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Pyatt v. Pyatt

OPINION FILED AUGUST 21, 1980.

RICHARD M. PYATT ET AL., PETITIONERS-APPELLANTS,

v.

WILLIAM EUGENE PYATT ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Perry County; the Hon. ROBERT J. SANDERS, Judge, presiding.

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

This appeal follows an order of the trial court denying a petition for termination of the parental rights of respondent, Gustav Alexander, who is the natural father of two minor children, William Eugene Pyatt, formerly Leo William Alexander, and Jonathan Simonds Pyatt, formerly Jonathan Simonds Alexander. In order to adopt these children absent respondent's consent, petitioners, Gayl Pyatt, formerly Gayl Alexander, and Richard Pyatt, the natural mother and stepfather of the children, sought termination of his parental rights on four grounds of unfitness. After a hearing on August 8, 1979, the trial court found that respondent's conduct did not constitute unfitness under any of the four grounds and denied the petition. The sole issue on appeal is whether this determination was against the manifest weight of the evidence.

In accordance with section 1 of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501), petitioners alleged that respondent was unfit by reason of any one of the following grounds: (1) abandonment of the children, (2) desertion of the children for more than three months next preceding the commencement of the adoption proceeding, (3) failure to maintain a reasonable degree of interest, concern or responsibility as to the children's welfare and (4) other neglect of or misconduct toward the children.

The natural parents of the children were married in 1965. The first child, Will, was born September 9, 1970. The second, Jon, was born October 17, 1972. About six weeks after the birth of the second child, their father left the marital home in or near Dayton, Ohio, and on April 18, 1973, an Ohio court granted their mother a divorce and custody. The father was granted visitation privileges and required to provide child support in the amount of $25 per week for each child. The court also granted the mother permission to remove the children from the State of Ohio. With them she moved to Carbondale, Illinois, near her family who helped her financially. While there she attended law school from 1973 to 1976 and, in 1976, married Richard Pyatt, a funeral director in Pinckneyville, where the Pyatts, together with the children, since have lived. At the time of the hearing Mrs. Pyatt had been practicing law for approximately three years.

Apparently Mr. Alexander met his obligation of child support fully until sometime in 1974. Mrs. Pyatt testified that in October of that year she initiated proceedings in Ohio because of arrearage in the amount of $800. She took similar legal action twice in 1975 because of arrearage amounting to "roughly $1500" in approximately April and $1850 in December of that year. Mrs. Pyatt confirmed the correctness of Mr. Alexander's statement that he stopped making child-support payments altogether in 1975. In the summer of 1977 arrearage amounted to about $5000, and, according to petitioners in their brief, at the time of the hearing on the petition in 1979, it stood in excess of $10,000. Mr. Pyatt testified that he and Mrs. Pyatt had been supporting the children since they came into his home.

The testimony indicated that during the time Mr. Alexander paid child support, that is, during the years 1973, 1974 and 1975, he exercised his weekend visitation privileges. How regularly he did so is not addressed in the record. In response to the question, "Back in 1975 and beyond when he did visit with the boys how long would his visits last?" Mrs. Pyatt answered, "Well, he would come on a weekend and arrive at our home in the morning and be with the children that day and then return on Sunday morning and spend maybe 2/3rds of the day." At that time Mr. Alexander was teaching in Dayton. Mrs. Pyatt testified that when she lived in Dayton it was a six-hour drive one way from Dayton to Carbondale. Mr. Alexander testified that "generally on Saturday night I would stay with them until about 7:00 or 7:30 or 8:00, until night time or dark. Then I would pick them up again the following Sunday morning and stay with them until maybe later on in the afternoon."

We notice that the terms of the divorce decree, which is attached to the petition as an exhibit, provide for visitation approximately every third weekend. The terms appear not to have permitted Mr. Alexander to keep either child overnight or away from the mother's home at night during weekend visits until the younger child had attained the age of two years, an event which occurred in October 1974, when the older child was four years old. The decree provides as well for visitation during the summer for a certain period of time and during the "Christmas season" from December 27 until January 1. The overnight restrictions apply similarly to these kinds of visitations with the difference that the children were to be returned in the evening to go to bed until the younger child had attained the age of four, provided the father had not remarried. Since Mr. Alexander did not remarry, overnight visitation would not have been possible during "Christmas season" visitations until 1976, when the older child was six years old, or during summer visitations until 1977, when the older child was seven years old. The decree also provides that the father be allowed to talk with the children on the telephone but "not" * * * more than once per week unless absolutely necessary."

In 1975 Mr. Alexander moved to Virginia Beach, Virginia, where he was teaching. He visited the children in Carbondale, he said, "sometime during that fall quarter" during a five-day weekend. He stated that it was a 22-hour drive one way. Between the time of that visit in 1975 and the hearing in 1979 Mr. Alexander had not seen the two children. Mrs. Pyatt testified that at no time during the period between the visit in 1975 and January 1979, had Mr. Alexander asked to visit them; Mr. Alexander testified that he was "not sure" whether at any time during this same period he had asked to visit.

