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Kminek v. Kminek

MARCH 12, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. BUCKLEY, Judge, presiding.


This is an appeal from post-decree proceedings. The parties were divorced on November 5, 1969, in a decree which awarded custody of their three minor children to the petitioner. On June 7, 1971, an agreed order was entered which changed the custody of the children to the respondent, Frank J. Kminek. The petitioner instituted proceedings on November 13, 1972, to set aside the agreed order and regain custody of the children. After a hearing before the Honorable Robert C. Buckley, the petition for change of custody was denied. We affirm.

Two issues are dispositive of this appeal: (1) Whether the agreed order, entered on June 7, 1971, was valid; and (2) whether there was sufficient evidence in the record to support the court's order, entered on May 7, 1973, that the children remain with their father.

Three children were born to the parties herein: Frank, now age 9; Christiana, now age 7; and Christopher, now age 7. According to the petitioner's testimony at the hearing on her petition to vacate the agreed order, she and the three children resided at her parents' home, along with her father, mother, and two brothers, for approximately 2 years after the divorce decree was entered. Petitioner did not work during this period and received weekly payments of $75 from the respondent for the support of herself and the children.

In May or June of 1971, petitioner discovered that she was pregnant by another man. Petitioner stated that she was confused and did not know what to do regarding the care of her three children. The petitioner did not feel she could continue to care for them because she and her husband-to-be had no money and planned to move into a one-room apartment where young children were not permitted. She did not want to leave the children with her parents because her father drank a lot, they fought constantly, and she was afraid he would attempt to prevent her from seeing the children if she left them at his house. Consequently, she told the respondent that she was pregnant, did not know what to do, and asked him to take the children until she and her husband-to-be could get married and on their feet. After some delay, according to the petitioner, respondent agreed to take the children but only if petitioner would "make it legal" as he was also planning to get married and did not want his future wife to become a babysitter. At the hearing, petitioner testified that she thought "making it legal" meant legally taking the children until she could take them back to live with her and her husband-to-be.

Several weeks later, petitioner and respondent met at the office of Mr. Herman Feldman, respondent's attorney, to discuss the custody arrangements. According to the petitioner, she asked the attorney to put a specific time limit in the change of custody agreement but was told that that would not be possible. Petitioner stated that the attorney asked her, in private, whether anyone was "pushing her" to change the custody of the children, and she replied "no." Before departing, the parties agreed that petitioner would think it over and that, if she decided to relinquish custody, she would let the attorney know so that the necessary papers could be prepared.

Respondent telephoned the attorney several weeks thereafter and asked him to prepare the papers necessary to change custody of the children. The attorney sent an order to the respondent wherein the parties agreed that the court enter an order granting custody of their three minor children to the respondent with all reasonable rights of visitation to the petitioner. Respondent obtained petitioner's written approval on the order, and it was entered on June 7, 1971.

The children continued to live with the petitioner until July 3, 1971, when she married Dennis Grammas, the father of her unborn child. Mr. Grammas was unemployed at the time of the marriage. The couple had very little money, so they moved into a one-bedroom apartment. In September 1971, Mr. Grammas inherited some money from his grandmother. With these funds, the couple purchased a two-bedroom house. They moved into their new home on October 31, 1971.

Shortly thereafter, petitioner began seeking to regain custody of the three children from the respondent. The respondent's initial response, according to the petitioner, was that they would talk about it at another time. Finally, in September of 1972, the respondent told her he would not consent to the return of the children. Petitioner instituted the instant proceedings in November 1972 in a petition which asked that the agreed order of June 7, 1971, providing that the respondent have custody of the children, be vacated and custody of the children reinstated in petitioner.

Mr. Herman Feldman testified on behalf of the respondent over petitioner's objections. Mr. Feldman stated that he never represented petitioner and that he is the attorney who represented the respondent in the original divorce. According to Mr. Feldman, the respondent telephoned him in April or May of 1971 and stated that his former wife wanted to give up the children. During an interview with the parties, Mr. Feldman stated that he advised petitioner she would be giving up the children permanently once she signed and could only get them back if respondent consented. Mr. Feldman testified that he advised petitioner to go home, think about it, and talk to a lawyer. After receiving a telephone call from the respondent, Mr. Feldman prepared an order changing custody of the children to him. Respondent returned the order with the written approval of both parties to Mr. Feldman, who presented it to the court where it was subsequently entered.

The respondent, Frank J. Kminek, testified on his own behalf as follows: Around April 1, 1971, petitioner first approached him concerning the children. He told her he would take them only if he could do it "legally" as he was about to get married and did not want his new wife to become a babysitter. Petitioner responded that she was pregnant and did not know what to do. Respondent again told her he would only take the children legally, and that they could talk to his attorney if she wanted to discuss it with someone. About 3 weeks after the conference in Mr. Feldman's office, according to the respondent, petitioner informed him that she had decided to relinquish custody. Respondent called the attorney and asked him to prepare the necessary papers. There is a discrepancy as to the time and place of the signing of the order: according to the petitioner, she signed the order at the attorney's office during her initial interview; according to the respondent and Mr. Feldman, the order was drafted some 3 weeks after the interview in Mr. Feldman's office, then mailed to the respondent who obtained petitioner's signature. The respondent testified that petitioner signed the order at her mother's home. The petitioner does not deny that the signature which appears on the order is, in fact, hers.

Both parties presented evidence as to the condition of the children in their present environment, and that testimony was conflicting. According to the petitioner, the children are dirty, unsupervised, without haircuts, and their clothing is in poor condition. On cross-examination, however, petitioner admitted that the children are doing very well in school and that the respondent and his present wife were good to them. Irene Higgins, petitioner's mother, gave an account of the children's condition that was substantially the same as that of the petitioner. Dennis Grammas, petitioner's husband, stated that they are unhappy and sometimes cry when being returned to the respondent after visiting with petitioner.

Respondent's witnesses testified that the children's present condition was good. Allen Hopkins, principal of the school currently attended by the children, stated that the present Mrs. Kminek was very cooperative with the teachers and supportive of the children. According to Mr. Hopkins, the children are good students. Respondent testified that the children are active in various activities, receive adequate medical care, and his present wife is a good mother to them. Marion Kminek, respondent's present wife, stated that the children were home alone for brief periods of time on a few occasions due to unforeseen circumstances. However, they have not been left alone since petitioner complained about their lack of supervision. The witness further stated that the children have many friends in their present neighborhood and are involved in many activities, such as Cub Scouting for the boys and dancing lessons for the girl.

At the conclusion of the hearing, the court found that it had jurisdiction, that there was no requirement of notice as to the entry of the agreed order, and that the agreed order was the free and voluntary act of the parties. The court further found that the children are being adequately cared for and that their best interests dictate that they remain in their present environment because it would be an unfair and improvident act to uproot them and change ...

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