Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Madison County,
the Hon. Merlin G. Hiscott, Judge, presiding.
MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The plaintiff, Donald Valencia, filed a petition in the circuit court of Madison County to amend an order granting child visitation privileges to his former wife, Palmetta Valencia, the defendant. He sought an amendment requiring that her visits with their minor daughter Trisha take place only in his presence. After a hearing, the court denied the petition, and later found the plaintiff in contempt of court for failure to comply with the visitation provisions of the parties' divorce decree. The appellate court affirmed the denial of plaintiff's petition. It declined to consider his appeal from the finding of contempt, observing that the contempt had not been wilful and that no punishment had been imposed. (46 Ill. App.3d 741.) We granted the plaintiff's petition for leave to appeal.
For a full understanding of the questions presented, it will be helpful to set out the relevant events in chronological order.
In June 1973, the plaintiff and the defendant separated. They had one daughter, Tammi, who was nine months old, and the defendant was expecting a second child. Within a month after the separation, the defendant and Tammi moved to Missouri and began living with James McReynolds. The defendant continues to live with McReynolds, although they have never married. After three months, a second daughter, Trisha, was born, and the defendant brought her home to live with Tammi and McReynolds.
On the evening of March 6, 1974, the defendant left Tammi, who was then 18 months old, in the care of McReynolds while she shopped for groceries. Several hours after the defendant returned with Trisha from her shopping trip, she found Tammi dead in her crib. An autopsy report stated that death was caused by "blunt force trauma of the abdomen." McReynolds gave a written statement to police investigators after being advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. He admitted that while her mother was shopping, he had "spanked" Tammi, striking her "hard" three to five times, and that she had staggered, fallen and acted groggy after the punishment. The defendant gave a statement in which she said that Tammi had been ill for the preceding week with a cold and fever, that the child had "fallen and cut her lip" in her mother's absence, and was "groggy and sleepy" when put to bed at 10:45 p.m. At midnight, Tammi appeared to have possible breathing problems, and at 2:20 a.m. was "cold to the touch and unnaturally still." The record does not show whether any prosecutive action was taken against McReynolds or anyone else for the death of Tammi.
Several months later, the plaintiff filed for divorce in Madison County, alleging extreme and repeated mental cruelty by the defendant. In October 1975 a default decree was entered, awarding the plaintiff sole custody of Trisha. No evidence of the circumstances of Tammi's death was presented to the court.
Trisha was living with the defendant and McReynolds in Missouri, when the plaintiff, in December 1975, instituted habeas corpus proceedings in Missouri to obtain custody of Trisha. There was a hearing at which evidence of the circumstances of Tammi's death was introduced. An agreed order was entered by the court under which the plaintiff was to receive custody of Trisha commencing on March 1, 1976. The order further provided that the defendant would have visitation rights of one week each month and six weeks each summer, and that there would be a reasonable division of holidays for visitation purposes.
Prior to March 1, the plaintiff and a woman friend visited Trisha several times at McReynolds' home. On a visit on February 7, the plaintiff observed Trisha had a large bruise or knot in the middle of her forehead and two black eyes. He took color photographs of the injuries. At the hearing later in Madison County the plaintiff and his friend testified that the defendant said that Trisha had suffered these injuries when she fell against a couch. The plaintiff sought to counter this explanation by his testimony that the couch was padded.
On February 23, 1976, one week before the plaintiff was to assume custody of Trisha and on the plaintiff's motion, the circuit court of Madison County, without a hearing, entered an agreed order amending the original divorce decree by incorporating into it the visitation provisions of the order entered in the Missouri habeas corpus proceeding. No evidence of the circumstances surrounding Tammi's death was brought to the attention of the court.
On February 29, 1976, the plaintiff took Trisha to his home in Illinois, where he noticed bruises on his daughter's thighs. He later testified that he tried unsuccessfully to confer immediately with his physician and attorney and that he did have Trisha examined 10 days later at a hospital because of the bruises and an apparently unrelated bowel problem.
On April 28, 1976, he filed a petition in the circuit court of Madison County asking that the defendant's visits with Trisha be permitted only in his presence. The court granted the defendant's motion to strike all allegations of the petition relating to events prior to February 23, 1976, the date of entry of the agreed order incorporating the visitation provisions of the Missouri judgment into the Madison County divorce decree, and limited evidence to events following that date. Thus, the evidence heard by the court on the petition was in general confined to testimony relating to the bruises on Trisha's thighs and the condition of her face.
The court made a finding that the plaintiff had failed to show a substantial change in circumstances subsequent to February 23, 1976, and denied the petition. He was permitted to make an offer of proof, but in this the court limited the offer to evidence of events following the date of the original default divorce decree on the ground that all prior events were res judicata. The court nevertheless did allow the plaintiff to introduce, over objection, certain exhibits relating to Tammi's death, such as police and autopsy reports, the death certificate, and signed statements by McReynolds and the defendant.
The plaintiff subsequently failed to comply with the visitation provisions and was held in contempt of court. No punishment was imposed because, the court reasoned, the plaintiff had acted upon the advice of his attorney, ...