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In Re Marriage of Friedman



APPEAL from the Circuit Court of Cook County; the Hon. BERNARD B. WOLFE, Judge, presiding.


Respondent Carolyn Friedman appeals from a judgment of the circuit court of Cook County modifying the custody provision of a judgment of dissolution of marriage so as to change the residence of her son, Jonathan, from her home to that of his father, petitioner Gary Friedman. The sole issue on appeal is whether the judgment of the trial court was contrary to the manifest weight of the evidence.

We affirm.

The parties were married in February 1965. They had two children: Gregory, born May 28, 1967, and Jonathan, born August 5, 1970. On February 14, 1978, the parties obtained a judgment of dissolution of marriage from the circuit court of Du Page County. Incorporated in the judgment was a marital settlement agreement which provided in part that the parties would share joint custody of the children but they would reside with Carolyn until it was in the children's best interest that they reside elsewhere. On April 30, 1979, an agreed order was entered in the circuit court of Du Page County providing that Greg was to reside with Gary. This action was instituted on July 29, 1980, when Gary filed a petition to modify the judgment of dissolution of marriage so as to allow Jonathan to reside with him.

At the hearing on the petition the following pertinent evidence was introduced. Gary, a partner in a Chicago law firm, testified that he was remarried in February 1980. He lived in a three-bedroom condominium on Lake Shore Drive in Chicago with his wife, Johnna, her young daughter, and Greg. Jonathan resided with his mother, Carolyn, in Northbrook.

In February 1979, Gary returned to his office and found Greg there. Greg told him Carolyn had dropped him off and he was to live with Gary. The next day, according to Gary, Carolyn told him that Greg was his problem now, that she could not and would not deal with him. She had not previously told Gary she was bringing Greg over or that he was to live with Gary on a permanent basis. Subsequently Gary learned from a psychologist at Greg's school that she had had discussions with Carolyn over several months concerning Greg's deteriorating attitude, behavior, and scholastic performance. The psychologist had designed a special academic program for Greg, but Carolyn did not agree with it.

Gary testified that during this period Greg had been failing all his subjects, was 20 pounds heavier, and was not involved in any extracurricular activities at school. He was generally sullen and withdrawn. According to Gary, at the time of trial Greg had lost the extra weight, was engaged in extracurricular activities, and had become confident, articulate, and outgoing. There was no material dispute at trial concerning Greg's improvement after moving in with Gary. Indeed Carolyn's attorney conceded to the trial court that:

"There is no dispute. All of the psychiatric reports indicate Greg was a troubled child, no ifs or buts about it. Nobody disputes that and nobody disputes he has done better living with his father."

In September 1979 Greg was enrolled at the Anshe Emet Hebrew Day School. Gary testified that Jonathan would also attend this school if he obtained custody of him. The teacher-student ratio at Anshe Emet was 12 to 1, with a support staff which included a child psychiatrist, a psychologist, and a learning disability teacher. Several boys at the summer camp attended by Jonathan were his age and were enrolled at the school in his grade so that he would have several friends there were he to enroll. Included in the school's regular curriculum were Hebrew and historical and cultural matters related to Jewish culture. Gary testified that it was important to him that Jonathan and Greg become familiar with the traditions of Judaism. Johnna's daughter was also taking this course.

Gary testified that Jonathan had been staying with him two to four weekends a month, all summer in 1978 and 1979, five to six weeks in the summer of 1980, and during Christmas, Thanksgiving and Easter holidays, except for last Easter. During the summers Jonathan attended summer camp (eight weeks in 1978 and 1979, four weeks in 1980). While living with Carolyn Gary customarily had not gotten home from work until 7 or 8 p.m. and he worked at the office two or three Saturdays a month. However he had subsequently changed his habits so that he was getting home shortly after 5 p.m. and worked only about one in five weekends. During the summer he would take off one weekday to be with his sons.

Johnna Friedman testified that she had majored in elementary education at the University of Arizona and had taught for six years. She was married in 1964 and divorced in 1975. Her only child from that marriage would be 10 in October 1980. According to Johnna her daughter and Gary's two sons got along well. She had noted that Greg had improved since he came to live with them. She had worked with him on doing his homework properly. Johnna stated she would be happy to have Jonathan live with them; she already considered him a part of the family. She also expressed a willingness to participate in therapy for him.

The trial judge conducted in camera interviews with Jonathan and Greg. Both boys indicated they got along well with each other. Jonathan told the judge that he wished to live with his mother.

