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In Re Marriage of Ramer

OPINION FILED MAY 14, 1980.

IN RE MARRIAGE OF SYLVIA J. RAMER, PETITIONER-APPELLANT, AND KENNETH JOE RAMER, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Massac County; the Hon. ROBERT CHASE, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

The petitioner, Sylvia Ramer, brought action for dissolution of her marriage to respondent, Kenneth Ramer. Petitioner sought custody of Kenneth Joe, the five-year-old son of the parties, who is their only child. Petitioner also has two teen-aged children from a prior marriage. The respondent also prayed for custody of Kenneth Joe. Following a bifurcated hearing, the trial court awarded the care, custody, control and education of Kenneth Joe to his father, subject to the right of reasonable visitation by his mother. From this custody order, the mother appeals. She argues that the court failed to consider all relevant factors in determining custody, that the court failed to include a recitation of specific factors in the judgment order, and that the court abused its discretion in awarding custody to the father.

The testimony of the mother at the hearings indicated that she received $25 per week from her previous husband for support of a daughter, age 14, and a son, age 13. She testified that she was a licensed beautician, who operated her own shop in a house owned and occupied by her parents. She worked as a beautician about 1 1/2 days per week, and also oversaw her parents' rental property. At the time of the dissolution of her marriage with Kenneth Ramer, she was 33 years old.

The mother testified that she and her husband would argue over how Kenny Joe was to be raised, especially with regard to tasks at home. She felt that her husband was too lax — that he provided no structure or responsibility for Kenny Joe. However, if she were granted custody, she had no objection to visitation rights, since she felt he was basically a good father.

The mother was very active in a woman's softball league. She was often out with friends at games, and they sometimes stayed out drinking afterwards until the early morning hours. On such occasions, if Mr. Ramer was working, she would leave her son with one or both of her parents, her older children, or a cousin, or sometimes she took all three children with her to ballgames, returning home after midnight. Drinking also occurred in the child's presence; on one occasion Mrs. Ramer entertained the ball team at her home and told them "[I]f they wanted to bring their own [intoxicants] I didn't care." On that particular night, she left with friends after the party, was gone a "couple of hours" and returned home after 2 a.m. Mr. Ramer did not participate in the drinking or the social events with his wife and her friends. However, she testified that between the dates of the first and second hearings she had changed her habits, limiting her nights out to once or twice a week. After the divorce, she planned to live with her parents until the custody case was settled, and then find another home. If she had to work full time, her parents would care for Kenny Joe.

Martha Wetherington was called as a witness on the mother's behalf. She testified that she worked as an apprentice in Mrs. Ramer's beauty shop. Throughout her employment, she noticed a good relationship between Mrs. Ramer and Kenny Joe.

The father, Kenneth Ramer, testified that his marriage to Sylvia Ramer had been his first. At the time of the dissolution, he was 31 years old. He worked at a plant from 3 p.m. to 11 p.m., but had requested and received a transfer to the 7 a.m. to 3 p.m. shift. He and his wife owned a house in joint tenancy, and by agreement the house was to be available for him to reside in following the dissolution.

From the evidence presented at the hearings, it appeared that the father spent more time with Kenny Joe than did the mother. He testified that he spent most of his time at home with the child. He usually got the child up in the morning, fixed his breakfast, bathed him, and helped him dress. While Kenny Joe was presently in kindergarten and attended school only half days, when he reached the first grade the father would be able to return home from the day shift within 15 or 20 minutes of the child's return from school. The father testified that his brother and sister-in-law would care for Kenny Joe when he got out of school. He also testified that he took Kenny Joe with him to church and Sunday School, and that he went nowhere without his son except to work. When Mrs. Ramer was gone two or three days over a holiday weekend, Kenny Joe neither asked about her nor cried because of her absence, although he often cried if he had to go anywhere without his father. Mr. Ramer often observed his wife or her car at the tavern as he was coming home from work about 11:30 p.m. The respondent commented that his biggest fear if he lost custody was that his ex-wife would try to come between father and son, as in the past she had discouraged any relationship between her two oldest children and their father.

Several witnesses testified for the father. Rev. Jerry Holt, his minister, testified that there was a close relationship between father and son, and that Kenneth was a good father. He also noted that the two participated in all church activities together. Dennis and Helen Kaylor, neighbors who had known Kenneth Ramer for many years, also noted a close relationship. They also expressed their availability and willingness to help get Kenny Joe to and from school, and to care for him when necessary. Patricia Giltner, another neighbor, also testified about the father-son relationship: "I think it is extra close, I just think that it is an unusual relationship between him and his father and it is wonderful." Finally, Peggy Ramer, sister-in-law of Kenneth, testified that she and her husband were willing to assist with the child's care.

After taking the matter under advisement, the trial judge made the following verbal judgment:

"I think that the situation here deserved some brief comment by me on some aspects of this thing. I think that I should say that the use or non-use of alcoholic liquors per se is not a disqualifying thing on any parent and in like fashion the hours kept by any parent would not per se be a disqualifying factor. We have had a good bit about that here. Those things I think should be taken into consideration along with the entire aspect of the case when making a decision by the Court and the effect of those things upon the child if any. I have given every consideration to the evidence offered here. We are mandated by the new Marriage Dissolution Act to consider certain elements and I have done so. That act too has mandated a greater equality in looking at the parents in these situations. In this situation I think that there is no question if the parties were reversed that custody would be given to the Mother, in addition I have attempted to consider the pluses and minuses for the child in the custody of either parent. It is my judgment that the best interest of the child would be served in this case with custody awarded to the father."

Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 602) provides an outline of the relevant considerations for a determination of child custody:

"(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider ...


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