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In Re Marriage of Batchelor



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL H. LYONS, Judge, presiding.


Petitioner-appellant John Batchelor appeals from a judgment of the circuit court of Will County denying his petition to transfer custody of his two minor children during the school year from respondent-appellee Alice Marshall (formerly Alice Batchelor). The only issue on review is whether the judgment of the circuit court is against the manifest weight of the evidence.

Petitioner and respondent were married on August 10, 1970. Two sons were born of this marriage, John and Burt Batchelor. In addition, Mrs. Batchelor had two daughters by a previous marriage, Melissa and Christy Brothwell, who were apparently never legally adopted by John Batchelor. On January 6, 1975, the Batchelors separated. Following an ex parte proceeding initiated and pursued by John Batchelor, a divorce decree was entered in the circuit court of Will County on August 11, 1975. The decree awarded custody of all four children to the petitioner. At the time of the divorce John was four years old, and Burt three.

On August 31, 1976, pursuant to a petition brought by Alice Batchelor under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72), the divorce decree of August 11, 1975, was vacated with regard to the custody of the four minor children, and an order was entered awarding joint care, custody and control of the children to both John and Alice Batchelor. However Alice, who was then living in El Paso, Texas, was awarded actual custody of the children during the school year. John was awarded actual custody during the summer, or vacation, months.

On August 16, 1978, John Batchelor filed a petition in the circuit court of Will County to transfer child custody. In his petition he alleged that since August of 1976 a material change in circumstances had occurred mandating modification of the prior custody determination. Among the changed circumstances were, inter alia, John Batchelor's remarriage to Debra Batchelor, a graduate of Illinois State University with a bachelor of science degree in elementary education and five years' teaching experience, and John and Burt's poor performance in school. With regard to the Batchelor children's school performance, the petition specifically alleged "that John Batchelor is experiencing major reading educational deficiencies in school; Burt Batchelor is experiencing auditory problems and memory problems in school, and is approximately two (2) years behind his peers in some subjects, and Debra Batchelor is ready, willing, and able to help these minor children with these problems." The petition also stated that although John Batchelor loves all of the children, including Melissa and Christy Brothwell, financial constraints limited the request to a transfer of the care and custody of John and Burt only. Following a hearing held on September 22, 1978, the circuit court declined to take physical custody of John and Burt from Alice Batchelor. However, noting that the difficulties the children were having in school were of "paramount importance to this Court," and that Alice testified at the hearing that facilities were available in El Paso to assist the two boys, the court's order, of December 21, 1978, was conditioned upon Alice taking "the necessary steps to provide the professional help that their disabilities require." Accordingly, the matter was set for a status review. Subsequently, on April 23, 1979, Alice Batchelor filed with the court a number of letters from John and Burt's teachers indicating that both children were progressing well in school. One of the letters from Patricia Winter, a speech pathologist at the White school, stated that both John and Burt were currently enrolled in speech therapy classes.

On August 1, 1979, John Batchelor filed the instant petition, again seeking a transfer of child custody. Following a hearing, the petition was denied on August 31, 1979. It is from the judgment of the circuit court that petitioner appeals.

• 1 In In re Marriage of Poston (1979), 77 Ill. App.3d 689, 396 N.E.2d 576, this court stated the applicable standard of review with regard to modification of child custody judgments:

"It has long been an established general rule that custody matters are within the discretion of the trial court because it is in the best position to hear and evaluate the evidence. We have stated previously that, given this discretion, a judgment of the trial court in custody matters will not be set aside unless it is shown that there was an abuse of discretion. (Caulkins v. Caulkins (1979), 68 Ill. App.3d 284, 288, 385 N.E.2d 1117.) An abuse of discretion is shown when the judgment of the circuit court is found to be palpably erroneous, contrary to the manifest weight of the evidence, or manifestly unjust. (Caulkins v. Caulkins; Savre v. Savre (1978), 61 Ill. App.3d 11, 377 N.E.2d 850; Comiskey v. Comiskey (1977), 48 Ill. App.3d 17, 366 N.E.2d 87; Wells v. Wells (1976), 36 Ill. App.3d 488, 344 N.E.2d 37.)" (77 Ill. App.3d 689, 692, 396 N.E.2d 576, 579-80.)

Further, the discretion given to the trial court in matters of child custody is tempered by the desire for finality in child custody judgments and a presumption in favor of the current custodian. In re Custody of Harne (1979), 77 Ill.2d 414, 396 N.E.2d 499; Hofmann.

The petitioner asserts that the custody involved in the instant case is temporary custody, and as a consequence section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, which sets forth criteria for the modification of a custody judgment, is inapplicable. (Ill. Rev. Stat. 1979, ch. 40, par. 610(b); Doyle v. Doyle (1978), 62 Ill. App.3d 786, 379 N.E.2d 387.) We disagree. The custody judgment of August 31, 1976, which created the arrangement by which Alice Batchelor would have physical custody of all four children during the school year, and John Batchelor actual physical custody during the summer vacation months, is the custody judgment John Batchelor is now seeking to have modified. The order of December 21, 1978, although conditioning Alice Batchelor's continued retention of physical custody during the school year upon her efforts to obtain special help for the boys' learning difficulties, did not alter the basic arrangement created by the 1976 custody judgment. Further, we do not interpret John Batchelor's petition to be a petition for temporary custody governed by sections 602(a) and 603(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 602(a), 603(a)). As he did once before in 1978, the petitioner is seeking modification of the prior 1976 custody judgment which, although awarding joint custody, gave actual physical custody of the four children during the school year to Alice Batchelor. Consequently, section 610(b) of the Illinois Marriage and Dissolution of Marriage Act governs here.

• 2 Section 610(b) of the Act provides:

"(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 ...

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