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06/08/87 In Re Marriage of Rodney W. Drummond

June 8, 1987

IN RE MARRIAGE OF RODNEY W. DRUMMOND, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

and JULIA A. DRUMMOND, n/k/a Julia A. Frawley,

Respondent-Appellant

509 N.E.2d 707, 156 Ill. App. 3d 672, 109 Ill. Dec. 46 1987.IL.765

Appeal from the Circuit Court of Woodford County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

The parties, Rodney W. Drummond (husband), and Julia A. Drummond (wife), were married on August 14, 1981. On May 15, 1984, husband filed a petition for dissolution of marriage. On December 26, 1985, the circuit court of Woodford County entered a judgment of dissolution of marriage specifically reserving issues of permanent custody, child support, maintenance, distribution of property, and attorney fees. The case proceeded to trial on these remaining issues, and on June 27, 1986, the court entered its order which provided for joint custody of the couple's minor child, distribution of marital property, and denial of attorney fees and permanent maintenance. Following denial of her petition for clarification, and post-trial motion, wife appeals the order of the trial court.

Wife alleges six areas of error for our consideration upon review: (1) the joint-custody order; (2) the award of partial custody to husband; (3) distribution of marital property; (4) attorney fees; (5) evidentiary rulings at trial; and (6) denial of her motion for reconsideration. We affirm in part, reverse in part, and remand.

The parties married in August of 1981. At the time of marriage, wife had joint custody of two children from a previous marriage. Consequently, wife's children, Ben, age 10, and Stacee, age 7, occasionally resided in the marital home. In October of 1981, Ben and Stacee moved into the marital residence on a permanent basis.

The trial court record from the second part of the bifurcated dissolution proceedings is replete with contradictory evidence. Wife maintains that husband was mentally and emotionally abusive to her children. Husband, however, who claims that while he was initially shocked when the children moved in permanently, without notice, maintains that he often cared for the children, assisted them with homework, and planned family outings.

In December of 1981, wife became pregnant, giving birth to Joshua Drummond in 1982. Wife testified that husband did not assist in the care and upbringing of Joshua. Husband, however, claimed that he was thrilled by the birth of his son and took an active part in caring for the infant.

There was a great deal of evidence adduced regarding wife's physical problems and her abuse of prescription medication. Husband introduced into evidence a summary of wife's prescription records for a 3 1/2-year period. The list included a wide variety of drugs, the majority of which were psychotropic and addictive agents. Wife admitted taking all of these drugs and additionally noted that the list was not all-inclusive of the prescriptions she obtained during that period of time. Wife further stated that she often combined different drugs from separate physicians without seeking any doctor's advice.

The ingestion of these drugs affected wife's ability to care for her home and her family, especially Joshua. Husband, who witnessed wife's mixing of various prescriptions, stated that wife acted sluggish, drowsy, and incoherent on numerous occasions. Husband testified about one particular incident where wife staggered down a flight of stairs and walked directly into a wall, collapsing to the floor. At the time of this incident, wife was caring for Joshua, which caused husband great concern. Mr. Robert Knudsen, a friend and business associate of husband, corroborated this particular incident.

At trial, wife candidly admitted fabricating physical ailments. Wife told a number of people that she was suffering from an aneurysm of the vessel of the brain. Wife also informed husband and husband's grandmother that she only had one kidney, which required her to undergo dialysis treatment. Wife's physician confirmed that wife was physically healthy and had only been treated for migraine headaches.

Husband presented substantial evidence of wife's poor housekeeping capabilities. Robert Knudsen testified that he visited the Drummond residence for extended periods on numerous occasions and that the house was always a mess, with much "disarray and confusion." Knudsen said that dishes were undone, the refrigerator often contained moldy food, toys and clothes were scattered everywhere, and dirty clothes and diapers were piled up. Knudsen noted that wife would often leave the home for extended periods of time to bowl or play volleyball, leaving husband to clean, cook, and care for the three children.

Husband introduced into evidence a series of 36 pictures depicting the condition of the house. The pictures show molding food in the refrigerator, dirty dishes, uneaten food left out in accessible and open areas of the kitchen, garbage on the floor, and clothes scattered throughout the house. The pictures were allegedly taken over a period of time in early 1984 prior to her husband's filing for dissolution. Wife did admit that she "was less than perfect" with respect to the upkeep of the home. Wife claimed, however, that she experienced many medical problems and a great deal of stress during the early part of the marriage.

Husband testified that he relocated to Texas in September of 1984 due to a promotion. At the time of trial, husband's salary was approximately $2,400 per month. Since the move, husband has arranged for Joshua to visit him on eight separate occasions. Husband incurred all the expense of these trips, totaling in excess of $7,000. Husband maintains that he has a good relationship with his son, is very involved in his son's emotional and intellectual development, and that his son enjoys the trips to Texas. Husband admitted that his work requires him to travel away from home, but stated that he also has discretion in establishing his work schedule. Husband testified that he is better able to provide a stable home environment for Joshua and would hire a full-time nanny to assist him.

At trial, an issue arose regarding the admissibility of certain evidence concerning an "alleged" homosexual relationship of husband. The issue arose when wife asserted that Joshua had reported seeing his father kiss Robert Knudsen. These allegations were raised by wife in the midst of trial. Counsel admitted to the court that he had no evidence of any alleged homosexual activity by husband. The very next day, wife again brought this matter to the attention of the court. The trial court then appointed a guardian ad litem and ordered that Joshua be interviewed by two mental health professionals.

Dr. Brody, a psychiatrist, determined that the child may well have been prompted or coached in making these assertions and, in any event, the statements were not reliable. Dr. Leone C. Legan, a psychologist who examined Joshua, found the story was "contrived and embellished to placate and please others." The guardian ad litem, Mark J. McGrath, concluded that the child had been prompted or coached into making such statements. The court determined that there was no credible, reliable, or admissible evidence regarding this issue and denied any testimony in that respect.

Wife presented a great deal of character evidence. Several witnesses testified that wife is a responsible person who works well with other individuals. Two individuals specifically stated that they had been present in wife's home, which was clean, orderly, and well kept. They further stated that the children interacted well, were extremely polite, and very obedient. Both Stacee and Benjamin testified at trial. They both expressed their love for and companionship with Joshua.

Wife's mother, Margie Nelson, testified that she assists wife with the care of Joshua, cooking, and cleaning. Nelson stated that wife was under a great deal of stress during the marriage, but has undergone a complete turnaround since the separation. In addition to changes in her housekeeping habits, Nelson ...


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