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In Re Custody of Sexton

OPINION FILED MARCH 18, 1981.

IN RE CUSTODY OF CHARLES SEXTON (DONNIE E. SEXTON, APPELLANT,

v.

JANICE S. SEXTON, APPELLEE).



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Warren County, the Hon. Stephen G. Evans, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

This case involves the validity of a child-custody modification under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610). At the time of plaintiff's and defendant's divorce, custody of their son was awarded to defendant, Janice S. Sexton. After a hearing on plaintiff Donnie E. Sexton's subsequent petition for modification of the custody decree, the circuit court of Warren County found in part that "[t]he minor child's present environment endangers seriously his mental, moral and emotional health and the harm likely to be caused by a change in environment is outweighed by its advantages to the minor child." Accordingly, the divorce decree was modified and custody of the child was awarded to the plaintiff.

Defendant appealed the decision of the trial court, contending that the decision was against the manifest weight of the evidence, but a divided appellate court found (82 Ill. App.3d 482), sua sponte, that the trial court's decision was void because plaintiff had failed to file affidavits as required by section 610(a) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(a)). We granted leave to appeal. We reverse.

The parties were divorced on August 10, 1976. Custody of their minor son was awarded to the defendant, Janice S. Sexton. On December 16, 1976, defendant's motion (agreed upon by both parties) to modify the visitation requirements was granted. (The motion's catalyst was a dispute, resulting in the filing of disorderly conduct charges against both parties, which arose on one occasion when plaintiff exercised his visitation privileges.)

On April 25, 1977, plaintiff petitioned to modify the decree. Alleging in a verified complaint that defendant was not a fit and proper person to care for the child, plaintiff prayed that the care, custody, and control of the child be awarded to him, with visitation rights granted to defendant. On that same day, a guardian ad litem was appointed for the child by the court. Defendant's motion for a continuance was granted over plaintiff's objection. Defendant petitioned for a rule to show cause on December 19, 1977. The court found, after a hearing on December 28, 1977, that plaintiff had not complied with the divorce decree, in that he had temporarily retained custody of the child against defendant's wishes, but it did not find plaintiff in contempt of court. At the same time, the guardian ad litem's motion to appoint the Warren County juvenile probation office to make an investigation of the parties was granted.

Defendant's answer and affirmative response to the petition to modify the decree was filed on March 27, 1978. On April 25, 1978, a hearing was held. After an objection was sustained as to evidence regarding occurrences happening after the date of plaintiff's petition, plaintiff moved for a continuance, and leave was granted for him to file an amended petition. The amended petition, filed on May 9, 1978, and verified by the plaintiff, stated in pertinent part:

"3. The present environment for Charles [the minor child] endangers seriously his physical, mental, moral and emotional health such that it is in his best interests that a change of custody to Donnie be made based on the following:

a. On October 22, 1976, Janice took Charles with her to the First Street Tap, a tavern, where they stayed for several hours while she consumed alcoholic beverages.

b. On October 22, 1976, Charles had fallen and received several stitches and despite his injury and contrary to his well-being Janice took Charles to the First Street Tap as alleged in Paragraph 3(a).

c. That on several occasions Janice has been late in dropping Charles off for visitation or picking him up for visitation, as much as one day late.

d. In the summer of 1977, Janice Sexton took Charles to C.J.'s Pub, a tavern, in Monmouth, Illinois, where she stayed for over an hour and consumed alcoholic beverages.

e. On October 27, 1977, Janice brought Charles to Donnie in a state of health which necessitated that Donnie take Charles to Community Memorial Hospital in the early morning hours of October 28, 1977, where Charles was hospitalized with pneumonia for six days.

f. While Charles was in the hospital as set out in Paragraph 3(e) Janice came to visit Charles for no more than 5 minutes per day with the exception of Sunday when she ...


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