APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
J. FLECK, Judge, presiding.
JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Respondent Diane Elizabeth Revels Hill DePland (Diane) appeals from an order of the trial court denying her amended petition for modification of the custody provisions of a judgment for dissolution of marriage. Those provisions had been incorporated into the judgment from a prior separation agreement entered into by Diane and petitioner Kurt Anthony Hill (Kurt). On appeal Diane contends (1) the trial court utilized an improper standard of proof in the hearing on the petition; (2) the court's determination was contrary to the manifest weight of the evidence; and (3) the court erred in barring Diane from introducing evidence of acts occurring prior to the entry of the judgment of dissolution.
The parties were married in December 1971 and had one child, Kurt Anthony Hill Jr. (Kurt Jr.), who was five years of age at the time of the dissolution order, July 25, 1978. The separation agreement incorporated into that order provided that Kurt was to have custody and control of Kurt Jr. for the school year period of September through June each year, and Diane was to have custody and control during the summer months. Each party was to have reasonable visitation periods with the child each weekend during the other party's custodial period.
In September 1980 Kurt apparently initiated certain proceedings (not included in the record on appeal) to enforce these custody provisions. Diane then filed a petition for modification of custody which was subsequently stricken by the court with leave to file an amended petition. On November 21, 1980, Diane filed an amended petition for modification alleging that since the entry of the judgment of dissolution she had become the custodial parent with Kurt's consent. On December 15, 1980, the court granted Kurt's motion to dismiss that amended petition. On December 19 Diane filed a motion seeking visitation with Kurt Jr. during his Christmas vacation and also seeking a "rehearing of the December 15 hearing." The court set a hearing for December 22, 1980, on "respondent's motion seeking visitation." On December 22 an agreed order, signed by Kurt and Diane, was entered. That order set out the terms of Diane's visitation with Kurt Jr. over Christmas. A paragraph of the order stating that Diane was withdrawing her motion for a rehearing was stricken. On January 5, 1981, Diane again filed a motion for a rehearing of the December 15, 1980, hearing. On January 12, 1981, the court entered an order granting Diane a hearing on her amended petition, but only on "the question of the existence or non-existence of `consent' by the custodial father to any possible integration of the minor child into the family of the mother." Following that evidentiary hearing the court filed an order on March 4, 1981 (but entered it nunc pro tunc as of February 23, 1981), denying Diane's petition. Diane then filed her notice of appeal on March 19, 1981.
• 1 In a motion for dismissal filed with this court and taken with the case Kurt contends that the agreed order of December 22, 1980, had the effect of denying Diane's December 19, 1980, motion for rehearing so that her second motion was improper and her notice of appeal of March 19, 1981, was not timely filed, depriving this court of jurisdiction. However we find that the agreed order, from which a waiver of the rehearing request was stricken, did not constitute a ruling on Diane's December 19, 1980, motion. Thus Diane's renewal of that motion on January 5, 1981, still within 30 days of the final order of December 14, 1980, was timely filed. The court granted that motion and following a hearing denied her any relief on March 4, 1981 (or February 23). In any event Diane then properly filed her notice of appeal within 30 days of that order, on March 19, 1981. Accordingly, we deny Kurt's motion for dismissal of the appeal.
At the evidentiary hearing the following pertinent testimony was adduced. Kurt, who was examined as a section 60 witness (Ill. Rev. Stat. 1979, ch. 110, par. 60), and who also testified in his own behalf, admitted that from July 25, 1978, until August 1980 his son did not reside with him for more than three days at a time. According to Kurt, in mid-August 1978 he told Diane that a new job would involve a lot of traveling, and he was considering enlisting the aid of his mother or Diane to care for Kurt Jr. at least for the first semester of his first-grade year. Diane asked if she could do this. Kurt told her she would care for Kurt Jr. three to five days of the week but the child would stay with him the rest of the time. He emphasized that he only wanted her to take care of Kurt Jr.; that when he became stabilized in the Detroit area by January 1979 she would have to send their son there for the rest of the school year. Diane assured him she was not trying to take his son.
That fall Kurt Jr. stayed an average of four days a week with Diane and three days a week with Kurt, who maintained a Chicago apartment with a separate bedroom for Kurt Jr. so he could be with his son. During this time Kurt also had a two-bedroom apartment in Rochester, Michigan. He made inquiries there about schools for Kurt Jr. and found two that he liked.
In mid-November 1978 Kurt telephoned Diane and asked her when school would be out so he could prepare for Kurt Jr.'s January enrollment at a Rochester school. Diane agreed to send this information but never did so. Subsequently Kurt agreed to let his son stay with Diane for Christmas. Diane told Kurt that Kurt Jr. would be excited about his January trip to Michigan. But on January 2, 1979, she called to say that Kurt Jr.'s teacher had advised her that the split school year could be traumatic for him. Kurt confirmed this opinion with Sister Frances Ryan, a child psychologist who had known Kurt Jr. from a prior school. He then agreed to allow the boy to remain with Diane for the balance of the school year. Diane told Kurt he could then have Kurt Jr. for the summer.
On May 11, 1979, Kurt visited Diane and she told him she and her new husband were moving to New Orleans. When Kurt reminded her that their son would be with him all summer and the next year, Diane told him not to worry, that nothing would change. The next day Diane asked if Kurt Jr. could accompany her and her husband on a visit to her mother in Louisiana. Kurt agreed to this.
By the end of June Kurt was again living in Chicago. In early August he phoned Diane and arranged to send money for Kurt Jr.'s travel back to Chicago. On August 22, 1979, he again phoned Diane to ask about travel arrangements and to tell her he would be living with Sonni (Hill) (whom he subsequently married December 1, 1979). Diane said she would not send the child to live with "any white bitch." He tried to calm her, telling her Kurt Jr. would be going to the Latin School, which would be a great opportunity. Diane again refused to send their son, saying she did not want him living with "that Nazi whore." She then hung up the phone.
Three to seven days later Kurt called again but Diane persisted in her refusal. When Kurt called her on September 24, 1979, she informed him that she had enrolled Kurt Jr. in school in Louisiana and refused to return him because taking him out of school would harm him. Diane again refused a telephoned request to return Kurt Jr. on October 2, 1979. In mid-October Kurt called and his son answered. He first refused to talk but then said his mother had told him he could not speak to Kurt. Kurt then spoke to Diane, demanding the return of his son. Diane replied:
"Did you really think I would ever send him back to live with that whore you are with now, that dirty white bitch."
On November 14, 1979, Kurt sent Diane a letter formally asking her to reconsider her actions. Several days later he called her. She still refused to send Kurt Jr. back to Illinois, but finally agreed to allow Kurt to visit his son in Atlanta over Thanksgiving. However she threatened Kurt with kidnapping charges if he "tried anything." During that visit he again tried unsuccessfully by telephone to convince Diane to allow him to keep their son. Kurt testified that one reason he did not simply keep Kurt Jr. at that time was that he was ...