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In Re Marriage of Padiak



APPEAL from the Circuit Court of Kane County; the Hon. ERNEST W. AKEMANN, Judge, presiding.


This appeal arises from a judgment modifying the custody of Gwendolyn Padiak, who was seven years old at the time of the hearing, from her mother, Diane Marie Padiak, a/k/a Diane Marie Pope (Diane), to her father, Joseph Padiak (Joseph). Upon their divorce, Diane was awarded custody of the child in 1975. In 1978, Diane filed a petition requesting permission to remove Gwendolyn from the State. (Ill. Rev. Stat. 1979, ch. 40, par. 609.) Joseph then filed a counterpetition seeking a modification of custody under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610). Subsequently, the petition to remove the child from the State was withdrawn and the hearing proceeded on Joseph's petition to modify custody.

Diane Pope appeals from the court's order modifying custody and alleges that the trial court erred (1) in changing custody of the child without proof of any actual, tangible harm in making its determination that the child's present environment endangered seriously her physical, moral, or emotional health; (2) in refusing to consider the child's preference as to her custodian or to interview the child; (3) in taking judicial notice, on its own, of a record in another case and using that record in formulating its decision in the case at bar; and (4) in making findings not supported by the evidence and drawing unwarranted inferences from certain evidence.

Diane Pope, the first witness at the hearing, was called under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) and testified as follows. She presently resides in Batavia, Illinois, with Gwendolyn Padiak and Donald Pope III. Since her divorce from petitioner, she was subsequently remarried to Donald Pope, Jr., in 1977, but this marriage was also terminated by divorce. Custody of Donald Pope III, the child of Diane's marriage to Donald Pope, Jr., was awarded to Diane at the time of that divorce.

Diane testified to living at a number of different residences since her divorce from Joseph Padiak. At one time, she had lived in an apartment complex in Elgin, Illinois, although she could not recall the exact address. On two occasions while she lived in Elgin, men had broken into her apartment and attempted to rape her. On a third occasion, a man attempted to rape her while she was sitting in the front yard of her apartment building. Diane indicated that she did not report any of these incidents to the police.

Diane also testified that while she was living with her former husband, Donald Pope, Jr., she had had arguments with him. On one such occasion, a neighbor became upset and called the police. Diane indicated that Pope was arrested and jailed on three separate occasions for driving while under the influence of alcohol. On one occasion, he was incarcerated for a period of seven days. Diane also stated that, at one time, both she and Pope had possessed guns.

Diane then testified that a man named Dan DeHaeseleer lives directly opposite of her present apartment. DeHaeseleer had given her $150 on one occasion and $130 on another. She had been seeing DeHaeseleer socially for about eight months but the relationship had "cooled" recently. Diane related that one evening, after she and DeHaeseleer had returned from a Halloween party, she had been raped by another man who lived next door to her. She notified the police but did not make a written report because "I didn't want to endanger my family over convicting somebody."

Diane later testified that her present source of income is welfare and child-support payments from Joseph Padiak. She also admitted to her use of marijuana "a couple of times a month."

She then related an incident which occurred during the time that she was living with Donald Pope, Jr. She stated that Gwendolyn had approached Mr. Pope and attempted to unzip his pants. She testified that she notified Joseph Padiak of this incident the same day. Diane stated that Gwendolyn had attempted the same thing with other male visitors.

Jim Forrester, who has known Joseph Padiak and his wife Mary Padiak "for the past three or four years" then testified that he had been on a vacation with Joseph, Mary, and Gwendolyn Padiak. He stated that Joseph and Gwendolyn had a "[l]oving, father-daughter relationship." Forrester described Gwendolyn and Mary's relationship as follows: "Its a friendly relationship. Yet its more of a motherly relationship, that what Mary says goes and Gwen needs this." On cross-examination, Forrester testified that from his observation of Gwendolyn, she appeared normal, healthy, and well-adjusted.

Joseph Padiak's present wife, Mary Padiak, testified that she and Joseph have been married since May 20, 1978, and they have one child, Justin Joseph, who was born on June 18, 1980. She characterized her relationship with Gwendolyn as "excellent" and described many of the activities that she engages in with Gwendolyn and Joseph.

Joseph Padiak then testified on direct examination. He is employed by Pools Unlimited as a service manager. He had visited Diane Pope at her apartment in Elgin and described it as a "dirty," "low-income" neighborhood, and he felt that it was not a proper place for Gwendolyn to live.

Joseph also testified to one occasion where he visited Gwendolyn at Diane's apartment at "Cumberland Green." Joseph stated that a gun was lying on a chair in the living room in Gwendolyn's presence while Diane and Donald Pope were on the upper floor of the apartment. He also stated that he felt that Gwendolyn was not always adequately dressed considering the amount of money that Diane Pope was receiving in the form of child-support payments. He testified that he had not heard about Gwendolyn's attempt to unzip Donald Pope's pants from Diane and was upset as a father that he learned of it much later from a third party.

Donna Capocasa, a neighbor of Diane Pope who has known her for eight months, then testified. Capocasa is familiar with Gwendolyn and visits Diane Pope's apartment approximately once a week. She stated that Gwendolyn shares a bedroom with "Donnie," the child from Diane's marriage to Donald Pope, and described the apartment as "clean" and "nice."

Capocasa also testified to a conversation that she had with Gwendolyn. Capocasa stated that Gwendolyn was crying and upset about the possibility of having to move in with her father. Gwendolyn indicated to Capocasa that she did not want to live with her father. The witness further testified that Gwendolyn was a "good girl" and "very mature for her age."

Florence Martin, Diane Pope's mother, testified that Diane had lived with her for a period of five or six months in 1978. Martin stated that on one occasion when Joseph Padiak failed to call and inform Diane that he would be exercising his visitation rights, Diane made other plans for Gwendolyn. Martin testified that when Padiak arrived at her home, he pounded so hard on the door that she called the police. The witness indicated that, on a previous occasion, Joseph Padiak had broken down her front door.

Janis Larsen, Diane Pope's sister, testified that she frequently "baby-sat" for Gwendolyn during a period of 17 months in 1978 and 1979. Larsen stated that on one such occasion Gwendolyn "got up on the couch and she laid on her back and bent her legs and her knees and spread her legs apart and then asked my son David to come over and to blow on her butt * * *."

Larsen then related another incident concerning Joseph Padiak which occurred at a church in St. Charles, Illinois. Larsen had taken Gwendolyn to Sunday school in the morning and, when she returned to pick Gwendolyn up, Joseph Padiak was present. According to Larsen, Joseph "threw himself into a violent and frightening rage" and he was "screaming and yelling so loudly and so incoherently, [she] couldn't ...

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