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08/06/87 In Re Marriage of Lizabeth Tifft England

August 6, 1987

IN RE MARRIAGE OF LIZABETH TIFFT ENGLAND,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellant, and ALBERT CHARLES ENGLAND,

Respondent-Appellee

512 N.E.2d 95, 158 Ill. App. 3d 1005, 111 Ill. Dec. 191 1987.IL.1131

Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Petitioner, Lizabeth Tifft England, appeals from an order entered December 2, 1986, in the circuit court of Champaign County continuing joint custody of the parties' minor child but changing physical custody to respondent, Albert Charles England. The court indicated that the parties, by agreement, treated a petition for aid and direction pursuant to which the order was entered, as a petition to modify the custody arrangements of the child. On appeal, petitioner maintains the trial court abused its discretion and failed to follow the requirements of the statute in ordering the change of physical custody. Petitioner requests that the portion of the December 2, 1986, order changing physical custody be set aside, and she be awarded physical custody. In the alternative, she requests a rehearing as to the instant petition. We affirm.

The record indicated: (1) A judgment order was entered in the circuit court of Champaign County on November 3, 1981, awarding joint custody of the parties' minor child, with the respondent to have physical custody from 5 p.m. on Tuesday to 8 a.m. on Thursdays; (2) at this time both parties resided at Urbana, Illinois; (3) on February 18, 1982, the parties stipulated that respondent would have custody the last week of January 1982 and all of February 1982 and thereafter the physical custody would alternate each month, with petitioner having custody in March of 1982; (4) that stipulation was approved by order entered February 18, 1982; (5) in August 1984, petitioner obtained a Ph.D. degree, and the parties agreed to an order, entered August 10, 1984, modifying the physical custody arrangement for a two-year period to allow the child to accompany his mother while she taught in Egypt; (6) that order provided for visitation by the father during the two-year period; and (7) the aforesaid agreement, which was incorporated in the order of modification, provided that after the end of the two-year period, the parties would meet and discuss options for the child's living arrangements and that if the parties could not agree, respondent's "opinions about living arrangements will carry an extra presumption of weight for the following two years" because of his loss of opportunity for visitation in 1984 and 1985.

The record also indicated that: (1) when petitioner returned to the United States, she accepted a position in Carbondale; (2) the parties were unable to resolve the question of where the child was to live, and in June of 1986, respondent filed the instant petition for aid and direction with the court; (3) the court entered a temporary order permitting the child to reside with his mother pending further proceedings; and (4) the court appointed a psychologist to conduct a mental health evaluation of the parties and the child.

On October 16, 1986, a hearing was held pursuant to the then pending petition. In an order entered December 2, 1986, the trial court determined that clear and convincing evidence established a change in the circumstances of the parties and their child since the entry of the custody order on August 10, 1984. The court further found that it was in the best interest of the child that joint custody continue but that the prior order be modified to provide physical custody of the child with the respondent during the school year and with the petitioner during his summer vacation from school, with liberal visitation by the noncustodial parent, all to begin with the second semester of the 1986-87 school year.

The record of the evidence at the October 16, 1986, hearing on the petition was provided by a bystander's report which was prepared because of a malfunctioning tape recorder which had been relied upon to record the proceedings. This is the reason for petitioner's request for a new hearing. Petitioner maintains that the bystander's report was inadequate to throw enough light on the important issue involved to enable us to make an informed decision. We disagree and find the furnished bystander's report to be adequate under the circumstances. Prolonging the proceedings for a new hearing would not be in the best interest of the child or of the parties.

According to the bystander's report, petitioner testified that when she returned from Egypt, she accepted a position in Carbondale because of its proximity to Urbana. She said she felt the child was much closer to her and needed her care and attention, but that respondent's career as a physician was too demanding to allow him to pay proper attention to the child's needs. Petitioner denied that, while respondent was visiting the child in Egypt, she threatened to "hold him hostage" in her apartment until he agreed their child would reside with her upon her return to the United States. Petitioner described incidents involving respondent which showed her hostility toward him and admitted stating that the child would live with respondent "over her dead body." Petitioner stated that, while she was in Egypt, she was offered several jobs at locations throughout the United States but accepted the lesser paying position at Carbondale because it was closer to Urbana. Petitioner said she could envision no circumstance under which she did not have custody of the child.

Respondent testified that he had continued to live in the former marital home since the dissolution of the parties' marriage, and he continued to work for the University of Illinois College of Medicine and as a consultant with the Christie Clinic. He stated that after the dissolution, he began mental health counseling with a local psychotherapist for depression related to the marital breakup and that counseling continued for at least two years prior to the 1986 hearing on the basis of five days per week. Respondent agreed it was a positive opportunity for the child to live in Egypt, and it was his understanding that the custody modification agreement would give respondent the opportunity to make plans for the child following his return to the United States. Respondent also described several incidents which were indicative of hostility between petitioner and respondent. ...


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