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Katzer v. Katzer

OPINION FILED JUNE 22, 1978.

DIANE KATZER, PLAINTIFF-APPELLANT,

v.

WILLIAM KATZER, JR., ET AL., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH T. LAVORCI, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Diane Katzer, was granted a judgment for divorce from defendant, William Katzer, Jr., in April 1971. The custodial portion of the judgment as modified in October 1971, awarded custody of William Katzer III, born April 25, 1967, the only child born to the parties during the marriage, jointly among plaintiff, defendant and the intervening paternal grandparents. Plaintiff appeals from an order entered by the circuit court of Cook County on August 22, 1975, which awarded defendant permanent custody of the minor child. The paternal grandmother, who survived the death of the paternal grandfather during the pendency of these proceedings, was not named in the custodial order appealed from and is not involved in this appeal.

Plaintiff contends that the trial court committed reversible error in considering a confidential report submitted by the Cook County Department of Supportive Services and also in not permitting cross-examination of the person who prepared the report. She further contends that the trial court improperly entered the order modifying the custody of the minor child without first having found her unfit as a mother or having heard evidence that a change in circumstances warranted the modification.

While finding that the trial court committed error in certain respects, we conclude that the error was harmless and we affirm the transfer of custody of the minor child from the plaintiff mother to the defendant father.

Our summary of the facts discloses that in December 1974, defendant filed the instant petition which sought the award of temporary and permanent custody of the minor child to defendant and his mother, the paternal grandmother. The petition also requested that the Cook County Department of Supportive Services be appointed to make a written home study and social service investigation and report of all parties in interest and to submit its findings in that regard to the court. On December 18, 1974, the trial court entered an order in accordance with the petition's request for the social service study, and on December 26, 1974, the court entered a preliminary order that the minor child remain in custody of the defendant and the paternal grandmother, with whom the child apparently had been residing for several weeks, until the court could determine temporary custody. On January 6, 1975, the court ordered that defendant and the paternal grandmother have temporary custody of the minor child, with specified visitation rights in plaintiff.

Defendant's petition for award of permanent custody, as supplemented, alleged in pertinent part that from 1970 until the current time plaintiff resided in the home of Leo and Joan Pasdell, who were husband and wife, and that plaintiff maintained an adulterous relationship with Leo Pasdell, with the knowledge and consent of Joan Pasdell, and with the result that plaintiff, in October 1973, gave birth to a child who was named Jody Lee Pasdell, a derivation of the names Diane, Leo and Joan. Attached to the petition was the child's birth certificate showing Leo Pasdell as the father.

The petition further alleged that while the subject child, William Katzer III, was in plaintiff's custody in the Pasdell home, Leo Pasdell, in the child's presence, beat plaintiff and his own wife and also shot holes in the walls and ceiling of the home with a gun. It was alleged that plaintiff, with the minor child, left the Pasdell home on several occasions to live with the maternal grandparents, but in each instance she returned to the Pasdell residence. The petition recited that during the first week in November 1974, plaintiff informed defendant that she desired to leave the Pasdell home and that defendant and his mother offered plaintiff and the subject child residence in the defendant's mother's home, where defendant also resided.

While plaintiff resided in the paternal grandmother's home, she was employed as a waitress from 4:30 p.m. until 2 a.m., and the paternal grandmother cared for the subject minor child and sent him to school. The petition further recited that in early December 1974, plaintiff stayed away from home on two nights and was told by defendant that such activity was unacceptable; and that defendant also objected to plaintiff's suggestion that she and the subject child would share an apartment with plaintiff's girlfriend and plaintiff would place the child in the care of babysitters while she worked. The petition alleged that plaintiff permanently left the paternal grandmother's home on December 9, 1974.

Plaintiff's answer advanced appropriate admissions and denials to the petition for permanent custody. In pertinent part the answer recited that plaintiff and the subject child moved into the home of the paternal grandmother on November 18, 1974, at which time she advised defendant and his mother that plaintiff and the child would remain until she found an apartment. This was agreeable to them. The answer further alleged that on December 9, 1974, plaintiff informed defendant and his mother that she found an apartment and was going to leave with the subject child, but that defendant refused to permit her to take the child, threatened her with physical harm and ordered her out of the house. Plaintiff alleged that all subsequent attempts to see the child were rejected by defendant and his mother. Plaintiff also denied that Leo Pasdell was the father of Jody Lee, and stated in the answer that Leo Pasdell's name was entered on the child's birth certificate to facilitate its adoption by Leo and Joan Pasdell, which had been contemplated by those persons during the term of pregnancy.

