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Roth v. Roth

OPINION FILED AUGUST 30, 1977.

CHRISTINE MARIE ROTH, N/K/A CHRISTINE MARIE DAVIES, PLAINTIFF-APPELLANT,

v.

ROBERT RUSSELL ROTH, DEFENDANT-APPELLEE. — (MILTON J. ROSENTHAL, GUARDIAN AD LITEM, APPELLANT.)



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

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Christine M. Roth (now Mrs. John Davies), and the court appointed guardian ad litem appeal from the judgment of the circuit court in this post-decree divorce matter concerning child custody. After an evidentiary hearing on defendant's petition seeking sole custody of the couple's two minor children, the court ordered that custody of the two children remain jointly in the parties. The children were to reside with defendant during the nine months of the school year and with plaintiff during summer vacations and certain holidays. The court ordered defendant to pay fees of $3,500 to the guardian ad litem and denied plaintiff's petition for attorney's fees.

On appeal appellants contend (1) that the court's order granting joint custody was against the manifest weight of the evidence; and (2) that the court abused its discretion when it allegedly ignored the recommendations of its appointed guardian ad litem. Defendant cross-appeals contending that the court erred in ordering him to pay the fees of the guardian ad litem. Plaintiff's appeal in cause No. 76-1024 contending that the court erred in denying her petition for attorney's fees has been consolidated with cause No. 62641.

Plaintiff and defendant were married on September 28, 1968. Two children were born of this marriage, Tracey Lynn on January 16, 1970, and Ryan Richard on August 5, 1972. On October 19, 1973, plaintiff was awarded a divorce from defendant in Cook County, Illinois, on grounds of physical cruelty. The divorce decree incorporated an agreement between plaintiff and defendant dated September 14, 1973. The pertinent part of that agreement which gave rise to the instant petition reads as follows:

"3. Each of the parties hereto, namely Robert and Christine, have agreed that they shall have and retain joint custody of the parties minor children, namely Tracey and Ryan, subject to the following provision: (a) The physical custody of said children will be divided each year between the parties in six (6) month continuous terms, the first term of physical custody will be taken by Robert, said term to commence on the first day of the month following the entry of any decree of divorce herein and continuing for a period of six (6) continuous months; said children will then be delivered to Christine for the ensuing six (6) months to be returned by her to Robert following her six (6) month term and continuing until the oldest attains school age, at which time the parties will either agree upon a division of physical custody or the issue will be submitted to the Court for determination; both parties agree that the children's best interest should be the controlling factor * * *."

On October 7, 1974, plaintiff married John Davies and moved to his home in Toledo, Ohio. On October 18, 1974, defendant filed a petition in Cook County, Illinois, seeking sole custody of the children, claiming that plaintiff had remarried, moved to the State of Ohio, and had advised defendant that she would not return the children. Pursuant to defendant's request, the court appointed a guardian ad litem to represent the interests of the children. Subsequently plaintiff filed an answer and counterpetition also praying for sole custody of the children.

Evidentiary hearings commenced on June 3, 1975. At that time Tracey, the oldest child, had reached sufficient age to enter kindergarten in the fall of 1975. Numerous witnesses testified concerning the character, traits and habits of plaintiff and defendant. Plaintiff, 31 years of age at the time of the hearings, and her new husband (John Davies) were renting a two-bedroom townhouse in a new housing complex. She testified that she was employed as a registered nurse and as an anesthetist. Her new husband testified that he was a partner in an employee-benefit consulting firm.

Defendant, 59 years of age at the time of the hearings, has continued to live in the three-bedroom marital home in Kenilworth, Illinois. He testified that he is a general surgeon with a five-day work week. At the time of the hearings he had employed two full-time governesses and three temporary people to help take care of the children during his periods of custody.

The guardian ad litem, Milton J. Rosenthal, a Chicago attorney, testified that with approval of both parties and their counsel, he arranged to visit plaintiff's home in Toledo, Ohio, on December 31, 1974. He found a neat and orderly home with "better-than-average furnishings." During the visit Ryan was asleep, but Tracey "cuddled up close to her mother." Plaintiff told Rosenthal that she did not work on the days when the children were visiting.

On January 2, 1975, Rosenthal arranged for an appointment with defendant on January 4, 1975, in defendant's Kenilworth home. At this visit with defendant, Rosenthal found the children happily playing with their Christmas toys in the "lavish, three-bedroom home with a basement and a playroom." Nonetheless, he expressed reservation and concern about the then governess who was concurrently caring for her own two children. Subsequently defendant hired a new governess, and Rosenthal paid a return visit on March 5, 1975. At this visit both children were in a playful mood. However, while Rosenthal was still present, plaintiff telephoned and spoke with Tracey. When defendant appeared to lose his temper over the telephone conversation, Rosenthal left. Rosenthal revisited the Kenilworth home on April 7, 1975, and met with the new governess but found the household in disarray. Defendant was not at home during this visit.

In closing argument Rosenthal told the court that "these children would be very lucky to have either the father or the mother in this case because I consider both of them well-qualified people to have the custody of a child, or children." Nonetheless, he felt that the children's interests would be better served by a stable authority figure than by changing governesses. Rosenthal recommended that sole custody be granted to plaintiff.

The court found both plaintiff and defendant to be fit and proper persons to have the care, custody and control of the children and chose to retain the original decree's provision for joint custody. Defendant was then granted custody during the school year, and plaintiff received custody during the summer vacation, Christmas week and spring vacation. Each party was to have two weekend visitations (6 p.m. Friday, to 6 p.m. Sunday) per month while the other party had custody. Plaintiff and the guardian ad litem appeal from this order.

Subsequently the court ordered defendant to "pay to Milton J. Rosenthal, as guardian ad litem, the sum of $3,500." Defendant cross-appeals from that order.

Plaintiff thereupon petitioned the court for an award of attorney's fees. Further hearings were had and when that petition was denied, plaintiff appealed. ...


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