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King v. Vancil

DECEMBER 23, 1975.

DONALD KING, PLAINTIFF-APPELLANT,

v.

JOHNNIE M. KING VANCIL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Franklin County; the Hon. F.P. HANAGAN, Judge, presiding.

MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the plaintiff-appellant, Donald King, from an order of the Circuit Court of Franklin County entered on March 31, 1975, awarding parental custody of the two minor children to Johnnie M. King Vancil, defendant-appellee. The appellant was granted specific visitation rights with the children.

The appellant appeals on two grounds: the trial court did not have the power to enter the order of March 31, 1975, awarding the care and custody of the two minor children to appellee; and the March 31, 1975, order was against the manifest weight of the evidence.

On January 29, 1974, the appellant filed his complaint for divorce and appellee filed an entry of appearance, waiving the issuance of a summons and consenting that an immediate default might be entered against her. On the same day the court granted a divorce to the appellant, and the decree stated that the appellant "shall have the care, custody, control and education of Sean Alun King and Devin Joseph King, subject to the right of reasonable visitation by the defendant [appellee], Johnnie M. King."

On March 19, 1974, the appellee filed a petition to modify the divorce decree asking for the care and custody of the children with reasonable visitation rights for the appellant. An answer was filed by the appellant who then filed a cross-petition asking the court to fix the times and dates during which appellee would be entitled to exercise her reasonable visitation privileges. As a result of the two petitions filed by the litigants, a hearing was held on May 20, 1974.

The appellee testified at the hearing that she had remarried and she and her husband were in the process of buying a home which would be adequate for her family including her two sons. Her husband has three children by a previous marriage and they frequently visit their father. Appellee contended at the hearing that the appellant was not cooperating in arranging for her to have visitation rights. The fact that she had remarried and could now provide a home for the children prompted her to petition the court for the change in custody. The mother of the appellee testified that her daughter was a good mother and that she and her husband were about to move into a new home.

Besides himself, appellant's stepfather, his present wife and a lady who lives behind the home of the appellant all testified on behalf of the appellant. Appellant's wife has a daughter, age 5, who lives with them. The appellant testified that immediately following the divorce he did not think it advisable for appellee to see the children. The mother first saw them 2 months later. He said it was not his intention to deprive appellee of visitation rights and that the children seemed comfortable with his present wife although they had been married only a week.

At the conclusion of the hearing, the court stated that the appellee should have rights of visitation, but the custody should remain with the appellant. The dates and the times of visitation were set out in the order signed by the judge on May 23, 1974, which also contained the following language:

"That this cause stand continued and the parties hereto are ordered to return into this court at 9:00 a.m. on October 1, 1974 for further evaluation by this Court of the results and effect of this modification order with reference to the best interests and welfare of said children."

The appellee appeared before the court on October 1 and 8 and December 12 and 27. The appellant appeared on October 8 when the court referred the case to an investigator for the Department of Children and Family Services who was to report to the court. On December 31, 1974, the court filed an order pertaining to the custody of the children as the result of a hearing on December 27, 1972. There is no transcript of this hearing in the record but the court order dated December 31, 1975, indicates that at the hearing the report and recommendation of the Department of Children and Family Services was received along with the testimony of the appellee. However, this order was set aside on February 27, 1975, because appellant had filed a petition for rehearing. The rehearing was conducted on March 3, 1975, and the judge entered his order of March 31, 1975. The judge stated that at the conclusion of the hearing on March 3, 1975 that his decision was not based upon any testimony heard by him at the hearing on December 24, 1974, when appellant was not present.

The March 31 order provided that the appellee shall have custody during the weekdays, and the appellant shall have custody during the weekends. The cause was also continued to September 3, 1975, when the parents were to return to court for further evaluation. It is from this order that appellant has brought his appeal.

The Illinois Divorce Act authorizes the court from time to time to make alterations in the custody of children as circumstances change and the best interest of the children may require. (Jenkins v. Jenkins, 81 Ill. App.2d 67.) However, it has long been recognized that the decree in the divorce case is final as to conditions then existing at the time the decree is entered.

• 1, 2 It is unusual for the trial judge to incorporate in the modification order a provision which continues the case to a subsequent date and time so that the court can further evaluate the results of the modification order. We believe the better practice would be to follow the statute (Ill. Rev. Stat. 1973, ch. 40, § 19):

"The court may, on application, from time to time, terminate or make such alterations in the * * * care, education, custody and support of the children, as shall appear ...


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