A hearing on defendant's request for temporary custody of the child was held on January 6, 1975. Plaintiff was called as an adverse witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 60), and she was also questioned by her own counsel. She related that since December 8 or 9, 1974, she had been residing with Leo and Joan Pasdell in their home in Melrose Park. Also residing there at that time were the Pasdell's teenage son and the witness' baby, Jody Lee.

She testified she first moved into the Pasdell home in March or April, 1970, and that Jody Lee was born on October 28, 1973, which was 18 months after her divorce and while she was unmarried. She stated that Jody Lee's birth certificate listed her name as Diane Pasdell and that her driver's license also listed her name in that manner. She testified that although Leo Pasdell is listed on the birth certificate as the father of Jody Lee, he is not in fact the father. She stated she used the Pasdell name during pregnancy for convenience.

Plaintiff further testified that she was hospitalized in March 1974 for an injury received in moving a household appliance, and that Leo Pasdell did not beat her at that time nor at any other time. Between March and June, 1974, she resided at her parents' home with the subject child and Jody Lee, but prior to March she had been residing with the Pasdells. When she was with the Pasdells, the subject child was enrolled in a Melrose Park school, but when she resided with her parents in Chicago, the child was enrolled in a Chicago school. After she returned to the Pasdell residence in June 1974, where she remained until November 18, 1974, the subject child was again enrolled in the Melrose Park school. She related that the child was registered in these schools under the name of Pasdell, and that on each of these changes of residence she took both the subject minor and Jody Lee with her. However, when she moved into the paternal grandmother's residence on November 18, 1974, only the subject child accompanied her because defendant did not want Jody Lee in the house and she left him with the Pasdells.

She further stated that she moved into the paternal grandmother's home intending to secure a job and an apartment so she could get out on her own, although she testified she was afraid to live on her own. She stated that she returned to the paternal grandmother's home from work on December 6; that she was at the house on December 8, and that when she returned to the paternal grandmother's residence from work on December 9, 1974, she was refused entry.

Plaintiff testified that she spoke to defendant over the telephone a few days later and that her efforts to see the subject child thereafter were unsuccessful. Plaintiff related that she had been working as a waitress from 4:30 p.m. until midnight during which time Joan Pasdell cared for Jody Lee. She denied that Leo Pasdell had a violent temper or that he possessed firearms; and she testified there were no bullet holes in the Pasdell house.

Pursuant to section 60 of the Civil Practice Act and also pursuant to questioning by his own counsel, defendant testified at the hearing on his request for temporary custody. He related that he resided in Chicago with his 66-year-old mother. Defendant stated that the subject child currently resided in the home with him and his mother since plaintiff failed to return home from work on December 6, 1974, and that he and his mother cared for the child and sent him to school. There were no other children in the house.

Defendant testified that plaintiff and the subject child resided at the Pasdell residence from January 1974 until about April 1974, when plaintiff entered the hospital after being beaten by Leo Pasdell. He related that plaintiff telephoned him from the hospital, telling him that Pasdell had beaten her and that she had to get out of the Pasdell house. On arrangements made by defendant, plaintiff then resided with the subject child at the home of her parents in Chicago until July, at which time she and the child returned to the Pasdell residence. Defendant stated that plaintiff left the Pasdell home sometime during the Fall of 1974, at which time she stayed with relatives, and that on all these occasions the subject child changed schools.

In early November 1974, plaintiff spoke to defendant on the telephone, saying she was in the company of Joan Pasdell and had been beaten again by Leo Pasdell, and requesting that defendant pick up the subject child from school. Defendant stated he told plaintiff she could stay at his mother's house, because he wanted the child with him. Plaintiff thereafter got a job and returned to the paternal grandmother's house every night until December 6, when she stayed away for several nights. Defendant denied that he forced plaintiff out of the house. He admitted that he had been arrested in October or November 1974 for driving "under the influence" and for assaulting a police officer while with the subject child about 10:30 p.m., and that the plaintiff took the child from the police station after midnight on that occasion.

Temporary custody was awarded to defendant and the paternal grandmother pending disposition of the ...


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