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In Re Marriage of Zucco



Appeal from the Circuit Court of Marion County; the Hon. F.A. Stocke, Judge, presiding.


Petitioner, Melanie Garrett Zucco, appeals from an order of the circuit court of Marion County modifying the joint-custody provisions of a judgment previously entered by the court in a marriage dissolution proceeding between the parties. In its order, the circuit court refused to terminate joint custody, but awarded primary physical custody of the parties' minor son, Shawn Garrett, to respondent, Reed Garrett, subject to petitioner's rights of visitation. On appeal, petitioner contends: (1) that the circuit court's order does not comport with the requirements of section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 610(b)) because it does not contain specific findings of fact to show a change in circumstances which would warrant modification of the prior joint-custody arrangement; (2) that the court erred in relying on statements made by the child in a home study report prepared by the Department of Children and Family Services concerning his preference for custody; (3) that the court's consideration of religious beliefs as a factor in its decision violated the establishment clause of the first amendment to the United States Constitution (U.S. Const., amend. I) and article I, section 3, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 3); and (4) that the court's decision constituted an abuse of discretion and was contrary to the manifest weight of the evidence. For the reasons which follow, we reverse and remand.

Petitioner and respondent were married on January 5, 1976. They had one child, Shawn, who was born November 1, 1978. The parties' marriage was dissolved by a judgment of dissolution of marriage entered by the circuit court of Marion County on June 8, 1982. That judgment incorporated a marital settlement agreement which provided, in part, that "husband and wife shall have joint custody of [Shawn]." The agreement further provided that "[e]ach parent shall have custody of said child on alternating weeks."

At the time of the dissolution, the parties both resided in Kinmundy, Illinois. Petitioner subsequently remarried and moved to Salem, Illinois, which is another school district. In August of 1984, when Shawn was about to enter kindergarten, petitioner applied to the court for an order modifying the original judgment of dissolution to award her full custody and control of Shawn, to give respondent liberal visitation with Shawn, and to make appropriate changes to the child-support arrangements. (Petitioner later filed two amended versions of this petition to modify, but each sought essentially the same relief.) On August 13, 1984, petitioner moved for temporary custody of Shawn pending a hearing on her petition to modify so that Shawn could be enrolled in the Salem schools, which were scheduled to commence classes on August 30. That motion was denied when respondent decided to relocate to Salem too and Shawn was able to begin school there without immediate alteration of his parents' custody rights. On June 14, 1985, petitioner further moved the court for leave to take Shawn from the State of Illinois to Nashville, Tennessee, where petitioner's new husband had secured employment.

Respondent opposed the petition to modify, did not want Shawn removed from the state, and requested that the court award him permanent custody and control of the child. Pursuant to section 605 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 605) the court directed the Department of Children and Family Services (DCFS) to investigate the respective parties' custodial arrangements for Shawn and to submit a report on its findings. That report (hereinafter referred to as the home study report) was filed by DCFS on May 30, 1985. On June 14, 1985, Shawn was interviewed in chambers by the presiding judge. Counsel for the parties were present. Thereafter, on June 18, 19 and 27, a hearing was held on the merits of petitioner's motion to remove Shawn from Illinois and petition to modify. On June 28, the court issued a ruling from the bench on these pleadings, but requested that counsel prepare an appropriate written order, which they did. That order was filed by the court on August 30 and amended on December 13 pursuant to respondent's post-trial motion. In the order, as amended, the court denied petitioner's petition to modify and granted respondent's request that he be given primary physical custody of Shawn, subject to liberal visitation by petitioner, but refused to formally terminate joint custody. Petitioner now appeals.

• 1 Section 603.1(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 603.1(c)) provides that "[a]ny order of joint custody may be modified or terminated upon the petition of one or both parents or on the court's own motion under the standards of Section 610." Section 610(b) (Ill. Rev. Stat. 1983, ch. 40, par. 610(b)) prohibits a modification of custody unless the court finds by clear and convincing evidence that both: (1) a change of circumstances has occurred and (2) modification of the prior custody judgment is necessary to serve the best interests of the child. (Vollmer v. Mattox (1985), 137 Ill. App.3d 1, 5, 484 N.E.2d 311, 313.) The order at issue here makes detailed findings regarding the second of these requirements, but is silent as to the first. The explanation for this omission appears to be that the parties never disputed that petitioner's decision to move just as Shawn was about to start school would, in fact, constitute a change of circumstances within the meaning of the statute. Because the court failed to specify that it relied on this change of circumstances in making its decision, however, petitioner contends that the court's order is technically deficient. Such is not the case.

