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12/17/87 In Re Marriage of Thomas F. Stone

December 17, 1987

IN RE MARRIAGE OF THOMAS F. STONE, JR.,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Petitioner-Appellee, and VIRGINIA L. STONE, n/k/a

Virginia L. Husty, Respondent-Appellant)

518 N.E.2d 402, 164 Ill. App. 3d 1046, 115 Ill. Dec. 877 1987.IL.1859

Appeal from the Circuit Court of Cook County; the Hon. Samuel G. Berger, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

This action concerns the custody determination of the child of Thomas and Virginia Stone. The trial court awarded temporary and permanent custody of the child to the father, Thomas. Virginia appeals, contending that: (1) her constitutional rights were curtailed when the trial court entered the temporary custody order without an evidentiary hearing; (2) the custody determination is against the manifest weight of the evidence; (3) the trial court committed cumulative, reversible errors; and (4) the trial court erred in refusing to reconsider its custody determination in light of matters brought to its attention on timely motion following judgment.

We affirm.

Background

The parties were married in April 1981. Their daughter, Jennifer, was born in December of that year. Virginia already had a daughter, Pamela, who was 1 1/2 years old when Virginia married Thomas.

On June 1, 1984, Virginia left her husband and moved to Tampa, Florida, taking the two girls with her. She did not advise him of her whereabouts but wrote him a letter two weeks later in which she said she would return Jennifer because she could not afford a day care center. She later changed her mind.

In November of 1984 Thomas located Virginia through a private detective and served divorce papers on her. In December 1984, Thomas flew to Tampa and picked up Jennifer, returning with her to Chicago. There was no court order in effect at that time concerning custody.

On January 21, 1985, Virginia, by her attorney, presented an emergency motion for custody of Jennifer. The trial court declined to enter an order on that date because Virginia was in Florida and could not testify. Her attorney withdrew the motion. In March 1985 the emergency motion was renewed but the court found there to be no emergency and ordered mediation. By agreement of the parties the court entered a temporary order allowing Jennifer to be with her mother for three months, from March to June. In June, Thomas was to have custody for three months. The matter was continued to September 18, 1985.

On September 18, 1985, Virginia's attorney admitted that there was no emergency. Accordingly, the emergency motion Judge removed the case from his call and sent it to custody mediation to be called up in the normal course of events. Since the temporary, agreed custody order expired on September 18, the court ruled that the temporary custody of Jennifer should remain with Thomas, without prejudice, since he and the child were in Illinois and Virginia lived in Florida. Virginia's attorney did not object to this procedure or request an evidentiary hearing on temporary custody before the emergency motion Judge.

The trial for the custody of Jennifer took place beginning April 8, 1986. Both parties testified as to the care they had given to Jennifer and the good relationship they enjoyed with her.

Virginia accused Thomas of slighting Pamela, her other daughter, in favor of Jennifer. Virginia testified that Thomas had bouts of depression and withdrawal. She said he frequently drank liquor and smoked marijuana. As a result of her husband's behavior, Virginia decided to leave him.

Virginia testified that she is capable of caring for both children. She moved to Tampa, where she found employment. In August 1984 she moved to a studio apartment. She met her boyfriend, Henry Husty, in August 1984. On occasion, he stayed overnight. During those evenings ...


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