APPEAL from the Circuit Court of Rock Island County; the Hon.
WILBUR JOHNSON, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Sandra L. Hofmann, formerly Sandra Poston, appeals from the judgment of the Circuit Court of Rock Island County transferring the custody of her son Sean from her to her former husband, Terrell Poston. Terrell Poston had filed a petition to modify the custody order with respect to the couple's three children, all of whom had been placed in Sandra's custody after the 1974 divorce. This appeal concerns only the award of custody with respect to Sean Poston, aged 10 at the time of the modification proceedings. Sandra Hofmann contends that the decision of the circuit court, awarding custody of Sean to Terrell Poston, was against the manifest weight of the evidence and not conducive to his best interests. She also argues that the order modifying the original decree failed to satisfy the requirements of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)) that such orders contain explicit findings as to the basis for custody modifications.
The divorce decree in the original action was entered on August 2, 1974, in which, by stipulation, custody of the Postons' three minor children Mark (then 10), Tamara (then 9) and Sean (then 6) was awarded to Sandra Poston. Terrell Poston was given rights to reasonable visitation. Subsequent to the entry of the divorce, both parties remarried. Sandra Poston married Vernon Hofmann and two children were born of that marriage. Terrell Poston remarried and was then divorced again. On September 21, 1978, Terrell Poston filed with the circuit court a petition for modification of the divorce decree, alleging that a material and substantial change in circumstances existed such that the best interests of the children would be served by a modification of the custody provisions of the original decree. He sought custody of the couple's three children. He alleged in his petition that the children (then 14, 13 and 10 respectively) were physically abused and emotionally neglected, that they desired that their father have their custody and care, and that he could provide a proper environment for them. Allegations were included which conformed to section 610 of the Marriage and Dissolution of Marriage Act (hereinafter the Act) that the children's present environment seriously endangered their physical, mental, moral or emotional health. A trial on the merits was held before a circuit judge and extensive testimony was taken from all concerned.
After the trial, the parties apparently agreed to respect the wishes of the two older children with regard to custody. Mark, age 14, chose to live with his mother and stepfather on their farm. Tamara, age 13, chose to leave her mother and stepfather, with whom she had been living, and to live with her father, Terrell Poston. The court's final judgment reflected the children's choices and the parties' agreement. The only dispute was with respect to the custody of Sean, age 10. As to Sean, the circuit court found that it was in his best interest that custody be changed. The court awarded custody of Sean to his father, Terrell Poston. Reasonable visitation for his mother, Sandra Hofmann, was also provided. An appeal from that decision and judgment was prosecuted. On appeal, Sandra Hofmann argues that the court erred in its order and that its decision is contrary to the manifest weight of the evidence and against Sean's best interests. As noted previously, an issue is also raised as to the necessity of written findings showing the statutory basis upon which the change was ordered.
1 The Illinois Marriage and Dissolution of Marriage Act specifically sets forth criteria which must be met before a trial court may modify a custody judgment. (Ill. Rev. Stat. 1977, ch. 40, par. 610.) The relevant criteria for modification under Section 610 are:
"(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(3) 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."
While, as we noted in Caulkins v. Caulkins (1979), 68 Ill. App.3d 284, 385 N.E.2d 1117, section 610(b) is largely a codification of existing Illinois case law, a renewed emphasis on retaining existing custody relationships is also apparent in the language used by the legislature. As noted recently by the Illinois Supreme court in In re Custody of Harne (1979), 77 Ill.2d 414, 420-21, 396 N.E.2d 499, 502:
"We believe that section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, like section 409(b) of the uniform act, reflects an underlying policy favoring the finality of child-custody judgments, and making their modification more difficult. The policy evident in the commissioners' notes is also apparent in the provision of section 610(a) that `[n]o motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.' (Ill. Rev. Stat. 1977, ch. 40, par. 610(a).) The aversion to custody changes is further manifested by the requirement in section 610(b) that the custodian previously appointed shall be retained absent the conditions specified in section 610(b)(1), (2), or (3). By creating a presumption in favor of the present custodian, the legislature has sought to promote a stability and continuity in the child's custodial and environmental relationships which is not to be lightly overturned."
In addressing any issue as to custody, section 602 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 602) requires that it be determined in accordance with the best interests of the child and that the court consider all relevant factors, including: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his sisters and brothers and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school and community; and (5) the mental and physical health of all individuals involved.
It has long been an established general rule that custody matters are within the discretion of the trial court because it is in the best position to hear and evaluate the evidence. We have stated previously that, given this discretion, a judgment of the trial court in custody matters will not be set aside unless it is shown that there was an abuse of discretion. (Caulkins v. Caulkins (1979), 68 Ill. App.3d 284, 288, 385 N.E.2d 1117.) An abuse of discretion is shown when the judgment of the circuit court is found to be palpably erroneous, contrary to the manifest weight of the evidence, or manifestly unjust. (Caulkins v. Caulkins; Savre v. Savre (1978), 61 Ill. App.3d 11, 377 N.E.2d 850; Comiskey v. Comiskey (1977), 48 Ill. App.3d 17, 366 N.E.2d 87; Wells v. Wells (1976), 36 Ill. App.3d 488, 344 N.E.2d 37.) While the general rule as to the trial court's discretion still applies, we must note that the heretofore broad discretion given the trial court in matters of custody modifications has been limited by the statutory provisions in the new Act (Ill. Rev. Stat. 1977, ch. 40, par. 610) and by the underlying intent of the legislature therein, as noted by our supreme court in the Harne case, to make modifications of custody more difficult. The supreme court, in the passage already quoted, speaks of an "aversion to custody changes" manifested in the new Act.
With these rules in mind, we must review the evidence before the circuit court in the instant case in order to determine whether the court abused its discretion in changing the custody of Sean Poston from his mother, with whom he had been living all his life, to his father. After careful scrutiny of the evidence, we conclude that the decision of the circuit court was against the manifest weight of the evidence and we reverse.
Although the order changing custody does not set forth findings with respect to the basis for that decision (see Ill. Rev. Stat. 1977, ch. 40, par. 610(b)), a matter to which we shall return later, the trial court's basis for modifying custody is made clear in the record. In the transcripts from the hearings, the trial judge specifically states that it is his concern with "excessive punishment" and "excessive chores" that forms the basis for his order modifying custody as to Sean. It is apparent from the record that the trial court felt that the "excessive chores" given to Sean resulted in his poor performance in the fifth grade. We note, at the outset, that the trial court's decision was contrary to Sean's own stated preference, which was to remain with his mother and stepfather on the farm.
The testimony as to punishment indicated that Mr. Hofmann, Sean's stepfather, would discipline him usually with his hand across Sean's backside when Sean's farm chores were not done or were not done properly. On occasion, according to Sean's in-chambers testimony, his stepfather had spanked him using a stick or a belt. Sean testified that he gets along "so-so" with his stepfather. Sean reasoned that the basis for the spankings when they first moved in with his stepfather was because his stepfather was not used to having children around him. Sean testified that, on occasion, his stepfather struck him "pretty hard." Mark Poston, Sean's 14-year-old brother, testified that Mr. Hofmann hits them sometimes, but for good cause and usually with his hand across their "rump." According to Mark, who expressed a strong desire to stay with his mother and stepfather, such discipline was not done in ...