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In Re Custody of Sussenbach





Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Bond County, the Hon. Nicholas Byron, Judge, presiding.


Defendant, Max Sussenbach, appeals from a Rule 23 order (87 Ill.2d R. 23) of the appellate court reversing an order entered by the circuit court of Bond County which had transferred custody of his daughter, Teresa Sussenbach, then age 9, from plaintiff, Carol Boyd, the child's mother, to defendant (129 Ill. App.3d 1165). We allowed defendant's petition for leave to appeal (94 Ill.2d R. 315(a)), and now reverse. Two issues are raised in this appeal: (1) whether the trial court erred in transferring custody to Max; and (2) whether the trial court erred in failing to make any provision for the payment of child-support arrearage owed by Max.

On July 13, 1978, the parties' marriage was dissolved. Max did not appear at the proceedings, and consequently judgment was entered by default. Pursuant to a written separation agreement, which was incorporated in the judgment of dissolution, Carol was awarded custody of Teresa, the couple's only child. The agreement further provided that Max was to pay $30 per week in child support.

Teresa lived with her mother, Carol, from the time of the divorce until December of 1981, when Carol, under the circumstances noted below, voluntarily transferred custody to Max and agreed that he would not have to pay support for the period that Teresa was in his care. On November 5, 1982, Carol filed a petition seeking an increase in the amount of support payments. At the same time, she also filed a petition for a rule to show cause for Max's failure to return Teresa and for his failure to pay support. Max then filed a petition to modify the judgment of dissolution, requesting the court to grant him permanent custody and to order Carol to pay child support. Separate hearings were held on the petitions. For purposes of our decision, it is not necessary to set forth all the evidence which was presented at the hearings; we will recite only those facts relevant to the issues before us.

With respect to Max's petition for a change in custody, the evidence can be summarized as follows. Shortly after the parties' divorce, Max married his present wife, Jo Ellen. They have two children, a daughter, Jamey, age 7, and a son, Kyle, age 3. Jamey is Jo Ellen's child by a previous marriage. During the period that Carol had custody of Teresa, Carol had two live-in boyfriends. She admitted to having sexual relations with both men. The first live-in arrangement lasted two weeks. Thereafter, in August of 1981, Ed Boyd moved into Carol's home. Ed and Carol were married in June 1982, approximately six months after Carol gave custody of Teresa to Max. Except for brief periods of employment, Ed has been unemployed since his discharge from the service in February of 1981. Carol, on the other hand, works as a checker at a grocery store which, until recently, was managed by her father. She testified that she works from either 8 a.m. to 5 p.m. or 11 a.m. to 8 p.m., Monday through Friday. She also stated that she works every Saturday and occasionally on Sunday. Because of Carol's work schedule and Ed's unemployment, Ed babysat for Teresa almost every day from the time he began living with Carol until the time Teresa went to live with Max.

The evidence also established that on at least one occasion, Carol and Ed took Teresa to a tavern where they remained until 1 or 2 a.m. Carol also admitted that she previously took Teresa to the same tavern and became intoxicated. They did not leave the establishment, she said, until 1 a.m.

Carol further testified that after Ed returned from a party intoxicated she talked to him about his drinking and about what was described as his "possible carousing around with [another] woman." She also said that while Teresa was visiting her on the weekend prior to the custody hearing, Ed went out drinking and was involved in an automobile accident when he "missed a curve" at 1 a.m. while returning home.

The record further reveals that during the period that Carol had physical custody, she did not attend any parent-teacher conferences or school functions. Indeed, the only contact she had with any of Teresa's teachers was for the purpose of obtaining her daughter's school records for the custody hearing.

Gloria Wasmuth, Carol's mother, testified that Teresa developed a serious emotional problem while living with Carol. Teresa, she said, would often "sit and stare in space and cry very easily." Mrs. Wasmuth stated she worked with Max and Jo Ellen toward resolving the problem. In Mrs. Wasmuth's opinion, it would be in Teresa's best interest if she lived with Max.

Mike Wasmuth, Carol's brother, testified that Ed once boasted about owning an apartment complex in Houston, going so far as to invite Mike and his wife to travel to Houston to visit the complex with him and Carol. After Mike had made the airline reservations, Carol informed him that Ed had fabricated the entire story about owning an apartment complex. Mike also recounted an incident which occurred prior to Ed and Carol's marriage while Carol still had custody of Teresa. Mike stated that he and his wife had occasion to spend the night at Carol's home. They stayed in Carol's bedroom; Teresa was in her room; and Ed and Carol were in the living room. After everyone had retired, Mike heard sounds coming from the living room sufficiently loud enough to keep him and his wife awake. Mike testified he "had a pretty good idea" of what was going on: "I figured they were having sex." Teresa, he said, was in close proximity to the living room so that she also could have heard the same noise.

As we stated earlier, Carol voluntarily transferred custody to Max in December 1981. The incident which precipitated the transfer occurred in early December when Ed spanked Teresa with a a wooden paddle, leaving two severe bruises on her buttocks. Max discovered the bruises two days later while Teresa was on a weekend visit and immediately took Teresa to the hospital. According to the doctor who examined Teresa, the bruises measured four centimeters by five centimeters and were surrounded by an additional area of red and roughened skin. The doctor also stated that an excessive amount of force was required to cause the bruises. Ed testified that he had spanked Teresa with a wooden paddle the previous October but claimed he only used his hand when he spanked her in December. The evidence, however, clearly showed that Ed had, in fact, used a wooden paddle in the December incident.

Following his discovery of the bruises, Max informed Carol that he would not allow Teresa to return to her home. In addition, he contacted Michael Sheely, an investigator for the Bond County State's Attorney, to determine whether Teresa had been the victim of child abuse. While Sheely found "reason for concern," he was unwilling to go so far as to say that child abuse had taken place. Sheely later met with Max and Carol to discuss the custody situation. At the meeting, as noted above, it was agreed that Carol would give custody to Max on a temporary basis and that Max would not have to pay child support for the period that Teresa was in his care.

Carol admitted that after Teresa went to live with Max, she did not have any contact with her daughter for 45 days. She also admitted that for a five-month period in 1982 she did not contact either Max or Jo Ellen about exercising visitation with Teresa. Moreover, even though Teresa made regular weekend visits to the home of Carol's parents, Carol never talked to her parents about seeing Teresa. While the record shows that a rather hostile relationship existed between Carol and her mother, ...

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