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In Re Custody of Potts

OPINION FILED APRIL 18, 1980.

IN RE CUSTODY OF MELINDA POTTS ET AL. — (DENNIS J. POTTS, PETITIONER-APPELLEE,

v.

CYNTHIA C. POTTS, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES GRUPP, Judge, presiding.

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

Respondent, appealing from an order granting permanent custody of two minor children to petitioner, Dennis Potts, contends the trial court erred (1) in granting permanent custody to petitioner; and (2) in denying her petitions (a) to require petitioner to pay child support arrearages and set child support, and (b) to impose sanctions on petitioner for failure to comply with discovery.

It appears that the parties were divorced in 1974 and, pursuant to an agreement, they were awarded "joint custody" of their three minor children (Brian, Melinda and Michael). The children were to physically reside with respondent, except for a few weeks during the year when they were to reside with petitioner. The decree required petitioner to make child support payments.

On January 25, 1977, an order was entered finding petitioner to be $8,370 in child support arrearage and requiring him to resume payments. On June 2, 1977, the court abated his support payments because his employment had been involuntarily terminated. That order was vacated on September 28, 1978, but on November 6, 1978, support payments were again abated with a finding that petitioner was destitute.

The record also discloses that respondent had been obtaining training through a CETA program for a drafting position and, when she secured employment in Kansas, she filed a petition to remove Melinda and Michael — who were still in her physical custody. *fn1 Petitioner then sent a notice for the deposition of respondent, who failed to appear at the designated time and place, having left for Kansas with the two children before any hearing was held on her petition to remove them. Petitioner then moved for temporary custody of Melinda and Michael and for sanctions under Supreme Court Rule 219(c) (Ill. Rev. Stat. 1977, ch. 110A, par. 219(c)) for the failure of respondent to comply with discovery. A hearing was held on both motions, but respondent did not appear or bring the children, and the trial court entered an order on December 5, 1978, denying her petition for their removal with prejudice and granting petitioner their temporary custody.

It also appears that respondent secured an ex parte order for temporary custody of Melinda and Michael in a Kansas court on December 15, 1978, pending a hearing on her request there for permanent custody. On December 22, 1978, petitioner sought permanent custody in the instant proceedings on the grounds that respondent had removed the two children from the jurisdiction without permission of the court and had earlier failed to comply with a discovery request. On January 15, 1979, respondent sent petitioner a notice to appear for a deposition, which he failed to do. Then, on January 30, respondent filed three additional petitions — (1) renewing her request to remove the children; (2) for sanctions under Rule 219(c) because of petitioner's failure to appear for his deposition; and (3) for payment of the $8,370 arrearage and a request that the court again set support. That same day, an order was entered setting a hearing on all matters for February 9 and directing respondent to appear in court on the set date with the two children.

The hearing was held as scheduled with respondent's counsel present, but she failed to appear with the children as directed. At the hearing, two persons in the CETA program testified essentially that respondent would have no difficulty in securing an entry-level drafting job in the Chicago metropolitan area. One of these witnesses was her program counselor, and he testified that respondent "stated several times that she would * * * like to be employed out of the state or somewhere away from the Chicago area"; and that "[s]he was having a dispute with her husband, and I guess she wanted to go to a place where he would not be able to find her." At the conclusion of the hearing on February 9, 1979, the trial court entered an order granting petitioner permanent custody of Melinda and Michael and denying respondent's three petitions. A timely notice of appeal was filed from that order.

OPINION

Respondent stated at the oral arguments of this case that she is pursuing an appeal only from the February 9, 1979, order, in which the trial court "awarded" "permanent custody" to petitioner and denied respondent's petitions for payment of arrearages, to set support, for sanctions against petitioner because of his failure to comply with discovery, and to remove the children.

She first challenges that part of the order in which "permanent custody" was "awarded to" petitioner. Initially, we note that the parties disagree as to the nature of this portion of the order. Petitioner contends that the use of the word "custody" in the order was a misnomer and that the trial court in substance intended that joint custody should stand, but merely altered the "physical possession" and visitation rights concerning the children. Respondent, on the other hand, posits that the order in fact altered legal custody. We agree with respondent. This pleading of petitioner, upon which the order appealed from was entered, was entitled, "Petition for Permanent Custody and Other Relief" and, in the prayer for relief, there was a request "[t]hat the petitioner * * * be awarded the permanent custody of the minor children." At the hearing, the trial judge instructed petitioner's counsel to "[p]resent an order granting custody to the father" and later reiterated, "custody to the father." Further, the judgment order clearly provides "[t]hat the permanent custody of the parties' minor children Melinda and Michael Potts is hereby awarded to Dennis Potts." We find no indication in the record that either the parties or the trial court intended, as urged by petitioner, that only "physical possession" and visitation rights were affected and, in light thereof, we view the order as awarding permanent custody to petitioner.

Respondent contends, then, that the trial court erred in this award of custody. Modification of custody is governed by section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610), which provides in relevant part:

"(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:

(1) the custodian agrees to the modification;

(2) the child has been integrated into the family of the petitioner with the ...


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