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Fohr v. Fohr





APPEAL from the Circuit Court of Madison County; the Hon. P.J. O'NEILL, Judge, presiding.


Plaintiff wife appeals an order of the trial court which modified a decree of divorce by changing the award of custody of minor children from plaintiff to defendant husband. We affirm.

Plaintiff and defendant were married on July 4, 1962, and, after having two children, divorced by a decree entered on January 24, 1975. Pursuant to an agreement of the parties custody of the children, James, then age 5, and Scott, then age 1, was awarded to the plaintiff with the defendant to have liberal visitation rights. Plaintiff continued in custody of the children until October 18, 1975, when she gave physical custody to defendant. Defendant had just moved into his parents' home but soon thereafter he and the children moved into a home he had recently purchased just across the street and two houses away from the parents' home.

Plaintiff had two short episodes of hospitalization in the psychiatric ward of a hospital in November and December of 1975, the latter episode as a result of a drug overdose. On January 17, 1976, plaintiff was married to Ken Gaultney whom she had met through a computerized dating service. He had been a patient in the same psychiatric ward of the hospital as plaintiff in November of 1975. In June and October of 1976 plaintiff was again briefly hospitalized in a psychiatric ward. Gaultney obtained a divorce from plaintiff on November 18, 1976, on the grounds of mental cruelty. Throughout the approximately 14-month period defendant had had custody of the children he worked at General Steel Industries in Clayton, Missouri. While defendant was at work the children would be cared for by Linda Burnett, who was a married woman with children of her own.

By arrangement with defendant plaintiff had visitation with the children on Christmas Day 1976 and New Year's Day 1977. On the latter day plaintiff called defendant in the afternoon and told him she had married James Probst at his home in Millstadt, that she was not returning the children to defendant but was going to keep them with herself and Probst. The marriage to plaintiff was Probst's first. He was employed at the St. Louis Shipbuilding Co. and also worked on his farm at Millstadt.

In a telephone conversation January 2, 1977, the plaintiff told defendant he could thenceforth visit the children only in her home in Millstadt. The same advice was given in a letter from plaintiff to defendant dated January 6, 1977. On January 13, 1977, defendant filed a petition for an order granting specific visitation rights. An agreed order for visitation on alternate weekends, some holidays and during the summer was entered on February 10.

On April 15, 1978, defendant filed a petition to modify the divorce decree relative to the custody of the children. Plaintiff filed an answer and counterpetition and defendant filed an answer to the counterpetition. The trial court conducted four days of hearings on the petitions. The hearings included an in-chambers conference between the judge and the children. Both attorneys were present at the conference and a record of the interview was made.

At the close of all the evidence the court took the case under advisement and on June 7, 1978, entered a judgment changing custody of the children from plaintiff to defendant and awarding plaintiff the same visitation rights defendant had been granted by the order of February 10, 1977. The court's judgment contained the following findings:

"[A] change in the circumstances of the children has occurred since the Decree of Divorce and that a modification of their custody is necessary to serve their best interests, that the children's present environment endangers seriously their physical, mental and emotional health, and that any harm that might be caused by a change in their environment is outweighed by its advantages to them."

Evidence adduced at the hearing disclosed that Probst had spanked both James and Scott with a fly swatter, using both the handle and the striking portion, on several occasions and had otherwise beaten the boys. On the occasion of one spanking of James with the fly swatter, severe bruises had been inflicted upon the buttocks and the matter was reported by defendant to the police and the Illinois Department of Children and Family Services. On another occasion Scott had been spanked with the hand so hard that severe bruising had resulted and the matter was also reported to the police and the Department of Children and Family Services. On both occasions, according to medical testimony, the beating administered was moderate to severe. It was also disclosed that when the boys were spanked their pants were first pulled down.

Other evidence disclosed that when the children would ask Probst what they were having for supper he would reply "sow shit and sardines" because he thought that sounded better than "shut up, it's none of your business."

On another occasion Probst made Scott eat mucous with ketchup, mustard and salt in order to break him from eating mucous.

On another occasion Probst made Scott eat part of a crayon in order to break him from chewing crayons.

• 1 The above are but a part of the extensive findings made by the trial court in rendering its decision. The record amplifies abuse of the children by both Probst and plaintiff and the decision of the trial court in ordering a change of custody is fully supported by the evidence. We can ...

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