APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
Petitioner-Appellant, and NORMAN B. SCHAEFER,
515 N.E.2d 710, 161 Ill. App. 3d 841, 113 Ill. Dec. 725
Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding. 1987.IL.1441
JUSTICE MANNING delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
The petitioner Lynn Schaefer, n/k/a Lynn Buckley, appeals from an order entered by the trial court enjoining her from using the name Buckley as a surname for the two minor children of petitioner and respondent.
The petitioner Lynn Schaefer, n/k/a Lynn Buckley, and the respondent Norman Schaefer were married on December 27, 1969. Born of the marriage were Wren and Nicholas-John, 12 and 10 years old, respectively, at the time of the hearing on this petition for a restraining order. On March 22, 1978, a judgment of dissolution of marriage was granted. Custody of the two minor children was granted to Lynn Schaefer and reasonable visitation rights were conferred upon Norman Schaefer. Lynn Schaefer was remarried in May of 1980 to William Buckley.
On September 9, 1982, Norman Schaefer filed a petition for modification of visitation rights alleging that Lynn Buckley made it difficult for him to see the children. An order was entered on October 21, 1982, granting Norman Schaefer visitation rights on specific dates and times. A separate order was entered on that same date requiring Lynn Buckley to provide Norman Schaefer with the children's school records and to inform him of any psychological problems they may be having at school.
On June 18, 1984, Norman Schaefer filed a petition for rule to show cause and for modification alleging that Lynn Buckley was not providing him with copies of his children's report cards in accordance with prior orders and that she was interfering with his visitation rights. On March 6, 1985, the court entered an order that the children were to hand deliver their report cards to Norman Schaefer upon receipt.
On March 12, 1986, Norman Schaefer filed a petition for restraining order which prayed that Lynn Buckley be permanently enjoined and restrained from using the surname of "Buckley" on school records. Lynn Buckley filed a response to the petition admitting the use of the "Schaefer-Buckley" name by the children since March 1983. In her response she further asserted that Norman Schaefer was aware that the children were using the "Schaefer-Buckley" name since March 1983. Therefore, he should be estopped from seeking injunctive relief. Moreover, she filed a petition seeking a legal name change of the minor children to "Schaefer-Buckley." The trial court did not rule on the latter petition.
On March 26, 1986, a hearing was held on Norman Schaefer's petition for injunctive relief. Immediately preceding that hearing, the petitioner's attorney moved to take a discovery deposition of Norman Schaefer. The motion was denied by the trial court. During the hearing, both parties testified. Additionally, the trial court conducted an in camera examination of the children.
Norman Schaefer testified that he was not aware that the children were using the "Schaefer-Buckley" name until March 1985, when he received a "lump of report cards" listing his children as "Schaefer-Buckley." Moreover, he noticed that the label on his son's asthma medication listed the son as Nicholas Buckley. His testimony does not reveal the date that he made this discovery.
Lynn Buckley testified that the two minor children began "exclusively and continuously" using the "Schaefer-Buckley" name in March or April of 1983. Furthermore, the "Schaefer-Buckley" name appeared on school records, medical records, library cards, bank accounts and in newspaper articles. She further testified that Norman Schaefer became aware of the use of the "Schaefer-Buckley" name as early as the summer of 1984, when he noticed the name Nicholas Buckley on his son's ...