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Brandt v. Brandt







APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.


Rehearing denied September 21, 1981.

___ N.E.2d ___ Ronald V. Brandt appeals from orders entered in the circuit court of Cook County denying a transfer to him of the custody of his two minor daughters; granting his former wife, Karla L. Brandt, certain claimed arrearages of support and alimony; and awarding to his former wife costs and attorneys fees.

The primary issues raised in this appeal are: (1) Is there now established in Illinois, through the pronouncement of the supreme court in Jarrett v. Jarrett (1979), 78 Ill.2d 337, 400 N.E.2d 421, cert. denied (1980), ___ U.S. ___, 66 L.Ed.2d 155, 101 S.Ct. 329, a per se rule requiring a change in custody of minor children where the custodial parent cohabits, in the children's presence, with a member of the opposite sex openly and on a continuing conjugal basis? (2) If there is such a per se rule, does it apply even though there is no direct evidence that the custodial parent's life-style affects the children in any adverse way?

We believe that a per se rule has not been established. We believe the present stance of our law requires that the trial court give due consideration to the custodial parent's living arrangement and its effect on the well-being of the children but that this is a factor, among others, to be considered in determining whether a change in custody is warranted.

We affirm the trial court's order denying the father's request of custody of the minor child, Sandra. We reverse the trial court's order denying the father's request of custody of the minor child, Kimberly. We affirm the trial court's orders relating to the father's obligation to pay certain support and alimony allowances and attorneys fees. We remand for the entry of an appropriate visitation order and for such other orders as are required to implement the terms of this opinion.

Background Facts

Ronald and Karla Brandt were married in 1960, separated in 1976, and divorced in 1977. Four children were born to the parties. The eldest child, Tammy, has reached majority, is married, and is not involved in this proceeding. The next eldest child, Ronald, is 16 and has resided with his father and step-mother for over 3 years. The parties agree that custody of Ronald should remain with the father. Sandra, 15, resides with her mother and her mother's married male friend. Kimberly, 14, has resided with her father and step-mother since August 1980. The custody issue concerns Sandra and Kimberly.

Under the terms of the divorce decree entered in an uncontested proceeding in the circuit court of Cook County on September 20, 1977, and pursuant to a court approved marital settlement agreement, Karla was awarded custody of the parties' four children. Ronald was granted liberal visitation. He was directed to pay Karla $800 per month as unallocated alimony and child support allowances. The support and alimony allowances were to be reduced and ultimately terminated upon the happening of certain events as detailed in the decree. The marital residence, located at Hanover Park, was awarded to Karla. Provisions with reference to the maintenance of various types of insurance, the division of personal property, the payment of debts, the responsibility for the children's education expenses and related matters likewise were incorporated in the decree.

Following the emancipation of Tammy, the parties, by written agreement, but without court order, reduced the support and alimony allowances to be paid by Ronald to $700 per month. Although the child Ronald began living with, and was, for all purposes, in the physical custody of his father, no reduction in the unallocated support and alimony allowances was instituted. Ronald continued to pay Karla $700 per month until December 1, 1979, when he, unilaterally and over the objection of Karla, reduced the payment of allowances to $400 per month.

On September 27, 1979, Ronald filed his petition seeking custody of Sandra, then 14 years old and Kimberly then 12. The principal evil complained of was "that Karla L. Brandt harbors within the home, where said minor children reside with respondent, a man to whom she is not married, and from all appearances, respondent is living in an open state of adultery with said man in the presence of said minor children; that said condition will, if allowed to continue, greatly affect the morals and welfare of said children." A further portion of the later expanded petition alleged that the environment in which the children were being raised "is detrimental to the morals and well being of the minor female children * * *." The record fails to disclose the filing by Karla of any answer to Ronald's petition although the proceeding continued on as a contested custody matter. At no stage of the proceedings, including this appeal, has there been a denial by Karla of her living openly and continuously with her married male friend since 1979.

Following an abbreviated hearing before the trial court on September 27, 1979, an order was entered directing that the minor children be brought before the trial court on October 10 for the purpose of the trial court's in camera examination. At the hearing on October 10, Karla testified as to her relationship with her male friend. She explained that she had discussed with her daughters the fact that her friend would come to live with them and that the children were in favor of the arrangement. She asserted, "[T]he kids wanted a man around the house. They know him very well. They love him. He helps them with their work. He takes a great interest in them. I didn't want to marry him for the sole purpose of — I wanted to make sure it would work beforehand, before I got into another situation, because I can't afford to lose anymore, because I just would be out in the cold * * *. I've known him for about three or four years, maybe more than that * * *. Yes, I love him. Yes, we do [share the same bedroom] in my home * * *; [the girls sleep] in their own room. [This has been going on] about a year or less." Karla also testified that neither she nor her friend had regular employment but that on occasion they would attempt to resell certain discarded "flea market" items that they accumulated and refurbished and that sometimes they earned money by cleaning attics and basements.

