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12/29/88 In Re Tracy Ann Lutgen

December 29, 1988

IN RE TRACY ANN LUTGEN, A MINOR, ET AL. (EUGENE L. TRANEL


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

et al., Appellants, v.

James M. Lutgen, Appellee)

532 N.E.2d 976, 177 Ill. App. 3d 954, 127 Ill. Dec. 147 1988.IL.1915

Appeal from the Circuit Court of Jo Daviess County; the Hon. Eric S. DeMar, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Respondents, Eugene and Debra Tranel (Tranels), appeal from a trial court's order awarding custody of their nieces, Tracy and Dana Lutgen (children), to their father, James Lutgen (James). We affirm.

On December 21, 1984, James, his wife, Carol, and their children, Tracy and Dana, lived in East Dubuque, Illinois. Prior to that date, the Lutgen family had made plans to go Christmas shopping, roller-skating, and to go out for dinner that evening. However, earlier on the 21st, Carol had filed a petition for dissolution of marriage and obtained an ex parte order of protection pursuant to the Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301-1 et seq.). The order was based upon Carol's sworn allegation that on December 20, 1984, James had "grabbed and thrown Petitioner (Carol) in a violent manner to the floor, and did thereafter strike Petitioner." Summons was issued but there is no indication in the record that James had knowledge of this action or that he was served either with the petition for dissolution of marriage or the ex parte order of protection. Moreover, James denied being served with either document.

According to James' statements at the time of his arrest and his testimony at the custody hearing, on his way home from work on the evening of December 21, 1984, he passed the Windsor Tap, where he observed Carol and a man sitting in a pickup truck hugging and kissing. Prior to that night, there had been other occasions on which Carol had not returned home from work until 2 or 3 in the morning without explaining her whereabouts to James. Upon his return home, he found Carol already at home, but he did not say anything to her about what he had observed near the Windsor Tap. While Carol was taking a shower, he telephoned his father and told him what he had seen.

Later, Carol told James that he could not take the children out for the evening. James insisted that he was going to take them out as planned, and he began getting dressed. Carol stated again that he was not going to take them. She grabbed James and began choking him. James grabbed her and pushed her back. Carol came at him again, and James grabbed her neck and choked her and then threw her down to the floor. He told the children to stay out in the living room because he did not want them to see what was happening. Carol got up again and started choking him. James kept choking her until she fell down a second time and began bleeding through the nose. James called his father, who advised him to call the paramedics. Carol was pronounced dead at Mercy Medical Health Center.

It is unclear from the record how much of the altercation between James and Carol was witnessed by the children. It appears that they were present in the home at the time the fight started, and then ran to a neighbor's house for help.

As a result of the incident, James was arrested and charged with murder. The Tranels, Carol's brother and sister-in-law, filed a petition for custody and guardianship of the children. James stipulated that it was in the best interest of the children that the Tranels be awarded custody and guardianship of the children, and an order to that effect was entered. The children then commenced living with the Tranels in Eldridge, Iowa, approximately 60 miles from East Dubuque.

Pursuant to the plea negotiations, the murder charge was reduced to voluntary manslaughter to which James entered a plea of guilty. He was sentenced to a minimum term of four years' imprisonment, of which he served 13 months. Upon his release early in 1986, he petitioned for and was granted visitation with the children.

On May 21, 1987, James filed a petition for custody of the children. The Tranels filed a counterpetition for custody. On September 21, 1987, a hearing was conducted on both petitions. The following evidence was submitted.

Peggy Kammerude testified for the Tranels as follows: She had been a neighbor of James and Carol Lutgen and had baby-sat for their minor children. The witness was then questioned in camera. She stated that on the evening of December 21, 1984, the children ran into her house and begged her to go over to their house because James was choking Carol. Both children were crying and screaming. When the witness arrived at the Lutgen house, James met her at the door. She asked what was going on and requested that James calm the children down. James told her that there had been a fight but that everything was all right. The children then went inside the house with James. The witness denied knowing that Carol had been at a bar with her boyfriend prior to coming home that night. The witness also related that Dana had told her about another fight between Carol and James, at which point Tracy indicated that Dana should not have said anything to the witness.

Mary Ellen Schonhoff testified for the Tranels as follows. She had known Carol and James Lutgen for seven or eight years. She had a daughter the same age as Dana Lutgen, and Carol and the witness would do things together with their daughters. During the summer months, she would see Carol almost everyday, and during the rest of the year, as much as three times a week. Prior to December 1984, the witness observed that Dana had a black eye and both children had bruises on their buttocks. The marks were black and blue, and Carol showed her a paddle that had been broken. However, the witness had no personal knowledge as to the circumstances in which the children received those injuries. She had seen Carol at a luncheon on December 8, 1984. She had not seen her for some time and observed that she had lost a lot of weight. The witness further stated that she observed injuries on Carol but had not personally witnessed the incidents in which these injuries were inflicted.

