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In Re Custody of Saloga

OPINION FILED MAY 28, 1981.

IN RE CUSTODY OF APRIL SALOGA ET AL., MINORS. — (WILLIAM SALOGA, PETITIONER-APPELLANT,

v.

VICKIE SALOGA, RESPONDENT APPELLEE.)



APPEAL from the Circuit Court of Kane County; the Hon. PAUL SCHNAKE, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

William Saloga appeals from the judgment of the circuit court of Kane County denying his petition for change of custody of his minor children, April and William, from their mother, Vickie, to himself. It appears appropriate to recite the facts in some detail for their bearing on the issues raised in the custody petition.

William and Vickie were divorced in May of 1978 while they were living in Florida, where William was in the Air Force. The divorce decree gave custody of the children, April, age 8, and William II, age 5, to the mother and provided that William should pay $300 a month support for the children. At the time of the divorce, William was in the process of receiving his discharge from the Air Force. During the waiting period Vickie and the two minor children resided in the marital home. Following William's discharge from the Air Force and the sale of the marital home, Vickie and the children returned to Aurora, Illinois, and lived with her parents. William went into training for a job with American Airlines as a pilot and while he was training in Texas, in February 1979, he was told by Vickie over the telephone that she intended to move to Las Vegas with the two children since she was going to be married to a man who resided there. William told Vickie that he would not pay any more child support money if she removed the children to Las Vegas because he could not visit them. She moved to Las Vegas with the two children in February of 1979 and resided in the home of her friend with the two children. During the period the children were in Las Vegas, from February to July of 1979, Vickie did not receive any child-support money from William.

In July of 1979, William went to Las Vegas and brought the children back to his house in Sugar Grove for a visit. He had developed a relationship with a woman, and she and the children became friends. In August of 1979, William phoned Vickie in Las Vegas to make arrangements to return the children to Las Vegas. William testified that Vickie indicated to him that she did not want the children returned to Las Vegas and that they should continue to live with him in his house in Sugar Grove and that she was going to return soon to Illinois. William's testimony was to the effect that Vickie told him he should take the children indefinitely. Vickie testified she told William in late August of 1979 that he should "keep the children temporarily because I was coming back to Illinois." In September, William gave Vickie money to return to Illinois. She testified she then returned to Illinois but did not immediately take the children back because of financial difficulties due to the fact William had not given her any child-support during the previous six months when she was in Las Vegas. During that period from July of 1979 to the filing of the petition for change of custody in January of 1980, the children continued to reside in William's house in Sugar Grove. The main part of their care, especially while William was absent piloting aircraft, was assumed by his friend or her relatives. Vickie testified that she demanded that the children be returned to her in December of 1979, and thought that William had agreed. Instead of returning the children, in January of 1980, William filed a petition to change his temporary custody of the children to permanent custody on the ground that they had become integrated into his "family" with the consent of Vickie, thus meeting the requirements for change of custody set forth in section 610(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)(2)). At the time the petition was filed, William was not married.

Shortly after she returned to Aurora, Vickie began dating a man she has been acquainted with previously and they became engaged. Her friend also became very friendly with the children when he saw them on their visits with Vickie. While the petition for modification of the custody of the children was filed in January of 1980 and answered by Vickie promptly, it was not heard immediately, and during the pendency of the hearing the motion of William for temporary custody of the children was allowed, with visitation rights to Vickie. The hearing was set for April of 1980. The day before the hearing, Vickie was married.

After hearing testimony and the arguments of counsel, the trial court denied the petition to modify the custody of the children.

In this appeal the petitioner contends:

(1) that the manifest weight of the evidence shows that the "change of circumstances" and the "best interests" requirements for change of custody under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)) were met, therefore the trial court erred in not granting the custody petition on that ground; (2) that the manifest weight of the evidence showed that the children were integrated into the family of the petitioner, William, with the consent of the respondent; (3) that the trial court applied the wrong standard in making a determination under section 610(b)(3) of the Illinois Marriage and Dissolution of Marriage Act with regard to the danger to the children in their present environment and that the manifest weight of the evidence showed that the harm to them from their present environment outweighed the harm likely to result from a change of custody.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)) reads as follows:

"(b) The court shall 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. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:

(1) the custodian agrees to the modification;

(2) the child has been integrated into the family of the petitioner with the consent of the custodian; or

(3) the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him."

Bearing in mind the facts of this case, it does not appear to us that the change of circumstances of the custodian is so drastic as compared with her original circumstances as to support a change of custody on that ground. At the time of the divorce Vickie was living in Florida with her two children in a house about to be sold by reason of the divorce. At the time of the present custody hearing, she was newly married and living with her husband in his home in Geneva. After the hearing, the children returned to her custody and lived with her and continued to do so in her home in Geneva. While she had, during the interim, lived with the children in the home of her friend in Las Vegas under the supposition that he would marry her, we do not consider this interlude as being a change we should consider here since Vickie terminated her relationship with that friend some six to eight months before the petitioner brought his suit to modify the custody judgment. There is no allegation that the respondent is an unfit mother by reason of this interlude, and since the present situation of the respondent appears to compare favorably with that existing at the time she was appointed custodian, we see no significance in the change of circumstances so far as it pertains to the question of custody. In In re Custody of Ehr (1979), 77 Ill. App.3d 540, the mother, who was also the custodian, following the divorce allegedly had promiscuous relations with at least two men in her home; she had allegedly smoked marijuana, and the living quarters where she and the child dwelt were severely crowded. It was also charged that she lived a vagabond life, creating an environment harmful to the child. It was shown by the testimony, however, that the alleged activities harmful to the child had taken place a year or more prior to the custody hearing and that the respondent had in the meantime married and at the time of the custody hearing was living in an adequate home in a stable environment. On appeal, this court denied the petition for change of custody since the child's present environment was not shown to be harmful to it. The court in In re Custody of LaMarca (1979), 78 Ill. App.3d 26, ...


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