At the conclusion of the presentation of additional testimony, the trial court conducted an in camera hearing with the minor children. Counsel for the parties were present but no court reporter was in attendance, though one is required by law. (Ill. Rev. Stat. 1979, ch. 40, par. 604(a).) The record fails to disclose the substance of the conversation among the trial court, the children, and counsel other than the trial court's later observing, "[T]he girls seem very well adjusted * * *. [T]hey're lovely children." Thereupon, the trial court entered its order directing that the status quo regarding the children's residency and custody remain in effect and appointing the Cook County Department of Supportive Services to investigate and report to the court as to "the living and school conditions of said children." Further hearing was continued to January 11, 1980.

On January 11, Karla filed her petition seeking enforcement of the obligation of Ronald to pay allowances of $700 per month. She claimed that beginning December 1, 1979, and over her objection, Ronald unilaterally reduced her allowances to $400 per month. Hearing regarding the claimed arrearages and Ronald's request for an adjustment of the amounts to be paid by him as well as the issue of custody was then deferred and ultimately reset for May 12, 1980.

The hearing on May 12 involved the presentation of testimony and evidence regarding the financial issues — the arrearages claimed by Karla and the adjustment of allowances claimed by Ronald. Additionally, the written report of the case worker for the Cook County Department of Supportive Services who accomplished the investigation of the "living and school condition of said children" was presented to the court and copies were made available to counsel for the respective parties. The record discloses a perfunctory stipulation between counsel to excuse the case worker from testifying and to allow the court and counsel to rely on the written investigation report and to admit the document as evidentiary matter on behalf of both parties. No challenge as to the legality of that procedure was asserted. *fn1

Karla was called as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). Her testimony essentially conformed to that presented by her on October 10, 1979. The fact that Karla's male companion was still married and that Karla and he continued to reside and cohabit together in her home in an open relationship was again established. She agreed that were she to remarry, she would not lose any interest in the marital residence awarded to her under the terms of the divorce decree. She acknowledged her intention to continue her relationship, saying: "Yes, I would. I have not hid that fact. And I am not going to hide it from the court. I have no intention of marrying him now. I have not hid that from the court. * * * He has helped me. My plans are to live with him. I don't know what I would do without him, to tell you the truth * * *. If the court rules that I should not live with him, I will tell him to get out. I am not afraid to tell him to leave. I want my children."

Ronald testified as to his financial status and the basis for his requesting an adjustment downward of the allowances for which he is or might be obligated. He related the manner and circumstances of his remarriage on May 12, 1978 (including the fact that he resided with his present wife and her two minor children in her home for about a month prior to the marriage). He also testified as to the good relationship existing between his son and his two stepchildren, the adequate physical facilities available in his home to meet the needs of Sandra and Kimberly were they to reside with him, the close relationship among his and his wife's children, and the desire of his present wife to have his children reside with her and her family members. (At a subsequent hearing Ronald's wife so testified and also described the warm relationship existing between her and the Brandt children.) The hearing was then continued to July 16, 1980. Certain financial documents were to be submitted by Ronald to counsel for Karla, and Ronald was directed to pay her counsel $300 towards attorneys fees.

At the hearing of July 16, Karla, Ronald, and Ronald's present wife testified. Kimberly also testified briefly to a matter not directly related to the custody issue. The details of Karla's home life and that of Ronald and his wife were again presented. The children's apparent friendly feelings toward all of the principals were explored. The very substantial disparity between Ronald's testimony as to his income and resources and what was disclosed by documentary evidence was examined. It was clearly indicated that Ronald's actual income and resources vastly exceeded that to which he had testified.

The final hearing on the issue of custody of Sandra and Kimberly took place on July 23, 1980. The record discloses an unsuccessful attempt by each of the parties to attack the character and personality of the other and to suggest a degree of unfitness for custody going beyond any of the facts already established in the prior hearings. Interpersonal relationships, the childrens' attitudes, peer conduct, educational and religious experiences were the subject of further testimony. No unusual or alarming factors regarding the children's functioning were brought to the attention of the trial court. All of the testimony indicated that the children were in excellent physical and mental health, were doing well in school and were conforming to whatever reasonable demands were made of them.

Kimberly was called to testify by her mother. She told of the close ties with her mother and of being treated well by her. Kimberly expressed no negative feelings towards any members of her immediate family, her mother's friend, or her stepmother or her stepmother's children. She volunteered that she had no friends but could not explain if it was related to the fact that her schoolmates were aware of her mother's friend residing with them.

