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12/06/89 In Re Marriage of Penny Fox

December 6, 1989

IN RE MARRIAGE OF PENNY FOX, N/K/A PENNY GRAHAM,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Petitioner-Appellant, and RICHARD A. FOX,

Respondent-Appellee

548 N.E.2d 71, 191 Ill. App. 3d 514, 138 Ill. Dec. 841 1989.IL.1897

Appeal from the Circuit Court of McLean County; the Hon. William T. Caisley, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Petitioner Penny Graham appeals the denial of a motion pursuant to section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401) to vacate a judgment entered on October 18, 1988. Petitioner raises the following issues for our consideration: (1) whether the October 18, 1988, order modifying a prior child custody order is void where no petition was filed pursuant to section 601 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601); (2) whether the trial court erred in ordering a change of custody of the children from petitioner to respondent as punishment for visitation abuse by the petitioner; (3) whether the trial court's refusal to vacate the order modifying child custody was against the manifest weight of the evidence and constituted reversible error where no hearing was held concerning the best interests of the children. For the reasons that follow, we reverse.

Petitioner and respondent were divorced in 1981. Custody of the parties' minor children, Ashley, now nine years old, and Casey, now eight years old, was awarded to petitioner, and respondent was allowed reasonable visitation. On May 17, 1988, respondent filed a petition for a rule to show cause why petitioner should not be held in contempt for failing to comply with the previous orders of the court regarding visitation with Ashley. The petition alleged petitioner denied respondent visitation with Ashley during the visits scheduled in February, March, and April 1988. Respondent asked that petitioner be found in contempt; that the respondent be awarded attorney fees; and "for such other and further relief as the court deems equitable in the premises."

The hearing on the petition began on June 28, 1988. Respondent testified that from February 1988 through April 1988, he was told by petitioner or her mother, Lois Clodfelder, when he came to pick up his children for a visit that Ashley was not going with him for a visit. Respondent further stated he was not allowed to talk with Ashley on the telephone. Respondent stated that since the filing of the petition in May 1988, his visits with Ashley improved. Respondent stated he did not talk to petitioner about the visitation problems because petitioner had accused him in the past of physically abusing Casey and of not feeding Ashley.

Petitioner testified that she never told respondent he could not visit with Ashley but that Ashley refused to go with respondent on the scheduled visits. According to petitioner, when respondent arrived to pick up the children for a weekend visit, Ashley would hide somewhere in the house and cry. Petitioner testified she encouraged Ashley to talk to and visit with respondent but left it up to Ashley as to whether she would go with respondent. Petitioner stated she packed Ashley's bags each time prior to respondent's arrival for a visit but Ashley continued to refuse to go with respondent. Petitioner testified she never refused to allow respondent to talk with Ashley on the telephone. Petitioner also testified that after the petition at issue in this appeal was filed, Ashley decided to go with respondent on the scheduled visits because, as Ashley told her, respondent started being much nicer to her.

Petitioner's mother, Lois Clodfelder, testified regarding Ashley's behavior of hiding in the house when respondent arrived for a visit. Clodfelder also reported that on visit days after the petition was filed, Ashley picked up her bag and went with respondent without incident. However, on cross-examination, Clodfelder testified Ashley is still reluctant to go with respondent on a visit.

The hearing on the petition was continued to August 30, 1988. Chad Graham, petitioner's older son from a previous marriage, testified on August 30, 1988, regarding an incident a few days prior to this date when Ashley was upset about visiting with respondent. Chad also testified to a similar occurrence two weeks previous to this incident and stated Ashley had been upset every time that summer when she was getting ready for a visit with respondent. On cross-examination, Chad admitted he did not like respondent and his mother spoke in a derogatory manner about respondent to him.

In rebuttal, respondent presented testimony regarding visits since the first hearing, including an incident which occurred on July 24, 1988. Petitioner testified that Ashley went with respondent at 6 p.m. on July 24 for a three-week visit. Petitioner stated that Ashley called her collect later that evening. Respondent testified that on July 24, Ashley became upset after visiting with respondent's mother and wanted to return home. Respondent testified he took Ashley to his home and stated the visit went smoothly until later that evening when Ashley said she had to call a friend. Ashley later told the respondent she really wanted to call her mother, and respondent testified he dialed petitioner's number for her on a direct, not collect, line. Respondent testified he overheard Ashley say the following to petitioner: "I told him . . . I cried and I did just what you told me to. I cried and told him I had to go ...


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