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Drury v. Drury

OPINION FILED OCTOBER 24, 1978.

JUDITH C. DRURY, PLAINTIFF-APPELLANT,

v.

ARCHIE LEE DRURY, JR., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.

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

This appeal arises from an order entered by the circuit court of Cook County, divorce division, on November 30, 1977, which, inter alia, granted care, custody and control of a minor child, Archie Lee Drury III, to respondent-appellee Archie Lee Drury, Jr. The entry of this order followed an earlier change of custody order entered upon respondent-appellee's emergency petition for custody of minor child. Compare Jarrett v. Jarrett (1978), 64 Ill. App.3d 932, 382 N.E.2d 12.

Petitioner, Judith Drury, and respondent, Archie Lee Drury, Jr., were divorced November 21, 1973. Their son, Archie Lee Drury III, age two, was placed in petitioner's custody. Respondent was ordered to support the child and provide medical and life insurance benefits for him.

On May 5, 1977, appellee filed an emergency petition for custody of minor child in the circuit court of Cook County, divorce division. Through this petition appellee alleged that Judith Drury was no longer a fit and proper person to have the care, custody and responsibility to educate the minor child (then preparing to attend school). Appellee further alleged that: the mother neglected the health and welfare of the child; the mother had no stable place of residence; the mother failed to remain home with the child; the mother had allowed the child to remain alone for long periods of time with others unfit to care for the child; the mother was unemployed and appropriated child support funds for her own use; and that the mother had refused to allow appellee to exercise his right of visitation. Appellee alleged that he would be able to properly care for and educate the child in a proper and fitting environment (his mother's six-bedroom home in Prospect Heights, Illinois in which appellee and appellee's 15-year-old sister resided). A copy of this emergency petition was mailed to Judith Drury at her Wheeling, Illinois, address.

On May 5, 1977, the circuit court of Cook County, Divorce Division, ordered that the care, custody and responsibility to educate the minor child be transferred to appellee. The court further ordered that all child support payments to Judith Drury be immediately terminated.

On June 21, 1977, Judith Drury filed, in the circuit court of Cook County, divorce division, a petition for rule to show cause. Through this petition Judith Drury alleged that appellee, on May 6, 1977, unlawfully abducted the minor child from the State of Florida (in which Judith Drury and the minor child had been residing) and secreted the child in the State of Illinois. The petition urged that appellee be incarcerated for a period of time no less than six months for contempt of court. A copy of a Largo, Florida, police report for kidnapping was appended to the petition.

On July 28, 1977, appellee filed an answer to petition for rule to show cause, and affirmative petition for other equitable relief. Appellee's answer and petition, inter alia, sought a rule against appellant to show cause why she should not be held in contempt of court for removing the minor child to the State of Florida without the consent of appellee and the court.

On July 28, 1977, appellant filed an answer to emergency petition for custody of minor child and a supplement to petition. Through this answer and petition Judith Drury (1) sought leave to continue residence in the State of Florida with the minor child, (2) urged that appellee be enjoined from threatening the mother in the future exercise of his visitation rights, and (3) urged that appellee be ordered to show cause why he should not be held in contempt of court for failure to pay child support.

On July 28, 1977, the court entered an order which, inter alia, enjoined both parents from removing the child from the jurisdiction of the court and set a hearing for August 8, 1977. Subsequent to this order, Judith Drury, on August 9, 1977, filed a second supplement to petition and on the same day appellee responded by filing answers to supplement to petition and second supplement to petition. Furthermore, on August 9, 1977, appellee filed his supplemental petition for a rule to show cause and for custody of minor child.

On August 8, 1977, the court commenced a hearing to resolve the aforementioned issues, and proceeded to hear the testimony of Judith Drury, Archie Lee Drury III (in chambers), Darren Knuth, Archie Lee Drury, Jr., and Reginald Wolfe.

Judith Drury testified that, at the time of the hearing, she resided in Largo, Florida, with her girlfriend and girlfriend's child. She arrived in Largo in November of 1976 with her two sons and a son's boyfriend. She testified that she never advised appellee that she was departing for Florida.

Upon arriving in Florida, Judith Drury did not communicate with appellee. She testified that she and her family shared an apartment with Judy Mills and she and Judy Mills shared the monthly rental obligation of $175/month. She related that she was unemployed until a month prior to the hearing at which time she became employed as a cocktail waitress. Judy Mills cared for the minor child when his mother was working.

Ms. Drury further testified that she was aware that her departure to Florida occurred without permission of the court and deprived appellee of his right to visit their son. She conceded that no attempt was made to arrange visitation or communication with appellee.

When questioned about her Florida residence, she testified that she presently lives in a large apartment complex, containing a swimming pool and play area. She stated that the minor child attended a nearby church and public school.

She stated that she first saw Mr. Wolfe in January of 1977 after he brought his son to Florida. She stated that Mr. Wolfe resided with her in Florida for six weeks. She noted that Mr. Wolfe was unmarried and that they did not, during said 6 week period, share the same ...


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