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06/10/87 In Re Custody of James Dale Padgett

June 10, 1987

IN RE CUSTODY OF JAMES DALE PADGETT, JR. (JANET E. PADGETT,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

n/k/a Janet E. Lindwedel, Plaintiff-Appellee, v.

James Dale Padgett, Defendant-Appellant)

510 N.E.2d 435, 157 Ill. App. 3d 492, 109 Ill. Dec. 567 1987.IL.781

Appeal from the Circuit Court of Perry County; the Hon. Robert Bastien, Judge, presiding.

APPELLATE Judges:

JUSTICE KASSERMAN delivered the opinion of the court. HARRISON, and WELCH,1 JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KASSERMAN

Defendant, James Dale Padgett, perfected this appeal from certain orders of the circuit court of Perry County regarding child custody and the assessment of plaintiff's attorney fees against defendant for bringing a vexatious child custody modification petition against plaintiff, Janet E. Lindwedel (formerly Padgett). Since the parties have settled the child custody issues, thereby rendering such issues moot, the only issue before this court is the assessment of attorney fees. The facts relevant to deciding this issue are as follows.

On August 2, 1976, the parties were married in Ava, Jackson County, Illinois. A male child, James Dale Padgett, Jr., was born to the parties in early 1977. On or about August 19, 1977, defendant and the child moved out of the marital home. On August 24, 1977, plaintiff filed a complaint for divorce in the circuit court of Perry County, requesting, inter alia, that she be awarded custody of the child. Although defendant was personally served a summons in this action, he neither answered the complaint nor entered an appearance. A default judgment entered on September 30, 1977, granted plaintiff permanent custody of the child.

The defendant testified at the modification proceedings that he had left Illinois for a job in Texas prior to the entry of the default judgment and that he had taken the child with him because plaintiff did not take care of the child. Between the years 1977 and 1985, defendant and child lived in Texas; Missouri; Ava, Illinois; Virginia; North Carolina; Arkansas; and Tennessee. During this time, defendant was employed and provided for the child's needs.

The defendant retained actual physical custody of the child until March 15, 1985, the date when plaintiff discovered the child's whereabouts and instituted legal proceedings in Shelby County, Tennessee, for the child's return to her custody. The child was returned to plaintiff's custody on or about March 21, 1985. On March 22, 1985, defendant filed a petition to modify child custody, which was subsequently amended, alleging that while plaintiff, defendant, and child lived together in the marital home, plaintiff subjected the child to violence, which caused defendant to move out of the marital home with the child. Defendant further alleged that plaintiff acquiesced in defendant's continued custody of the child and that the child had, during the seven years of defendant's exclusive custody, become integrated into defendant's family. Plaintiff, inter alia, requested attorney fees for the modification proceedings.

On September 18 and 19, 1985, a hearing was held on the above matters. Plaintiff testified that she neither acquiesced in nor consented to defendant's retaining custody of the child. The record establishes that plaintiff filed an unsuccessful habeas corpus action to obtain custody in Jackson County, Illinois, in 1979. Plaintiff testified that in 1983 she enrolled in "Child Find," a national organization which locates missing children, and that "Child Find" found the child in the spring of 1984 in Colerain, North Carolina. Plaintiff testified that defendant and the child left Colerain before she could institute legal proceedings to enforce the custody judgment. After investigating another "Child Find" tip which produced no result, plaintiff placed an ad in the Bertie County (North Carolina) Ledger in January 1985. Information obtained from this ad led to the discovery of the child in Memphis, Tennessee, and his eventual return to plaintiff's custody.

Sections 610(b) and 610(c) of the Illinois Marriage and Dissolution of Marriage Act provide in pertinent part:

"(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, or in the case of a joint custody arrangement that a change has occurred in the circumstances of ...


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