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In Re Marriage of Clark

OPINION FILED NOVEMBER 19, 1986.

IN RE MARRIAGE OF MADONNA M. CLARK, PLAINTIFF-APPELLEE, AND THOMAS W. CLARK, DEFENDANT-APPELLANT.


Appeal from the Circuit Court of Will County; the Hon. Bruce Falk, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Thomas W. Clark, appeals from the trial court's denial of his petition to modify the original judgment awarding custody of the three children of the marriage to the plaintiff, Madonna M. Clark. Further, the court denied the defendant's petition to modify the property division with respect to the marital residence. Defendant sought to require the plaintiff to transfer possession to him and to execute a quitclaim deed in his favor. As to both the custody and the property aspects of the petition to modify, we affirm the order of the trial court.

In denying the petition to modify custody, the trial judge found that the defendant had failed to meet his burden under section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 610(a)), applicable to custody modifications within two years after the entry of the judgment. The defendant urged that the court should apply the "best interest" standard, based upon a showing of a change in circumstances since the prior judgment. The court ruled that under section 610(a), before making a change of custody, it was required to find that the child's present environment may seriously endanger his physical, mental, moral, or emotional health.

As amended in 1982, section 610 of the Act reads in part:

"Sec. 610. Modification. (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

(b) After the expiration of the 2 year period following a custody judgment specified in subsection (a) of this Section, the court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian * * * and that the modification is necessary to serve the best interest of the child." Ill. Rev. Stat. 1983, ch. 40, par. 610.

Under the defendant's interpretation of the foregoing statute, the standard to be applied to petitions filed within two years of judgment, as well as to those filed more than two years after judgment, is that which is contained in section 610(b). He argues that section 610(a) fails to set forth any evidentiary standard pertaining to the determination of change of custody, but rather establishes a requirement of showing a present endangerment only as a preliminary step to a hearing. That is, once the court finds that the petitioner, by affidavit, has shown that there is reason to believe that the child's present environment poses the requisite danger, the court must go on to decide the merits of the petition on the basis of the lesser standard that a change in circumstances has occurred and that a change of custody would be in the best interests of the child.

The sole authority cited by the defendant in support of his position is the unpublished order of In re Marriage of Grisham (1984), 125 Ill. App.3d 1178 (Rule 23 order). Although the case appears to be one in point, under Supreme Court Rule 23 (87 Ill.2d R. 23), we are not permitted to consider the decision as setting any precedent for our ruling in this case, and such an order should not be cited.

• 1 In any event, a more persuasive statutory interpretation is offered in In re Custody of Carter (1985), 137 Ill. App.3d 439, 484 N.E.2d 1175. There, the Second District reversed a change of custody based solely upon section 610(b) findings, holding that by reenacting subsection (a), the legislature had demonstrated a clear intent to allow modifications within two years only in emergency situations. We agree with the Second District's conclusion that "[i]t would make little sense to require a preliminary showing of endangerment if that was not one of the standards to be applied later at trial." 137 Ill. App.3d 439, 442, 484 N.E.2d 1175.

The court in Carter further determined that the legislature intended that the requirements of subsection (b) would also apply to modifications filed within two years. (In re Custody of Carter (1985), 137 Ill. App.3d 439, 442, 484 N.E.2d 1175.) Consequently, as the trial court correctly ruled, the findings which result in a decision to change custody must be made on the basis of clear and convincing evidence.

Having determined, therefore, that the trial judge employed the correct standard, we must now consider whether his decision was against the manifest weight of the evidence. The defendant presented the testimony of two of the children's teachers, who described the abilities of Bobby, age nine, and Cristin, age seven, as being far in excess of their performance in school. Both were receiving failing grades after having previously done much better, and the teachers expressed the opinion that the children's mother failed to follow up at home by supervising their homework, responding to failing papers and notes which the teachers sent home, or helping with reading and spelling. However, these witnesses also testified that the children are kept clean and well-groomed.

The eldest child, Tommy, age 10, suffers from a hearing impairment, and the evidence indicated that the plaintiff neglected to obtain a hearing aid for him for almost two years, even after the defendant made arrangements to get one at no expense.

Tommy attends a special-education program due to a learning-disability problem. The plaintiff missed an important school conference with his teacher, social worker, language aides, and psychologist. Mrs. Clark testified that Tommy didn't tell her about the meeting until that night, whereas Mr. Clark said that the school had notified him about a month in advance.

Extensive evidence was also presented concerning the dilapidated condition of the plaintiff's home, which is the former marital residence; the plaintiff's sexual relationship with a man from Michigan; and the plaintiff's failure to return for over two months from what was to have been a ...


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