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07/07/89 In Re Marriage of Michele M. Burke

July 7, 1989

IN RE MARRIAGE OF MICHELE M. BURKE, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and FRANCIS D. BURKE, Respondent-Appellant

541 N.E.2d 245, 185 Ill. App. 3d 253, 133 Ill. Dec. 408 1989.IL.1080

Appeal from the Circuit Court of Winnebago County; the Hon. Alford Penniman, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Respondent, Francis D. Burke, filed a petition to terminate the joint-custody-arrangement provision of the judgment of dissolution of marriage entered on April 22, 1986. Physical custody of respondent's two minor children, Daniel (born June 26, 1979) and Aaron (born April 19, 1974), was to remain with the wife, Michele M. Burke. On March 3, 1987, the husband filed a petition to modify the custody of the minor children, seeking to relocate them to his residence in Wisconsin. He brought his petition pursuant to section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 610(b)). On April 3, 1987, the wife filed a counterpetition to modify the prior custody order and to award her sole custody of the minor children.

After a hearing, the trial court denied both petitions. The husband appeals, arguing that it was error for the trial court to require him to show, by clear and convincing evidence, that there was a change in circumstances and that the only overriding issue was the best interest of the children where both parties agreed to terminate joint custody. For the reasons discussed below, we affirm the judgment of the trial court.

Initially, we note that the appellant has failed to provide a satisfactory and complete appendix to his brief as required by Supreme Court Rule 342(a) (122 Ill. 2d R. 342(a)). Apparently, due to appellant's ignorance of the precise scope of the rule, the appendix fails to include the filing or entry dates for each item in the record and the nature of each document or order, as well as the appropriate page references thereto despite the specifications in our order in this case dated April 6, 1989. While we have the inherent authority to dismiss this appeal for noncompliance with the rules, we will proceed to consider the merits in view of the simple facts presented. (See Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79.) Despite the failure of appellee to supply a brief, we also consider the merits of this appeal within the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The sole issue on appeal is whether the petitioner, after requesting a termination or modification of a prior joint-custody order and where a counterpetition was also filed, must prove a change of circumstances by clear and convincing evidence. Section 610(b) of the Act states:

"[The] court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination." Ill. Rev. Stat. 1985, ch. 40, par. 610(b).

In the present case, the trial court found that the husband was required to show, by clear and convincing evidence, that (1) a change had occurred in the circumstances of the children or either parent since the prior judgment was entered, and (2) that a modification was necessary for the best interest of the children. The husband argues that, since both he and his wife filed petitions seeking sole custody, there was in effect an agreement to terminate the joint custody; therefore, he was not required to show by clear and convincing evidence that a substantial change in circumstances had occurred. The husband relies on In re Marriage of Lovejoy (1987), 158 Ill. App. 3d 1, in which the Appellate Court for the Third District determined, without analyzing the purposes of section 610(b) of the Act, that a father was not required to show that a change of circumstances had occurred where the mother had filed a counterpetition seeking sole custody of their child. (158 Ill. App. 3d at 3.) The Lovejoy court found that the counterpetition amounted to an agreement to terminate the prior joint-custody agreement. However, the court also determined that there was sufficient evidence to show a change in circumstances. (158 Ill. App. 3d at 3.) The Lovejoy court apparently focused on the second sentence of section 610(b), which states that, in the case of a joint custody, "if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest." Ill. Rev. Stat. 1985, ch. 40, par. 610(b).

We believe that, although the Lovejoy interpretation is plausible, it disregards the intent and effect of the legislature's repeal of section 603.1 of the Act, which formerly provided for the award of joint custody only when both parties agreed to it. (Ill. Rev. Stat. 1983, ch. 40, par. 603.1, repealed by Pub. Act 84-795, § 2, eff. Jan. 1, 1986.) Moreover, the Lovejoy interpretation disregards the higher burden of proof imposed by the first sentence of section 610(b), which appears to be applicable in all cases where modification of a prior custody judgment is sought whether there was a joint- or single-parent custody arrangement. (See In re Marriage of Jones (1987), 160 Ill. App. 3d 593, 597, citing In re Marriage of Kartholl (1986), 143 Ill. App. 3d 228.) The Jones court stated:

"It would strain the imagination to find in that agreed-to provision an intent to waive the statutory burden of proof, as the father argues we should. We conclude that the trial court did not err in using a 'clear and convincing' ...


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