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04/27/89 In Re Marriage of Jane M. Cripe

April 27, 1989

IN RE MARRIAGE OF JANE M. CRIPE, N/K/A JANE M. PONDER,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Petitioner-Appellant, and RODNEY E. CRIPE,

Respondent-Appellee

538 N.E.2d 1175, 183 Ill. App. 3d 37, 131 Ill. Dec. 619 1989.IL.609

Appeal from the Circuit Court of Bond County; the Hon. John L. DeLaurenti, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Appellant, Jane Cripe, now Ponder, appeals from the denial of her post-trial motion and motion to vacate an order of the circuit court of Bond County, entered July 22, 1988, modifying custody with respect to the children of her marriage to appellee, Rodney E. Cripe. The parties' marriage was dissolved by order of the circuit court of Bond County on July 1, 1987. By order of the court dated February 8, 1988, appellant was given permanent custody of the parties' two minor children, Camille Cripe and Dori Kay Cripe.

On July 19, 1988, appellee filed a petition to modify the custody order, alleging a substantial change of circumstances affecting the best interests of the children and seriously endangering the physical, mental, moral and emotional health of the children. The petition was accompanied by an affidavit which recites that appellant is living in open and notorious adultery with a man to whom she is not married but who is married to another woman; that someone who lives in the house other than the children is believed to be using illegal drugs in the presence of both the children; that appellant spends large amounts of time away from the home and leaves the children with various baby-sitters, including her paramour; and that the children have been instructed to call appellant's paramour "daddy," and to call appellee, their natural father, "Rod." The affidavit further recites that the children are living in this environment and that it seriously endangers their physical, mental, moral and emotional health.

Hearing was held on the petition on July 19, 1988. The following evidence was adduced. Appellant's paramour, Adolph McCuin Ponder, Jr., testified that he is 35 years of age and resides with the appellant and her children at 950 East Oak, Greenville. He had lived there for approximately four months preceding the hearing. At the time of the hearing, Camille Cripe was seven years of age and Dori Kay Cripe was 10 months of age. Ponder is employed in East Alton where his usual hours of work are 3:30 p.m. to 12 a.m. He is married and has two children by his wife, both of whom reside with his wife. Ponder sleeps in the master bedroom with appellant. Each of appellant's children has her own bedroom approximately 20 to 25 feet from the master bedroom. Ponder and appellant engage in sexual relations in the master bedroom when the children are present in the house. Ponder occasionally baby-sits the children. The children never call Ponder "daddy," nor has he or anyone else told the children to call him "daddy." Most of the time, Ponder parks his vehicle in the driveway or the back yard of appellant's house. Ponder occasionally drinks alcoholic beverages and has been drunk twice in the four months preceding the hearing. Ponder has advised some people of where he is living. There is a proceeding pending in the circuit court of Madison County to dissolve Ponder's marriage and a hearing is scheduled in that cause. Ponder loves appellant and intends to marry her as soon as his marriage is dissolved. Appellant feels the same way toward Ponder. Their relationship is exclusive. Ponder gets along well with appellant's children and cares for them as his own. The children have no hesitancy to stay with Ponder when appellant is gone. Appellant does not leave the children with a baby-sitter for extended periods of time except when she is at work. Ponder feels love and affection for appellant's children. Ponder realizes that he is committing the crime of adultery with appellant.

Appellant testified that she has lived with Adolph Ponder for four months. She has sexual relations with him while the children are in the house. She works in Alton and has varying work hours. When appellant is at work, she leaves the children with her sister-in-law in Greenville. She drops them off before she goes to work and picks them up on her way home from work. She sometimes picks them up at midnight or drops them off at 5:30 a.m. This does not seem to disturb the children, and they go right back to bed. Sometimes the children spend the night at the baby-sitter's. Ponder sometimes baby-sits the children on Sunday. The children call Ponder "Adolph," and appellant has never told them to call him "daddy." Appellant has not smoked marijuana since her marriage to appellee was dissolved, nor has anyone smoked marijuana in her home. She has never smelled marijuana in her home. Ponder does not smoke marijuana. Neither she nor Ponder use any illegal drugs. The same people baby-sit her children now as did when she was married to appellee.

Appellee testified that he is 29 years of age, is remarried and lives in Greenville. Both appellee and his wife work during the day. He and his wife own their two-bedroom home. He has made arrangements for baby-sitters while he and his wife are at work in the event he gains custody of the children. Camille, the older child, will not have to change schools if appellee is awarded custody. On May 11, 1988, appellee went to appellant's home to pick up the children for visitation. When he entered the home, he smelled marijuana. Appellee had smelled marijuana only one time previously, but stated that he knew what it smelled like. He testified that it smelled like burning brakes or something rotten. Appellee has never smoked marijuana, but smelled it one time at a party five or six years before the hearing.

Appellee's wife testified that she is 31 years of age and is a school teacher at Vandalia Junior High School. She wants appellee to gain custody of his children. She is willing to have the children live in her home and would care for them and love them as her own. She gets along well with the children. Appellant testified in rebuttal that she loves Ponder very much and plans to marry him as soon as his divorce is final. Ponder loves her children and they have a happy home together. When she marries Ponder, they plan to move to Bunker Hill, which is closer to both of their jobs. Camille will have to change schools. Ponder plays with the children and all four of them do things and go places on appellant's day off. Appellant has not seen any change in the mental health of her children since the dissolution of her marriage to appellee, and Camille's performance at school has improved. Appellant has seen no change in her children's sleeping or eating habits since the dissolution of her marriage. Appellant believes Ponder loves her children very much. He frequently buys them things and takes them places. Appellant expects to spend the rest of her life with Ponder. She is never gone from her children for substantial periods of time except when she is at work. Appellant realizes that she is committing the crime of adultery with Ponder. Her children realize she is in love with Ponder. Appellant testified that Camille has never told anyone that she prefers to live with her father, the appellee.

Dawn Kirkman, appellant's niece, testified that appellant told her that Camille had told appellant that she wanted to live with her father. Dawn had never heard Camille ...


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