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04/10/89 In Re Marriage of Maryanne Mangan

April 10, 1989

IN RE MARRIAGE OF MARYANNE MANGAN, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

and GEORGE MANGAN, Respondent-Appellee

537 N.E.2d 960, 182 Ill. App. 3d 140, 130 Ill. Dec. 631 1989.IL.498

Appeal from the Circuit Court of Cook County; the Hon. John J. Beatty, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This an appeal from an order granting custody of the parties' minor son, George, Jr., to his father, George Mangan, Sr. We affirm.

Petitioner Maryanne Mangan (Maryanne) filed a petition for dissolution of marriage on September 25, 1984. Maryanne was granted temporary custody of the minor child, George Jr., pursuant to an agreed order on November 26, 1984. On January 29, 1987, George Mangan (George) filed a counterpetition for dissolution at which time he asked to be awarded custody of George Jr.

At the time of trial on the custody issue, George Jr. was 5 1/2 years old and had lived with his mother since birth. Although there was testimony establishing that George Jr. was doing well in a kindergarten program in his Lincoln Park neighborhood and was healthy and well cared for, there was substantial testimony indicating that he suffered from neurotic emotional illness. Testimony introduced by the mother focused on the fact that George Jr. had been diagnosed as having moderate asthma, is chronically ill and should not be separated from his mother because separation could cause anxiety attacks that in turn could cause critical asthma attacks. Dr. Bussell, the psychiatrist appointed by the court from a list tendered by Maryanne, testified that the child suffered from a neurotic disorder and has a great deal of pent-up anger and rage which he characterized as abnormal.

Testimony regarding the severity of George Jr.'s asthma was substantially conflicting. Maryanne testified that the child had to be hospitalized twice during the time she was caring for him. She conceded, however, that only one incident involved an asthma attack. In addition, although Maryanne took George Jr. to the hospital emergency room 20 to 30 times, George testified that he had never needed to do so during all the time he had his son for visitation. Testimony also showed that George Jr. never exhibited symptoms of asthma while in the presence of his own psychiatrist (Dr. Ner Littner), Maryanne's neighbor, Dr. Bussell, Maryanne's sister or George's family and friends.

There was also varying testimony with regard to the cause of George Jr.'s asthma. Dr. Littner, George Jr.'s psychiatrist, who was selected by Maryanne and testified on her behalf, stated that the asthma was triggered by emotional causes. Another of the child's doctors, Dr. Randall, testified that environmental factors were the primary cause and that the severity would depend upon the time of year. Dr. Randall also testified that George Jr. could lead a relatively normal life so long as he received medication on a timely basis. Dr. Randall expressed the opinion that any reliable caretaker could learn how to manage the boy's illness and to give the appropriate injections and medications.

There was also testimony from both parents regarding the child's medication. George testified that Maryanne constantly changed the medications as well as their frequency and dosages. He also testified that the written instructions she gave him were often inconsistent with instructions from George Jr.'s physicians which necessitated contact with the doctors to verify the correct dosages of medication.

Maryanne alleged that George was an alcoholic and an unfit father as a consequence. No medical evidence or expert testimony, however, was presented in this regard. Of the two incidents involving George being stopped for allegedly driving under the influence of alcohol, one occurred prior to the marriage when he was 19 years old and the other involved a ticket he received for improper lane usage six years prior to the trial. George testified that he did not drink on weekends when he had visitation with his son. He also testified that he has never been convicted of driving under the influence or had his license suspended or revoked. Testimony regarding George's drinking habits was also presented by George's friend, Thomas Scanlon. Scanlon's testimony indicated that George drank beer after softball games but that there were only 10 games each summer and George did not drink after every game. Two other witnesses testifying on George's behalf testified that they had an occasional drink with George after work. Based on the testimony regarding George's prior drinking habits, the trial court found him to be an alcoholic but also found that he had rehabilitated himself and that alcohol had not interfered with his parenting skills or the time spent with his child.

A substantial amount of testimony was presented regarding George's capabilities as a parent, including that of Thomas and Sally Scanlon, George's sister, Maryanne's father and Dr. Bussell, all of whom testified that George was a good parent who was very attentive to his son's medical needs. Dr. Bussell, who as previously stated was chosen to assess the parties ...


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