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In Re Marriage of Neeld

OPINION FILED APRIL 28, 1981.

IN RE MARRIAGE OF JOHN BRUCE NEELD, JR., PETITIONER-APPELLEE, AND MARGARET ELISE MOSS NEELD, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Franklin County; the Hon. DON A. FOSTER, Judge, presiding.

MR. JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Dr. John Bruce Neeld, Jr. (John), and Dr. Margaret Elise Moss Neeld (Elise), were divorced in Georgia in 1972. Pursuant to an agreement, the decree granted custody of their only child, three-year-old David, to Elise, with appropriate visitation rights for John. In 1978, John instituted this action in the Circuit Court of Franklin County, the home of Elise and David, to modify that decree. In an order entered on June 18, 1980, the trial court granted John permanent custody of David, and Elise appeals from that order. She argues (1) that the order was not sufficiently specific to satisfy section 610(b) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)), and (2) that the order was contrary to the evidence introduced at trial.

• 1 A trial court may 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." The changed circumstances alleged by John have to do with Elise's abuse of alcohol and drugs. A review of these incidents of purported alcohol and drug abuse is necessary to resolve this case.

Following the divorce in 1972, Elise and David lived in Memphis, Tennessee, where she completed her post-graduate medical training. They moved to St. Louis, Missouri, in July 1974. Several of the occurrences discussed at trial took place during their stay in St. Louis.

Two fires took place in the Elise Neeld home during this period. On New Year's Eve, 1975, Elise fell asleep on a couch in her living room after having some alcohol earlier in the evening. David was asleep upstairs. Elise awoke to discover that the couch was on fire, probably due to the explosion of a butane lighter which she had left near the couch. While neighbors called the fire department, David left the apartment and Elise attempted to extinguish the burning couch. She suffered minor burns and David was unhurt.

A later fire was accidentally started by David, who was playing with matches in the basement. Elise was upstairs watching a football game that Sunday morning, and had not been drinking that day. Elise and David left the apartment safely and neither was injured in this fire.

On January 31, 1976, Elise was charged with driving while impaired. David was riding in the back seat of the car when Elise's car was stopped by police. Elise had a blood alcohol level of .19%. (.10% is the maximum legal limit in Missouri), and she admitted that she had in fact been drinking at a friend's home before she attempted to drive home. The officer who stopped the car transported Elise and David to their apartment. As an incident of this charge, Elise was directed to attend a class referred to as the "alcohol related traffic offense program," which she completed.

In October of the same year, Elise drove to a service station with David and several bags of groceries in the car. The attendant noticed that Elise was not fully coherent, and he called the police. The officer would not allow Elise to drive, so he brought Elise, David, and their groceries home, and told her to retrieve her car the next day. Elise was not cited as a result of this incident.

During her stay in St. Louis, Elise was acquainted with Martha Field, with whom she worked at the St. Louis County Hospital. In a deposition, admitted into evidence, Ms. Field noted that there had been other occasions when she had been concerned about Elise's ability to drive home safely with David. She also recalled that Elise occasionally "appeared somewhat erratic" at work, though this may have been due to lack of sleep.

According to Ms. Field, Elise would "frequently" call her at home during the evenings, and the women would chat. Often, Elise's speech would become slurred and her conversation would become rambling and incoherent. Ms. Field would, if she had something else to do, hand the telephone to one of her children, and when she would return several minutes later, Elise's conversation would have continued as though Ms. Field had not left the phone.

As confirmed by both women, Elise wrote several valium prescriptions for Ms. Field, who requested them. Elise stated that she would write the prescriptions for twice the amount requested, and when Ms. Field had them filled, they would divide the valium. Elise stated that she preferred to have Ms. Field obtain the valium for her in order to obtain the privacy which would not have accompanied a prescription filled in her own name at St. Louis County Hospital.

Ms. Field stated that Elise was a "heavy" drinker when she knew her in St. Louis. Elise admitted that she drank regularly, but said that she drank to excess only infrequently. She did, however, concede that on occasion, she fell asleep in her living room while David was watching television or doing his homework. She did not wake up, sometimes until 3 or 4 o'clock the next morning, to find that David had either put himself to bed or that he had fallen asleep with the television on. Elise did drink before most of these occurrences, but she said that she probably fell asleep because she was exhausted after a day at work.

Elise left St. Louis in the summer of 1978 to occupy a vacant position in radiology at the Franklin County Hospital in Benton, Illinois. To facilitate the move, David stayed with John and his second wife, Gail, for a longer period than that specified in the custody agreement. Elise made arrangements for the movers to load her belongings into a van on June 23, 1978. Due to rain, the movers ran far behind schedule and for several hours could accomplish nothing. While they remained outside in their van, Elise drank several vodka drinks. She also took valium that day.

When the movers resumed work in the midafternoon, they noticed that Elise was having difficulty walking and that she was somewhat incoherent. They called for medical assistance, and an ambulance was dispatched to transport her to the Missouri Baptist Hospital. Emergency room personnel diagnosed her as the victim of an "overdose," though it is uncertain whether they meant drugs or alcohol. Elise signed herself out of the ...


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