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In Re Marriage of Rizzo

OPINION FILED APRIL 16, 1981.

IN RE MARRIAGE OF PATRICIA RIZZO, PETITIONER-APPELLEE, AND WILLIAM RIZZO, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. RENE GOIER, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Respondent, William Rizzo, appeals from the judgment for dissolution of marriage and from an order denying his motion for a substitution of judges.

In attacking the dissolution judgment, respondent contends the trial court committed reversible error in making certain evidentiary rulings. Respondent also contends the provisions of the dissolution judgment touching upon the award of custody, support, property division, allocation of expenses, and award of attorneys' fees were erroneously entered and are contrary to the manifest weight of the evidence. Additionally, respondent asserts the trial court improperly denied him a substitution of judges in connection with the post-trial proceeding to enforce the judgment.

We affirm the judgment for dissolution of marriage as modified. No ruling is required on the motion for substitution because we believe the issue is moot.

Petitioner, Patricia Rizzo, and respondent, William Rizzo, were married in January 1970. They separated in February 1978. Shortly after the separation, petitioner filed a petition for dissolution of marriage, alleging mental cruelty. Thereafter, respondent, on October 4, 1979, filed his counterpetition for dissolution, alleging mental cruelty.

On March 24, 1980, after a contested trial, and based on petitioner's proof, a judgment for dissolution of marriage was entered.

Two children were born to the parties, Nina Jean, on September 7, 1974, and Michael Anne, on May 17, 1977. At the time of the entry of the judgment, petitioner was 30 years old and employed as a secretary and respondent was 32 years old and self-employed as a commodities trader.

The dissolution judgment contained a finding that both parties are fit custodial parents. The provisions of the judgment stated that the trial court, in awarding custody of the children to petitioner, had considered all of the evidence presented at trial and all the relevant factors used in determining the best interests of the minor children. (See Ill. Rev. Stat. 1979, ch. 40, par. 602.) The judgment provided for a program of liberal visitation by the respondent with the children. The judgment also set out the obligation of the respondent to pay to petitioner "the sum of six hundred dollars ($600.00) per month, or twenty-seven percent (27%) of [his] net income, whichever sum is greater, as and for the support of * * * the minor children * * *."

Cut-off dates for the support allowance, payment by the parties of medical, dental, and hospital expenses, contribution for the children's educational expenses, the maintenance of certain policies of insurance, the safekeeping of the children's savings accounts, the division and award of household furniture and furnishings, automobiles, and other personal property and effects, and the allocated obligation for the payment of certain debts were likewise set forth, in detail, in the judgment.

The trial court specifically found "that the parties are each gainfully employed and are well able to provide for their own support and maintenance." Additionally, the trial court noted its consideration of the factors contained in section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 504) and found "that based upon the criteria set forth in Section 504 of the Act and the financial circumstances of the parties, the parties are forever barred from making any claims against each other for maintenance and support (past, present, and future)."

The judgment also provided for the division of the marital residence. (The parties were in agreement that the market value of the residence was between $80,000 and $90,000.) The petitioner, with whom the children were to reside, was granted the right to exclusive possession of the home. The terms for continued exclusive possession were set out, with the respondent being ordered to turn over possession on March 31, 1980. Provisions for eventual sale of the residence and division of net proceeds, on the basis of two-thirds to petitioner and one-third to respondent with adjustments for certain credits, were also set forth.

The judgment also provided for the payment by the respondent to the attorneys for petitioner of the sum of $12,736.22 representing 80 percent of petitioner's attorneys' fees, costs, and disbursements. The petitioner was to pay her attorneys the sum of $3184.06 representing the remaining 20 percent. Additionally, respondent, on the same percentage basis, was directed to pay the sum of $4180 to Philip G. Mazzio, the appointed attorney and guardian ad litem for the minor children, and petitioner was to pay Mazzio $1045.

The evidence presented by the parties indicates that within a month after petitioner filed her dissolution action both parties, on March 17, 1978, appeared with counsel before the court and an agreed order was entered by the motion judge granting the petitioner the temporary custody of the children and the exclusive possession of the marital home. Thereafter, and until the end of August 1978, petitioner resided in the marital residence with the children. The respondent lived elsewhere. However, by agreement of the parties, and without an order of court, respondent moved back into the marital home in September 1978; petitioner moved out; and the respondent, in effect, lived in the marital residence with the children as their custodial parent. On a somewhat regular basis, and with respondent's full approval and cooperation, petitioner would visit the children both in the home as well as outside the home.

