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In Re Marriage of Atkinson

OPINION FILED MARCH 20, 1980.

IN RE MARRIAGE OF JANET R. ATKINSON, A/K/A JANET GOELZ, PETITIONER-APPELLEE, AND JOHN F. ATKINSON, A/K/A JEFF ATKINSON, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. ALBERT PORTER and the Hon. CHARLES FLECK, Judges, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 15, 1980.

The 10-year marriage of Janet R. Atkinson, a/k/a Janet Goelz, the petitioner, and John F. Atkinson, a/k/a Jeff Atkinson, the respondent, was dissolved on October 5, 1978. The court subsequently conducted hearings on the question of custody of the parties' minor children, Tara and Abigail Atkinson, born in 1970 and 1972, and on the division of property. Custody was awarded to Janet Atkinson with rights of visitation to Jeff Atkinson. Janet Atkinson was also awarded certain property. Jeff Atkinson appeals from the awards of custody and property.

Preliminarily, Janet Atkinson questions the jurisdiction of this court to consider the custody judgment. That judgment was entered in January of 1979. A notice of appeal was filed within 30 days. Four months later, a judgment order distributing marital assets and setting child support and maintenance was entered. A notice of appeal from that judgment order was filed within 30 days. The latter notice of appeal did not mention the custody judgment. In October of 1979 — 8 1/2 months after the first notice of appeal was filed and two months after Jeff Atkinson filed his initial appellate brief — Janet Atkinson filed a motion to dismiss the notice of appeal from the custody judgment. On appeal, Janet Atkinson argues that because the custody judgment was not appealable, the first notice of appeal had no effect. She further contends that because the second notice of appeal did not include the custody judgment, that issue is not before this court.

The lawsuit which is the subject of this appeal involves multiple claims including dissolution of the marriage, child custody and disposition of property. Under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)), where multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to fewer than all of the claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. No such finding was made here. Therefore, although the custody order was a final judgment, it was not appealable.

• 1 Nevertheless, we conclude that the interests of justice require that we consider the custody issue as well as the property issues. Jeff Atkinson was diligent in his efforts to perfect appeals as to both custody and property. There is no question but that Janet Atkinson had notice of his intent to appeal the custody issue, and she was less than prompt in her filing of the motion to dismiss the appeal from the custody issue. Under these circumstances, we conclude the custody judgment is reviewable. See Burtell v. First Charter Service Corp. (1979), 76 Ill.2d 427, 394 N.E.2d 380.

The parties are each attorneys and are employed by Chicago law firms. At the custody trial, the trial court heard testimony from 16 witnesses and received two written psychological reports.

Diane Bolash testified that she has known the Atkinsons since 1975 when she became their babysitter. She said Jeff Atkinson probably spends more time with the children but that Janet Atkinson also cares for them. According to Bolash, Janet Atkinson is an exceptional mother; both are good parents.

Louise Shief was employed until 1974 as a housekeeper by the parties. She was with the Atkinsons for more than four years including the time of the children's births. She testified Jeff Atkinson was the parent who stayed home to take care of the children, that he "was like the father and the mother at that time, because he was there most of the time." She said Jeff Atkinson bathed, fed and played with his daughters and took care of them when they were sick. She also said Janet Atkinson seldom stayed home when the children were ill. She described Janet Atkinson's involvement with her daughters as "playing with dolls." In Shief's opinion, the daughters were closer to their father than their mother.

Dr. Christel Lembke, a child psychiatrist who was the Atkinson's neighbor at the time of the trial, also testified that Jeff Atkinson has served as both mother and father to the children. She said both mothers and fathers are capable of nurturing young children. Dr. Lembke said Jeff Atkinson, as a father, was always available, very understanding and patient, and was able to spend time with children in a very constructive way.

Other neighbors also described Jeff Atkinson as spending a great deal of time with his daughters and having a warm and loving relationship with them.

Two of Tara's elementary school teachers testified on behalf of Jeff Atkinson. Both said Jeff Atkinson helped in the classroom and went on his daughter's field trips. Susan Rankin, Tara's first grade teacher, said Jeff Atkinson was a thoughtful, caring and interested parent when he was in her classroom. Kate Shapiro, Tara's second grade teacher, said the children in the classroom related well to Jeff Atkinson. Both teachers testified that their primary parental contact was with Jeff Atkinson.

