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07/17/87 In Re Marriage of Steven Rex Lovejoy

July 17, 1987

IN RE MARRIAGE OF STEVEN REX LOVEJOY, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

and KAREN LEE LOVEJOY, n/k/a Karen Lee Walsh,

Respondent-Appellant

510 N.E.2d 636, 158 Ill. App. 3d 1, 109 Ill. Dec. 768 1987.IL.1013

Appeal from the Circuit Court of McDonough County; the Hon. U. S. Collins, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The marriage of the petitioner, Steven Lovejoy (father), and the respondent, Karen Lovejoy (mother), was dissolved on June 4, 1982. At that time, the parties were granted joint custody of their minor child, Angela, who was 21 months old. The joint custody arrangement provided that the father have custody one week a month and 1 1/2 months during the summer. On December 14, 1984, the father filed a petition seeking sole custody of Angela. The mother filed a response and counterpetition for sole custody. The case proceeded to trial and both parties presented evidence adverse to each other and evidence that they were the proper person to have sole custody of Angela. After hearing all the evidence, the trial court awarded custody to the father. The mother appeals.

The mother's first argument on appeal is that the trial Judge erred in denying her motion for a directed verdict, at the close of the father's case-in-chief, on the ground that the father failed to meet the burden of proof required to terminate joint custody. The respondent relies on that part of the Illinois Marriage and Dissolution of Marriage Act which provided:

"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 the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest." (Ill. Rev. Stat. 1983, ch. 40, par. 610(b) (current version at Ill. Rev. Stat. 1985, ch. 40, par. 610(b)).)

The mother maintains that the father's evidence failed to establish a change in circumstances justifying the termination of the joint custody arrangement. The argument must fail. In the instant case, the mother filed a counterpetition seeking sole custody of Angela, thus agreeing to termination of the previous joint custody arrangement. Accordingly, the father was not required to show that a change in circumstances had occurred.

Even assuming that it was necessary to show a change in circumstances, such was clearly shown. The mother has moved so that the parties are now approximately 250 miles apart, and Angela has reached school age. These changes caused the joint custody arrangement to become a strain and burden on all involved and warranted modification.

The mother next contends that the trial court's decision to award custody of Angela to the father is against the manifest weight of the evidence and an abuse of discretion. The determination of child custody rests largely within the broad discretion of the trial court, and its decision at trial will not be disturbed on appeal unless it is against the manifest weight of the evidence or unless the court has abused its discretion. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710.) The presumption favoring the result reached by the trial court is strong since it is in a better position to evaluate the credibility of the ...


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