APPEAL from the Circuit Court of Crawford County; the Hon.
HARRY L. ZIEGLER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 20, 1975.
On April 7, 1972, the plaintiff, Angela Brady, was granted a divorce from the defendant, John Brady, in the Circuit Court of Crawford County on grounds of mental cruelty and was awarded custody of their daughter, Shannon Kathleen Brady, who was then 19 months old.
On September 8, 1972, during a period of visitation, the defendant filed a petition to modify the divorce decree in which he sought custody of his daughter. It was alleged in the petition that, subsequent to the entry of the divorce decree, the plaintiff had become so emotionally unstable that a change of custody was in the best interest of the minor daughter. The Honorable A. Hanby Jones granted the defendant temporary custody of his daughter without notice having been given to the plaintiff.
On September 11, 1972 the plaintiff filed a petition asking that the defendant be ordered to show cause why he should not be held in contempt of court for failure to pay child support and attorney's fees as required by the divorce decree.
A hearing was held before the Honorable Phillip B. Benefiel on September 21, 22 and 28, 1972. The court stated that the hearing was being conducted on both petitions, the plaintiff's petition to show cause and the defendant's petition to modify the divorce decree. At the conclusion of the hearing on September 28, Judge Benefiel ruled only on the petition filed by the plaintiff, holding the defendant in contempt of court and ordering him to pay child support and attorney fees to the plaintiff. The court's order provided that the other matters in controversy remained for further determination by the court. Inexplicably, over a year passed before any further proceedings on the petition occurred. The record indicates that during that period, plaintiff consulted Judge Benefiel concerning the case and Judge Benefiel felt obliged to disqualify himself.
The hearing on defendant's motion to modify the divorce decree was finally held on March 1 and 2, 1974, before the Honorable Harry Ziegler. After hearing the evidence, the court awarded permanent custody of the child to the defendant subject to the right of the plaintiff to have custody of the child for 2 months during each year. The plaintiff has appealed that order claiming that the trial court abused its discretion in depriving a mother of custody of her young daughter.
The plaintiff-appellant argued in the trial court and argues here that it was improper to include in the record on appeal the earlier testimony before Judge Benefiel since it had never been before Judge Ziegler and, therefore, could have formed no basis for his decision. It was not transcribed until the conclusion of the proceedings before Judge Ziegler.
• 1 At the outset, there is substantial controversy concerning the nature of the proceedings before Judge Ziegler. It appears from the record that Judge A. Hanby Jones entered an ex parte order granting defendant-appellee temporary custody of the child pending a full hearing on the question of modification. At the conclusion of the hearing in September, 1972, Judge Benefiel stated that he would continue the temporary modification pending receipt of further evidence. In the order of October 31, 1972, finding defendant in contempt of court for failing to pay child support and attorney's fees, Judge Benefiel specifically reserved ruling on the merits of the modification. Judge Benefiel subsequently disqualified himself and Judge Ziegler became responsible for the case. We consider the hearing before Judge Ziegler in March, 1974, a trial de novo. As such, it was Judge Ziegler's duty to hear the evidence presented and judge the credibility of the witnesses. Because of this duty, it would have been improper for Judge Ziegler to have considered the testimony taken before Judge Benefiel in deciding the issue. (Trzebiatowski v. Jerome, 24 Ill.2d 24, 179 N.E.2d 622 (1962); Mikrut v. Mikrut, 113 Ill. App.2d 446, 251 N.E.2d 84 (1969).) Clearly, since the former proceedings had not been transcribed, Judge Ziegler could not have considered that evidence in toto. We are concerned, however, with statements made by Judge Ziegler in the hearing on the motion by the defendant for extension of time of file the report of proceedings of the September, 1972, hearing. The following occurred during argument on whether the record of the September, 1972, hearing should be made a part of the record on appeal:
The Court: "* * * If the Appellate Court wants it, they should decide it. My decision was, in a way, probably based on it. At that time I said I would not change the order. Isn't that right, Mr. Price?
Attorney Price [for plaintiff]: There was a substantial amount of controversy. Mr. Weber [attorney for defendant] was insisting that custody had been changed all during the trial, if you'll remember, Judge. My position was consistently that custody had never been changed. The continuation or whatever it was, the order had never been changed.
The Court: I made the temporary custody permanent by that order. So in some respects it hinged on that. I did rely on some prior order, but I don't know what testimony was that brought that about. I think I just said I would not change the custody * * *."
The only orders contained in a record which properly could have been before Judge Ziegler were the order of September 8, 1972, entered by Judge A. Hanby Jones granting temporary custody without notice and the order by Judge Benefiel on October 31, 1972, specifically reserving judgment on the question of custody. A docket entry by Judge Benefiel, dated September 28, 1972, continuing the temporary modification, appears of record but contains no digest of testimony taken or reasons for continuing the temporary order of modification. Though we are puzzled by Judge Ziegler's statements, we are firm in our conviction that any consideration given by Judge Ziegler to the September hearings before Judge Benefiel was improper, whether received from the record or otherwise.
• 2 The question remains whether the report of proceedings of the September hearings before Judge Benefiel, included in the record on appeal, can or should be considered by this court notwithstanding its inadmissability at trial. The question is an interesting and novel one, particularly in light of the facts as they developed in this case. The testimony of a key witness differs dramatically in the two proceedings. Although we recognize the sensitivity and importance of proceedings involving the custody of minor children, we believe that the only record which we can consider is of the proceedings before Judge Ziegler which reflect the testimony upon which he made his decision to modify the divorce decree. To do otherwise would be to negate the intent and effect of a de novo hearing and weaken the long standing doctrine that ...