Vernon Tranel, one of Carol's brothers, testified for the Tranels as follows. He had known James since his marriage to Carol 10 years previous. He would see both James and Carol at family gatherings 6 to 12 times a year. On Father's Day in 1984, Dana disobeyed James, and he ordered her to sit on the couch. After about an hour, the witness asked James if Dana might be allowed to go back and play, but James said no. So Dana remained on the couch for the remainder of the afternoon, about 2 1/2 hours. The witness had never observed injuries on either Carol or the children.

Eldon Tranel, another of Carol's brothers, testified for the Tranels as follows. He had known James since his marriage to Carol. He would see them about four times a year. He never saw James strike the children. Other than just pushing Carol, joking around, he never saw James strike Carol. He did observe bruises on Carol's arm and knee, but he had no personal knowledge as to how these were inflicted. The witness stated that Carol was afraid of James and that as a result, she appeared very uneasy, scared, and nervous, and she also was losing weight. He was going to change the locks on the Lutgen residence, but he never got to it. The witness further stated that he visits regularly with the Tranels and was of the opinion that the children had been integrated into the Tranel family. He also observed James disciplining the children by making them sit down for the afternoon on three occasions.

Sue Tranel, Eldon's wife, testified for the Tranels as follows. She had known James, Carol, and their children for 14 or 15 years. Their children attended the same school. She and her family usually spend every holiday with the Lutgens. She also got together quite often with Carol until Carol started working. She had also observed James disciplining the children by making them sit still. She also observed bruises on Tracy's buttock that looked like they resulted from a hand spanking. She also observed a mark on the right side of Dana's eye. She did not see their injuries inflicted. In the witness' opinion, the children got along exceptionally well with the Tranels and their children and were treated the same as the Tranels' children.

David Fairweather testified on behalf of the Tranels. He is the principal of Edward White Elementary School in Eldridge, Iowa, which the children presently attend. According to the witness, the children began attending the Edward White School in January 1985, a month after Carol's death. Both children have adjusted well to the school, have made friends, and have made reasonable academic progress. The Tranels conveyed to the witness that they wanted the children to have as normal an environment as possible in school.

Angeline Blavat testified for the Tranels as follows. She has babysat for the Tranel and the Lutgen children since the 1986-87 school year. She has never observed any injuries to any of the children. The witness stated that the Tranels discipline the children by scolding, sending the children to their rooms, or the children are given odd jobs to do. She never observed either of the Tranels strike the children. There were no differentiations in discipline by the Tranels between their children and the Lutgen children, nor had the children complained of such.

The respondent, Eugene Tranel, testified on his own behalf as follows. He is one of the children's maternal uncles; Carol was his sister. He and his wife, Debra, their children, and the Lutgen children reside in Eldridge, Iowa, about 60 miles from East Dubuque. Prior to her death, he would see Carol and her family at least once a month, sometimes more often. He witnessed the same incidents regarding the disciplining of the children by James as previously testified to by the other witnesses. Since Carol's death, he and his wife have had custody of the children, and they have become a part of the Tranel family. There is no differentiation between the children when it comes to discipline. The children were punished by having them do additional jobs, sending them to their room to read a book for 15 or 20 minutes, or if the situation called for it, a hand spanking. He has never kicked any of the children nor spanked them hard enough to leave marks. Prior to 1984, he never observed any injuries on either Carol or the children. As soon as the children began living with him and his wife, he saw that they received professional help because of the trauma involved and the fact that the children had witnessed what happened. The children saw Dr. Hokanson, a child mental health specialist, and Norma Biando, a therapist. Initially, the children saw them once a week. As the children adjusted, the visits became less often. The last time the children saw either Dr. Hokanson or Ms. Biando was August 1987. The witness and his wife had had several sessions with both Dr. Hokanson and Ms. Biando, discussing the children's progress and seeking guidance on how to handle related matters as they came up.

The witness recounted that when James was released from prison, they had had no notice. He and his wife sought an order of protection, not to deny James access to his children, but to insure that the children would be prepared mentally to deal with the visit. He and his wife had continued to consult with the mental health professionals to determine what was in the children's best interests.

Counsel for James stipulated that the Tranels are proper custodial parents for the children.

Debra Tranel testified on her own behalf as follows. She is the wife of Eugene Tranel and the maternal aunt of the children. She had observed the same incidents as her husband testified to. In addition, she related an incident that took place in September 1984. She was baby-sitting for her children, as well as Tracy and Dana at their maternal grandparents' house. Around midnight, Carol arrived and told her she had to take Dana and Tracy home on James' orders because the children had allowed their cat to escape from the house. The witness testified that she called and explained to James that it was probably the fault of her children that the cat got out, and that she really didn't want to disturb the children at such a late hour. James allowed the children to stay. However, in view of the incident, the witness decided not to allow James to baby-sit for her children the next day as originally planned.

The trial court conducted an in camera interview with the children, individually. Both children indicated that they loved James and the Tranels, but they preferred to live with their father. Tracy, then age 11, stated that she wanted to live with James because the Tranels did not treat them fairly. Dana, then age 9, stated that the ...


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