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In Re Marriage of Cotton



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Marion E. Burks, Judge, presiding. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

This appeal requires us to determine whether the trial judge abused his discretion when he modified a child-custody decree after the divorce decree had become final. More specifically, we are asked to decide if the evidence of neglect and child abuse was sufficient to warrant a change in custody of the parties' three-year-old daughter from the mother to the father.

Claudia and Jackie Cotton were married on November 16, 1974, and Christy Cotton was born on February 29, 1978. Claudia and Jackie were divorced on September 26, 1979, and Claudia was given custody of Christy. On April 22, 1981, Jackie obtained an emergency order from the circuit court of Cook County that gave temporary custody to Jackie's sister, Pamela Mitchell. On February 25, 1982, the trial judge ruled that permanent custody of Christy should be transferred from Claudia to Jackie, and Claudia appealed. The appellate court, in a Rule 23 order (114 Ill. App.3d 1150), reversed the trial judge and ordered that Claudia should have custody of Christy. We granted Jackie's petition for leave to appeal (87 Ill.2d R. 315(a)).

Three issues are presented in this appeal: (1) Was the decision of the trial court against the manifest weight of the evidence? (2) Did the appellate court properly reverse the trial court without remanding the cause for a new hearing? (3) Did the trial judge properly order Jackie Cotton to pay a portion of Claudia Cotton's attorney fees?

After Jackie and Claudia obtained their divorce, Christy continued to reside with Claudia in the Cotton residence in Dolton, Illinois. Jackie remarried after he moved to Nashville, Tennessee, to pursue his career as a musician. In December of 1980, Claudia met a man named David Kaleno at "Mugs," a bar in the Hegewisch neighborhood of Chicago's south side. Claudia fell in love with David and had intentions of marrying him. David began staying overnight at Claudia's house and on one occasion stayed there for two consecutive weeks. Since David was unemployed, he often watched Christy when Claudia went to work.

On March 30, 1981, David looked after Christy while Claudia was at work. When Claudia returned, she discovered that the child's neck had been injured. Christy had several red parallel scratch marks on the back of her neck. Claudia testified that David told her the injury was caused by a rug burn. David explained that he had been carrying Christie when they fell down the stairs and that was how the rug burn occurred.

On March 31, 1981, Claudia and David took Christy and Megan Ecklund, a neighbor's child, to the zoo. Neighbor Candy Ecklund, Megan's mother, was alarmed at Christy's neck injury, and Candy questioned Claudia about David's treatment of Christy. Claudia explained that Christy and David had fallen down the stairs and that is how the neck injury occurred. Candy Ecklund told Claudia that Christy's neck "looked bad," but Claudia did not seek medical attention for the injury. Claudia went to work that evening and noticed an injury to Christy's finger when she returned. Claudia did not take Christy to the doctor or admonish David for Christy's injuries.

On April 1, 1981, Claudia noticed three circular wounds on the soles of Christy's feet but again took no action. Dr. Sashi Paul, the child's pediatrician, examined the child on May 4, 1981, when she was brought in by Pamela Mitchell and determined that the foot wounds were caused by cigarette burns. Claudia testified that she smoked cigarettes but that David did not smoke.

Pamela called Claudia on April 12, 1981, and asked if she could take Christy for an overnight visit. Claudia refused permission, and Pamela was puzzled because she had taken Christy for overnight visits several times in the past. Pamela and her friend, Jennifer Farmer, visited the Cotton residence on April 14, 1981, and discovered that David was baby-sitting in Claudia's absence. Claudia returned home after Pamela and Jennifer had left. Claudia testified that she told David that he should not baby-sit any more because "something happened that night." There is no evidence of what happened that night or what Claudia was referring to when she made that comment.

On April 15, 1981, Pamela was permitted to take Christy for a day visit. Claudia told Pamela that Christy could not roller skate because of "blisters" on her feet. Pamela, Jennifer, and Christy visited Christy's grandfather, and returned to the Cotton residence. During the course of the day, Christy had complained that her back hurt. Claudia examined the child to see what was causing her discomfort. Pamela testified that Claudia lifted the child's shirt and Claudia saw a long burn mark on her back. The wound appeared covered with scar tissue.

