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Klitzing v. Gottemoller

OPINION FILED SEPTEMBER 25, 1979.

DOROTHY (GOTTEMOLLER) KLITZING, PETITIONER-APPELLANT,

v.

JAMES GOTTEMOLLER, RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. JAMES L. WARING and the Hon. THOMAS R. CLYDESDALE, Judges, presiding.

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

This is an appeal from an order of the circuit court of La Salle County modifying a divorce decree by changing the custody of two minor children from petitioner, Dorothy (Gottemoller) Klitzing, to respondent, James Gottemoller.

On February 20, 1974, the marriage between the petitioner and the respondent was dissolved. At that time the court granted custody of three minor children, namely Jimmie, Jeannie and Michael, to the petitioner, and awarded custody of the other three minor children, namely Julie, Vickie, and Joseph, to the respondent.

Soon after the dissolution, Jimmie, in the petitioner's custody, became unmanageable. By agreement of the parties, custody of Jimmie was transferred to the respondent by order of the court dated October 28, 1974.

Subsequent to the February 20, 1974, dissolution, an appeal previous to this one was had by the petitioner regarding a homestead exemption and some special equities in property. (Gottemoller v. Gottemoller (1976), 37 Ill. App.3d 689, 346 N.E.2d 393.) Although those matters are of no concern to the instant appeal, respondent at that time counter-appealed on the issue of the custody of the three minor children which had been awarded to the petitioner. On that issue the appellate court concluded that the trial judge had erred in sustaining petitioner's objection to the testimony of Dr. Manfredi, petitioner's psychiatrist. The court remanded the custody issue to the trial court for consideration of the testimony of Dr. Manfredi.

On August 12, 1977, the trial court heard Dr. Manfredi's testimony. At the conclusion of the evidence the trial court again granted custody of Jeannie and Michael to the petitioner.

Subsequent to those August 12 determinations the respondent filed a petition for modification of the divorce decree, asking for permanent custody of the two minor children (Jeannie and Michael) then under the petitioner's care.

A hearing on respondent's petition to modify was had on December 12, 1977. Prior to the December 12 hearing, petitioner had agreed to respect the wishes of her youngest daughter, Jeannie, and had stipulated to a transfer of her custody to the respondent. At that time the trial court required further stipulation that petitioner have reasonable visitation rights with Jeannie.

At the conclusion of all the evidence proffered to the trial court at the December 12 hearing, the court found both parents to be fit to have the custody of any of their children. On December 30, it ordered that the custody of Jeannie be changed from the petitioner to the respondent pursuant to the stipulation. Moreover, the court found that, "it would be manifestly unfair to Michael to separate him from all of his brothers and sisters," and, "that sooner or later Michael will suffer seriously in his physical, mental and emotional health by being separated from his brothers and sisters." On the basis of those opinions the trial court also ordered a change in the custody of Michael from petitioner to respondent. Although the court order of December 30, 1977, had specified certain visitation rights with respect to Michael, it failed to do so with respect to Jeannie and Jimmie, two of the minor children whom she was originally granted custody of.

On June 7, 1978, petitioner filed a petition to modify a decree of divorce with respect to child visitation. In that petition, petitioner requested visitation rights with her daughter, Jeannie, and son, Jimmie. On June 9, 1978, a hearing was held on petitioner's request for visitation rights. At the conclusion of that hearing, having heard the testimony of Jeannie and Jimmie, the trial court denied petitioner's request for visitation. Petitioner has appealed both from the order transferring the custody of Michael to the respondent and the order denying visitation rights with respect to Jeannie and Jimmie.

On this appeal the petitioner urges that the court erred in awarding custody of Michael to the respondent because (1) the court had no authority to consider a change of custody at the time it did and (2) the modification is not supported by the evidence.

Section 610A of the new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610A) states:

"No motion to modify a custody judgment may be made earlier than two years after its date, unless the court permits it to be made on the basis of affidavits that there is a reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health."

According to the petitioner the decree entered by the court on August 12, 1977, is less than two years from its subsequent modification on December 12, 1977, and consequently the foregoing section ...


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