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In Re Marriage of Kessler

OPINION FILED OCTOBER 22, 1982.

IN RE MARRIAGE OF ESLEE KESSLER, A/K/A ESLEE BRODY, PETITIONER AND COUNTERRESPONDENT-APPELLEE AND CROSS-APPELLANT, AND STANTON KESSLER, RESPONDENT AND COUNTERPETITIONER-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

This is an appeal by both parties from orders of the trial court in a post-divorce judgment proceeding.

On appeal, respondent, Stanton Kessler, contends that the trial court erred (1) by modifying the weekend joint custody residential schedule set forth in the initial judgment for divorce; (2) by characterizing the respondent's monthly payments to petitioner, Eslee Brody, as child support and not maintenance, thereby altering the tax consequences embodied in the initial judgment; (3) by increasing the amount of child support payments; (4) by denying his supplemental petition seeking recovery of a portion of the monthly payments received by petitioner during the period she resided with her present husband, Dr. Bruce Brody, prior to their marriage; and (5) by assessing a portion of petitioner's attorney fees and costs against him.

Petitioner cross-appeals, contending that the trial court erred by denying her petition for declaratory relief regarding the permissibility of joint custody of minor children under Illinois law and the rights of the parties as joint custodians.

We affirm in part, reverse in part and remand.

The following pertinent evidence was adduced at the hearing held on the post-decree proceedings.

Petitioner and respondent were married on July 20, 1969, and their marriage was dissolved on July 22, 1977. Two children were born of this marriage, Alexis, now age 8, and Louis, age 6. The initial judgment for divorce incorporated an extensive agreement that had been reached between the parties relating to such matters as the custody and residence of the children, the nature and extent of the periodic payments made to petitioner from respondent, the circumstances under which those payments would be increased or reduced, and the payments of attorney fees and costs by each party.

Insofar as it is relative to the issues raised in the present appeal, this agreement provided that the parties would maintain a primary residence in Chicago for 3 1/2 years from the date of judgment and that neither would move from Chicago unless a prior court order was obtained. Both parents were awarded joint custody of the two children, who were to reside each week with their father from 6 p.m. on Friday until 1 p.m. on Sunday, and from 6 p.m. on Tuesday until 8 a.m. on Wednesday, the remaining portion of each week being spent with their mother.

The agreement further provided that respondent would make monthly payments to petitioner, which payments were characterized as "periodic payments" that would be deductible to respondent and taxable to petitioner under section 71 of the United States Internal Revenue Code. (Internal Revenue Code of 1954, 26 U.S.C. sec. 71 (1976).) Respondent was also obligated to pay petitioner's Federal and State income taxes with respect to these payments. The payments were not to be increased based upon any future increases in his income nor reduced by any amount that she might receive upon resumption of employment. Upon the occurrence of specific contingencies, including the remarriage of petitioner, the payments were to be reduced by 60%.

With respect to the payment of attorney fees and court costs, the agreement provided that "each party will pay his or her attorney fees and court costs incurred either in connection with this Agreement or in connection with any proceedings involving this Agreement." Both the agreement and the divorce judgment expressly provided that the agreement would survive its incorporation in the divorce judgment.

Approximately two years subsequent to the parties' divorce, petitioner married Dr. Bruce Brody on October 2, 1979. On October 16, 1979, the respondent filed a petition to modify the divorce judgment to have his residence designated as the principal place of residence of the children and to prohibit the removal of the children's residence to Winnetka by petitioner and Dr. Brody.

The petition also alleged, inter alia, that on or about March 1979, petitioner had commenced cohabiting at her residence on a continuing, conjugal basis with Dr. Bruce Brody, and that they were contemplating removing the children to reside in the suburbs contrary to the provisions of the divorce. Petitioner filed a response to this petition on April 8, 1980.

On December 12, 1979, respondent filed a petition for a preliminary injunction seeking to prevent petitioner from removing the children from Chicago to Winnetka, Illinois, where the Brodys had purchased a house. Petitioner filed a response to the petition for preliminary injunction, and a motion for temporary relief to allow the move during the pendency of the proceedings. In addition, petitioner filed a petition for declaratory relief and for modification of the divorce judgment. The petition sought, inter alia, that (1) joint custody be terminated; (2) that the Tuesday evening overnight visitation with respondent be eliminated, and (3) "that the frequency of the weekend visitation schedule be reduced in such manner as this Court deems to be in the best interests of and welfare of the parties' minor children."