• 2 Public Act 84-795 repealed section 603.1 and amended section 610(b) to provide that "[t]he court shall state in its decisions specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination." (Ill. Rev. Stat. 1985, ch. 40, par. 610(b).) That Act did not, however, become effective until January 1, 1986, after the order at issue here was entered and the appeal filed. Pursuant to section 801(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 801(d)), Public Act 84-795 is therefore inapplicable to this case. Rather, we must review the circuit court's order in accordance with the law in effect at the time that the order was entered. In re Marriage of Brown (1984), 127 Ill. App.3d 831, 834-35, 469 N.E.2d 612, 614-15.

• 3 In Vollmer v. Mattox (1985), 137 Ill. App.3d 1, 5-6, 484 N.E.2d 311, 313, a panel of this court did reverse a custody modification order for failure to comply with the same version of section 610(b) involved here (Ill. Rev. Stat. 1983, ch. 40, par. 610(b)) on the grounds that the order failed to make sufficiently specific findings concerning the requisite change in circumstances. The Vollmer panel was guided in its decision by In re Custody of Harne (1979), 77 Ill.2d 414, 396 N.E.2d 499, wherein our supreme court stated that explicit findings were "indispensable requirements" under an earlier version of the law. (77 Ill.2d 414, 420, 396 N.E.2d 499, 501.) Other courts, following In re Custody of Harne have similarly held that custody modification orders which do not contain such findings must be reversed. (See, e.g., In re Custody of Carter (1985), 137 Ill. App.3d 439, 441, 484 N.E.2d 1175, 1177-78.) In In re Custody of Blonsky (1980), 84 Ill. App.3d 810, 817, 405 N.E.2d 1112, 1117, however, the First District Appellate Court, Fourth Division, distinguished In re Custody of Harne and concluded that specific findings are not necessary where, as here, the judgment sought to be modified provided for joint custody and the change in circumstances requiring modification was indisputably established. We agree with Blonsky which, like the case at bar, involved a situation where the onset of the child's school years required a change in custody arrangements in order to serve the child's best interests. Accordingly, we find that the trial court here did not err in failing to articulate the change in circumstances upon which its order was based.

In contrast to the absence of findings on the change in circumstances, the court did, as previously noted, make extensive findings regarding the best interests of the child. After considering each of the factors set forth in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602(a)), the court reached the following conclusion:

"Although this is a close case, two factors tip the scales in the balance of the father [respondent]:

(a) In looking at the preference of the child, although the child stated, in chambers that he would not be mad at the judge if he awarded custody to either parent, the child stated, in the interview with Edith Holsapple of the Department of Children & Family Services, in conducting the home study that he was happiest when he was with his dad a little longer.

(b) While not provided for in the Dissolution of Marriage Act, the Adoption Act provides for consideration of religious beliefs. It is the Court's opinion that upbringing in religion is important to a child of this age."

Petitioner objects to the court's reliance on the statements made by Shawn in the home study report on the grounds that Shawn was not sufficiently mature at age six to intelligently express a preference as to custody, that his statements were not made under conditions assuring their trustworthiness, that petitioner was denied the opportunity to cross-examine the Department of Children and Family Services investigator regarding the statements, that the statements are mere hearsay, and that the statements contradicted remarks made by Shawn to the trial court in chambers. We agree that the court's findings regarding Shawn's preference for custody were improper, but we do not reach the merits of these particular objections, for there are more fundamental flaws with the court's decision.

• 4 First, the court's apparent belief that Shawn preferred being with respondent is not supported by the evidence, even if we assume that Shawn's statements in the home study report are not inadmissible as hearsay. In the report done while Shawn was staying with respondent, the investigator reported Shawn as having said that he "liked it [the custody arrangement] the way it was," a point omitted by the trial court. The trial court further omitted reference to the conclusion drawn by the investigator after her interview with Shawn at petitioner's home that "[a]t this point Shawn is feeling the strain of his custody ...

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