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April 21, 1994


Appeal from Circuit Court of Woodford County. No. 92D62. Honorable Richard M. Baner, Judge Presiding.

As Corrected May 13, 1994. Petition for Rehearing Denied May 23, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Carl A. Lund, J., Honorable James A. Knecht, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Respondent counterpetitioner Kerry Ivey appeals an order of the circuit court of Woodford County awarding him custody of the four children. He claims the extensive visitation rights granted to the mother eviscerate his award of custody. This visitation would occur at all times except alternate weekends and one evening per week between 4 and 9 p.m. The children would also be with their father on Sunday mornings, but the mother could request visitation one Sunday per month for church attendance. Kerry contends this visitation schedule violates the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.). He also claims the order is against the manifest weight of the evidence and an abuse of the trial court's discretion. We reverse.

Bonnie and Kerry were married in 1981 and had four children born between 1983 and 1990. Kerry worked full time at Caterpillar, Inc., while Bonnie stayed home and cared for the children. In the summer of 1992, James Bridgeman was hired to work around thehouse. Bonnie developed a relationship with Bridgeman and began having sex with him in the house three to five times per week while Kerry was at work. While this was occurring, two of the four children were in school and the other two were upstairs in their bedrooms. Later, Bridgeman moved out of the house he shared with his wife and moved into a trailer on the Ivey property.

On July 17, 1992, Bonnie, Bridgeman, and the four children left the Ivey residence and went to a motel in Galesburg, Illinois. Kerry was willing to allow the children to stay with him in the marital residence, but refused to give up the home to his wife. Bonnie and Bridgeman stayed one night in the motel room. The children slept on the floor in sleeping bags while Bonnie shared the bed with Bridgeman. In the morning, Bonnie and Bridgeman showered together while the children were still in the motel room. They spent the next three days at Bridgeman's brother's apartment and, again, shared a cot in the presence of the children, who slept on the floor.

On July 20, 1992, Bonnie filed her dissolution petition and a petition for order of protection. The trial Judge issued an emergency order of protection giving Bonnie exclusive possession of the marital home and Kerry was removed from the house the following day. After an evidentiary hearing on cross-petitions for temporary relief, the trial court vacated the order of protection and awarded custody to Kerry. Under the order, Bonnie would babysit the children at the marital residence while Kerry was at work. The trial court also ordered that Bridgeman have no contact with the children and was not to enter the marital home at any time. Furthermore, he was not to operate the van temporarily awarded to Bonnie.

On February 19, 1993, the judgment of dissolution of marriage was filed deciding all matters except issues of custody, support, and visitation. On February 26, 1993, the trial court heard arguments on Kerry's motion to terminate the arrangement allowing Bonnie to babysit during the day at the marital residence. The trial court ordered that Kerry retain custody, but Bonnie's visitation would take place outside the marital home for 50% of the time on a week-to-week basis. It was also ordered that no child in either residence be exposed to the overnight presence of an unmarried person of the opposite sex. During the mother's visitation, she would be required to directly supervise the children. The father was required to hire a babysitter to directly supervise the children while he was not home.

The trial court then heard evidence on the custody issue. A great deal of time was spent presenting testimony regarding Kerry's alleged addiction to pornography. Evidence included one, possibly two, X-rated movies he kept in his attic and a number of Playboymagazines. No evidence was presented that the children had ever been exposed to this material. Moreover, Bridgeman testified that he, too, has viewed pornographic material. Evidence presented on this issue amounts to little more than a transparent attempt to paint the father as a deviant for purposes of litigation.

The trial court's custody order remarked that the parties elected to make a significant issue of each other's past and present sexual appetites. The trial court found this issue diminished each party equally and offered little assistance to the court. We find the record fully justifies the trial court's assessment.

Despite the personal animosities in this case, both parties at various times stated that they found the other party a fit parent during their marriage. They understood the value of maintaining the children's relationship with both their parents. Evidence indicated that Bridgeman also got along well with the children.

Bonnie married Bridgeman and gave birth to his child during the course of the custody proceedings. They lived together in a three-bedroom trailer. She admitted that, in one respect, the Ivey residence was better for the kids because they each had their own bed and did not have to sleep on the floor. Furthermore, Kerry's house is bigger and has more room in which to play. Bonnie and Bridgeman planned to purchase a sofa bed soon for the two girls. If granted custody, they plan to get a different place and, eventually, build a new home. This is their second address since leaving Bridgeman's brother's apartment and is located in a different school district than the one in which the children were raised. Bonnie has not worked outside the home in approximately 12 years and is entirely dependent upon Bridgeman for her support. Bridgeman's income ranges between $20,000 and $27,000. He hoped to make between $25,000 and $30,000 in 1993 and expects his income to grow as his business develops.

Bridgeman was 35 years of age at the time of trial. He has been self-employed as a general contractor for the last 14 years. He has been married two times before and has two children from his first marriage, ages four and six. Although he has paid child support regularly for the last 6 to 10 months, he is currently $9,000 in arrears. Soon after these children were born in the State of Florida, the mother moved to Illinois while Bridgeman remained behind. Bridgeman had no contact with the children for between three and five years. Currently he is allowed supervised visitation until he can reestablish a relationship with them. Bridgeman was also adjudicated the father ...

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