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Burris v. Burris





APPEAL from the Circuit Court of Perry County; the Hon. JERRY D. FLYNN, Judge, presiding.


This is an appeal from an order entered by the Perry County Circuit Court denying a father's petition to modify his divorce decree by awarding him child custody.

The petition alleged that a decree of divorce was entered December 13, 1974; that subsequent to the entry of the decree, material changes in circumstances occurred; and that the court should award the father, Raymond E. Burris, custody of the parties' two children, Tracy, an 11-year-old daughter, and Alex, a 7-year-old son. Only one such change is pressed in this appeal, namely "that Respondent, Janice L. Burris, has taken up residence with a male person known as O.J. Weston, and is continuing to reside with him without the benefit of marriage."

The children have resided with respondent since the divorce. Until immediately before the hearing in November 1977, respondent was unemployed. She initially attempted to support herself and her children with child support payments from Mr. Burris. Since August of 1975, respondent and the children have been supported primarily by Mr. Weston. One week prior to the hearing, respondent began employment at a drug store.

Respondent described Weston's home as having three bedrooms, a living room, a large kitchen, a utility room and bath, a full basement and an attic. Apparently when she first moved in with Weston, his home had only one bedroom; two bedrooms were subsequently added.

Respondent admitted that she and Weston live together as husband and wife and that they share the same bed, but she testified they have no plans to marry. At one point during her testimony, she stated that she intends to move out of Weston's home when she can support herself and the children and that she hopes to be able to move herself and the children to Belleville. However, she also said that she had considered her living arrangement with Weston to be permanent until "the custody matter" came up. Thus, it is not clear what respondent's intentions are so far as her future with Weston is concerned.

Weston owns the home in which they reside. Weston is divorced and has one child who neither lives with nor visits him. He is employed as a heavy equipment operator, is usually home when the Burris children return from school, and frequently baby-sits with them.

Both Mr. and Mrs. Burris testified about their children. Tracy has suffered from an asthmatic or allergic condition for the last two years. There appeared to be some dispute between her parents over her being treated by a Carbondale physician; however, it also appeared that her condition is being controlled. Alex has a history of poor school work but has shown some improvement. Both parents testified that they had been working with Alex on his lessons. Respondent described Alex as a "nervous child" and stated that one week prior to the hearing, Alex's school had recommended that he be seen by the school psychologist.

Mr. Burris testified that he had remarried since the divorce and that his new wife has three daughters. Together they have had one son. He now resides with his new wife and their four children. Their home, which is situated on five acres, contains three bedrooms, a living room, a den, a kitchen, a bath, a back porch and a full basement.

Subsequent to his divorce, Burris became disabled and began receiving social security benefits. He suffers from a blinding eye disease; however, his physician has indicated his vision could improve. His social security benefits amount to $550 per month. Prior to becoming disabled, he worked as a miner, earning approximately $1,000 per month, net.

Burris testified that he did not approve of the living arrangement for Tracy and Alex. Although he stated that he could tell that the children were "troubled" by their mother's living arrangement with Weston, the only problems shown by the evidence were the children's feelings, in Burris' opinion, of "having no roots," Tracy's allergy condition, and Alex's nervous behavior and poor school work. There was no evidence that any of these difficulties had been brought about by the children's living with their mother and Weston. In fact, Burris stated that he believed the children loved their mother and, further, that respondent can be a good mother "when she puts her mind to it." Regarding Weston, Burris stated that he didn't "have anything against him other than the fact that he run with my wife when we were married."

Having heard the evidence summarized above, the trial court found that there had been a substantial change in circumstances but that the change was not such to require a change of custody to Mr. Burris in the best interests of the children. The issue presented is whether the trial court's conclusion was palpably erroneous. Anderson v. Anderson (1975), 32 Ill. App.3d 869, 336 N.E.2d 268.

In announcing its decision, the trial court said:

"I agree that what this boils down to is a question of whether or not Mrs. Burris' living arrangement constitutes sufficient reason to justify a change of custody.

From the testimony I have heard this afternoon there has been absolutely no showing that the children are not being provided for in their present living arrangement. In fact, Mr. Burris, I believe when he testified indicated that he couldn't say too much against Mr. Weston as far as how he has provided for the children. While there is no doubt that my personal code of morality might well be different from Mrs. Burris' I don't think I can let that enter into my decision.

While it is certainly not of Mr. Burris' making he does have a problem, of course with his sight. He [sic] has affected his income and at this time apparently he is not certain whether it is going to be a permanent disability or a temporary disability. It is something that must be taken into consideration. As Mrs. Burris' living situation is one thing that must be taken into consideration, I think when we take all things together I cannot say this afternoon that there has been sufficient showing to justify a change of custody * * *."

• 1 The law has long been that the burden is on the proponent of a change in child custody to prove that a material change in circumstances has occurred subsequent to the prior custodial determination and that such change demonstrates that a change in custody would be in the best interest of the children. (Vanderlaan v. Vanderlaan (1972), 9 Ill. App.3d 260, 292 N.E.2d 145.) This guide has now been codified in the new Marriage and Dissolution of Marriage Act, which specifically directs, with regard to a petition to modify a custodial provision, that the court shall retain the prior custodian unless "* * * the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him." Ill. Rev. Stat. 1977, ch. 40, par. 610(b)(3).

As for parental unfitness, Illinois has often allowed mothers whose behavior might be deemed questionable to retain custody of their children where there was no evidence that the mother's behavior was detrimental to the child's welfare. (Fears v. Fears (1972), 5 Ill. App.3d 610, 283 N.E.2d 709; Hendrickson v. Hendrickson (1977), 49 Ill. App.3d 160, 364 N.E.2d 566; Christiansen v. Christiansen (1975), 31 Ill. App.3d 1041, 335 N.E.2d 581.) In Fears, we reversed a custody change ordered by the trial court which was based on the fact that the custodial mother used marijuana. We said:

"[I]n the absence of any showing that this interfered with her ability to properly care for the child, such use demonstrated a mistake in judgment and does not in and of itself indicate ...

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