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In Re Marriage of Junge

OPINION FILED JUNE 26, 1979.

IN RE MARRIAGE OF JOHN P. JUNGE, PETITIONER-APPELLEE, AND DIANE M. JUNGE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT J. SAUNDERS, Judge, presiding.

MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:

Respondent-wife appeals from a judgment of dissolution of marriage entered by the Circuit Court of St. Clair County. Petitioner-husband and respondent-wife were married on February 19, 1971. Their only child, a son named Billy, was born March 22, 1975. The couple separated sometime during 1977, and this suit was commenced on September 16, 1977. On November 29, 1977, petitioner was ordered to pay the sum of $60 per week for support of the minor child. On June 27, 1978, a hearing was had at which the court found grounds for dissolution and reserved jurisdiction as to all other matters. On June 30, 1978, husband filed a petition to modify the earlier child-support order. Sometime during the summer of 1978, respondent's boyfriend and his three children commenced living in the former marital home with respondent and Billy. During November of 1978, the court heard evidence in connection with the matters of custody, support, maintenance and disposition of property and on January 11, 1979, entered its judgment of dissolution of marriage from which this appeal is taken.

Respondent contends that the court abused its discretion in awarding permanent custody of the minor child to petitioner. After the parties separated, Billy continued to live with respondent in the marital home, described as a large three-bedroom home situated on 3 acres in O'Fallon, Illinois. Respondent had been employed for 9 years as an optic arts supervisor at a local junior college, and during her work hours, Billy was cared for by a babysitter. Billy enjoyed good health and was well provided for while in the custody of his mother. According to respondent, she and her boyfriend have slept together in the same bed in the bedroom across the hall from Billy and the boyfriend's children since they began living together in the summer of 1978. Respondent also stated that she and her boyfriend intend to marry and that Billy enjoys the boyfriend and his young children. The opportunity to interact with them, she claims, has taught the boy to get along with other children and to be less dependent upon her.

Since the separation, petitioner has lived with his mother, a woman around 50 years of age. She works in the evenings but is able and agreeable to baby-sitting with Billy during the day while petitioner is at work in the event the court would award him custody. Billy and his grandmother get along very well. For most of 1978, petitioner was ill, suffering from several illnesses which rendered him unable to work and unable to pay child support. He was hospitalized on three occasions, once for hernia surgery, once for a virus infection and once for myocarditis.

The trial court's order with respect to Billy's custody was as follows:

"(h) The care, custody, control and education of the minor child, WILLIAM JUNGE, born March 22, 1975, is awarded to his father, JOHN P. JUNGE, from the date of entry of this Judgment until final determination of the permanent custody by this court. After hearing concerning such custody, after a lapse of eight calendar months herefrom or as soon thereafter as this matter may be heard, the court shall then hear evidence concerning the best interest and welfare of said child's care, custody, support and education."

It is respondent's contention that this award of custody to husband was against the best interest of the child and against the manifest weight of the evidence. In support of that position, she has cited the recent Illinois "live-in boyfriend" case law. Jarrett v. Jarrett (1978), 64 Ill. App.3d 932, 382 N.E.2d 12; Rippon v. Rippon (1978), 64 Ill. App.3d 465, 381 N.E.2d 70; DeFranco v. DeFranco (1978), 67 Ill. App.3d 760, 384 N.E.2d 997; Burris v. Burris (1979), 70 Ill. App.3d 503, 388 N.E.2d 811.

We believe that respondent has misapplied these cases to this proceeding. Each of them involve a petition for modification of a decree wherein the court was requested to change custody. To have effected a change in child custody in those cases, the proponents of the changes had to prove that:

"* * * 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).)

In Burris v. Burris (1979), 70 Ill. App.3d 503, 388 N.E.2d 811, we affirmed the finding that the proponent had failed to show the mother's live-in boyfriend arrangement was a detriment to the child's well being. What we said in Burris was that such allegedly immoral conduct, in and of itself, without a showing of a detriment to the child, is insufficient proof under the modification statute.

• 1 This proceeding was not for a change in child custody. Rather, this was the hearing for the initial award of custody wherein the court was directed by another statutory provision, to-wit:

"(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as ...


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