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In Re Marriage of Gunter

OPINION FILED MARCH 6, 1981.

IN RE MARRIAGE OF GLORIA J. GUNTER, PETITIONER-APPELLANT, AND BOBBY G. GUNTER, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Petitioner, Gloria Gunter, appeals from an order of the circuit court modifying a judgment for dissolution of marriage to award respondent, Bobby Gunter, permanent custody of the parties' two minor children. On appeal, she raises the following issues: (1) that the trial court's decision to modify custody is contrary to the manifest weight of the evidence; and (2) that the trial court erred in permitting examination of petitioner's current spouse under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60).

On January 2, 1979, a judgment for dissolution of marriage was entered dissolving the marriage of petitioner and respondent and awarding custody of their daughters Sylvia, 9 years old, and Sherry, 7 years old, to petitioner.

Respondent filed a petition on June 5, 1979, alleging that petitioner had entered into an adulterous relationship with one Edward Peters and had removed the parties' children from the jurisdiction. He requested both a rule to show cause why his former wife should not be held in contempt and a transfer of the children's custody to him. After a hearing, the trial court awarded temporary custody to respondent.

Subsequently, on December 13, 1979, a hearing was held on the issue of permanent custody. On January 3, 1980, the trial court entered an order as a result of this hearing transferring permanent custody of the children to respondent. On February 19, 1980, the order was modified to include specific findings of fact with respect to the custody determination. Those findings were as follows: (1) there was reason to believe that the children's present environment (in the custody of petitioner and Peters) seriously endangered their physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by advantages to the children; (2) petitioner had entered into a bigamous marriage with Peters and continued to reside with him after discovering he was still married to another person; (3) petitioner's marriage to Peters constituted a change in circumstances requiring a modification of the custody arrangement for the children's best interest; and (4) Peters has certain flaws in his personality which could cause serious harm to the children. Petitioner appeals.

In order to determine the propriety of these findings, it is necessary to review the pertinent evidence adduced at the custody hearing.

On March 17, 1979, about two months after the dissolution of the marriage between petitioner and respondent, petitioner married Peters. One week later, on March 24, 1979, petitioner and the minor children moved, without leave of court, from the former marital home in Berwyn, Illinois, to Peters' residence in Griffith, Indiana. When she and Peters returned to the Berwyn home a few days later to gather some personal belongings, they discovered that the locks on the house had been changed. They gained entrance to the house through a garage door. Shortly thereafter, respondent appeared at the scene. He struck Peters, kicked him in the ribs, and slapped petitioner. As a result, respondent was arrested, pleaded guilty to the offense of battery, and was convicted and fined.

Petitioner discovered in April of 1979 that her new spouse, Peters, was still married to his fourth wife. Nevertheless, she and her two daughters continued living with him and his daughter from a previous marriage in his Indiana home. The court transferred temporary custody of the two children to respondent after the June 5, 1979, hearing. During the time that the children lived in Indiana, respondent was denied visitation rights because of petitioner's fears of an altercation between respondent and Peters.

On weekdays, petitioner and Peters worked outside the home and did not usually return until about 5:30 p.m. As a result, the children were required to attend a day-care center after school until they were picked up after work. The children prospered while in school in Indiana and, according to petitioner, interacted well with Peters while at home. Peters' home was a rather large three bedroom apartment which included a living room, dining room, kitchen, family room and two-car garage.

Peters had met petitioner at his place of employment. He occupied a position as a territorial sales manager and was considered by his employer as an excellent, well-adjusted employee. Others viewed Peters in a less favorable light. One co-employee, Lenore Rath, testified that Peters, upon returning from a trip to the Bahamas in the summer of 1975, bragged about the "wild sex parties" that had occurred and brought back pictures showing himself with a naked girl. Peters also offered to supply pornographic films for an office party. On one occasion, Rath visited Peters in his home in February of 1978 when he was married to Diane Anderson, his fourth wife. While there she noticed that he treated his daughter from another marriage, Ann, with indifference. On another occasion, Rath attended a New Year's Eve party at Peters' home. He told Rath that he only married Diane for her money and "to take care of Annie." He also stated, "I've got somebody else who's going to have money, too."

Diane Anderson and her 17-year-old daughter, Susan, also had unfavorable opinions with respect to Peters' character. While living with them he consumed at least six beers on a daily basis and frequently used profane language in their presence. One September evening in 1977, Peters and Susan entered into a disagreement concerning the use of the car. He approached her brandishing a knife and demanded the car keys. Then, he grabbed her and shook the keys out of her hands. On another occasion, Susan overheard a phone conversation between Peters and another woman. After learning that Susan related what she had heard to her mother, Peters ordered her to leave the house. Accusing Susan of spreading falsehoods about his imaginary "affair" with this other woman, he told her what she "[Susan] needed was a good f____." Susan was forced to eventually move out and reside with her father.

According to his own testimony, Peters, 35 years old, had been married a total of five times and had committed bigamy twice. He admitted deceiving petitioner into believing that he was divorced from his fourth wife when he married her in March of 1979, but added that he and petitioner were remarried in August of 1979 following the divorce of his former spouse. Peters also admitted that he drove his automobile with the knowledge that his license was suspended. As to the incident with Susan Anderson concerning the car keys, he denied striking or threatening her in any fashion. His relationship with his daughter, Ann, was allegedly a good one, and she fared well with petitioner's daughters when they lived together.

From the time that temporary custody was transferred to respondent until the present, respondent and the children have resided with his parents and sister in a three-bedroom home in Countryside, Illinois. While respondent works during the day, the children attend school, and until he returns home in the late afternoon, his mother is entrusted with their care. In the evenings, they all share a family supper. Respondent then supervises the children's homework duties. The two children share one bedroom, the grandparents occupy one bedroom, and their daughter has the use of the third. Respondent sleeps in a day-bed in the living room. His daughters' extracurricular activities include going to movies, participating in church functions and Girl Scouts, and attending piano lessons. The children have a healthy relationship with their father and have expressed a preference to continue living with him. Respondent does not drink alcoholic beverages.

Petitioner contends that the trial court's findings do not support its decision to transfer permanent custody from petitioner to respondent and are ...


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