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Johnson v. Johnson

NOVEMBER 18, 1975.

WAYNE JOHNSON, PLAINTIFF-APPELLEE,

v.

KATHLEEN JOHNSON, A/K/A KATHLEEN PACATTE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

This is an appeal from two orders entered in a post-decree proceeding. In one, the trial court disposed of a petition for change of venue; in the other, it resolved a controversy concerning which parent was to have actual physical custody of two boys, the children of the former marriage. By the issues presented, we are asked to decide whether the court erred in denying the petition for change of venue and in ordering actual physical custody of the boys changed from their mother who lives in Blowing Rock, North Carolina, to their father who lives in Glenview, Illinois.

I.

In August 1972, a divorce suit which Wayne Johnson had filed against his wife, Kathleen, was before Judge Reuben J. Liffshin to be heard as a contested matter. The Johnsons were parents of two boys, Matthew and Andrew, then aged five and two, respectively. In an effort to help the parties reach agreement concerning the custody of their children, Judge Liffshin conducted a two-hour pretrial conference in his chambers. No record was kept of this conference. But as a result of it, the parties entered into a settlement agreement which included a provision that in the event a decree was granted, custody of the two boys was to be joint; but their residence was to be with the mother for 10 months of the year, subject to the father's rights of visitation. It was also agreed "[t]hat any post-decretal hearing relative to the minor children herein shall be submitted to Judge Liffshin, whether or not he is then assigned to the Divorce Division providing said Judge is agreeable to entertaining any such matters."

Wayne Johnson was granted a divorce on August 21, 1972, by a decree into which was merged the agreement he made with his wife. Less than a month later, Kathleen Johnson married Charles Baker Pacatte. Then, a month or so after that, she petitioned for leave to take Matthew and Andrew out of the State, but Judge Liffshin denied her request. Thereafter, she lived in Illinois; and the two boys, in accordance with the divorce decree, spent the agreed visitation periods with their father.

In June 1973, during the time for a summer vacation, Kathleen, her second husband and the two boys, drove a camper bus to Blowing Rock, North Carolina, where they visited her parents, Mr. and Mrs. James Hathaway, the owners of a resort restaurant and tavern called the Villa Marie. While they were there, Mathew and Andrew were returned to Illinois for the summer vacation visit with their father. At his election, however, the boys stayed for only three weeks and returned to Blowing Rock. In the meantime, Kathleen's parents offered her and her husband employment in the Villa Marie restaurant by which each could earn approximately $200 per week, a gross earning that materially improved their economic condition. In addition, they were to have rent free, starting November 1, 1973, a four-bedroom home. They accepted the offer; and as a result, Kathleen decided to stay in North Carolina, a decision that led to a concern about getting authority to keep Matthew and Andrew with her.

She wrote to Judge Liffshin. He answered, saying that "[b]ased upon the statements contained in your letter and the affidavit enclosed therein, I am of the opinion this Court would permit the relief asked for. However, it is necessary for you to file a proper petition or have some attorney do it on your behalf so a proper order may be entered." Accordingly, Kathleen Pacatte obtained the services of North Carolina lawyers who prepared a petition asking that she be allowed to keep Matthew and Andrew with her in Blowing Rock. The original was sent to Judge Liffshin; a copy was served on counsel who represented Wayne Johnson. They filed an answer and a counterpetition asking the court to transfer physical custody of Matthew and Andrew to Wayne Johnson. On August 31, 1973, the parties were before Judge Liffshin. Kathleen Pacatte was present but the boys were not. The petition and counterpetition were continued for hearing to September 3 with a provision in the order that the boys be returned to Illinois on or before that date. This was not done; but nothing further occurred concerning the matter. The causes were continued again.

On September 13, 1973, with Kathleen Pacatte absent but represented by a lawyer with whom she had had a telephone conversation, the case was before Judge Liffshin. The lawyer told the court that, after looking into the matter, he decided he could not represent Kathleen Pacatte. Therefore, he asked for another continuance so she could consider his advice and obtain another lawyer. This suggestion met with agreement. However, before the continued date was agreed to, Judge Liffshin made the following statements:

"However, I am going to say this for the record and in your presence. I heard the case as a contest. Friedman, Donnelly, Armstrong and Connelly represented her, and Mr. Rinella's office represented Mr. Johnson. We had a two-hour pretrial conference in our chambers trying to arrive at some amiable agreement between the parties relative to the custody of the children, which was probably the one stumbling block in the whole proceeding.

Mr. Johnson refused to give up custody because of the evidence which they had, which they said they had which would prove Mrs. Johnson an unfit mother.

I heard both of the allegations and the refutals therefore, and I think that the Court was convinced at that time prior to the entry of any Judgment based upon an agreed hearing that in a trial Mrs. Johnson would not get custody of these children if she were to request their leaving the jurisdiction. Based upon her promise to the Court that she would not leave the jurisdiction with the children and that they would be here so that Mr. Johnson would have visitation with them properly and guidance, I convinced Mr. Johnson to allow her to have the custody under a joint order.

There was also the question of a character named Pacatte with whom she was hob-nobbing at the time and wasn't married to, who was interfering in the marriage of the Johnsons, who had an unsavory reputation which was not denied by Mrs. Johnson in the hearing and in the pre-trial conference. And she went so far as to make the statement at that time that she had no intentions of marrying Pacatte, if I remember. She didn't tell the Court that she intended to leave the jurisdiction, but she did leave the jurisdiction with Pacatte and the children.

Pacatte, I think had a ...


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