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12/05/89 In Re Marriage of Thomas P. Noble

December 5, 1989

IN RE MARRIAGE OF THOMAS P. NOBLE, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

JOY C. NOBLE, Respondent-Appellant

548 N.E.2d 518, 192 Ill. App. 3d 501, 139 Ill. Dec. 133 1989.IL.1876

Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso and the Hon. C. Andrew Hayton, Judges, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Respondent Joy Noble (Joy) appeals from an order vacating joint custody of her son, Thomas Noble, Jr. (Tommy), and from an order granting sole custody to the child's father, petitioner Thomas Noble (Tom). The trial court vacated the joint-custody order after hearing testimony in support of Tom's petition for a change in primary custody filed approximately two months after the joint-custody order. After a second hearing under section 602 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 602), the trial court granted sole custody to Tom.

On appeal, Joy contends the following: (1) the trial court lacked jurisdiction to hear the modification petition where it was filed more than 30 days after the custody judgment; (2) the trial court erred in failing to grant her motion to dismiss for failure to state a cause of action under section 610 of the Act; (3) the trial court erred in failing to apply section 610(a) of the Act to the modification proceeding; (4) the trial court erred in excluding a psychologist's report because it was hearsay; (5) the award of custody to Tom was against the manifest weight of the evidence; and (6) the trial court erred in granting a second change of venue to petitioner. Because we find the trial court erred in failing to comply with section 610 of the Act, we reverse.

The parties were married August 28, 1983. On February 13, 1985, Tom filed a petition for dissolution of marriage. Joy gave birth to Tommy July 17, 1985.

During the dissolution proceedings, the parties participated in the Du Page County conciliation program, where they met with Dr. Katie Gienapp, who made two recommendations for joint custody in a written report. She first recommended that Joy maintain primary care for Tommy, while giving Tom responsibility for Tommy Tuesday and Thursday from 5 a.m. through 8 p.m., and Saturday from 5 p.m. through Sunday 7 p.m., and alternating holidays. She also recommended that if Joy decided to move to Tennessee, which Joy was unsure about at the time of counseling, Joy should care for Tommy six weeks in Tennessee, and Tom should care for Tommy two weeks in Illinois. Dr. Gienapp recommended that the latter option be reviewed frequently and reassessed after one year.

On August 18, 1987, following a hearing on the judgment of dissolution, the trial court ordered the parties to submit written closing arguments. The court also set for hearing a petition filed by Joy for removal of the child. In her closing argument, Joy asked the court to approve the custody arrangement set out by Dr. Gienapp. More specifically, Joy asked the court to enforce the first recommendation until a hearing on Joy's petition for removal and, after that time, to enforce Dr. Gienapp's second recommendation.

In a letter opinion, September 9, 1987, the trial court stated that it understood the parties had stipulated to joint custody and would enter into a joint-parenting agreement containing the recommendations of Dr. Gienapp. On September 21, 1987, the trial court denied Joy's motion for removal. The judgment of dissolution was entered November 12, 1987. Incorporated in the judgment was a joint-parenting order. It was not a joint-parenting agreement; the word "agreement" had been crossed out for the word "order." The joint-parenting order incorporated Dr. Gienapp's first recommendation for joint custody, making Joy the primary caretaker and giving Tom caretaking responsibility approximately three days a week, but it did not incorporate the recommendation provided in case Joy moved to Tennessee.

On December 21, 1987, Tom responded to Joy's pro se petition for payment of past-due child support with a counterpetition for primary custody of the child. Tom alleged it was in Tommy's best interest that he be granted primary custody. Representing herself pro se, Joy responded to the petition. The court set the matter for hearing April 4, 1988. At the hearing, Joy's attorney moved orally to dismiss the petition, but the trial court refused to hear the motion because it was not in writing. Respondent filed a written section 2-615 motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) after testimony had commenced.

On April 12, 1988, after a hearing on the counterpetition, the court denied the motion to dismiss and, rather than grant or deny petitioner's request for primary custody, vacated the original custody order. The court found authority for this action within its equitable powers based on the court's finding that the original custody order resulted from direct misrepresentation by Joy. The court found that evidence which showed Joy moved to downstate Illinois or to Tennessee proved she had no intention of abiding ...


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