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Carroll v. Carroll

OPINION FILED SEPTEMBER 13, 1978.

MARY B. CARROLL, PLAINTIFF-APPELLANT,

v.

JOSEPH A. CARROLL, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge, presiding.

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

Rehearing denied October 13, 1978.

The circuit court of Cook County granted the plaintiff, Mary B. Carroll, a divorce from the defendant, Joseph A. Carroll. The court awarded the custody of the couple's five minor children to their father and ordered the division and distribution of the marital property. This appeal by Mary Carroll contests the custody and property awards.

The complaint for divorce was filed in August, 1975. Later that same month the parties agreed to the entry of an order giving temporary custody of the Carroll children to their mother; another order stipulated that Joseph pay temporary alimony and child support. A guardian ad litem was appointed for the children. In January 1977, using a bifurcated procedure, the court first considered the divorce. Although the judge stated in January that the judgment for divorce was granted to Mary, the actual order of divorce on the grounds of desertion, was not entered until October 1977.

A second proceeding, started on the same day in January, was limited to evidence concerning both parties' request for custody of the children. After several days of testimony, the trial judge found that neither side had shown the other to be an unsuitable or unfit person to have care and custody of the children and on January 13, 1977, the court told the parties they were to have joint custody of the children. The trial judge did not remove the children from the physical custody of their mother. The judge stated:

"What I intend to do in this case is to grant joint custody of these children. And I am going to work out the terms of that joint custody. I have not worked that out yet. It appears to me with the oldest child being ten and the youngest child being approximately five and of the five children, four being girls, that these children certainly need the love and affection that a mother would give. * * *"

The matter was continued several times. In April 1977, Mary filed a petition based upon Joseph's failure to make child support payments. At that time, Joseph filed a counterpetition. He requested that the physical custody of the children be changed, charging that Mary was unfit to have custody. The petition alleged she "carried on a relationship with an unmarried male" in her home in view of the children, that "the gentleman daily visits her, leaving in the wee hours of the morning, and that [the] situation is detrimental to the children." No evidence was considered on the petitions. In May 1977, Mary submitted a proposed financial settlement. In July on a separate motion the court granted their father summer visitation with the children.

It was not until August 1977 that the court conducted a hearing to consider both Joseph's petition for a change of physical custody and the financial aspects of the case. Most of the evidence adduced at this August hearing related to the financial status of the family, dealing with the amount of marital debt and the extent of the marital assets. Both parties testified in detail to their living expenses.

Joseph, a high school teacher, said that if the court granted custody of the children to him he would change his residence from an apartment to a house. He proposed that the family home in Glencoe, Illinois, be sold to pay off the marital debt. During cross-examination he was asked about an alleged suicide attempt he made prior to January 1977. The court sustained an objection to that question, saying that the issue of custody had been determined and it was only the issue of fitness for physical custody that was being litigated that day. The court limited Mary's questioning of him to occurrences subsequent to the January 1977 ruling.

Mary testified that she was employed at hourly wages and worked 40 hours per week. She presented a plan which she said would alleviate the financial stress on the family. She explained that a friend had agreed to lend her a lump sum with which to pay the family creditors. She would pay the sum back over a period of 30 years. The court stopped Joseph from cross-examining Mary about her personal relationship with her friend because such questioning was not within the "rules [the court had] outlined," cautioning him not to "get into those questions." Mary testified that because of the present financial circumstances she, at times, bought the children second-hand clothing. She said that she and the children lived in an upper-middle class, professional neighborhood. She said she received some small monetary support from her brother who lived with the children and her.

The judge, without objection by either party, conducted an in camera interview of the five children; a transcript of the session was made. The children indicated that they preferred to live with their father. Although the guardian ad litem attended the session, neither of the parties nor their attorneys were present.

At the conclusion of the August 1977 hearing the judge maintained the joint custody, but transferred the physical custody and "possession" of the children from their mother to their father. The order gave their mother liberal "visitation privileges." In making this change, the court said that the lives of the children were intertwined with the financial plight of the parents, noting:

"At the time the case was decided before I saw the financial situation. It was almost incredible and I wanted to see whether or not my order that was entered at that time would work."

After another hearing concerning financial matters held in October 1977, the written order for divorce was entered and the property of the Carrolls was distributed pursuant to the new Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) The judge determined the marital debt to be $8,150. He ordered the parties to sell the Glencoe house, using the proceeds from the sale to pay this debt, the guardian ad litem expenses, Mary's attorney's fees and the child support ...


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