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Vollmer v. Mattox

OPINION FILED AUGUST 13, 1985.

ROSEMARY MATTOX VOLLMER, RESPONDENT-APPELLANT,

v.

GARY MATTOX, PETITIONER-APPELLEE.



Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Respondent, Rosemary Mattox Vollmer, appeals from an order of the circuit court of St. Clair County which modified a prior custody judgment entered by it in a divorce proceeding between the parties. In the order appealed from, the court transferred custody of the couple's natural son, Jason Mattox, to petitioner but allowed respondent to retain custody of the couple's adopted son, Phillip Mattox.

On appeal, respondent contends that: (1) the circuit court's ruling was against the manifest weight of the evidence; and (2) the circuit court erred by failing to make specific findings as required by subsection 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 610(b)). We conclude that respondent correctly asserts that the court did not comply with the requirements of section 610(b); therefore, we do not consider respondent's first assignment of error.

Petitioner and respondent were married on October 24, 1970, and divorced on April 4, 1977. Custody of the couple's two children was awarded to respondent and petitioner was given visitation rights. In the years following the divorce, petitioner sought modification of custody a number of times; and in 1980, he abducted Jason and took him to Oregon.

On January 19, 1982, petitioner again sought modification of the custody provisions; and a hearing was held on December 30, 1982. At that hearing the circuit court, after noting that respondent has used marijuana, stated:

"Quite frankly, I was enormously distressed with the image that Rosemary Vollmer presented to this Court yesterday. She seemed to typify the laid back confident female member of the `me-first' generation which I find despicable. Of course, Mr. Mattox's behavior was more despicable in the middle and late 70's. And it is truly remarkable that this man has been able to make that transition from a worthless human being to someone who is obviously dedicated to accomplishing something in his life. Unfortunately, all of us don't reach the same spot at the same time. And it's to Mrs. Vollmer's disadvantage that she has been most recently despicable."

In this regard, evidence was introduced at the hearing which indicated that respondent used marijuana and avoided her creditors.

On October 3, 1983, another hearing concerning modification of custody was held. At this hearing the adopted son, Phillip Mattox, who was 14 years of age, told the court that he preferred to live with his mother and that petitioner seemed to favor his natural son, Jason. Jason Mattox, who was 12 years of age, stated that he would prefer to live with his father.

Petitioner testified that his current wife, Angela Mattox, preferred that Phillip not live with them. Respondent testified that she lived in Florida with her current husband, Ron Vollmer, and that Mr. Vollmer treated Jason like a son. Mr. Vollmer stated on cross-examination that he had filed bankruptcy and that he drank alcohol occasionally and had used marijuana in the past but had stopped using it. Angela Mattox said that she did not want petitioner to obtain custody of Phillip.

On October 4, 1983, the circuit court entered the following decision:

"With regard to the minor child, Jason, the Court is somewhat surprised that Jason prefers to live in Illinois with his father and step-mother because he has lived most of his life with his mother, with his brother, and with his younger sisters. It occurs to the Court that this young boy is courageous and that most people in life, including adults, accept the status quo because it takes less effort. There are fewer problems normally with staying where one is rather than risking the unknown.

This Court is convinced from the evidence it is to the best interest of Jason that he live with his father and his step-mother in the State of Illinois and his custody is awarded to his father. Obviously, this change will be traumatic to the mother, to the siblings, to Jason. The Court would encourage visitation rights with his mother whenever possible. At such times as the mother is in the state, she may visit with Jason at all reasonable times. Visitation rights to Jason are awarded for the month of August of each year until the commencement of school and for the first one half of the Christmas vacation and for all of the Easter vacation or spring vacation if there is one. The parents will share equally the transpertation [sic] costs for Christmas and Easter."

The written decree of modification which the court subsequently filed did not elaborate upon the reasons for the court's decision to change the custody of Jason.

We agree with respondent's assertion that subsection 610(b) of the Illinois Marriage and Dissolution of Marriage Act requires the circuit court to make specific findings to support a modification of custody. This subsection as originally enacted has undergone an amendment by which certain requirements regarding proceedings to modify custody were eliminated (Ill. Ann. Stat., ch. 40, par. 610(b), Supplement to Historical and Practice ...


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