Sandra also was called to testify. She asserted that she had a very close and positive relationship with her mother. She had no objection to her mother's companion residing with them and she got along well with him. Sandra said she was not close to her father nor did she have positive feelings towards her stepmother and her stepmother's children — she did not want to live with them.

At that point in the hearing counsel agreed to present closing arguments regarding the custody issue and to defer, for a subsequent time, the determination of the financial matters in controversy. Up to this point in the litigation, except for the admitted "living together," no direct or affirmative evidence was presented to support a modification of custody pursuant to section 610(b)(3) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)(3)) which warrants a change where "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."

In closing argument, counsel for Ronald pointed to the relationship of Karla and her male friend and their living together openly within the same home where the children resided. Counsel cited and relied primarily on the case of Jarrett v. Jarrett (1979), 78 Ill.2d 337, 400 N.E.2d 421, cert. denied (1980), ___ U.S. ___, 66 L.Ed.2d 155, 101 S.Ct. 329, to support his contention that Karla's relationship with her male companion coupled with the living arrangements shown by the evidence mandated an immediate change of custody of the minor children from Karla to Ronald.

In closing argument, counsel for Karla urged that Ronald failed to meet the requirements of section 610(b)(3) of the Marriage and Dissolution of Marriage Act and that the evidence presented by Ronald did not warrant a change in custody considering the best interests of the young girls. Additionally, counsel for Karla made reference to the trial court's in camera interview with the children and the children's expressed preference to remain with their mother. Further, counsel called to the trial court's attention the case worker's investigative report, a copy of which, by apparent agreement of the parties, had been given to the trial court. The report contained the investigator's recommendation that the children remain in the custody of their mother. Counsel for Karla also argued that no evidence had been presented to indicate that Karla's conduct in continuing to reside with her male companion caused any emotional, physical or moral harm to the children. Counsel agreed that the key issue presented to the trial court for determination "is whether the open and continuous cohabitation of the custodial parent with a member of the opposite sex required a change of custody."

On July 29, 1980, the trial court's order denying Ronald's petition seeking a change of custody was entered. The children were to continue to live with their mother. Custody of the parties' son, Ronald, was formally transferred of record to Ronald. The matters relating to the financial issues and the award of requested attorneys fees were continued for hearing and determination to September 8, 1980.

The trial court, commenting on its determination of the custody issue observed, "After in camera conversations with the children and talking to all parties, I do not approve of her [Karla's] environment [but] I don't think there will be any future harm because of the moral atmosphere, I think they should live with whom they are most comfortable."

On August 20, 1980, Ronald presented his "Emergency Motion to Modify Order Entered July 29, 1980." The motion claimed that since the entry of the order of July 29, Kimberly both orally and in writing, expressed her strong desire to reside with Ronald; that Kimberly disclosed having great fear of her mother and described her continuing unhappiness in residing in her mother's home; that Kimberly had been fearful and frightened and thus failed to express her true feelings at the earlier in camera interview with the trial court on October 10, 1979. Ronald's motion sought the trial court's reconsideration of its order of July 29 and again asked that custody of Kimberly and Sandra be awarded to him.

The parties, their counsel, and Kimberly appeared before the trial court on August 20. By agreement, both counsel and Kimberly participated in a hearing (later transcribed) in the trial court's chambers. In chambers, Kimberly expressed her sincere and unqualified desire to reside with her father. In general terms, she explained that her fearfulness and nervousness were the reasons why she had not so expressed herself when originally interviewed by the trial court. Kimberly described the breakdown of her previously warm relationship with her mother. She and her mother were engaged in continual bickering and misunderstanding. She urged the trial court to allow her to live with her father and stepmother. The trial court, in a painstaking manner, conducted an indepth questioning of Kimberly, carefully seeking out the motivation for the minor child's change in attitude and the degree of the sincerity of the child's present expressed desire for the requested change.

After statements by respective counsel and comments by the respective parties, the trial court entered its order which, in effect, modified the custody order of July 29. The order provided that custody of Kimberly remain with Karla but that "temporary physical custody" be with Ronald, the foregoing provisions to be subject to review at a later date. The order also directed that "counseling" be provided Kimberly. The order was later expanded by the trial court's order of September 8 which sets forth the "counseling" provision in greater detail. Further hearings were deferred to a later date.

On November 13, 1980, the parties, Kimberly and both counsel again appeared before the trial court. A hearing in chambers with counsel and Kimberly present took place. Again, the trial court carefully questioned the minor as to the minor's activities, relationships, expectations, and her expressed desire regarding the matter of her custody. Kimberly stated she desired to remain with her father although, in the intervening months of her ...

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