The circuit court thereupon entered an order on December 20, 1979, denying respondent's petition for preliminary injunction and granting petitioner leave to remove the residence of the children from Chicago to Winnetka.

On March 13, 1980, respondent filed a petition seeking a rule to show cause against petitioner for interference with his visitation rights and an order that petitioner share the transportation arrangements in connection with the visitation schedule. Petitioner responded to this petition on May 15, 1980.

On October 20, 1980, the circuit court entered an order requiring the petitioner to transport the children on Friday evenings, and alternating Tuesday evenings and Sunday afternoons, with the remaining transportation being the responsibility of respondent.

Respondent filed a supplement to this petition to modify the divorce judgment on October 8, 1980. He alleged that, pursuant to the divorce judgment which provided for a reduction in monthly payments from $1,500 to $600 upon petitioner's remarriage, he had overpaid her $5,435 by virtue of her cohabitation on a resident, continuing, conjugal basis with Dr. Brody for a five-month period in 1979 prior to their marriage.

Hearings limited to the issue of petitioner's request that the joint custody arrangement be terminated, and the time that the children reside with respondent on Tuesdays and weekends be reduced were held in April 1981.

Respondent was called as an adverse witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60, now cited as section 2-1102 of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). He testified that petitioner drives the children to his residence, or that of a friend, Susan Getzendanner, between 6:30 and 7 p.m. on Tuesdays, where they have dinner, and he drives the children to school in Winnetka on Wednesday morning. He has a weekend visitation period extending from Friday at 6 p.m. until Sunday at 1 p.m. He stated that he engages in many activities with the children on weekends, and that he is flexible and accommodates them concerning school or leisure activities that conflict with his visitation by either driving them to the event, or permitting them to remain in Winnetka for the event.

Dr. Marv Meyer, a clinical psychologist, was called as a witness by petitioner. He testified that he had seen both parties in a professional capacity on six occasions in 1979, and had seen Alexis once in 1979 and Louis for an extended period in 1980. His evaluation of the children related to the circumstances that existed in 1979. Dr. Meyer testified that it was essential for respondent to maintain his normal involvement with the children and that the minimum amount of time that he should see the children was twice a week. He recommended Tuesday visitation without sleeping over and alternate weekend visitation. He also testified that the joint custody arrangement "perpetuates the fight" between the parties.

Dr. Robert Bussell, a psychiatrist, was called as a witness by respondent. He performed an independent evaluation of the joint custody arrangements by agreement of the parties in 1980.

He testified that the relationship between respondent and the children was of "unusually good quality." In his opinion, the children clearly perceived their primary home as being with petitioner, and the overnight visits did not cause them any difficulty in terms of their sense of home. He further testified that the overnight Tuesday visitation was having a "very positive effect" on the children.

Petitioner testified on her own behalf that at the time of the divorce she believed the joint custody residential schedule to be in the children's best interests but that it had proven to be too inflexible in accommodating their current needs. She stated that the children's current interests are shifting away from the family and they desire more contact with their school friends, and that Louis seems to be tired and listless on Wednesday afternoons after the Tuesday overnight visitation.

Petitioner further stated that she does not have any recreation time with the children on weekends and that she thought they would benefit from staying at her home at least one weekend a month to "play with their friends and be with Bruce and myself in our family structure."

Amy Wieder, Louis' kindergarten teacher, was called as a witness by respondent. She testified that Louis had an exceptional amount of energy and exhibited no change in his attitude on Wednesday mornings.

Susan Getzendanner, a friend of respondent, testified that she often sees the children on Wednesday mornings when she stops at respondent's apartment to give him her car to drive the children to Winnetka, and that they do not appear to be fatigued on Wednesday mornings.

On June 26, 1981, a hearing was held on those issues relating to the monthly payments made to petitioner by respondent, ...


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