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In Re Custody of Lamarca

OPINION FILED OCTOBER 15, 1979.

IN RE CUSTODY OF DAWN LAMARCA ET AL., — (FRANK S. LAMARCA, PETITIONER AND COUNTERRESPONDENT-APPELLANT,

v.

EILEEN S. LAMARCA, RESPONDENT AND COUNTERPETITIONER-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WAYNE P. DYER, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Petitioner Frank S. LaMarca filed a petition for modification of the judgment for divorce, seeking a change in custody of his two minor daughters, Dawn and Debra, ages 15 and 10 at the time of trial, from respondent Eileen M. LaMarca. Thereafter, Dawn began living with petitioner by agreement of the parties and pursuant to a temporary order. The permanent custody of Dawn was not tried and is not an issue in this appeal. After a hearing, the court found that there had been no showing that Debra's home environment posed a serious danger to her physical, mental or emotional health, as required by section 610(b)(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b) (3)), and it denied the petition with respect to Debra. The sole issue presented for review is whether the court's denial of the petition for a change of custody was contrary to the manifest weight of the evidence.

The parties to this action were divorced on May 5, 1972, and, pursuant to a settlement agreement, custody of their two daughters, Dawn and Debra, was awarded to respondent. On August 22, 1978, petitioner filed his petition to have custody and permanent care of both minor children, because there had been a substantial change in circumstances since the entry of the divorce decree. He alleged respondent had remarried and that the relationship between respondent's husband and the children had led to physical harassment and caused emotional detriment to the children; additionally, both children had expressed a desire to be in his custody. In her answer respondent denied that the marriage had resulted in physical harassment or in emotional detriment to the children and also alleged that petitioner did not have the means to provide either for the emotional or physical needs of the children.

At a hearing on August 14, 1978, Betty Hauer, an employee of the Cook County Department of Supportive Services, testified she investigated the parties in this case. During the investigation respondent said her present husband had been an alcoholic, and at the beginning of their marriage he had difficulty adjusting to the children and to family life. As a result there had been quarreling about his drinking. But they had all gotten involved in a counseling program, and there had been a marked improvement. Nevertheless, her husband did occasionally have back-slides, and there would be arguments when they occurred. Respondent said her daughters were close and missed each other.

Debra told Betty Hauer that she missed her sister and did not get along well with her mother's husband. Although the situation had improved, he still drank at times, and on those occasions her mother fought with him. Nevertheless, she did enjoy weekends she spent with them at recreational facilities outside the city. Ms. Hauer said that Debra was neat and clean in appearance and seemed to be well fed. Debra related easily with others, and her school report indicated she was enrolled in a program for gifted children.

Betty Hauer visited petitioner's apartment and characterized it as small but neat and clean. He told her that if he got custody of both children, he would get a larger apartment and the girls would each have a room or a large room to share.

Betty Hauer believed that petitioner should have custody of Debra as well as Dawn; she based that recommendation on the close relationship between the two girls and on the statements of respondent that her husband was still drinking. Betty Hauer also believed there was very little supervision for Debra in respondent's home because both respondent and her husband worked. She also believed the separation of the girls could pose a serious emotional difficulty if they missed each other significantly. Furthermore, if they lived together, Dawn could supervise Debra when she came home from school.

Petitioner testified that in the event the court gave him custody of Debra, he would move to larger quarters and would also enroll Debra in a school for gifted children or move into the district that has the Disney Magnet School. He explained that Dawn had been living with him for 2 years, and the arrangement had worked out well: her grades were very good, and she did not have any discipline problems. When Debra visited on weekends, the sisters got along very well.

Respondent testified that Debra's physical and emotional health was very good, and she liked to read and collect things. She was at the top of her class in school, and arrangements had been made for her to go to the Disney Magnet School. She also belonged to the Girl Scouts and engaged in available extracurricular activities.

Respondent explained that the difficulties that had been present when she first married her present husband had been resolved after seeing a psychologist for 3 years. There had been only one serious incident about her husband's drinking in the last 2 years, and that had taken place approximately one year prior to trial. She characterized her husband's behavior in the home as very good; every weekend they went to the movies or ballgames, and in the summer they enjoyed swimming and other activities at their property outside the city.

Respondent characterized her own relationship with Debra as very good. She also said Debra got along very well with her husband since the counseling. She wanted to continue having custody of Debra; she felt it was important as Debra approached puberty, but she conceded her former husband had female relatives who could possibly aid Debra at that time.

Respondent did not believe it was appropriate for petitioner to have custody of both children. She believed that petitioner did not discipline the children, and she believed that Dawn and Debra argued a great deal among themselves. After the sisters had been on vacation with petitioner for 3 weeks, they were "at each others throats," and both told her at different times they wished the other had not been there.

Raymond J. Kula, respondent's husband, testified that prior to his marriage he had been a bartender for 16 years and drank a lot. When he got married, his family did not like it, and he sought professional help. He said the counseling made the family feel better and he drank substantially less. He characterized his relationship with Debra as very good, but Debra and Dawn frequently argued when they were together.

Petitioner contends the denial of his petition for a change of custody was contrary to the manifest weight of the evidence. It is well settled that the trial court's determination on the question of the change of custody will not be set aside unless there is an abuse of discretion, or the determination is shown to be against the manifest weight of the evidence. Caulkins v. Caulkins (1979), 68 ...


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