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In Re Marriage of Brand

OPINION FILED MAY 10, 1984.

IN RE MARRIAGE OF LAWRENCE BRAND, PETITIONER-COUNTERRESPONDENT-APPELLANT, AND SARAH J. BRAND, RESPONDENT-COUNTERPETITIONER-APPELLEE.


Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On February 25, 1980, a judgment of dissolution of the marriage of petitioner, Lawrence Brand, and respondent, Sarah J. Brand, was entered in the circuit court of Champaign County. On January 25, 1982, following a hearing in that court, the court entered an order awarding custody of the parties' minor son to respondent and ordering petitioner to pay a portion of respondent's attorney fees, all guardian ad litem fees and child support. No custody award was made in regard to the couple's minor daughter who was married prior to the final custody hearing. The couple was living with respondent at the time of hearing.

On appeal, petitioner maintains the trial court (1) abused its discretion in awarding custody of the son to respondent, (2) erred in ordering petitioner to pay 44% of respondent's attorney fees and all guardian ad litem fees, (3) erred in considering petitioner's worker's compensation benefits as a financial resource available for child support payments, (4) abused its discretion in awarding child support, and (5) erred in denying petitioner's second supplemental post-trial motion regarding modification of child support payments. We affirm.

Petitioner testified at the January 1982 hearing that he was 43 years old, had been employed by the State of Illinois and was injured on the job approximately six months prior to that hearing. At that time, he estimated that it might be 18 months before he could return to full-time employment. He was receiving $502.92 biweekly worker's compensation benefits and $152.93 per month as a State disability benefit.

Respondent testified she was 41 years old at the time of the January 1982 hearing, had been a registered nurse, and had been unemployed since 1977 due to a back injury. She stated she was unable to work in any capacity and was receiving public aid, food stamps, and rent subsidy totaling approximately $565 per month.

The court ordered permanent custody of the 14-year-old son to be with his mother despite his expressed preference to live with his father. The court considered each factor listed in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) prior to making its decision. Section 602(a) states the court should consider all relevant factors in determining the best interests of the child including:

"(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community;

(5) the mental and physical health of all individuals involved; and

(6) the physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person but witnessed by the child." (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).)

Section 602(b) states "[t]he court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child." Ill. Rev. Stat. 1981, ch. 40, par. 602(b).

Petitioner maintains the custody order was not in the child's best interests, and the trial court based its order on improper considerations. Petitioner argues the court should have placed greater weight on the child's preference and should have more carefully evaluated the factors listed in section 602(a) of the IMDMA. He further ...


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