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In Re Marriage of Kennedy



APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.


A judgment dissolving the marriage of petitioner, Patricia A. Kennedy, and respondent, Robert J. Kennedy, was obtained on Patricia's petition in 1978, on the grounds of mental cruelty. An order apportioning the property, determining custody of the children and granting attorney's fees was entered in early 1979. Patricia appeals the second half of the bifurcated judgment. We affirm in part, modify and reverse in part and remand.

Robert and Patricia were married in 1972. At that time, Robert owned four music stores, which retailed records and tapes. Though Robert's mother and father were employed in the operation, Robert was the chief stockholder and president with control over the business.

At first, the couple lived in Patricia's home in Glen Ellyn. Shortly after moving in, Robert learned that the mortgage payments on the house were 6 months in arrears, and he brought the payments up to date with his own savings. Shortly afterward, the couple sold the house and moved to Peoria, buying a new home there with the proceeds from the sale of the Glen Ellyn house along with a $10,000 loan from Patricia's mother, Mrs. Marguerite McNamara.

In July of 1973, Erin and Laurie, twin daughters, were born. Patricia's mother moved in to help her daughter with the housework. She resided with the couple for the rest of the marriage. In August of 1973, the family sold the Peoria house and bought a house in Naperville. Patricia's younger brother, Bryan, also moved into the house.

The live-in relatives apparently caused friction in the marriage. Patricia's mother expressed a belief in the supernatural, complaining that the Naperville house was haunted. According to Robert, Patricia at first went along with her mother's belief, perhaps in an effort to humor her. Later, however, Patricia also manifested a belief in a world of ghosts and the supernatural. The beliefs were carried over to the twins. While on vacation in Jamaica in 1974, Patricia and her mother refused to eat food prepared by the staff at a rented villa, claiming that it was poisoned. Both claimed to hear drums which were inaudible to Robert or other houseguests. During a local fishing festival, guitars and drums were played on a beach adjoining the villa. Patricia and her mother barricaded themselves and the twins in the villa in fear of a native uprising. Despite explanations of the festival by Robert and the houseguests, attempts to calm them were unsuccessful. One houseguest later learned from one of the twins that Patricia's mother kept voodoo dolls named for the houseguests, for Robert and Robert's parents. According to the child, Mrs. McNamara stuck pins in the dolls.

At first, Robert accepted the supernatural beliefs as a joke. He suggested that the strange bangings and muffled footsteps in the Naperville house that Patricia thought came from a ghost were in fact caused by her brother entertaining his girlfriend in the evening. Patricia, the brother and the girlfriend each denied it. Patricia instead pleaded that the Naperville house be sold, saying that her neighbors had been staring in the windows and acting strangely.

Robert refused to move, explaining that he did not have enough money to buy a new home. His business was expanding, and he needed capital to satisfy commitments to open new stores. He complained to Patricia that her brother was freeloading. She testified that her brother contributed to the upkeep of the household by taking the twins to a fast-food chain about once a week. Mrs. McNamara contributed to the household by caring for the children, purchasing the groceries and helping with the housework. Robert testified that he wanted Patricia's mother to move out, fearing that she was a bad influence on the children. He said that at one point Patricia agreed. Mrs. McNamara then insisted that she and Patricia's brother would not move out until Patricia and Robert signed a promissory note for the $10,000 loan. The note was signed on October 1, 1975. However, since none of Mrs. McNamara's other children would allow her to live with them, and since Patricia refused to put her mother in a nursing home, Mrs. McNamara stayed in the house.

In 1975, Robert needed financing to open a new store. The bank required Patricia's personal guaranty on the loan, but she refused to provide it unless her husband agreed to move to a new and larger home. He agreed. She signed the guaranty, and on June 1, 1975, they purchased a home in Inverness, using the proceeds from the sale of their Naperville house.

In September of 1976, Robert's business became overextended. He feared the bank would call in his loans. The entire business was threatened. Robert began to drink to excess, becoming intoxicated nightly. After 2 weeks, he stopped drinking and convinced the bank to refinance the business after a change in business strategy. The stores soon returned to profitability.

The twins were hyperactive children who, according to Patricia, needed close supervision. Their teacher at a Montessori school testified that they had some difficulties and were more aggressive than other children, but progressed when given close attention. With poor muscle control and visual discrimination problems, the twins were slightly immature for their age. Both parents participated in conferences at the school. Patricia explained that some of the twins' difficulties might be caused by their premature birth.

Witnesses for each party testified that the twins received affection from their parents. They appeared to be slightly closer to their mother, who, until the separation, stayed at home with them all day. Patricia kept a neat home, and the twins were always appropriately attired.

In 1977, after experiencing marital problems, the couple consulted a marriage counselor and a priest, but their difficulties continued. Patricia complained that Robert's parents were running their lives. His parents were allowed to visit only on the children's birthday and on Christmas. Robert discharged his mother from the business at Patricia's insistence. Robert complained that Patricia was mixing barbiturates and alcohol, while she complained that he was drinking daily. Witnesses testified that on occasion both Robert and Mrs. McNamara had allowed the twins to sip their drinks.

In April of 1977, the Kennedys bought a half interest in a vacation house in Lake Geneva, Wisconsin. After one visit to the house, Patricia refused to return. Her mother claimed that poltergeists, ghosts who manifest themselves by rapping noises, lived on the second floor. Patricia forced Robert to agree never to allow the twins to spend a night in the house. Instead, she required that they spend the night in a hotel while visting Lake Geneva on vacation.

On November 8, 1977, without warning to Robert, Patricia and her mother moved the twins and all the furniture out of the Inverness home. Robert was left with a single bed. He admitted to drinking to excess that evening.

Patricia bought a home in Palatine. The girls lived with her until the determination of permanent custody in favor of Robert in 1979. Although Mrs. McNamara initially lived with Patricia and the children, her deteriorating health eventually forced her to leave on August 2, 1978. Patricia obtained a job selling cosmetics and was working 20 hours a week at the time of the hearing. On working days, the teenage daughters of a neighbor looked after the children after school until Patricia returned home.

Robert bought a home in Rolling Meadows. In anticipation of obtaining custody, he talked with three potential housekeepers who would work full time to ...

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