Jeff Atkinson testified that from the time his daughters were born until the present he, rather than Janet Atkinson, took care of raising the children. He estimated that he took care of the girls at least two-thirds of the time and Janet Atkinson took care of them one-third of the time. He also said he did most of the meal preparations, grocery shopping, household errands and hiring of housekeepers and that he took the children to most of their doctor appointments.

During law school Jeff Atkinson said he came home between 3 and 4 p.m. most days while Janet Atkinson stayed late at school or engaged in other activities two to five nights per week. He also said that if his work demanded too much time away from his children he would seek a less time-consuming job.

Two of Janet Atkinson's friends testified for her. Mary Ann Wexler had known the parties for six years. From 1972 to 1974 the Wexlers lived in the same apartment building as Jeff and Janet Atkinson. The Wexlers' primary relationship was with Janet Atkinson rather than Jeff Atkinson. Wexler said she thought Janet Atkinson was "a terrific mother" and that Janet Atkinson had no deficiencies in that role. She also said that Jeff Atkinson cared about his daughters a great deal and that the girls love him.

Carolyn Stock met Janet Atkinson in college 11 years prior to the trial. She said that Janet Atkinson is a caring, nurturing, warm and empathic mother. Jeff Atkinson is an active father but Stock believed he was too involved with his children; he does not give them enough independence.

Janet Atkinson's employer, a partner at her law firm, said she would be allowed to work part-time in her job.

On her own behalf Janet Atkinson testified that she was a fit parent, that she loved her children, and that they loved her. She acknowledged that Jeff Atkinson was a good father and that he was genuinely interested in his daughters' education. She said she planned to continue working and that she would employ a housekeeper to take care of the children.

The parties' then current housekeeper, Catherine Smith, testified that she had been working for the parties for slightly more than one year. She said that neither party was deficient as a parent and that both were "nice" parents. She said Jeff Atkinson had "a beautiful relationship with the children." Smith also said Jeff Atkinson generally came home from work before Janet Atkinson and that she left the house many evenings without seeing Janet Atkinson.

Upon the motion of the children's counsel, the court appointed an independent medical expert, Dr. Ner Littner. Dr. Littner is a board-certified psychiatrist and has written numerous articles on child psychiatry. The witness interviewed the parties and the children and also spoke to other persons who had knowledge of the family. Dr. Littner concluded Janet Atkinson was in relatively good shape emotionally; that she had some problems but had excellent maternal capacity. The psychological tests which were conducted by Dr. Traisman, at Dr. Littner's request, showed the presence of some emotional problems in Janet Atkinson. It also showed she was very interested in her children, has a genuine love for them, and is an adequate parent.

Dr. Littner said Jeff Atkinson also demonstrated some problems although perhaps not as marked as those shown by Janet Atkinson. Jeff Atkinson demonstrated good fatherly capacities. However, in Dr. Littner's opinion, he was trying to be a mother as well as a father to the children. Jeff Atkinson's efforts to be a "mother" were unhealthy. There is a risk that because of his "mothering," the children will grow up being confused about what it means to be a man or a woman. Dr. Littner saw no evidence of harm to or confusion in Tara and Abigail as a result of Jeff Atkinson's "mothering," but he thought there was a potential for it to develop later. When asked the results of the psychological testing regarding Jeff Atkinson, Dr. Littner responded:

"It showed the same double situation; namely, the presence of some problems, a strong need for affection and recognition and gratification; feelings of depression; and a sense of loss within him; doubts about his adequacy and about his masculine security and his ability to obtain satisfactions of a lot of internalized angry feelings, and the ability to be a good father."

Dr. Littner appeared before the Academy of Matrimonial Lawyers at a time prior to the trial and there expressed an opinion relative to his belief concerning the custody of young female children. His opinion was that if the mother was truly the "mother" to the children, if she wanted the children, and if she were capable of looking after the children, then her young children are usually better off in her custody. Dr. Littner believes that certain bonds are established between a mother and her daughters during the first year of life where the mother assumes the mothering role, and that the breaking of those bonds in separating the children from their mother causes "a devastating amount of damage." Based on his conclusion that Janet Atkinson was the "basic mother" for the first year of Abigail's and Tara's lives, he believed that breaking those bonds would cause more damage than any positive benefits that could come from living with their father.

Tara was noncommittal with Dr. Littner concerning with which parent she preferred to reside, while Abigail was trying to be noncommittal but, in Dr. Littner's opinion, "her desire to live with her mother came through quite strikingly." Dr. Littner recommended that Janet Atkinson have ...


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