Gary also presented the testimony of two expert witnesses, Dr. Marshall Falk and Dr. Jack Arbit. Dr. Falk testified he was a medical doctor specializing in psychiatry. He served as a professor of psychiatry at the Chicago Medical School and had written 18 articles in the field. In the past five years he had been appointed about 20 times to act as a consultant or expert witness on behalf of the circuit court of Cook County. In this instance he was hired by Gary to evaluate Jonathan.

In a period from April 19, 1980, to July 12, 1980, Falk had nine half-hour sessions with Jonathan. He saw him alone because he believed the presence of an adult, particularly a parent, would influence Jonathan's attitudes. The sessions were conducted over an extended period because Falk wished to see whether Jonathan's agitation and depression were related to the stress of the interviews or instead constituted a chronic situation.

Falk first elicted from Jonathan a history of his family situation. Falk observed that in relating this the only time Jonathan showed enthusiasm or spontaneity was when he described his father and his relationship with him. Jonathan thought that because his brother had gone to live with his father it was his duty to stay with his mother. However, when he discussed his mother he became extremely agitated. He also exhibited this agitation constantly when the litigation was discussed. He was in tears and spoke in an almost inaudible voice, giving the impression that he lacked self-esteem. According to Falk, the significance of Jonathan being enthusiastic when discussing his relationship with his father was that this was something he enjoyed. In contrast, the agitation when discussing his mother was an extension of his fear and guilt over what would happen if he left her.

Toward the beginning of June Falk became concerned about the depth of pathology that Jonathan might have and he referred him to a psychologist, Dr. Arbit, for testing. (Dr. Arbit testified at the hearing, and we discuss that testimony later in this opinion.) Dr. Falk testified that the test results confirmed his own finding, that Jonathan was suffering from severe low esteem and was anxious and depressed because of his feelings of guilt and his current environment. He felt guilty about leaving his mother and felt an obligation to stay because she would be lonely when he left. Falk also believed that because of Jonathan's relationship with his grandmother (who Falk had determined from interviewing Jonathan was primarily caring for him) and his mother he did not have a male role model with whom he could come in contact on a daily basis. As a result he confided in his brother, a relationship which Falk found to be unusual between two boys three years apart.

It was Falk's opinion that Jonathan needed a male role model whom he could emulate and look up to. If there was no change in circumstances Jonathan's condition of agitation and depression would worsen as he grew older. However, if he were to reside with his father and older brother Falk believed his condition would improve. He would start to develop a normal relationship with his father and would develop more self-esteem. But because Jonathan's guilt feelings were currently pervasive he would still need psychiatric or psychological help. In summary, Falk believed that Jonathan's physical and mental health would best be served if he were to reside with his father and older brother.

In a written report submitted to the court Falk stated his belief that Jonathan wished to reside with his father. On cross-examination Falk stated that in reaching this conclusion he did not disregard the fact that on three occasions Jonathan expressed a desire to live with his mother. But Falk attributed this stated wish to Jonathan's feelings of guilt about his mother rather than being an expression of his actual wishes. Falk also did not believe it was normal for a nine-year-old boy to be as anxious as Jonathan was in the 2 1/2-month period of his evaluation, even under the circumstances. His low self-esteem, if related to being in a doctor's office, should have abated after a period of time. Falk conceded that to evaluate the total environment, which he would do as a court-appointed psychiatrist, it would be helpful to evaluate all the people involved. (He had also interviewed Greg, but none of the other principals.) However he saw his function as evaluating only Jonathan.

Falk's report was also admitted into evidence and contained substantially the same information and conclusions as were elicited from him at the hearing.

Dr. Jack Arbit, a clinical psychologist, had been engaged in the active practice of psychology for 25 years. He had taught for 23 years at Northwestern University Medical School and for five years at Loyola University Medical School. He served as the director of psychological testing at Northwestern Memorial Hospital and as the director of behavioral neurology at Loyola University Hospital. Arbit had published 20 to 30 articles in the field, primarily concerning diagnostic assessment and evaluation in psychological and neurological diseases.

Arbit's evaluation of Jonathan was predicated on the use of psychological tests. He had examined, evaluated, and tested Jonathan for about half a day on June 12, 1980. He first spoke with Jonathan for 25 to 40 minutes, explaining the procedures and asking some questions about his personal and family life. Then tests were administered by an examiner under Arbit's direction and supervision. The tests and their results were described by Arbit as follows.

The Wexler test, an intelligence test, established that Jonathan possessed superior intellectual ability. However Arbit believed that the score achieved was lower than Jonathan's optimal capability because of memory ...

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