APPEAL from the Circuit Court of Knox County; the Hon. CHARLES
H. WILHELM, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
This appeal involves a post-divorce dispute over custody and child support. Plaintiff Alice Jane Willcutts and defendant Douglas Willcutts, Jr., were divorced in 1971, and custody of their eight children was awarded to defendant. The decree of divorce incorporated a marital settlement agreement which contained the following provision:
"Consistent with the abilities and wishes of the children, [defendant] shall have the sole responsibility for their college and post-graduate education."
The agreement specified that the father shall have the "right to direct the secular and religious education" of the children, gave the mother the right to visit at reasonable times and places, and contained numerous other provisions not involved in this appeal. Plaintiff and defendant both reside in Galesburg, Illinois, where defendant is a physician. Plaintiff has since remarried, and the decree has twice been amended to provide more definite visitation rights for the mother.
In December of 1977 plaintiff petitioned for a modification of the decree to place custody of Brian (17 years), Sharon (16), John (15), Kevin (14) and Maureen (12) with her. An amended petition to modify was filed May 23, 1978, and it also sought a change in custody of the five younger children. Following a hearing, plaintiff's request was denied on August 3, 1978. In January of 1979, plaintiff filed a petition for rule to show cause wherein she asserted that defendant was wilfully refusing to pay the 1978-79 college expenses of their son Brian at Illinois Wesleyan University and that defendant had repeatedly and wilfully refused to allow plaintiff to exercise her full visitation rights. After a hearing, plaintiff's petition was denied on February 9, 1979.
On March 26, 1979, plaintiff again filed a rule to show cause seeking a contempt order because of defendant's refusal to pay Brian's 1978-79 expenses at Illinois Wesleyan. A few days later, on April 2, 1979, plaintiff filed a petition to modify the decree by changing custody of John, Kevin and Maureen to her along with support payment for them and by ordering payment of Brian's college expenses. The petition alleged that defendant had failed to give plaintiff her full visitation rights, that he has repeatedly cohabited with a woman to whom he is not married in the presence of the minor children, and that he has repeatedly abused the children verbally. Later plaintiff filed an affidavit in support of her petition to modify custody, asserting that defendant's physical abuse and mistreatment of the children caused John to leave home and caused Kevin and Maureen to live in fear and anxiety. A hearing was held, and on July 9, 1979, the trial court ruled that plaintiff's amended petition for rule to show cause was barred by the prior judgment in February 1979 on the same issues and that, as to the petition for a change of custody, the evidence was insufficient to satisfy the requirements of section 610 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610). The court also denied the petition to change custody and ordered both John and Brian to return to defendant's home forthwith.
Plaintiff has appealed from the order entered on July 9, 1979, and also from a supplemental order of the circuit court which denied her request for attorney's fees. We have consolidated the two appeals.
The first error assigned is the denial of plaintiff's request that she be awarded custody of John, Kevin and Maureen. She insists that the evidence established that the best interests of the children required a change of custody and also that the court applied the wrong standard for determining change of custody. Modification of a prior custody award is now governed by section 610 of the Marriage and Dissolution of Marriage Act, which provides as follows:
"(a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.
(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 consent of the custodian; or
(3) the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.
(c) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes ...