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In Re Marriage of Baltierra

OPINION FILED AUGUST 11, 1980.

IN RE MARRIAGE OF BARBARA JEAN BALTIERRA, PETITIONER-APPELLANT, AND RONALD J. BALTIERRA, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This case involves the modification of the custody provision of a divorce decree pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)). On appeal the following issues have been presented for review: (1) whether the modification of the custody provision of the decree of divorce was contrary to section 610(b); (2) whether the order of change of custody was against the manifest weight of the evidence; and (3) whether the court erred in refusing to rule upon petitioner's motion for a rehearing that the change of custody was not within the requirement of section 610(b). For the following reasons we reverse and remand.

On April 4, 1974, respondent, Ronald Baltierra, and petitioner, Barbara Jean Baltierra, *fn1 were divorced, and custody of the two minor daughters of the parties, to wit, Martina, born March 6, 1972, and Robin, born August 11, 1973, was awarded to Barbara Jean Baltierra.

Petitioner remarried in 1974 to Jeff Weimer, and this second marriage ended by divorce in May 1977. Petitioner has again remarried to Joseph Kozar, and they are both employed on a full-time basis and rent a home in Justice, Illinois.

Respondent-appellee, Ronald Baltierra, was remarried in 1976 to his present wife, Dorothea, and they own a home in Chicago where Mr. Baltierra is employed as a carpenter earning approximately $400 per week. Dorothea is not employed.

When petitioner was first married to Mr. Weimer, respondent saw the two minor children on Saturdays according to the terms of the divorce decree. After a time the children were left with him more frequently. Petitioner told respondent that she was having a hard time handling the children and taking care of them, so she would drop them off at respondent's home two or three times a week. In April 1976, petitioner left the children with respondent and informed him that she would sign custody over to him. In August 1976, petitioner and respondent agreed that petitioner should resume physical custody of the children. In November 1976, petitioner requested respondent to again resume custody of the children because she was having emotional problems. During the time when petitioner relinquished the custody of the children to respondent, she did not communicate nor attempt to visit with them. While living with respondent and his wife, Dorothea, the minor children said they were unhappy with their mother and that they would rather live with their father.

In July 1977, petitioner took the children back and respondent filed his petition to change custody in September 1977. The petition sought an order modifying the custody provisions of the decree of divorce and alleged, inter alia, that petitioner was not a fit and proper person to have the care, custody and control of the minor children, that petitioner had abandoned the children, that petitioner had failed to return the children to their father as agreed to in July 1977, that there had been a change in the circumstances, and that visitation rights had been denied since July 1977. Petitioner filed an answer to said petition denying the allegations.

Prior to the hearing an investigation was made by Cook County Supportive Services, and at the hearing the investigator testified that, based upon his investigation, the children should be placed in the home of their father. On the basis of the evidence at the hearing and the recommendation of the investigator, the court entered the following order on November 2, 1978, transferring custody to respondent:

"THE COURT MAKES THE FOLLOWING FINDINGS OF FACT:

1. That on April 30, 1976, the respondent [Barbara Jean Baltierra] did voluntarily abandon custody of the two minor children of the parties to the Petitioner [Ronald J. Baltierra] for a period of approximately four months.

2. That in or about November, 1976, the Respondent did voluntarily abandon custody of the minor children of the parties to the Petitioner, such abandonment continuing to and including July 30, 1977.

3. That Respondent wholly failed to communicate or attempt to visit with said minor children during the period of said abandonment.

4. That Respondent has suffered from emotional problems necessitating counseling with several physicians and psychologists, which problems have impaired Respondent's relationship to her children and her ability to care for said children.

5. That the Respondent has shown a decided lack of stability in her personal, professional and marital relationships thereby impairing her relationship to her children ...


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