of Cook County, his parents, Ira J. Marcus (father) and Lonnie Marcus (mother), were divorced on the ground of mental cruelty. By agreement of the parties, custody of the child was vested in the mother subject to further orders of the court with permission to remove the child from the jurisdiction and subject to specified reasonable and liberal rights of visitation and vacation with the child by the father. This judgment contemplated removal of the mother and the child to Phoenix, Arizona, and the father agreed to pay the mother a fixed sum for this purpose.

After considerable litigation, which will be later described, the trial court entered an order granting custody of the child to the father. The mother has appealed from this order. The contentions raised in this court by the respective parties will be stated at a later point.

On September 8, 1972, the father filed a verified petition in which he prayed permanent custody of the child. The theory of this petition was that the mother was not a fit person to have custody and that a substantial change in circumstances required a change in custody. The mother filed an answer to this petition which was basically a specific denial thereof as regards the charges made. Lengthy hearings were held by the trial court prior to entry of the order appealed from. A careful examination of the entire record enables us to state in summary the following facts which are, in our opinion, pertinent to the merits of the situation.

After the divorce, the mother and child moved to Phoenix, Arizona. The mother's sister, married but separated from her husband, lived in a townhouse which had been purchased by her parents. The mother had little or no income at that time other than the payments specified in the judgment for divorce.

The father is a practicing lawyer in Chicago, associated with his sister's husband. After the divorce, he maintained his own place of residence. The father had no communication with the mother or child, beyond making required payments by mail, from the divorce in January of 1972 until June of that year. He then visited them on the way home from a vacation. At that time, in his opinion, the child was in good health, apparently well cared for and looked very beautiful. At the end of that visit, the father took the child back to Chicago with him for 1 month. The child lived with the father's sister. She and her husband maintain a good home with adequate facilities in a suburban area of Chicago. They live with their three children of school age, all older than the child here involved. In July of 1972, the father returned the child to the mother in Phoenix. She and the child then moved to the home of her parents in Wichita Falls, Texas. The mother's sister, in due course, left the home in Phoenix.

In August of that year, a dispute occurred between the mother and her father as a result of which she and the child changed their residence to the home of a lawyer (some 43 years old) living in Wichita Falls. The only other person living there was a young lady (some 21 years old), a friend of the lawyer. During August of 1972, the mother accompanied this lawyer on a long automobile trip which took about 6 days. The reasons for and the circumstances surrounding this trip were a source of considerable dispute in the testimony and in the briefs before this court, as were all of the remaining facts with reference to the activities of the mother during this time which she spent in Texas and on the trip.

The second anniversary of the birth of the child (August 31, 1972) occurred during this trip. The father attempted to reach the child by telephone and eventually spoke to the lawyer's young lady friend in whose custody the child had been left. Stating the ultimate facts with brevity, the evidence shows that the father went to Wichita Falls, located the child and took temporary custody. In due course, he brought the child back to Chicago to live in his sister's home.

All of these facts were brought out by the testimony of a number of witnesses. In addition, the court heard testimony of two psychiatrists: Dr. Robert Bussell, appointed by the court, and Dr. Abraham Jackman, retained by the mother. Dr. Bussell interviewed and spoke to many of the interested parties, including the father and mother. Dr. Jackman had only the benefit of a written report from Dr. Bussell and one interview with the mother. Dr. Bussell reached the conclusion that both the father and the mother were immature. He found the father slightly more mature than the mother and basically more stable, as well as "less neurotically involved" with his sister than the mother with her parents. He recommended that the father have custody of the child. Dr. Jackman agreed generally with, or at least did not disagree with, the basic findings of his colleague's report but reached a different conclusion. In his opinion, the mother had given the child proper and adequate care, and removal of a child of that age from the mother would be harmful to the child.

The order appealed from (entered December 11, 1972) found that the mother had engaged in a course of conduct which was contrary to the best interests of the child and that there was a substantial change in circumstances since the divorce which warranted a change in custody of the child for his own best interests. Accordingly, the judgment for divorce was modified by awarding custody and control to the father on condition that he and the child continue to reside within the metropolitan area of Chicago. The order also provided that the child should continue to reside in the home of the father's sister and her husband. The father was given 90 days within which to take up residence with the child on a permanent day-to-day basis. Elaborate directions were set up in this order with reference to visitation of the child by the mother. These latter provisions are not specifically criticized by either of the parties. Shortly thereafter a motion supported by affidavits was made by the mother to vacate the order appealed from. An answer to the motion, also supported by affidavits, was filed in behalf of the father. This motion was denied in due course.

In the lengthy briefs filed by the parties, the basic contentions made by the mother are: that the ruling appealed from which changed custody of the child was against the manifest weight of the evidence and contrary to the best interests of the child; and that prejudicial error occurred when the trial court required a medical examination of the parties on its own motion. The father contends that the best interests and welfare of the child require that he be placed in the custody of the father and that no error occurred in connection with the psychiatric examination and evidence.

We will consider first the issues regarding the use of psychiatric testimony. This contention is actually presented in three separate subdivisions: the court should not have appointed the psychiatrist on his own motion; no issue was raised by the pleadings regarding the mental or emotional condition of the parties so that the manner and purpose of the appointment was improper; and the court erred in reading and considering the psychiatric report.

• 1 As regards the first of these contentions, the record shows that the parties, by their attorneys of record, freely consented in open court to the appointment of a psychiatrist by the court. The mother's counsel cooperated actively with the court in this regard. Not only did her counsel then avail themselves of the doctor's report during trial, but she herself by her attorneys retained the services of Dr. Abraham Jackman, the other psychiatrist who testified. Consequently, this issue has been effectively waived for purposes of appeal. (Moynihan v. Moynihan, 9 Ill. App.3d 520, 525, 526, 292 N.E.2d 105.) In addition, the language of the Supreme Court rule specifically vests discretion in the court to order a psychiatric examination and report during trial. (Ill. Supreme Court Rule 215(d)(2), 50 Ill.2d R. 215(d)(2).) We find no error in appointment of the psychiatrist by the court.

• 2, 3 In addition, the physical and mental condition of both parents is necessarily a material issue in cases involving custody of a child. Since the welfare and best interests of the child are compelling and paramount, it would seem that both parties would welcome an evaluation by qualified and impartial professional experts. Furthermore, in this situation, as in other cases in which expert opinions are used by the court, no harm is done by the expression of expert opinion bearing directly upon the ultimate issues. The trial court "is not required to accept the opinion of the expert * * *." (Merchants National Bank v. Elgin, J. & E. Ry. Co., 49 Ill.2d 118, 122, 273 N.E.2d 809.) Thus, in a case involving custody of a child, this ...

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