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In Re Marriage of Slavenas

OPINION FILED DECEMBER 30, 1985.

IN RE MARRIAGE OF RONALD R. SLAVENAS, PETITIONER-APPELLEE, AND ROSEMARIE D. SLAVENAS, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of DeKalb County; the Hon. John A. Leifheit, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

Respondent, Rosemarie Slavenas, appeals from the judgment of the circuit court of DeKalb County which awarded custody of Marcus, then age 14, to petitioner, Ronald Slavenas, and custody of Brian, then age 11, to respondent. Respondent only appeals from the award of Marcus to the petitioner.

Petitioner, a social worker, and respondent, an assistant professor of education, were married in Chicago on September 29, 1966. Two children were born of this marriage: Marcus and Brian. After the parties had separated, respondent had custody of both children subject to an agreement. Thereafter, petitioner filed a petition for dissolution of marriage on August 23, 1983. At that time, he also filed a petition for and was granted temporary custody of Marcus. On August 24, 1983, respondent filed a petition for dissolution of marriage. She also filed a motion to dissolve the temporary custody order, which was denied. The marriage was dissolved on August 1, 1984. In an opinion letter, the court found that it was in the best interest of all the parties, including the husband, wife and each of the children, that Marcus remain with his father and Brian remain with his mother. Visitation was to be liberal and arranged so that the children would spend a considerable amount of time together.

During the temporary custody hearing, respondent and petitioner agreed to an investigation of the family situation for use in the final determination of permanent custody. An investigation was never arranged by either of the litigants nor was it ordered by the court. At the temporary custody hearing the court volunteered to question the children in camera. Both counsel were present, a court reporter could not be found and the interview occurred after waiving the court reporter's presence.

Both petitioner and respondent testified at the permanent custody hearing. Petitioner testified that Marcus requested to live with him. Petitioner felt that this was in Marcus' best interest because of their close relationship, the security and lack of tension. Petitioner also testified that Marcus' relationship with his mother was stressful. Marcus testified that he wished to live with his father and brother. He also stated that he had problems relating to his mother.

Respondent testified that Marcus wanted to live with his father. She felt this was because Marcus' activities would not be limited. Respondent also stated that the children often fought with each other. There was one incident where Brian locked himself in a room and Marcus put a screwdriver through the door. However, respondent felt that the fighting had stopped. Respondent related another incident at the hearing involving Marcus' alleged use of drugs. She stated that Marcus' behavior on one occasion was volatile. However, on rebuttal, petitioner stated that on the day in question, Marcus had taken some Sudafed and he did not believe Marcus would have taken drugs.

Maurine Patten, a registered psychologist, testified on behalf of respondent. In her opinion, she believed that respondent was a capable parent and would be able to handle both children. However, although she had seen Brian once, she had never interviewed or observed Marcus. Georgia Scriven, a professor for early childhood education and a peer of respondent, also testified. She felt that respondent was a fit and capable person to have the care and custody of her children. Two other witnesses testified on behalf of respondent. Each of them also attested to respondent's capability as a parent.

Respondent first contends on appeal that the trial court did not make specific findings under section 602 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1983, ch. 40, par. 602) and, therefore, it is impossible to determine which factors the court considered in awarding custody of Marcus to the petitioner.

• 1 Specific findings of fact are not required under section 602 of the Act; however, there must be some indication in the record that the trial court considered the various factors listed. In re Marriage of Shedbalkar (1981), 95 Ill. App.3d 136, 138; In re Marriage of Kennedy (1981), 94 Ill. App.3d 537, 544; In re Custody of Allen (1980), 81 Ill. App.3d 517, 520.

• 2 From a close review of the record, we find that it adequately reflects that the trial court considered the factors listed in section 602 of the Act in awarding custody. We note, in particular, that the trial judge's letter opinion and his statement during the motion for rehearing reflect that he had considered all of the evidence before finding that it was in the best interest of the child to award custody of Marcus to his father.

• 3 Respondent next argues that the trial court erred by not requiring a court reporter's presence during the in camera interview with Marcus, as mandated under section 604(a) of the Act. (Ill. Rev. Stat. 1983, ch. 40, par. 604(a).) Section 604(a) states:

"The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case." Ill. Rev. Stat. 1983, ch. 40, par. 604(a).

This section authorizes the trial court, in its discretion, to interview the child in chambers. (In re Marriage of McKeever (1983), 117 Ill. App.3d 905, 908.) There, the court can elicit the child's preference under circumstances free from the pressures and acrimony that prevail in open court. Concurrently, section 604(a) guards the right to appeal by providing for a record of the interview. The record is mandatory and cannot be waived by the parties. (DeYoung v. DeYoung (1978), 62 Ill. App.3d 837, 841.) It was therefore error to conduct the interview without making a record.

• 4 However, although it was error, the respondent was not prejudiced in this case by failing to have the in camera interview on record. Here, there is ample evidence in the record to provide a means of determining whether the trial court's decision was an abuse of discretion. (Cf. DeYoung v. DeYoung (1978), 62 Ill. App.3d 837, 841-42.) Marcus was able to testify in open court and express his preference to live with his father. Both respondent and petitioner attested to this. Moreover, the right to appeal was also well guarded for the parties had ...


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