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In Re Marriage of Macaluso



Appeal from the Circuit Court of Kane County; the Hon. Richard Weiler, Judge, presiding.


Respondent, Paola Macaluso (Paola), appeals from an order of the trial court granting custody of Lisa Macaluso (Lisa), the minor child, to petitioner, Salvatore Macaluso (Sal), and from an order requiring Paola to pay $1,000 temporary attorney fees to Lisa's attorney for the prosecution of this appeal. Petitioner cross-appeals from an order of the trial court requiring him to pay $2,500 towards respondent's attorney fees.

In November of 1979, Paola took Lisa, aged five, to Italy to live with Paola's parents. The following month, Sal filed a petition for dissolution of marriage, and temporary custody was granted to him in December 1979. Sal went to Italy in December and returned with Lisa to the United States. Paola returned to the United States in April of 1980 and made an unsuccessful attempt to gain custody of Lisa.

In September of 1980, apparently fearing that his wife would attempt to return to Italy with Lisa, Sal quit his employment as a police officer for the Carpentersville police department and left the jurisdiction. He took Lisa to Arizona along with a woman named Darlene Kitsinger and her two children. While in Arizona the group lived together as a family in a three-bedroom house and all of the children attended school. In the meantime, temporary custody of Lisa was awarded to Paola. In January of 1981 Sal returned to Illinois and Lisa was placed in the custody of the Department of Children and Family Services. An attorney was appointed to represent the child, and he supervised visitation by the parents until May of 1981.

On September 27, 1981, the court interviewed Lisa Macaluso in chambers with the attorneys for all parties present. Lisa stated that she was going to school in Wisconsin where she had playmates and that she liked it there. She said she had been "going around the world" with her father and that it was making her "seasick." Lisa said she wanted to stay in this country and in one place. She said that they treated her "like a pig" in Italy and that Paola made her "sit in a chair all day." She said she "kind of" loved her grandmother and grandfather in Italy but that she did not think that they loved her. Lisa said she did not like living in Arizona but that she missed Darlene's two sons. She did not miss Darlene because Darlene was "too big for her." Prior to the interview, Lisa met her mother in the hallway and told her to "get away" because she believed Paola wanted to grab her and take her to Italy. She said her mother was "not really the best Mommy that I have." She said that she got along with her father "easy," and that he never did anything to scare her. She said that her father drinks whiskey sometimes, but when he drinks he acts "like himself."

At the subsequent custody hearing, Paola Macaluso testified that she lived in a townhouse in Park Forest, Illinois, that she had been employed since December 15, 1980, and that she earned $750 a month net. She stated she worked six days a week, but if granted custody of Lisa she would work only five days a week if she remained in the United States. She testified, however, that she believed it would be best to return to Italy with Lisa to live with her family. Paola testified that there would be no problem with transportation for Lisa to visit her father since her family was wealthy and would provide funds. If, on the other hand, the court ordered her to keep Lisa in the United States, Paola testified that she would do so. She and Lisa would live in the rented townhouse in Park Forest which had two bedrooms and which was near schools. Paola testified that friends she had made through Al-Anon, an alcohol counseling service, would stay with Lisa while she worked. She did not know the last names of any of these friends, nor the names of any of her neighbors in Park Forest.

Paola testified that she believed her husband was an alcoholic. She recounted instances of his drinking which had allegedly culminated in violence, including one instance in which she went to the Elgin Crisis Center with Lisa but returned home with her husband the next day. On cross-examination she testified that Sal was a wonderful father but a terrible husband, and that Lisa and her father had a good relationship.

It was stipulated that Sal was employed part-time at a 7-11 store, but that he was scheduled to begin work for Illinois Pools Unlimited as soon as custody proceedings were completed. His gross salary would be $350 per week in the summer and $12,000 annually, plus commission, when the construction period ended. He had also applied to police departments for reemployment.

Sal testified that he had recently married Darlene Kitsinger and was living with her and her two young sons, ages six and eight, in a home that Darlene owned in Buffalo Grove. He testified that he drank socially and did not believe he had a drinking problem. He stated that he had slapped his wife twice in the course of their marriage. Once following a heated argument he had slapped her and she took Lisa to the Elgin Crisis Center overnight. He testified that he had slapped Paola to stop her constant arguments and that he had taken Lisa to Arizona because of his wife's threats to return to Italy with Lisa regardless of court orders. He and Darlene and their three children had remained in Arizona for approximately 40 days and they told Lisa and the other children that he and Darlene had been married shortly after they arrived. He stated that basically they lived in Arizona as a family and that the children all attended school.

Darlene Macaluso testified that if Sal received custody of Lisa she would live with them in Buffalo Grove and attend school with Darlene's two boys. Lisa would have her own bedroom. There were two playgrounds, a pool and a recreation center near the home. Darlene stated that her sons and Lisa got along very well and referred to each other as brothers and sister. She stated that although both she and Sal were drinking more than they normally did while in Arizona, she never saw him intoxicated. While in Arizona they went to church every Sunday and the children attended religious instruction classes. This would continue once they were all settled in the Buffalo Grove home. She stated that Sal and Lisa had the "best father and child relationship" she had ever seen and that Sal did school work every night with all three children in Arizona. She stated she was employed as a dental assistant and receptionist five days a week, but that as soon as Sal could support the family she planned to resign to stay home with the children. She testified that she had never seen Sal threaten or strike anyone and that her children loved him very much. She testified that she had contacted her boys' school regarding Lisa's enrollment and had observed the classroom and knew the teachers that Lisa would have. She had also discussed Lisa's enrollment with the school counselor and assistant principal.

Five other witnesses testified for Mr. Macaluso. Two former neighbors of the Macaluso's testified that although Paola had a good relationship with Lisa, Sal's relationship with Lisa was exceptional. They believed Sal should have custody of Lisa. These witnesses, as well as three members of the Carpentersville police department, testified that Sal did not have a drinking problem.

The testimony of Jerry Lee Cox, Lisa's foster mother since January of 1981, was entered by stipulation. She stated that although Lisa was originally fearful of her mother and of being removed to Italy, the relationship had healed and Lisa had now expressed love for both parents. Ms. Cox testified that, although her normal preference for custody of a child of Lisa's age and sex would be the mother, due to Lisa's unique relationship with her father, Ms. Cox believed custody should be given to Sal.

Counsel for Lisa Macaluso stated in closing argument that based on his supervision of over 50 hours of visitation between Lisa and both of her parents, he believed custody should be awarded to the father.

On May 4, 1981, an order was entered awarding custody to Sal and reserving other issues. On July 1, 1981, an order was entered directing Lisa's attorney to continue to represent Lisa on appeal and ordering Paola to pay Lisa's attorney $1,000 temporary fees on appeal with further fees or reimbursement to be subject to order of the appellate court. Paola originally appealed the custody order on June 3, 1981, which appeal was dismissed on September 1, 1981. A judgment for dissolution of marriage was entered on January 12, 1982, granting Mr. Macaluso's petition for ...

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