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In Re Marriage of Wechselberger



Appeal from the Circuit Court of Kane County; the Hon. William H. Ellsworth, Judge, presiding. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The petitioner, David G. Wechselberger, who we will refer to as the "father," appeals from an order of the trial court which denied his custody-modification petition, in which he sought to transfer custody of the parties' two minor children from the respondent, Mary Wechselberger, who we will refer to as the "mother," to himself. On appeal, the father contends, in essence, that the trial court's order denying the change of custody was contrary to the manifest weight of the evidence.

In June 1978, the father filed a petition for dissolution of the parties' 1971 marriage. The trial court granted the petition and dissolved the marriage. The dissolution judgment incorporated a marriage settlement agreement which, among other things, awarded custody of the parties' two minor children, David (age 6) and Kathy (age 4), to the mother. The judgment also granted the father reasonable visitation rights. Subsequently, on January 10, 1980, the court entered an agreed order which, among other matters, set forth the times that the father would have a right to visit with the children: every other weekend, every other major holiday and birthday, and a two-week vacation period.

In July 1982, the father filed a petition for modification of custody in which he attempted to secure custody of the children. In his petition, he alleged that the following changes in circumstances warranted the modification: (1) that each of the parties had remarried; (2) that he now lived in a single-family home with sufficient space for the children; (3) that the children had been living with him continuously since June 18, 1981, at the request of the mother; (4) that the minor children had lived with him in October and November of 1979 and again from June to September 1980; (5) that the children had been integrated into his current family; (6) that he was better able financially to provide for the children; and (7) that his working hours and those of his current spouse were such that one of them would always be present in the home with the children. In addition, he alleged that the transfer or change of custody would serve the best interests of the children. The mother responded to the modification petition and, inter alia, requested that the court enter an order returning the children to her.

The hearing held in this matter established the following pertinent facts. After the mother became seriously ill in October 1979, she entrusted the children to the care of the father for approximately one month. Subsequently, the parties decided that the children would live with their father from June 7 to August 17, 1980. The extended summer visitation was longer than the visitation period the father was accorded under the dissolution judgment as amended. The mother gave physical custody of the children to the father during the summer of 1980 for financial reasons and in order to afford the children a greater opportunity to visit their father. She also granted the extended visitation, in part, so that she could live with or develop a relationship with a male friend.

The children also stayed with their father during the summer of 1981. The mother explained that she became unemployed in January 1981 and she, therefore, felt it was better for the children to stay with the father during that summer. Thereafter, on August 1, 1981, the parties entered into a written agreement whereby they agreed that the father should take care of the children from August 1981 to August 1982. Under that agreement, the mother was granted "visitation rights" with the children every weekend, and the children were to be returned to her upon request after August 1982. According to the mother, the agreement was not meant to be permanent. In explaining why she entered into the above agreement, she related that she began working for an insurance company on August 3, 1981, and that her employment necessitated that she arise at 5:30 a.m. and drive 22 miles to work. In order not to interrupt the children's schooling and rather than leaving them with a baby-sitter while she worked, she decided that it would be better if the children stayed with their father for a year until the insurance company completed construction of a new office building near her place of residence. At the time of the hearing held in this matter, she only had to drive seven miles to her new workplace.

The father remarried in June 1980, while the mother remarried in May 1982. The parties' two minor children lived with the father and his current wife (Marsha) from June 1981 to August 1982. The father and his new wife have a one-year-old daughter, Sarah; both young David (now age 10) and Kathy (now age 8) enjoy a good relationship with Sarah. Given the respective working hours of the father and Marsha, either one or the other of them is able to be at home with the children. His home contains four bedrooms and is situated on a lake where the children can swim. During the period the parties' children lived in the father's home, he incurred substantial dental bills as a result of treatment which the parties' two children required. In addition, he related that the children were fairly undisciplined when they were entrusted to his care, but their behavior has improved in his home. He also stated that his ex-wife often used profanity within earshot of their children and felt that she had a problem managing her finances.

During the 15-month continuous period he had physical custody of the parties' children, the father actively participated in recreational and sporting events with them and took an interest in their progress in school. The children, who seemed happy living with the father and performed well in school, formed friendships with other children in the neighborhood while living with their father. In addition, the father's current wife is very fond of his children and enjoys doing things with them as a family. She has formed a good, loving relationship and wants to have custody of them. The father admitted, however, that the mother had visited with the children pursuant to the terms of the written agreement and had also attended parent-teacher conferences and other functions with the children during the period in question.

The mother and her current husband have engaged in many activities with the parties' two minor children during the 15-month period they were living with the father and his new family. The mother attended events with the children on additional occasions not provided for in the visitation clause of the agreement of August 1, 1981. The children seem to be content when they are with the mother and her husband, who loves David and Kathy as his own children. The children have maintained their friends in the apartment complex where they previously lived with the mother and, once returned to the mother's custody, would enroll in the same school they attended before living with their father. The mother has made arrangements to have a baby-sitter in the home from 3 to 4:30 p.m. on work days during the short period the children will be home from school before she or her husband returns from work. She and her husband also have arranged to rent a three-bedroom apartment in the same complex so that each child would have a separate bedroom.

Diane Vincent, who has known the parties since 1975, remarked that when the children are with their father, they are outgoing, but when they are with their mother, they are very quiet. From her observations, since their father has had care of the children, they are happy and well-behaved, whereas prior to that time they were quiet. In her opinion, the parties' children appeared more happy and more content living with their father.

Marilyn Cody, a child psychologist and counselor, testified that the parties' children had been very happy and contented during the period they were living with their father; and that the children's physical appearance had improved during that time; that Kathy was more open, relaxed and comfortable while living with the father and that he and his wife "had worked out a really good way of dealing with the children."

Reverend Fred Eisenhut stated that the children frequently attended church and Sunday school with the mother and her husband. He felt that they provided adequate care for the development and growth of the children.

After hearing the testimony, the trial court denied the father's petition to modify custody and ordered that the children be returned to the mother. The court below concluded that there was insufficient evidence of a change in circumstances to justify a transfer of custody.

The sole issue presented is whether the trial court's order denying the custody-modification petition was against the manifest weight of the evidence or an abuse of discretion under the provisions of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act, as recently amended (Ill. Rev. Stat. 1981, ch. 40, par. 610(b), effective July 1, 1982).

The crux of the father's appellate contention is that the evidence sufficiently demonstrated that the "change of circumstances" and the "best interests" requirements for a change of custody under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)) were met in this case and, thus, that the trial court erred in not granting his custody-modification petition and in not transferring custody of the two minor children from the mother to himself. In support of his assertion that the requisite change in circumstances had occurred, he argues that the evidence adduced below established that ...

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