On November 16, 1978, petitioner filed her petition seeking the return of the children into her custody. Petitioner later contended that the arrangement of her moving out of the marital residence and allowing the respondent to move back in with the children was her means of having the respondent realize how much he depended upon her. She hoped that respondent would then urge her to return so that the family could be reunited. Respondent, on the other hand, suggests that petitioner's conduct evidenced her emotional instability and her recognized inability to care for and supervise the minor children. Contending that the trial on the dissolution petition had been sharply advanced, petitioner asserts that, in view of the setting of an early trial date, no hearing was pursued on her pending petition requesting the return of the children into her physical custody.

The children continued to reside in the marital residence with respondent and, thereafter, pursuant to the dissolution judgment entered by the trial court on March 24, 1980, the respondent, on March 31, vacated the residence and the petitioner resumed living in the marital home with the children in her care and custody. As disclosed in oral argument, petitioner and the children have continued to live together in the marital home since March 31, 1980.

OPINION

I

Initially, respondent asserts the trial court erred in refusing to allow the respondent and certain of his witnesses to testify as to petitioner's inordinate and persistent consumption of intoxicants, petitioner's alleged intoxication in the presence of the minor children and petitioner's alleged propensity to consume alcohol on a regular basis. It is the contention of respondent that in seeking custody of the children, he was improperly prevented from establishing petitioner's alcohol abuse and the fact that on occasion petitioner would indulge in drinking and at the same time consume tranquilizers. Respondent argues that in being thwarted in the presentation of that evidence, the trial court frustrated his right to a meaningful hearing that would have resulted in the minor children being awarded into his custody, that being in their best interests.

We agree with the proposition urged by respondent that it would be error for the trial court to exclude evidence of petitioner's alleged alcohol and drug abuse, particularly with regard to the impact such activity would have upon the children.

• 1, 2 There is no argument that the extent of involvement of a custodial parent with alcohol and drugs and that parent's resulting conduct and physical condition are relevant avenues of inquiry to the issue of custody — but only if the custodial parent's consumption of alcohol and drugs can be shown to affect that parent's mental or physical health and that parent's relationship with the children. (See Ill. Rev. Stat. 1979, ch. 40, par. 602.) The degree of alleged alcohol or drug abuse is indeed a matter of serious consideration in resolving the issue of custody. We also agree with the cases cited by respondent that a lay witness may express an opinion based upon experience and observation as to whether a person is intoxicated. (Doria v. Costello (1974), 22 Ill. App.3d 505, 318 N.E.2d 40; Suppe v. Sako (1941), 311 Ill. App. 459, 36 N.E.2d 603.) Our review of the extensive record, however, compels us to find that the respondent's contention is without merit.

Respondent claims the trial court committed reversible error in improperly excluding evidence of custodial dereliction on the part of the petitioner. However, the record of more than 1500 pages of testimony, pleadings, memoranda, and exhibits readily discloses that there was little evidence, on any point made by either side in connection with petitioner's alleged alcohol and drug abuse, that was not admitted, examined, considered, analyzed, emphasized, and carefully dissected by the parties' counsel and the court.

Our review of the record discloses that, one way or another, and sometimes to the chagrin of the trial judge, and despite his rulings, counsel on both sides presented all available evidence on each particular issue and especially on the issue of petitioner's alleged alcohol and drug abuse and its alleged effect on the children.

It would needlessly burden this opinion to indicate where, within the record, can be found the extensive evidence in connection with the claim that petitioner's alleged alcohol and drug abuse had a harmful effect on the children. Suffice it to say that a review of the testimony and the evidence presented on this issue, which could have considerable importance in determining who would have custody of the two young girls, provoked each party to present to the trial judge every bit of available evidence on each contested point, and there was little that remained uncontested. We also note that, unfortunately, the degree of acrimony, bitterness and hostility evidenced throughout the trial was not restricted to the issue of alleged alcohol or drug abuse on the part of petitioner. The record is replete with accusations by each of the parties of serious misconduct by the other and the alleged consequent adverse effect of such alleged conduct on the children. To detail the opprobrious charges made by the parties against each other and to point out the fact that all of the accusations lacked any significant evidentiary support would be of little value and would do nothing but further harm the innocent children caught within the throes of this parental conflict. At most, the record discloses that both petitioner and respondent lacked a certain degree of innocence. Fortunately, and despite the vicissitudes that engulfed the minors, the record clearly evidences the children's excellent mental and physical health, which incongruously was, to a substantial degree, the product of the love, affection, concern, and care bestowed upon them by the parties.

Again, our review of the record indicates that the respondent's contention that he was improperly denied the right to present evidence of petitioner's alleged alcohol and drug abuse and the alleged adverse effect therefrom upon the children finds no support in the record. There is no merit in the respondent's claim. ...


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