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09/29/95 MARRIAGE A. JAMES VALLIERE v. DARLENE

September 29, 1995

IN RE THE MARRIAGE OF: A. JAMES VALLIERE, RESPONDENT-APPELLANT/CROSS-APPELLEE,
v.
DARLENE VALLIERE, PETITIONER-APPELLEE/CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Richard S. Kelly, Judge Presiding.

As Modified on Denial of Rehearing November 17, 1995. Released for Publication November 28, 1995.

The Honorable Justice T. O'brien delivered the opinion of the court: Cousins, P.j., and Gordon, J., concur.

The opinion of the court was delivered by: O'brien

MODIFIED UPON DENIAL OF REHEARING

The Honorable Justice T. O'BRIEN delivered the opinion of the court:

In this appeal, we are asked to review the propriety of an order entered by the circuit court which modified a child custody provision contained in a judgment of divorce. For reasons which follow, we affirm in part, vacate in part, and remand the cause with instructions.

The parties, respondent, A. James Valliere, and petitioner, Darlene Valliere, were married on November 4, 1984 and divorced on October 24, 1988. The couple have one child, Jonathan, who was born on November 21, 1985.

According to the marital settlement agreed to by the parties and made a part of the judgment of divorce, James and Darlene both received joint legal custody of Jonathan. Darlene received physical custody of Jonathan while James enjoyed liberal visitation rights. Darlene and Jonathan resided in Palatine, Illinois. James lived in Stuart, Florida.

On July 22, 1992, James filed a "Petition for Permanent Custody and Other Relief" in the circuit court of Cook County. In the petition, James alleged that there had a been a change of circumstances concerning Jonathan's custody. Specifically, James charged Darlene with engaging in a course of conduct designed to interfere with and injure James' relationship with his son. Examples of this conduct include Darlene's lack of cooperation in establishing Jonathan's visitation schedule with James, Darlene's disruption of that visitation, and Darlene's constant attacks on James' character. James additionally alleged that Darlene's actions were not in Jonathan's best interest and had impaired his emotional growth and development.

After taking evidence in the case, the trial judge issued a 33-page written "Memorandum Opinion, Findings, Conclusions and Order Following Trial on Petition for Change of Custody." In the memorandum and order, the court found that a substantial change in circumstances had occurred since the original award of physical custody to Darlene in 1988. In particular, the court cited Darlene's post-decree conduct and the "ongoing psychological damage to Jonathan." The court determined, that

"a permanent change of physical possession to James might ultimately be unnecessary and could result in great trauma to Jonathan. It is found that a shift from sole to shared physical possession coupled with interim remedial sole physical possession in James can, with the right ancillary conditions, achieve the bulk of the benefits of such a permanent change without incurring the bulk of the detriments ***."

The court determined that the changed custodial provisions were in accordance with Jonathan's best interest.

To that end, the court ordered an "interim remedial period" in which James was to have sole physical custody of Jonathan in Florida and Darlene was to have visitation rights. This "interim remedial period" was to commence March 1, 1994 and was to continue until two weeks before the start of school in Palatine, Illinois, in the fall of 1995, "unless Jonathan's and Darlene's psychological problems have not been largely resolved, *** in which case the period will be extended as necessary to accomplish such resolution." The court later modified its order, stating that a hearing would be conducted on August 15, 1995, *fn1 as to whether "Darlene and Jonathan's psychological problems *** have been largely resolved." The circuit court further ruled "if Darlene establishes by a preponderance of the evidence that her and Jonathan's psychological problems have been largely resolved, then Jonathan shall move back to Illinois where Darlene shall have primary physical possession with James to have rights of physical possession as determined. Both parties appealed.

On appeal, James does not challenge the circuit court's findings, but rather, takes issue solely with the relief afforded by the court. James asserts that the order contravenes the Illinois Marriage and Dissolution of Marriage Act (the Act). (750 ILCS 5/100 et seq (West 1992).) On the other hand, Darlene, in her cross-appeal, maintains, inter alia, the circuit court's findings as to the child custody issue are against the manifest weight of ...


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