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07/30/87 In Re Marriage of Dennis Richard Gibbons

July 30, 1987

IN RE MARRIAGE OF DENNIS RICHARD GIBBONS,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellant, and CYNTHIA SUE GIBBONS,

Respondent-Appellee

512 N.E.2d 52, 158 Ill. App. 3d 998, 111 Ill. Dec. 148 1987.IL.1092

Appeal from the Circuit Court of Coles County; the Hon. James R. Watson, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On August 2, 1985, Dennis Gibbons (petitioner) filed in the circuit court of Coles County a petition to modify judgment of dissolution of marriage, asking that custody of the minor children be transferred from Cynthia Gibbons (respondent) to himself. On May 7, 1986, the court denied the motion. Petitioner appeals, alleging the court erred (1) in applying the statutory sections, (2) in restricting the evidence admitted, (3) in prohibiting the testimony of a witness, and (4) in ordering petitioner to pay attorney fees. We reverse.

Petitioner and respondent were married on July 21, 1973. Two children were born from this marriage: Valerie, born December 20, 1973, and Hope, born December 18, 1974. On October 12, 1983, a judgment for dissolution of marriage was filed. At that time, the parties agreed custody of the children should be with respondent.

On August 2, 1985, petitioner filed a petition seeking to modify custody and attached an affidavit as required by section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 610(a)). The court allowed the petition to proceed to hearing. On October 17, 1985, an amended petition to modify custody was filed.

On May 6 and 7, 1986, a hearing was conducted on the petition as amended. Evidence was adduced relating to the current living environment of the children and to respondent's abilities as a parent. The evidence on May 6 and 7 also related to the respondent's parental traits as they existed at the time of the prior custody judgment. The court disallowed evidence concerning petitioner's current family situation and his present capabilities as a custodial parent. The court also prohibited evidence of petitioner's circumstances at the time of the original custody judgment. At the close of petitioner's case, the court granted respondent's motion for a dismissal of the petition, finding no change in circumstances had been shown.

On August 26, 1986, a hearing was conducted on attorney fees. The court found the petitioner was employed, and the respondent was living on public aid. It, therefore, ordered petitioner to pay respondent's full attorney fees of $5,115.

Petitioner contends the trial court should have applied the standards set forth in section 602 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 602) rather than using those set forth in section 610 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 610) because the initial custody order was based on the agreement of the parties, and not on a court decision evolving from a full evidentiary hearing.

Section 602 states that "[the] court shall determine custody in accordance with the best interest of the child." (Ill. Rev. Stat. 1985, ch. 40, par. 602.) It is the section used when the court is required to make ...


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