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Cooper v. Cooper





Appeal from the Circuit Court of St. Clair County; the Hon. Milton Wharton, Judge, presiding.


The marriage of petitioner, Michelle Cooper, and respondent, Edward Cooper, was dissolved by a judgment of the circuit court of St. Clair County. Respondent appeals contending the court erred (1) in awarding custody of the couple's only child to petitioner and (2) in failing to consider certain marital debts when it divided the marital property. We affirm.

Petitioner and respondent were married in October of 1976. Their only child, Jason, was born on September 20, 1979. Respondent left the marital home in November of 1984, taking Jason with him, after learning petitioner had become sexually involved with another man. Respondent and Jason moved into respondent's mother's home, where they were still residing at the time of the proceedings below. Respondent plans to move into a home of his own in the near future. Petitioner continues to reside in the family home.

In a temporary custody proceeding, the parties were awarded joint custody of Jason. In the final judgment, petitioner was awarded custody. Respondent contends this award of custody to petitioner was against the manifest weight of the evidence. He argues that the evidence shows petitioner is guilty of what he calls "promiscuous indiscretions," that petitioner has a poor relationship with Jason, and that Jason prefers to live with him.

• 1 In determining custody, the primary consideration is the best interest and welfare of the child. (In re Marriage of Stuart (1986), 141 Ill. App.3d 314, 317-18, 490 N.E.2d 243, 246.) Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 602) requires that the court consider all relevant factors, including those enumerated in the statute. We will not disturb the trial court's determination of custody unless it is against the manifest weight of the evidence or is manifestly unjust. In re Marriage of Stuart (1986), 141 Ill. App.3d 314, 318, 490 N.E.2d 243, 246.

In attempting to show custody should not have been awarded to petitioner, respondent points to petitioner's love affair with another man during the marriage. Petitioner admitted that she had been sexually involved with another man during her marriage to respondent. She admitted to having sex with him twice, but testified none of these encounters occurred at her home or in the presence of Jason, and that Jason would have no way of knowing of this relationship unless he heard of it from respondent or others. Furthermore, petitioner testified her relationship with this man had ended.

• 2 Section 602(b) of the Act states: "The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child." (Ill. Rev. Stat. 1985, ch. 40, par. 602(b).) Our supreme court has held that there is no conclusive presumption that a child is harmed because a custodial parent cohabits with a member of the opposite sex. (In re Marriage of Thompson (1983), 96 Ill.2d 67, 78, 449 N.E.2d 88, 93, cert. denied (1983), 464 U.S. 895, 78 L.Ed.2d 232, 104 S.Ct. 242.) It would seem that there would be no presumption of any kind that the child has been harmed in the case of covert sexual encounters not amounting to cohabitation of which the child was unaware. See In re Marriage of Smith (1985), 132 Ill. App.3d 694, 701, 479 N.E.2d 929, 933.

• 3 Respondent claims that Jason was in fact harmed by petitioner's actions. He testified that Jason told him "mommy and Mike was holding hands" in the park one day. Susan Owensby, a teenager who babysat Jason on occasion, testified that at times she would baby-sit Jason in the yard outside the family home while petitioner had a male guest come into the home. Susan testified that she and Jason were not allowed inside the home during the times the male guest was present. Despite this testimony, there was no evidence Jason understood the implications of these events. A psychologist, Dr. Michelle Ruffy, testified on behalf of respondent that if a parent is not consistent and honest about his or her moral behavior, a child can be adversely affected. However, she was unable to express any opinion regarding the effect of petitioner's conduct upon Jason, and admitted that a child of Jason's age may not be able to understand the nature of petitioner's relationship with her paramour. Because there is no presumption Jason was harmed by his mother's actions, and because there is no evidence of any actual harm to Jason, the trial court would have been correct in not considering this conduct.

Respondent, however, also points to evidence that during the marriage petitioner made sexual advances to a 15-year-old boy. The youth, Gary Kuepper, testified he was the president of a youth organization at his church while petitioner was the group's moderator. He stated that when petitioner went with the group to a movie, she sat next to him and was "hanging" on him, and her leg would touch his. He also recalled that she would slow dance with him during dancing lessons sponsored by the group. Another specific incident occurred at a youth group outing at a swimming pool. Gary stated that petitioner, who was wearing a "skimpy" bikini, approached him and put ice down the front of his swimming suit, touching his penis as she did so.

Petitioner denied ever making sexual advances to Gary. She admitted she placed ice down his swimming suit, but stated that she placed it down the back of the suit and denied touching Gary's penis. Kevin Gordon, a Cahokia policeman who assisted the youth group and attended group functions, testified that he never saw petitioner do anything improper.

• 4 While petitioner's conduct can at best be classified as immature, and we do not condone it, respondent has failed to show how this conduct affected petitioner's relationship with Jason. The same is true of the evidence presented by respondent that petitioner was seen in public in seductive clothing. Peter Peskar testified that petitioner would watch ball games at a park near her home wearing "very revealing" clothes, such as hot pants. Petitioner denied ever dressing in a seductive manner, and testified she does not own any hot pants. She also presented two witnesses who testified they often saw petitioner at the park and that she never was dressed in a seductive manner. Even assuming this conduct in some indirect way affected Jason, it was but one factor to be considered by the trial court.

Respondent presented other evidence in an attempt to show petitioner would not be a proper custodian for Jason. Respondent testified petitioner is very short-tempered with Jason, and is more interested in keeping the house clean than in caring for the child. Respondent claimed that when petitioner was with Jason that the boy "wasn't allowed to go outside and get dirty like a normal child." Respondent stated that he observed petitioner washing off Jason with a hose outside in October after Jason had become dirty from playing in a pile of dirt. Respondent intervened and took Jason inside to give him a bath. Petitioner admits hosing Jason off, but says he was too dirty to go into the house and that the incident occurred on a summer evening. On another occasion, according to respondent, Jason was urinating in the yard after petitioner refused to allow him to use the bathroom inside. Respondent also testified that Jason hurt his eye while in the custody of petitioner, and that petitioner was remiss in failing to take him to the hospital for treatment. Respondent testified he took Jason for medical treatment when the boy was turned over to him for his period of custody. Petitioner countered this evidence by testifying that she called the hospital twice to get advice on what to do after Jason was injured, and was told it was not necessary for him to go to the hospital. Respondent also testified that he provided much of the care for Jason. He often fed him, bathed him, played games with him, and took him on outings. Respondent stated that he often fixed breakfast for Jason because petitioner would stay up late at night and in the morning would not be interested in taking time to fix a good breakfast for the child.

Respondent's mother, Shirley Sampson, testified that petitioner was short-tempered. Sampson stated she once observed petitioner slap Jason on the mouth for eating candy after being told not to, and that petitioner then took Jason to the bathroom and when he came out his nose started bleeding. Petitioner denies this incident occurred. Sampson also stated that Jason told her, "mommy said dad might try to hurt us and kill us." Sampson also testified that Jason did not want to visit his mother when the time came for petitioner to take Jason.

Susan Owensby, the babysitter, testified that respondent had a good relationship with Jason, but that it was her view that petitioner has no patience with the child, and that she has seen petitioner slap Jason on his face on three separate occasions. Susan testified that on one of these occasions, Jason simply had asked his mother for something to drink, and his mother said "No" and slapped him. Petitioner denies ever slapping Jason. Another witness, Peter Peskar, who observed petitioner with her son at the park, stated that petitioner was not attentive to Jason when she attended ball games. However, Charles ...

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