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06/03/88 In Re Marriage of Jeanne Lynne Nicholas

June 3, 1988

IN RE MARRIAGE OF JEANNE LYNNE NICHOLAS, PLAINTIFF, AND


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

JIMMY EARL NICHOLAS, Defendant-Appellee (Jerome G.

McArthur et al., Intervenors-Appellants; Robert

McArthur et al., Intervenors)

524 N.E.2d 728, 170 Ill. App. 3d 171, 120 Ill. Dec. 698 1988.IL.874

Appeal from the Circuit Court of Knox County; the Hon. Daniel J. Roberts, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

This case comes on appeal of an order dated September 18, 1987, denying appellants' motion for leave to intervene and dismissing appellants' motion for leave to file petition for modification of custody and motion for temporary custody pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)).

Jeanne Lynne Nicholas and Jimmy Earl Nicholas (defendant-appellee) were married on August 1, 1980. On January 8, 1982, Eric Jon Nicholas was born. A somewhat complex court file indicates that the parties separated on July 18, 1986. On that same date it appears as though an ex parte domestic violence order of protection was entered requiring defendant to refrain from striking, threatening, harassing or interfering with the personal liberty of Jeanne and Eric Nicholas. That order was extended to August 12, 1987, by order filed July 28, 1986. On August 12, 1987, a temporary order was entered granting the temporary custody and care of Eric to Jeanne subject to defendant's right to visitation on alternate weekends. Defendant was further enjoined from making any contact with Jeanne or Eric except for visitation. The parties' marriage was dissolved by order dated December 18, 1986, and a judgment of dissolution of marriage (bifurcated: economic issues settled) was entered on March 31, 1987, wherein the trial court found that the mother was a fit and proper person to have the care, custody, control and right to direct the secular and religious education of the minor child. No finding was made regarding the fitness of defendant. The judgment also incorporated a visitation schedule which gave defendant the right to visit Eric on alternate weekends, two weeks during the summer, and certain holidays. There is no indication in the record whether defendant was regularly exercising his right to visitation.

Apparently Jeanne Nicholas suffered from terminal cancer and passed away on July 24, 1987. On July 27, 1987, defendant filed a motion to modify child custody alleging that Eric's present environment seriously endangered his physical, mental, moral or emotional well-being in that the wife was terminally ill with cancer and unable to properly care for him. On July 29, 1987, defendant filed a similar second motion to modify child custody, this time alleging the wife had died on July 24, 1987. Defendant simultaneously filed a petition for emergency order of habeas corpus alleging that Eric was being unlawfully restrained by Robert McArthur and Louise McArthur, Eric's maternal grandparents, and that the McArthurs had threatened to take Eric out of this jurisdiction. An order of habeas corpus was entered requiring the McArthurs to produce the minor on July 30, 1987.

On July 31, 1987, defendant filed a second petition for emergency order of habeas corpus, this time alleging that Marilyn Lambert was unlawfully restraining Eric and that she had threatened to take Eric out of this jurisdiction. We find no order in the record relating to this petition. Also on July 31, 1987, was a motion for leave to be added as intervenors and a motion for leave to file petition for modification of custody judgment order, with supporting affidavit filed by Jerome McArthur and Susan McArthur, Eric's aunt and uncle.

On August 7, 1987, Robert McArthur and Louise McArthur filed a motion for leave to intervene. On August 24, 1987, Jerome and Susan McArthur filed their answer to defendant's motion to modify child custody, their petition to modify custody and their motion for temporary custody. On this same date Robert and Louise McArthur filed their petition for visitation and motion for temporary visitation.

Our purpose for reciting all of the various petitions and motions filed in this case is that our review of the docket and record reveals that only two hearings were held pursuant to all of these requests for relief. The first, held on July 29, 1987, was an ex parte hearing on defendant's petition for writ of habeas corpus which resulted in an order of habeas corpus requiring Robert McArthur and Louise McArthur to produce Eric on July 30, 1987, for hearing. We find no record of any hearing being held on July 30, 1987. The docket entry next reflects that some type of court proceeding was held on August 27, 1987, wherein the docket entry states that the McArthurs' attorney was found in contempt of court. There is no docket entry of any evidence heard or arguments made on any of the petitions or motions filed herein. We have, however, reviewed the transcript of the August 27 court proceeding and the order resulting from said proceeding signed and filed September 18, 1987. As we understood the transcript, on August 27 the trial Judge allowed defendant's oral motion to dismiss Jerome and Susan McArthur's motion to intervene, motion for leave to file petition for modification of custody and motion for temporary custody and accordingly by order dated September 18, 1987, denied the intervention petition and dismissed the custody motions. The trial court's order was based upon appellants' lack of standing ...


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