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06/15/88 In Re Marriage of Carol Felson

June 15, 1988



JOHN FELSON, Respondent-Appellant

525 N.E.2d 1103, 171 Ill. App. 3d 923, 121 Ill. Dec. 796 1988.IL.938

Appeal from the Circuit Court of Cook County; the Hon. Stuart H. Shiffman, Judge, presiding.


JUSTICE RIZZI delivered the opinion of the court. WHITE P.J., concurs. JUSTICE FREEMAN, Concurring in part and Dissenting in part.


Respondent, John Felson, appeals from those portions of a judgment for dissolution of marriage awarding custody of the parties' minor child, Kristina, to petitioner, Carol Felson, and requiring John to pay a portion of Carol's attorney fees. John also appeals from an order of the trial court precluding him from conducting re-cross-examination of Carol and a witness who testified in her behalf. We affirm.

John and Carol Felson were married in October 1981. In April 1983, Kristina was born. Thereafter, a petition for dissolution of marriage was filed by Carol on July 17, 1984. On August 1, 1984, when Kristina was one year old, the parties entered into an agreed order effectively splitting the physical custody of Kristina between them. A judgment for dissolution of marriage was subsequently entered by the trial court on October 2, 1986, and John did not file a motion for reconsideration. This appeal followed. We affirm.

We first address John's argument that the trial court erred in awarding custody of Kristina to Carol. John contends that the trial court's award of custody was against the manifest weight of the evidence. In support of his contention, John essentially argues that the reasoning of the trial court in its written opinion concerning custody is totally unsupported by the record and is refuted by the Child Custody Project of the Isaac Ray Center (Center) report and the testimony of the witnesses. We disagree.

In the present case, the trial court tendered a written opinion to the parties concerning the custody of Kristina. Kristina was three years old at the time and was examined by the court in an in camera hearing. Kristina was not questioned concerning her wishes as to custody. In its opinion, the trial court stated:

"Throughout the pendency of this proceeding, the child has split her time almost equally between the parents. Testimony concerning this arrangement established that when Kristina resided with John, a substantial amount of time was spent with John's parents at their residence. Testimony also established that John's parents exercised a substantial influence on both John and their granddaughter, a fact clearly observable to the Court from the testimony of Terese Felson, the respondent's mother.

The Court has considered all statutory factors relevant to the custody determination and based upon those factors, finds that it is in the best interest of the minor child that custody be awarded to Carol Felson. It is clear to the Court that Carol seeks custody based upon the mother-daughter-relationship that she desires to nurture. John's motives are not as clear to the Court, but it appears that his custody desire may be based upon the wishes of his extended family rather than the needs of Kristina. While both parties are fit and proper persons to be awarded custody, it is clear to the Court that Kristina's best interests require the award of custody to Carol Felson."

There was no evidence presented to indicate that either Carol or John suffered from any physical or emotional disabilities. Nor was there any evidence that Kristina suffered from such problems.

The determination as to which party to a failed marriage shall receive custody of their child is one of the most difficult tasks of a trial court. Such a decision necessarily rests on the temperaments, personalities and capabilities of the parties, and the demeanor of the witnesses who testify at trial. The trial Judge is in the best position to evaluate these factors. (In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 545, 418 N.E.2d 947, 953.) As such, a trial court has broad discretion in awarding custody, and there is a strong and compelling presumption in favor of a court's decision. A court of review will not overturn a trial court's custody determination ...

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