Pamela baby-sat for Christy on April 17, 1981, and photographed Christy's neck and back wounds. Pamela contacted Jackie in Nashville, and Jackie contacted his lawyer in order to have Christy removed from Claudia's custody. Jackie went to the Cotton residence with Jack Thompson, a police officer on the Dolton police force. The two men examined Christy in Claudia's presence, and Officer Thompson testified that Claudia seemed surprised when they discovered the ugly wound on the child's back. Claudia said that she was unaware of the injury and said that David must be responsible for it. Christy was taken to the emergency room of St. Margaret's Hospital, and Officer Thompson took photographs of the injuries. Christy was examined by Dr. Paul on May 4, 1981, and Dr. Janice Mendelsohn on May 12, 1981. As we said previously, on April 22, 1981, an emergency order was issued by a trial judge in the circuit court of Cook County, and Pamela was given temporary custody of Christy. Claudia allowed Christy to be moved to Nashville so she could live with Jackie pending the outcome of the custody hearing.

Dr. Paul testified that Christy had a large area of healed scar tissue on her back, marks on her neck, right leg and right knee, and three circular wounds on her feet. Dr. Paul testified that the wounds were not accidental, and could have caused deformity or severe infection. Possible complications from such wounds included infection, scars and contracture deformity.

Dr. Janice Mendelsohn testified as an expert witness without compensation. She testified that she is the chief of the Child Protective Services system at the University of Chicago. She further testified that she had seen thousands of children that had been victims of child abuse, and had treated scratches, burns, blisters, rug burns, and cigarette burns. Dr. Mendelsohn stated that Christy's neck injury was caused by human fingernails, and that the child's back injury was caused by a burn. Dr. Mendelsohn testified that Christy had been a victim of child abuse, and that possible complications of the wounds included infection and scar formation.

Christy lived in Nashville with Jackie and his second wife, Tracy, in the year preceding the custody hearing. Christy had completely adjusted to her new home in Nashville and testimony elicited at the hearing verified Jackie's contention that the Nashville home provided a good environment for the child. Jackie and Tracy were solicitous of the child's needs and saw that Christy was involved in neighborhood and church activities. Extensive character testimony established that Tracy Cotton was an excellent mother and that Christy appeared happy in her new home.

No other orders were issued by the trial court concerning the custody issue between the April 22, 1981, emergency order and the final custody modification that is the basis for this appeal. Christy was moved to Nashville shortly after the emergency order of April 22, 1981. She was fully integrated into the family, and had started attending preschool classes. Christy was given eye-glasses after Jackie detected that the child's eyes were slightly crossed. The deposition of Dr. Gates Jordan Wayburn, an ophthalmologist, was read into the record during the trial. Dr. Wayburn believed that Christy's eye disorder could have led to permanent eye damage if it had not been treated at a young age and said that he had treated Jackie for the same condition in October of 1980, and that it was hereditary. Dr. Wayburn stated that the condition was visible to the naked eye, and that he did not know how long the condition had been present, that it usually occurred between two and three years of age, and that the child would not complain because of it. Claudia never took Christy to an eye doctor or had the eye disorder treated during the years she had custody of Christy. Claudia knew or should have known of Christy's eye problem but did nothing to correct it.

The precise cause of Christy's neck and back wounds was the subject of a great deal of testimony at trial. Dr. Kent Kyger, a child psychologist in Nashville, Tennessee, examined Christy to determine the cause of her injuries, and his deposition was read into the record at the trial. Christy told him she kept having nightmares about "bad people in Dolton." Christy also told Dr. Kyger that David had caught her playing with Claudia's makeup and that David had lit a broom on the stove and burned her with it. Christy told Dr. Kyger that Claudia had not beaten her or burned her, but that "bad people in Dolton did." Dr. Kyger stated that Christy had experienced nightmares over the broom-burning incident.

When Claudia was deposed by Jackie's attorney, she stated that Christy's wounds were not serious. When she made this statement, she was not aware that Pamela and Officer Thompson had photographed Christy. When Claudia was shown enlargements of the photos in court, she stated that she did not remember the wounds to be that serious. Claudia testified that she did not take Christy to the doctor or seek medical advice for Christy's neck, back and foot injuries.

Claudia testified that she loved Christy very much and wanted to have custody of her, and stated that she was a very religious woman and that Christy would be raised in a Christian environment. She acknowledged that she continued to see David Kaleno until June of 1981, two months after the emergency order that deprived her of custody of Christy. Claudia stated that she no longer ...

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