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Comiskey v. Comiskey

OPINION FILED APRIL 18, 1977.

M. MARIE COMISKEY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

VERNON O. COMISKEY, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

On October 26, 1970, M. Marie Comiskey (plaintiff) obtained a judgment for divorce from Vernon O. Comiskey (defendant). Custody of Deborah, a minor adopted child born December 17, 1967, was given to plaintiff with visitation privileges for defendant. Defendant was ordered to pay $250 per month as child support and $300 per month alimony. The judgment also required that defendant pay costs of "extraordinary medical and dental care * * *" for Deborah and that he provide plaintiff with major medical insurance.

On October 31, 1974, plaintiff filed a petition in the circuit court for a rule requiring defendant to show cause why he should not be held in contempt for failure to pay alimony and child support pursuant to the judgment. Defendant subsequently filed petitions to abate and terminate alimony and child support and for custody of Deborah. After extended hearings, the trial court awarded defendant custody of the child and found that he was not in contempt, but ordered him to pay an arrearage in child support and alimony; found that defendant was no longer responsible for providing plaintiff with major medical insurance; and ordered plaintiff to remove defendant's name from the birth certificate of her adopted daughter, Marlene, born December 21, 1970. Plaintiff has appealed.

The evidence shows that sometime after the divorce, with leave of court, plaintiff moved to a farm in Blanchardville, Wisconsin, where she currently resides with Deborah, who was some 7 1/2 years old at the time of trial. Other members of the household are a 4 1/2-year-old adopted child, two foster children aged 11 and 13, and a married daughter and her husband. Plaintiff keeps a herd of 30 to 40 dairy cows and some other animals on the farm. The farm residence is described as "old" and has seven bedrooms. Plaintiff testified that she had no net income for the past several years and was delinquent in mortgage payments due on the farm. The children who lived with her were assigned chores on the farm and attended a local school.

Defendant owns an insurance agency and lives in a suburb of Chicago with his present wife and her young adult son. They occupy a three-bedroom home valued in excess of $90,000. Defendant's average yearly income is $20,000, though he earned $27,000 in 1974. He paid child support to plaintiff for all of 1971 and 11 months of 1972. He paid alimony for all of 1971 and 10 months of 1972. He also paid plaintiff $1500 in January 1975, pursuant to a court order. He paid her $550 in February of that year and $450 each month thereafter prior to the hearings. Defendant testified that he had not provided medical insurance for plaintiff though he had provided insurance for Deborah since March 3, 1969. He also reimbursed plaintiff for money she had spent for medical care for Deborah beyond the amounts covered by health insurance. He provided plaintiff with an identification card for Deborah's health insurance policy in March 1975.

In his testimony, defendant explained his failure to pay alimony and child support by relating an alleged conversation with plaintiff in May 1972, when plaintiff brought Deborah to his house. He stated that he told plaintiff not to come to his home again as he was going to be remarried and wanted a fresh start. Plaintiff allegedly responded that he would never see Deborah again and that plaintiff did not need his money. He continued to make monthly payments pursuant to the judgment for divorce until November 1972. At that time, plaintiff told him over the telephone that he could not see Deborah. In December of that year, plaintiff hung up the telephone receiver when she heard his voice. He then stopped sending money to plaintiff but he deposited the amounts of alimony and support money he was to have paid her in a savings account every month through July 1973. Thereafter, he withdrew the money for his own use. Defendant made no further attempt to see Deborah and did not petition the court to enforce his visitation rights until after plaintiff began to attempt collection of arrearages from him.

Plaintiff's version of her conversations with defendant in 1972 is somewhat different. She denied the conversation alleged by defendant to have occurred in May 1972. Instead she testified that defendant asked her to give up the children and return to live with him but she refused. In November 1972, he called and told her that he had remarried and asked plaintiff to send Deborah to visit him. Due to some custody problems with an older daughter, plaintiff told him he would have to visit Deborah in Wisconsin. In December 1972, defendant again telephoned plaintiff and asked that Deborah visit him. Plaintiff informed him that he would have to come to Wisconsin to visit the child. She stated that she had never denied defendant his right to visit Deborah.

The trial court questioned plaintiff's 13-year-old foster daughter, before counsel and the court reporter, in his chambers. She testified that she had lived with plaintiff since August 1974. Plaintiff fed and clothed her. She attended a local school except when the weather was bad or when there were chores to do on the farm which required that she remain home. Her grades had improved during her stay with plaintiff. She and her younger sister had to do chores including milking 20 cows twice daily with an automatic milking machine. Plaintiff was a strict disciplinarian and occasionally "swatted" the older children, but she never beat them. The witness stated that she did not want to return to the farm as she feared plaintiff might have bad feelings toward her due to her testimony. However, she did not think that plaintiff would mistreat the other children on the farm.

The young lady further testified that plaintiff treated Deborah and the youngest child very well. The younger children were assigned easier chores on the farm. In answer to a question by the trial judge, she stated that she did not want Deborah to remain on the farm and do hard work when she grew older, as Deborah was very fragile. However, she felt that plaintiff and Deborah loved each other and had lived together for a long time and would both be hurt if they had to separate.

The 19-year-old married daughter of the parties testified on behalf of plaintiff. She stated she had lived with defendant from 1970 through 1973. He then asked her to leave his home so that his new wife, who had apparently left home due to the girl's presence, would return. She testified that her father drank considerably at that time and was intoxicated 5 days a week. At one time he accused her of being a lesbian. This was based upon an astrology chart made by defendant's second wife. The witness had visited plaintiff's farm and believes that plaintiff is a fit mother for Deborah, while defendant is unfit to have custody of the child.

The defendant's father testified that the preceding witness was "very sad" when she came to live with defendant in 1970. He then related the various material advantages defendant provided for her, including two vacations. He also testified that defendant and this daughter frequently fought with each other.

Plaintiff testified that a doctor had told her that Deborah is a "mosaic mongoloid" and is therefore frail and must be guarded against severe weather. She referred to several occasions when she had obtained medical treatment for the child in Chicago and also in Wisconsin.

Plaintiff further testified that she adopted another daughter after her divorce from defendant. This child is Marlene, about 4 1/2 years old at the time of trial. The adoption agency knew that plaintiff was divorced. However, she had defendant's name listed on the child's birth certificate as the father, just as she had done when Deborah was adopted. She did not intend to obligate defendant in any manner with regard to the younger child. Defendant testified that Deborah appears to be physically normal. In his opinion, she was shabbily dressed but he conceded that her clothes were always in good repair despite the fact that they were "far from" new.

Defendant's present wife did not testify. At the start of the trial, defendant's counsel stated that he did not intend to call her as a witness so that there was no need to exclude her from the courtroom. Later when the court requested that she testify, plaintiff objected because the witness had ...


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