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Deyoung v. Deyoung





APPEAL from the Circuit Court of Peoria County; the Hon. EDWARD E. HAUGENS, Judge, presiding.


Defendant Karen DeYoung (Pieper) appeals from a decree of the Circuit Court of Peoria County wherein her petition to modify a child custody order was denied and plaintiff Robert DeYoung's counterpetition for child support was granted.

After five years of marriage the parties were divorced in 1968, and defendant, who was then living in Ohio, was awarded custody of the couple's two daughters while plaintiff was given a right to summer visitation. The divorce decree also ordered plaintiff to pay $20 per week child support while the girls were with defendant. In 1969 by mutual agreement of the parties, custody was changed to plaintiff with summer visits to defendant. Transportation expenses were to be paid by defendant, and plaintiff's child support obligation was vacated.

In September of 1977 defendant filed a petition to modify the custody order by returning custody to her. Plaintiff also filed a petition to modify, asking that defendant's summer visitation be shortened and that defendant be required to pay child support. Both petitions were heard on October 10, 1977. Defendant was the first witness, and she introduced into evidence a letter from plaintiff dated August 20, 1977, in which he stated that he was recently divorced from his second wife, that he was living in an apartment in Chillicothe, that the girls were "trying to decide who to stay with and go to school at," that if they stay with their stepmother he would get them every Tuesday and Thursday plus every other weekend, and that he would like to have the girls for the month of August each year. On cross-examination defendant testified that she had been married three times, that she has a stable marriage now to a Cleveland, Ohio, police officer, that she works fulltime for an investment and development company, that she has net earnings of $1,000 per month including overtime, and that she supports the children when they are with her.

The trial judge then interviewed each girl separately in his chambers. The oldest girl is 13, and the youngest is 11. Counsel for the two parties were present, but a court reporter was not. According to the certified report of proceedings, which was prepared under Supreme Court Rule 323(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 323(c)), both attorneys and the trial judge were unaware that the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq., effective October 1, 1977) applied to these interviews and required the presence of a court reporter.

After the interviews, the hearing proceeded with plaintiff testifying that he was employed by Pabst Brewing Company where he had worked for 15 years, that his net pay was $202 per week, and that his living expenses were "normal."

On October 31, 1977, the court entered an order denying defendant's petition to change custody and granting plaintiff's petition for support. Defendant was ordered to pay $52 per week child support except that when the children are with her, payment would be reduced to $26 per week. The order also provided that defendant's summer visitation would end 14 days before school starts and that she would be entitled to one week visitation during Christmas vacation.

Defendant filed a motion for new trial and, in the alternative, for reconsideration of evidence. In the verified motion defendant stated that both children told her they had lied to the judge by denying that they were living with their stepmother in a trailer where they shared one bunkbed with two other children and that the failure to have a court reporter present during the interviews in chambers, as required by law, prevented defendant from offering rebuttal evidence. The trial court denied defendant's motion and this appeal followed.

Our primary concern in this case is with section 604 of the new Illinois Marriage and Dissolution of Marriage Act, which provides in part:

"(a) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case." Ill. Rev. Stat. 1977, ch. 40, par. 604.

Defendant contends that the requirement for a court reporter to be present during the interview is mandatory and that she was prejudiced by the absence of a written transcript since she had no opportunity to explain or rebut the children's statements. Plaintiff insists that, by failing to object, both parties waived their right to have a court reporter present, and that any error was harmless since defendant failed to prove a material change of circumstances such as would justify a change in custody.

Before the enactment of the 1977 statute, Illinois courts> had recognized the problems confronting the trial judge in a custody dispute. The child's preference was then, as now, one of the factors to be considered by the court. (See Finn v. Finn (2d Dist. 1973), 11 Ill. App.3d 385, 297 N.E.2d 1; Swanson v. Swanson (3d Dist. 1971), 1 Ill. App.3d 753, 274 N.E.2d 465; and Ill. Rev. Stat. 1977, ch. 40, par. 602.) In Oakes v. Oakes (1st Dist. 1964), 45 Ill. App.2d 387, 393, 195 N.E.2d 840, 99 A.L.R. 2d 949, the court said:

"The acrimonious atmosphere in which a child is required to state in open court his preference as to custody is well known. Often the primary concern, the welfare of the child, is lost in the violent charges and countercharges of the contesting parties. This atmosphere is heightened when the contesting parties or relatives are present in the courtroom.

To have a child face such an array of belligerence and state on which side his preference lies is inhuman and, for judicial purposes, useless. Hatred and revenge ...

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