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12/14/89 In Re Marriage of Linda S. Dall

December 14, 1989

IN RE MARRIAGE OF LINDA S. DALL, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

GERALD H. DALL, Respondent-Appellant

548 N.E.2d 109, 191 Ill. App. 3d 652, 138 Ill. Dec. 879 1989.IL.1944

Appeal from the Circuit Court of Clinton County; the Hon. E.C. Eberspacher, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GOLDENHERSH

The marriage of petitioner, Linda S. Dall, and respondent, Gerald H. Dall, was dissolved by a judgment of the circuit court of Clinton County. Respondent appeals, contending the trial court erred (1) in awarding custody of the couple's only child, Edward Jerome , to petitioner, and (2) in making certain distributions of marital property. We affirm.

Petitioner and respondent were married on August 17, 1979. Their only child, E.J., was born on July 15, 1981. Respondent has three children from a previous marriage. Petitioner has a set of twins, Darren and Damon Cooper, from a previous marriage. Respondent's children from the previous marriage never lived with the parties. The twins did live with the parties until Damon was 15 and Darren was 16.

Respondent was sheriff of Clinton County throughout the parties' marriage. Petitioner was employed in a variety of State jobs throughout the parties' marriage. Petitioner first left the marital home in mid-August 1985, living in Springfield, Illinois, until August 1, 1986, when the parties reconciled. During this period of time, E.J. stayed in Carlyle with his father. On March 24, 1987, petitioner filed a petition for dissolution seeking the permanent custody of E.J. On April 14, 1987, respondent filed a pleading seeking custody. Respondent filed a counterpetition for dissolution.

On November 2, 1987, the case was tried on the custody issue only by agreement of the parties. Both parties took the position that the other parent was a proper and fit custodian, but that it was in E.J.'s best interest that his custody should be awarded to each of them respectively. The original trial Judge, Judge Dennis L. Berkbigler, entered an order awarding permanent custody of E.J. to petitioner. On November 20, 1987, respondent filed a post-trial motion seeking a reversal of the custody award alleging error at the November 2, 1987, hearing and "newly discovered" physical abuse evidence of E.J. by his maternal half-brothers, Darren and Damon Cooper. Respondent then refused to physically turn over custody of E.J. to petitioner. On December 1, 1987, petitioner filed a petition for physical custody, child support, and contempt. On December 2, 1987, respondent filed a motion for appointment of a guardian ad litem (guardian) alleging sexual abuse of the minor son by his maternal half-brothers. A guardian was appointed. Respondent also filed a motion to reconcile on December 2, 1987.

On December 31, 1987, respondent filed a motion seeking psychiatric examination of petitioner. On April 21, 1988, the guardian requested the mental examination of both petitioner and respondent and also of E.J. That same day, the guardian recommended that physical custody of E.J. be removed from respondent and placed with the Segers, E.J.'s baby sitters since he was six weeks old. Limited visitation was set for both parents, and Dr. Tomkins, a psychologist, was appointed to perform psychological examinations on respondent, petitioner, and E.J.

On May 11, 1988, respondent sought and received a change of venue from Judge Berkbigler. Thereafter, Judge Edward C. Eberspacher was assigned to the instant case.

On July 22, 1988, respondent filed a petition to modify the custody award pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) again alleging sexual abuse of E.J. by his maternal half-brothers. On August 22, 1988, the case was called on all issues, excluding custody. Respondent attempted to relitigate the custody issue which the trial court refused to allow. Respondent then sought a hearing on a motion for supervised visitation, alleging "newly discovered" abuse of E.J. by petitioner. This motion was unverified, unsupported by affidavit, and unspecific as to the nature of the alleged abuse. The trial court refused to hear the motion for supervised visitation under the circumstances and proceeded on the remaining issues.

On August 25, 1988, a judgment of dissolution was entered fully and finally adjudicating all issues between the parties, but staying the custody award to petitioner to allow respondent the opportunity to seek further stay of the custody award supported by this newly discovered evidence. On August 26, 1988, respondent filed a motion to modify custody pursuant to section 610 of the Act (Ill. Rev. Stat. 1987, ch. ...


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