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In Re Custody of Iverson

OPINION FILED APRIL 15, 1980.

IN RE CUSTODY OF HOLLY IVERSON. — (JAMES IVERSON, PETITIONER-APPELLANT,

v.

KATHERINE IVERSON, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Petitioner James Iverson brought this cause to acquire exclusive custody of his minor daughter, Holly, from his former wife, respondent Katherine (Iverson) Hall. The trial court, after protracted hearings, ordered James to transfer physical custody of Holly to Katherine. James appeals and presents the following issues for review: (1) whether the trial court erred when it applied section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610); (2) whether the trial court erred when it required a showing of a material change in circumstances; and (3) whether the ruling of the trial court was contrary to the manifest weight of the evidence.

The parties to this cause were married in Ogden, Utah, on September 14, 1968. As a result of that marriage they had two children: Tamera, born on September 26, 1969, and Holly, born on May 11, 1975.

In April of 1978, apparently by agreement, Katherine left the marital home. The two children stayed with their father and continued their school attendance. On April 17, 1978, the Circuit Court of Lake County, Illinois, in default of James' appearance, entered a judgment for dissolution of the Iverson marriage. That judgment incorporated, inter alia, the following oral agreement between the parties:

"That [Katherine] and [James] shall have joint care, custody, control and education of the minor children, namely Holly * * * and Tamera * * *. That Holly shall reside with [Katherine] and Tamera shall reside with [James]. That the [parties] shall each have reasonable visitation with reference to the other child. That neither [party] shall be responsible to pay child support to the other."

The record indicates the judgment court conducted no inquiry regarding the children's best interest.

For the next 60 days, until June 18, 1978, the two girls continued to live with their father. The routine of each school day required James to take Holly to nursery school between 5:30 and 6 a.m. Katherine would arrive at the marital house during this time to prepare the other daughter for school.

In June of 1978, the two children finished the school term and then went to Utah to visit with their maternal grandmother. Katherine joined them during the last three weeks of August. The children then returned to Cook County and on Labor Day they were returned to their father's residence to begin the new school term.

Around the third or fourth day of October, the children visited Katherine. She informed James that she would retain the children. She kept them for the next three months. James apparently did not ask for their return. During this time he was to be remodeling the marital house which was due to be sold pursuant to the dissolution of marriage judgment.

On January 19, 1979, James took the children for a weekly visitation. Two days later he telephoned Katherine to inform her that he would not return them. She protested and retook Holly for a short time before returning the child to James' residence. Apparently the child was upset at her parents' behavior and Katherine, recognizing Holly's need to be with her sister, relinquished custody of the child. The children were re-enrolled in their old schools.

Holly visited Katherine during the weekend of March 9. During the course of her stay she became ill. Katherine testified that she decided to retain custody of Holly because she was concerned for the child's health. She informed James of her decision on March 12.

Eight days later, James filed a petition to enroll and modify the dissolution judgment's custody provisions. *fn1 The petition requested both a temporary order restraining Katherine from interfering with James' right of immediate physical custody of Holly and an order awarding temporary custody of Holly to James, "pending a further hearing on the matter of permanent physical custody." After an ex parte hearing, on March 20, the court ordered Katherine to return Holly to James "without prejudice to the rights of either party to a further hearing on temporary custody * * *."

A hearing was held on April 3. During that hearing Katherine filed a motion to vacate the March 20 order. Her motion attacked the sufficiency of James' petition as well as the court's jurisdiction. After the court heard testimony it continued the matter for a "hearing on temporary custody." Testimony was thereafter heard on four occasions. On August 17, the trial court vacated the March 20 order; denied James' petition for temporary custody; found that neither a change in circumstances nor an integration of Holly into James' family had occurred; and ordered that a hearing on permanent custody be continued until a later date. The court ordered James to return Holly to Katherine.

This court stayed the trial court's custody order pending the outcome of this appeal. James has subsequently ...


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