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01/25/89 Cynthia L. Shoff, v. Danny R. Shoff

January 25, 1989

CYNTHIA L. SHOFF, PETITIONER-APPELLANT

v.

DANNY R. SHOFF, RESPONDENT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

534 N.E.2d 462, 179 Ill. App. 3d 178, 128 Ill. Dec. 280 1989.IL.65

Appeal from the Circuit Court of White County; the Hon. Leo T. Desmond, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and HOWERTON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Appellant, Cynthia L. Shoff, appeals from an order of the circuit court of White County, entered March 28, 1988, modifying a child custody order previously entered in a proceeding dissolving her marriage to appellee, Danny R. Shoff, and entering a judgment against appellee for past-due child support. We affirm.

The parties were divorced by a Nevada State court on July 22, 1981. Appellant was granted custody of the only child of the marriage, Christy, who was born December 18, 1979. Appellee was granted reasonable visitation rights and ordered to pay child support in the amount of $150 per month.

In March 1981, appellee and the minor child moved to White County, Illinois. Appellant moved there shortly thereafter, and the Nevada divorce decree was properly registered with the circuit court of White County on September 18, 1981. At the same time, the parties agreed to modify the visitation provisions of the divorce decree to accommodate appellant's intention to move with the child to the State of Florida. The circuit court of White County accordingly ordered the divorce decree modified to allow visitation by appellee for 60 consecutive days between June and September of every year, and for reasonable visitation at other times. The child continued to live with appellee until November 1981, when she was sent to live with her mother in Florida. In November 1984, the child was returned to Illinois where she has continued to reside.

Between September 1983 and August 1986, appellant made numerous attempts to collect child support from appellee. Although appellee was repeatedly ordered by the circuit court of White County to pay past-due and future child support, appellee remained delinquent in his payments. Admittedly, the child has been in the exclusive physical custody of appellee since November 1984 and he has provided for all of her needs.

On November 3, 1986, appellee filed a petition for temporary and permanent custody of the parties' minor child, Christy. Notice of the hearing on the petition for temporary custody was duly mailed to appellant by appellee's attorney; however, appellant failed to appear at the hearing. On November 25, 1986, the circuit court of White County entered an order on both appellee's petition for temporary custody and on appellant's most recent petition for rule to show cause for appellee's failure to pay child support. The court found that it was in the best interest of the minor child that temporary custody be placed with appellee, and so ordered. The order also found that appellee was in arrears in child support in the amount of $3,050 and entered judgment in that amount, but ordered that execution on the judgment be stayed for a period of 30 days. The cause was set for hearing on the petition for permanent custody.

On December 2, 1986, appellant filed a petition for rule to show cause for appellee's failure to pay child support and for his wilful and contumacious refusal to return the minor child to the appellant. On the same date, appellant also filed a petition to vacate the temporary custody order, claiming that it was not in accordance with the law and that she had not received required notice of the hearing.

The cause came on for hearing on February 5, 1988. Appellee testified that he lives with his wife, Janice, his son, Aaron and his daughter, Christy, in Herrin, Illinois. They live in a three-bedroom house, where Christy has her own room. The house is fully furnished.

Appellee has worked at Marion penitentiary as a correctional officer since April 1984, where he earns a gross salary of $20,000 to $25,000 per year. Appellee has provided for all of Christy's needs since November 1984.

Christy was eight years old at the time of the hearing and had lived with appellee and his family since November 1984. Appellant had made no request to have the child returned to her during that period of time. From October or November 1981 until November 1984, when Christy lived primarily with her mother in ...


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