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In Re Marriage of Gargus

OPINION FILED MAY 27, 1981.

IN RE MARRIAGE OF CONSTANCE J. GARGUS, PETITIONER-APPELLEE, AND JAMES L. GARGUS, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Respondent, James L. Gargus, appeals from an order of the trial court transferring physical custody of his minor children from him to petitioner, Constance J. Gargus, presently Constance Campbell. On appeal respondent contends that the order modifying the physical custody was against the manifest weight of the evidence; that the findings of the court did not satisfy the requirements of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)); and that the court abused its discretion in ordering respondent to submit to examinations conducted by a psychiatrist and a psychologist employed by petitioner. The facts are as follows.

The parties were married on January 23, 1970. Two children were born to the marriage: Christine, on December 6, 1971, and Robert, on May 19, 1974. Petitioner sought a divorce in 1977, and respondent filed an answer and counter-complaint. On February 15, 1978, a judgment for dissolution of marriage was granted. Pursuant to a settlement agreement incorporated in the judgment, the parties were awarded joint custody of the children. Respondent was granted physical custody, while petitioner was granted liberal rights of visitation. The judgment recited that both parents were fit to have custody but that it was in the children's best interests to be placed in the physical custody of respondent.

On April 6, 1979, based on affidavits filed by petitioner and a psychiatrist, Dr. Helen L. Morrison, the trial court granted petitioner leave to file a petition for a change of child custody. (Ill. Rev. Stat. 1979, ch. 40, par. 610(a).) Alleging that respondent did not provide an emotionally healthy and stable environment and was not fit to have joint custody, petitioner requested full custody of the children. Respondent filed a counterpetition for sole custody. At the hearing on those petitions, the following pertinent evidence was adduced.

Petitioner, 33 years old, married Michael Campbell, 25 years old, in 1979, and resides with him and her mother in her mother's home. She is a secretary and has a flexible work schedule. Petitioner regularly exercises her rights of visitation and works as a "room mother" at the children's school. If she were awarded custody, the children would continue to attend the same school. A friend would baby-sit while she is working. Campbell is self-employed as a remodeling contractor. He participates in visits with the children.

Respondent, 37 years old, was residing with the children in the marital home. As a result of a 1973 industrial accident, he is disabled and receives social security disability payments. Respondent also received a net personal injury award of $100,000, which he invested in a certificate of deposit earning $1,064 in interest per month. Although he is no longer able to work as a pipefitter, he occasionally repairs friends' automobiles. A neighbor babysits for Robert in the morning.

According to both parties, the children are presently doing well scholastically and socially. Christine has been experiencing nightmares and stomach aches, and appears upset over the custody proceedings. Respondent testified that Christine has been receiving treatment from a child psychiatrist for six weeks, and her condition has improved. Robert has allergies.

Initially, upon separation from respondent, petitioner had taken the children with her. When respondent objected, she gave the children to him; she thought he would return them to her. Petitioner stated that she agreed to joint custody because it would allow both parties to participate in raising the children. She further reasoned that respondent would be home during the day while she worked. Petitioner also suggested that she feared harm from respondent. The Cook County Department of Supportive Services had conducted a family investigation and submitted a report to the trial court before the parties entered into the settlement agreement.

Petitioner testified that respondent failed to permit her to exercise visitation privileges on several occasions, although she acknowledged that on one such occasion, she was afforded a make-up visitation day. She also stated that respondent has failed to inform her of events in which the children participate and to consult with her regarding major decisions such as the children's travel plans or health problems. Respondent denied such accusations.

Petitioner detailed incidents which led her to become concerned about respondent retaining custody of the children. Recently, Christine telephoned her at 2:30 a.m. crying that she was unable to locate respondent in the home and that he was not responding to a buzzer installed in the garage. Upon petitioner's instruction, Christine pressed the buzzer again and respondent answered. Respondent testified that the buzzer had corroded and was not operating properly. He has since installed a new intercom system allowing them to hear one another and the children have been instructed in its use.

Another incident involved a written article suggesting that children sometimes adjust better to a parent's death than to custodial fighting. Petitioner testified that, shortly after the dissolution, in the children's presence, respondent handed her the article and suggested that she go somewhere and die. The children became very upset. To reassure them that she is healthy, as well as to check on their well-being, petitioner calls the children every day. Respondent denied making such statement and stated that petitioner and he were alone when he gave her the article.

On another occasion, after waiting five minutes for respondent to pick Christine up at school, petitioner began to drive Christine home. Halfway home, respondent blocked her path with his automobile, and told her that she did not have permission to drive Christine home. Christine began screaming and Robert, seated in respondent's automobile, also cried. Respondent testified that, unable to find Christine, he thought she might have been harmed. He also was angry that petitioner had not advised him earlier that she would be driving Christine home.

Petitioner also recounted an incident in which respondent, when asked to spell "Michael" for a valentine card Robert was making for her husband, spelled the word "Dummy." When Christine pointed out the mistake, Robert was upset that the card had been ruined. Petitioner also testified that respondent denigrated her in the presence of the children.

Petitioner further testified that in 1979, after respondent's return from a trip to Arizona, Christine informed her that respondent was planning to move to Arizona. Christine was upset because she wanted to be able to see both parents. Respondent testified that his plans to move to Arizona for ...


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