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In Re Marriage of Leopando

OPINION FILED MAY 11, 1982.

IN RE MARRIAGE OF FRANCINE LEOPANDO, PETITIONER-APPELLANT, AND OLIVO LEOPANDO, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. ALLEN ROSIN, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

After the trial court had initially awarded temporary custody of a 4-year-old child to his mother, Francine Leopando (Francine), it awarded permanent custody, after a hearing, to the father, Olivo Leopando (Olivo). Francine appeals. The issue we address is whether the trial court abused its discretion in awarding custody to the father.

The parties were married on December 23, 1973. The minor child, Phillipe, was born October 7, 1976. Francine was appointed temporary custodian of Phillipe on September 20, 1979. The parties lived together in the marital home in Lansing, Illinois, with Phillipe, through the hearing.

Francine testified she was a critical-care nurse specialist. She worked two to three weekends per month, during which time she left the house at 2 p.m., and arrived home after midnight. She left Phillipe with a babysitter while she was gone. It would be in Phillipe's best interest for her to have custody of him because she is with him most of the time. He confides in her, she feeds him, clothes him, bathes him, takes him to the physician, to the dentist, to school and to the gym. She and Phillipe take exercise classes together, swim, ice skate, roller skate, play ball, jog and read together. She takes him to his gymnastics class twice per week at the YMCA.

Phillipe has attended a Montessori school since he was 22 months old. At the time of the hearing he was attending five days per week from 9-11:45 a.m. Francine described in detail the procedures followed in the classroom, what Phillipe does there and how she works with him on his homework. She has asked Olivo to come with them to church on Sunday and to participate in functions such as the school picnic, but he has refused. She tries to put the child to bed by 8:30 p.m., but this was difficult since Olivo did not come home until approximately the child's bedtime, or later, with a new toy each night. Olivo also gave Phillipe a new toy every morning, which made it difficult for her to get him to school.

Francine cooks everyday, makes sure Phillipe eats a balanced diet, prepares her own foods rather than using canned foods and gives candy only occasionally. She and Phillipe have already eaten by the time Olivo gets home. She followed certain safety precautions where Phillipe was concerned; however, Olivo left medication around the house, allowed Phillipe to stand in the car without his seat belt, to ride in the back of a pick-up truck unattended and to go outside in the winter with his coat open and no shoes on. Olivo gave Phillipe dangerous toys, such as a BB gun, a sling shot, a fencing sword and police handcuffs. Olivo never took the child to the dentist or to the pediatrician. Francine disciplined Phillipe by telling him, on eye level, of what she disapproved. She occasionally spanked him. Phillipe's father has read to him on occasion and played with him infrequently. Francine on many occasions attempted to discuss the child with Olivo but he refused and walked away. As Phillipe is too young for Francine to work full-time, she intended to continue working part-time only. She would not work full-time while the child is in school full-time, as he still might need her. If she does not receive support she would have to move to Florida, where her parents can help out.

Joyce Skully testified that she was a caseworker from the Cook County Department of Supportive Services. When she interviewed Olivo, he told her he gets home between 7 and 8 p.m., and that his hours vary. He liked to take Phillipe to a friend's house, and he took the child out in the evenings about once per week or once every other week. Olivo admitted that he hit his wife in front of Phillipe because she called him names and that he would continue to do so. He thought he would be a better custodial parent because of newspaper clippings and magazine articles which described divorced women's boyfriends beating children. He could give Phillipe a better education because he had better economic resources as a doctor, whereas Francine was only a nurse, and he could provide a better cultural environment and total routine. Olivo wanted custody because he wanted to put the child on a regular diet. It was also very important for Phillipe to have a strong male influence; being raised by his mother would make him feminine. He needed a man to bring him up to be a man. He allowed Phillipe to stay up late at night because it is hard to regulate the child when the mother is around. Olivo told her that he had no need to discipline the child. When asked what he did for Phillipe when he was small, Olivo said this was the mother's job and that he worked.

Skully further testified she found the marital domicile neat and clean, except for the bedroom on the lower floor, which was cluttered. Francine had testified that room was occupied by Olivo, and other witnesses testified that it was cluttered with male clothing, among other things. Olivo denied that the room was his, but was extremely vague regarding where he slept; at one point he stated he slept on the floor in the living room. Skully observed Phillipe and Francine. They seemed to respond and listen to each other and Francine spoke softly to Phillipe. Phillipe's babysitter told Skully that Olivo let him play with matches, and on one occasion fed him four packages of candy in one day.