Mrs. Pyatt testified that at Christmas time in 1975 Mr. Alexander neither sent a gift to the children nor visited them. She said that the reason he had given for not visiting them in December 1975, was "because he was involved in a dramatic production or a play, I believe." She stated that in 1976 the boys received from him neither birthday nor Christmas gifts. During 1976 Mr. Alexander called once, a call to Will on Thanksgiving. In 1977, on September 16, Will received from his father for his birthday, which had occurred a week earlier on September 9, a birthday card and two T-shirts that were too small either for Will or for his younger brother. In December 1977, a gift arrived in time for Christmas for Will but not for Jon. In January 1978, Mr. Alexander called to inquire about whether the gifts had arrived and, learning that one had not, sent a second gift to Jon, which arrived about a week later. In 1977 the children received no telephone calls from their father. In 1978 he called a second time during that year on Thanksgiving morning. That year apparently he sent no Christmas gifts; he testified that he had planned to see the children after Christmas of that year. Apparently early in January 1979, he called to arrange a visit with the children.

Mrs. Pyatt testified that during the three-year period the children received no letters from their father. Although she indicated that he had "not ever" asked for a picture of the boys, it is unclear from the record whether she meant during the entire period of time since the divorce in 1973 or during the years between 1973 and 1975 when he was visiting the children. About two-thirds of Mr. Alexander's numerous places of residence since the divorce — approximately 14 — were not known to her. She said that since the divorce he had not visited the boys at Christmas time or on their birthdays. Since the divorce the children's paternal grandparents have neither visited them nor inquired of Mrs. Pyatt as to anything about them. Mr. Alexander's father is a neurologist and psychologist in Newton, Massachusetts.

Asked for her opinion as to whether the boys would recognize their father if they were to see him "in a public place such as on the street," Mrs. Pyatt responded,

"[M]y opinion would be that it would be very unlikely that John [sic] would recognize him because it has been such a long time since John [sic] has seen him and he was so young when that last time was. I think there would be a more [sic] possibility of Will recognizing him, but it would not surprise me if he did not."

Asked if she knew of "[a]nything that you can think of that would evidence his concern" for the children "in the past three, now 3 1/2 years," she answered, "I know of nothing." Asked, "Do the boys ever ask about Mr. Alexander?" she said "No." She explained why she wanted the adoption by Mr. Pyatt:

"I want Will and John [sic] to have a real father. Their legal father pays no attention to them. And might as well not exist, except so far as paper is concerned. They have a step-father [sic] who has been a real father to them and I want that real father to be a legal father to them. And that is what they want? [Sic.]"

Mr. Alexander's testimony corresponded to Mrs. Pyatt's with regard to the number of visits made and to the number of gifts sent to the children during this period. He disagreed with her to some extent with regard to the number of telephone calls made. He testified, "A lot of times I called and talked to the children, but I did not talk to either Gayl or to her husband." He explained that Mr. and Mrs. Pyatt were at home at the time, and "the kids asked me if I wanted to speak to them and and [sic] I said, no. I didn't have any reason to speak to them. I called to speak to the boys." Later, he explained further,

"There were a couple of occasions when the kids asked if I wanted to speak to them [Mr. and Mrs. Pyatt]. There were sometimes [sic] when the kids picked up the telephone so they may not have even known that I did call. I can't remember exactly how many calls were involved."

As to the number of letters he wrote, he stated, "I may have written them one or two, but I don't think I have written them very many. I think I may have written them one." Later, confronted by the statement of petitioners' attorney that in calling the children on the telephone, the witness was doing no more for his children than he would do for his friends, Mr. Alexander said, "I don't like to write. What else would you want me to do?" His testimony demonstrated a slender knowledge of the children's personal characteristics, interests, achievements and problems.

Of the arrearage in child support, Mr. Alexander testified, "I certainly plan to make it up." Of a life insurance policy required by the divorce decree to be kept in full force and effect for the benefit of the children, he explained that the policy referred to therein was available through Wright State University and that the policy had expired upon the termination of his employment with that institution in 1975. His explanation and the exchange it sparked follow.

"A [Mr. Alexander] It was the kind of thing where the university had the policy for you as long as you were an employee there, but when you terminate [sic] your employment the insurance just kind of went zero.

Q [Attorney for petitioners] It don't [sic] say that in the judgment, does it? It says you are to maintain that insurance, doesn't it?

A That's right. Well, I didn't have insurance.

Q And you didn't maintain it then.

A No, sir.

Q Have you made any provisions, any provisions, for these children? Any way?

A You mean ...


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