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In Re Marriage of Mitchell

OPINION FILED DECEMBER 31, 1981.

IN RE MARRIAGE OF KAREN MITCHELL, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND ROBERT MITCHELL, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


APPEAL from the Circuit Court of Du Page County; the Hon. RICHARD LUCAS, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Karen Mitchell appeals from an order denying her petition for permanent custody of David Mitchell and from an order denying her motion for a rehearing. Robert Mitchell cross-appeals from the judgment of dissolution of marriage, from the denial of child support and from the disposition of marital property.

The Wife's Appeal

The wife was granted temporary custody of the son of the parties, David Mitchell, then age 5, in April 1979 following the wife's petition for dissolution of marriage. On June 4, 1980, following a hearing, the trial court granted permanent custody to the husband. He considered the respective employment of both spouses, the wife as an actuary with Daskais & Walls, Inc., the husband as part of management for Wilcox International. The court concluded that David "is going to need a tremendous amount of support and love and assistance"; great demands were being made on the wife professionally; the husband was in a better position to give more time to the child; and placing custody in the father with extensive visitation to the mother was in the child's best interest.

The trial court has a broad discretion in awarding custody, and there is a "strong and compelling" presumption in favor of its decision. (Gren v. Gren (1978), 59 Ill. App.3d 624, 626.) Decisions as to custody rest within the sound discretion of the trial court and will not be disturbed on appeal unless contrary to the manifest weight of the evidence. (In re Custody of Scott (1979), 75 Ill. App.3d 710, 714.) We conclude that the order granting custody to the husband was not against the manifest weight of the evidence.

The evidence was in considerable conflict on this issue. Without going into great detail, we conclude that there was sufficient evidence that, given the stress David was under, the father was better able to provide parental care. The record shows that David had had four different babysitters in the last year and a half. His daily routine while he was in his mother's custody included eating breakfast at the baby sitter's, and spending "at least two hours" at the baby sitter's after school each day where he watched television cartoons. There was testimony that Mrs. Mitchell had not wished to reduce her work hours and that they were long and not always flexible; that she worked an average one weekend day a month and had gone on numerous out of town trips.

Mr. Mitchell, although employed full time, had some flexibility in his schedule and had taken time off in November and December of 1978 to care for David while Mrs. Mitchell was seeing a psychiatrist. Mrs. Mitchell admitted that her husband and David have a "good relationship." In addition, the evidence indicates that David and his father spend their time together in Elmhurst engaging in sports and other beneficial activities which David enjoys; that David had several good friends near the Elmhurst home but none in the Downers Grove neighborhood of his mother; that David told the judge that he got along "pretty good" with his mother and "fine" with his father.

While the judge found that both parents were interested in David's education, including programs for gifted students, the facts which we have mentioned, and to which the court could give credence in spite of the conflicting testimony, provide sufficient basis for the trial court's decision.

The wife also claims that the trial court erred in refusing to hear her motion for a rehearing of the permanent custody order which was entered on June 4, 1980. On May 20, 1981, the wife presented a motion for rehearing under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3). The trial court refused to hold a hearing on the petition, instructing the wife's attorney to file a petition for modification of the decree under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610)). The wife argues that the court erred in denying the motion without a hearing.

• 1, 2 Generally, section 610 of the Marriage and Dissolution of Marriage Act mandates that no motion to modify a custody judgment may be made earlier than two years after its date unless the court believes that the present environment seriously endangers the child's welfare; or that circumstances have changed since the prior judgment making modification in the child's best interest. It is settled that section 610 does not preclude the use of section 68.3 motions to challenge permanent custody decrees on grounds not peculiar to child custody cases. (In re Marriage of Herron (1979), 74 Ill. App.3d 748, 753.) Section 68.3 requires, however, that a motion for rehearing be filed within 30 days after entry of the decree; here, the motion was not filed until nearly a year after the decree. The wife argues that the permanent custody decree does not fall within section 610 or the 30-day requirement of section 68.3 because it was not a "final order" as it determined only one issue of the case while others were unresolved. We cannot agree. It is clear from the record that the custody order entered June 4, 1980, was intended to be permanent. The fact that the order may not have been final for appeal purposes does not alter the fact that it was a conscious modification of the temporary custody arrangement made after a testimonial hearing. Under such circumstances it could only be altered upon a showing made in accordance with the terms of section 610 of the Marriage and Dissolution of Marriage Act. Carroll v. Carroll (1978), 64 Ill. App.3d 925, 930.

The Husband's Cross-Appeal

A. The husband first contends that the grounds of extraordinary and repeated mental cruelty as grounds for the dissolution of the marriage were not proved; and that the wife failed to show lack of provocation for the alleged incidents of mental cruelty.

• 3 A trial court's finding of sufficient evidence of mental cruelty is presumed to be correct, and the court's decision will not be set aside unless against the manifest weight of the evidence. Hayes v. Hayes (1969), 117 Ill. App.2d 211.

• 4 Mr. Mitchell's conduct, particularly in the two months after the separation, appears to go well beyond mere sporadic acts tending to humiliate or embarrass Mrs. Mitchell. (See Gregory v. Gregory (1974), 24 Ill. App.3d 436, 441.) There was evidence of repeated phone calls at odd hours of the night, a threat to kill himself, and the deliberate failure to take his medication, to the point where he was "dying of natural causes." This was sufficient to constitute conduct "calculated or obviously of a nature to torture, discommode, or render [Mrs. Mitchell's] life unendurable or miserable * * *." (24 Ill. App.3d 436, 441.) Moreover, the trial court also found that Mr. Mitchell had, at earlier times in the marriage, accused his wife of infidelity, thrown a telephone at her, kicked a hole in the front door, with Mrs. Mitchell and David present, during a fit of anger, ...


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