In Skully's opinion, it was in the child's best interest for Francine to have custody. She found it unusual that Olivo supported his reason for wanting custody with newspaper articles about complete strangers, his admission of physical violence concerned her, and she felt that Olivo did not put enough limitations on Phillipe.

Susan Jairado, a registered nurse and social acquaintance of Francine's, testified on Francine's behalf. Francine kept the house neat and took good care of Phillipe. She reiterated Francine's method of disciplining Phillipe as Francine herself described it. She testified she had seen Phillipe play with dangerous toys such as a sling shot and an arrow, and that she had seen Francine put such toys out of his reach. Another friend of Francine's, Rosvita Guzaski, testified that she and her children had engaged in activities with Francine and Phillipe such as attending church, playing games, roller skating and swimming. She stated that on one occasion she observed Olivo pass on the street in a pick-up truck with Phillipe riding in the back unattended.

Olivo testified that he was a staff cardiologist at South Chicago Community Hospital. He made rounds at the hospital everyday, maintained his own private office four days a week, and was on call 24 hours a day. He had two children by a prior marriage living in the Philippines. He had sent no money to the children's mother, Rachel. Although he was "made to believe" the children were living with his ex-mother-in-law, he had not sent her any money for the support of the children. He sent money directly to the children; however, at his deposition he said that the children were too young to take money. He had not seen them for seven to nine years. He arrived home on Mondays, Tuesdays, Thursdays and Fridays at approximately 4-5 p.m., rather than between 8 p.m. and 12 a.m., as Francine testified. Sometimes he went out again so that Phillipe would not see the tension between himself and Francine. Francine had attempted to minimize his contact with Phillipe. At another point, however, he testified there was no friction between himself and Francine. He had changed Phillipe's diapers, fed him and cooked for him, but had not cooked for him lately.

Olivo admitted he did not know who took Phillipe to school or brought him home, or the name of his babysitter, whom he calls "the old lady next door." He bought toys for Phillipe everyday, and sometimes gave him one in the morning and one in the evening. He disciplined Phillipe "by example." He never says "no" to him, but takes a more positive approach. Francine disciplined in a threatening way. On one occasion Phillipe told him his mother hit him, and Olivo found bruises on his face. He would be a better custodian of Phillipe because he could better care for Phillipe's physical well-being, growth and development. For example, he chose Phillipe's pediatrician and dentist; however, Francine takes Phillipe to see them. He also feels he can give Phillipe psychological consistency. Phillipe should be taught stability "by example." He would give Phillipe intellectual guidance, as he had done in the past by taking him to see "Snow White and the Seven Dwarfs" and to a farm to see how an egg is laid. He had never consulted with Phillipe's teachers and did not know their names, although he had a list of them at home. Olivo would be able to give the child spiritual leadership because of the Catholic background of his country. He had taken Phillipe to church once in the last year, and about four or five times in the past two years. He did not know whether Phillipe went to church regularly with his mother or not. He should get custody because he had more money and he would be willing to give the child what he needed. He has not taught the child any anatomy; sex education should be taught again "by example." With regard to the physical aspects of the child's sex education, he stated, "I will teach him how to screw somebody if you want me to." If he received custody he would hire up to four full-time nannies to take care of Phillipe. Ideally, he would like Francine to take care of Phillipe for three or four days a week. Olivo claimed that Francine drinks, and has been intoxicated in his presence three or four times per year.

Eugene Citadino testified on Olivo's behalf that he had known Olivo for four years. Olivo brought Phillipe to his house two or three times a month. They played games with Phillipe and he would swim in the pool. Olivo disciplined Phillipe by talking to him and without yelling or hitting him. Citadino saw warm affection between them.

During closing argument, Arthur M. Berman, representative of the minor child, stated that Francine and Olivo were fit parents. He stated that "[i]f the court believes that everything is equal, I would recommend custody be given to Mrs. Leopando primarily because of her current relationship with the child, but only if the court makes it perfectly clear to her that the child is not a chattel to be taken to Florida just because she may choose a particular way of life." He ...


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