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In Re Custody of Piccirilli

OPINION FILED SEPTEMBER 17, 1980.

IN RE CUSTODY OF ANGELA MARIE PICCIRILLI. — (JACK F. STEPHENS ET AL., PETITIONERS-APPELLEES,

v.

TELPRI PICCIRILLI, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. MARION E. BURKS, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Respondent, Telpri Piccirilli, appeals from an order of the circuit court of Cook County granting permanent custody of his daughter, Angela Marie Piccirilli, to petitioners, Jack F. Stephens and Jessie M. Stephens, the maternal grandparents.

Telpri and Sherry Piccirilli, Angela's natural parents, were divorced on December 22, 1971. Custody of Angela, born on January 9, 1970, was awarded to Sherry; Telpri was given reasonable visitation and was ordered to pay $150 per month for Angela's support. From June 18, 1971, until late 1977, Sherry and Angela resided in petitioners' home. In 1977, Sherry and Angela moved to their own apartment. On October 1, 1978, Sherry died. Upon her mother's death, Angela returned to petitioners' home.

On October 6, 1978, respondent filed a petition for modification of the judgment of divorce asking that he be awarded custody of Angela. That same day, the trial court entered an ex parte order granting custody of Angela to respondent. On October 10, 1978, the court granted petitioners' motion to vacate its October 6 custody order, awarded petitioners temporary custody of Angela, and allowed respondent liberal rights of visitation. Petitioners then filed a petition for permanent custody. On August 30, 1979, a hearing on that petition commenced at which the evidence adduced was substantially undisputed.

During their stay in petitioners' home, Sherry and Angela occupied separate quarters on the second floor but freely used other portions of the home. The four people ate meals together. At that time, petitioners did not discipline Angela. Late in 1977, Sherry and Angela moved to their own apartment located approximately two miles from petitioners' home. Since Sherry was employed, Angela would be left with petitioners during the day on weekdays. On the weekends, Angela would visit respondent or petitioners.

At the time of the hearing, Angela was in fourth grade at an elementary school located three blocks from petitioners' home. Angela regularly attends Sunday school at the church and has been an active member of the girl scouts for several years. She was described as a cooperative child who presents no disciplinary problems, excels at school, and has numerous friends her age in the neighborhood.

Petitioners are both 61 years old and in good health. They own a two-story home, free of any mortgage, in which Angela has her own bedroom. The home is located in Lansing, Illinois. They regularly attend a nearby church. For his livelihood, the grandfather teaches organ music. The grandmother is not employed outside the home.

The grandfather testified that his annual net income is $8,000, and that, in addition, he receives $150 per month from a retirement trust. They also receive $327 per month from their daughter's social security and $150 per month for child support. They have no outstanding debts.

There are two bank accounts for Angela. The checks for child support are deposited into a savings account which had been opened by Sherry. The money in that account has not been used except to pay for Sherry's burial plot and tombstone. The social security checks are deposited in a checking account from which petitioners pay themselves approximately $300 per month for Angela's expenses, and $5 for each music lesson. The grandfather stated that he has not benefited from the money received for Angela's support. During examination as an adverse witness under section 60 of the Civil Practice Act, the grandfather testified that he earned $4,535 in 1977. In 1978, he earned $10,000, $8,857 of which was derived by cashing in an insurance policy. He attributed his lower earnings in 1978 to his loss of interest in teaching during his daughter's illness.

Petitioners expressed their desire for permanent custody of Angela. They indicated that she is a cooperative and exceptional child, who lived happily in their home. The grandfather also stated that he believed Angela loved respondent, and that respondent must love her. He did not recall telling the social worker that Angela was at an age at which she realized respondent does not love her.

Petitioners offered testimony of various relatives and acquaintances of Angela and themselves, including a pastor and teachers. In substance, this testimony revealed that Angela was content and happy; that she was friendly, well behaved, and excelled scholastically; and that petitioners' home was a proper place for Angela. Quentin Piccirilli, Angela's paternal grandfather, who has not spoken with respondent for eight years, testified that he saw Angela almost every day and observed that she enjoys a good life with petitioners.

Respondent is 34 years old, and his present wife, Cheryl, is 28 years of age. They have two children: Telpri, age 7, and Nicole, age 4. They reside in a two-bedroom home in Calumet City, Illinois, and have a mortgage of approximately $10,000. If respondent were awarded custody, Angela would share a bedroom with Nicole and he and his wife would sleep in the living room. The school in which Angela would be enrolled is three to four blocks away. Girl scout activities are available in the community. The family attends church regularly.

Respondent is employed as a fireman paramedic and as a part-time worker at a fire extinguisher company, and has an annual income of $23,000. Cheryl is a self-employed clothes salesperson who earns approximately $10,000 per year. She can select her hours of employment, and ordinarily works in the evening when respondent is home with the children. On rebuttal, income tax returns disclosed that Cheryl actually had a net income of $2,167 in 1977, and a loss of $481 in 1978.

Respondent testified that he has a close relationship with his children, and that they are well behaved and disciplined when necessary. Angela plays with children in his neighborhood and interacts well with members of his family. Respondent shows Angela the same love and affection as he shows his other children. Respondent stated that he believed his wife and he are well qualified parents. Cheryl testified that she loves Angela. She considers herself a mother to Angela, and on occasion, Angela ...


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