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10/05/95 MARRIAGE ALICE FERN SWANSON

October 5, 1995

IN RE: THE MARRIAGE OF ALICE FERN SWANSON, PETITIONER-APPELLANT, AND ALLEN EUGENE SWANSON, RESPONDENT-APPELLEE.


Appeal from Circuit Court of McLean County. No. 93D1. Honorable Donald D. Bernardi, Judge Presiding.

Released for Publication October 5, 1995. Petition for Leave to Appeal Denied January 31, 1996.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J., Concurring.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

Alice Fern Swanson, petitioner, and Allen Eugene Swanson, respondent, married in September 1981. In August 1985, twin boys, Gregory Eugene and Scott Allen, were born of this marriage. In January 1993, Alice filed a petition for dissolution of marriage, which the trial court granted in July 1993, reserving judgment regarding child custody, child support, maintenance, property distribution, and attorney fees.

In January 1994, the trial court conducted a custody hearing, and in April 1994, the court directed the parties to produce a joint parenting agreement within 30 days, pursuant to section 602.1(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602.1(b) (West 1992)). The parties could not reach agreement, and in May 1994, the court entered an order of joint custody, including a joint parenting order drafted by the court. In November 1994, the trial court entered a supplemental judgment on the remaining issues.

Alice appeals, arguing that the trial court abused its discretion by (1) awarding joint custody, (2) incorrectly determining the amount of child support, (3) refusing to award maintenance, (4) undervaluing the Wapella Township property, and (5) failing to consider all statutory factors regarding property distribution.

We affirm in part, reverse in part, vacate in part, and remand.

I. BACKGROUND

Alice is 39 years old and has an associate's degree from Illinois Central Junior College. She has worked as a clerk at the McLean County Law and Justice Center since 1992. The trial court determined her monthly gross income to be $1,465, and her net income to be $1,102.

Prior to her marriage and before the twins were born, Alice worked at GTE Corporation (GTE) for 11 years. She was laid off during the latter part of her pregnancy, and she remained at home with the twins for the next 6 1/2 years, until the boys entered school.

Allen is 43 years old and has a master's degree from Illinois State University. He works for the City of Bloomington (City) as a traffic safety engineer. His gross monthly income is $3,875, and the trial court determined his statutory net income to be $2,679. Allen has worked for the City for over 13 years, including the period of the parties' marriage.

The evidence showed that Allen and Alice are both competent and loving parents. During the 6 1/2 years she stayed home with Greg and Scott, Alice was primarily responsible for their care. Once the twins began school, Alice assisted the kindergarten teacher one to two days a week as an unpaid assistant and was also active in the parent-teacher organization. She takes part in Indian Guides family activities with the twins and formerly participated in family outings to the Wapella Township property.

Allen participates in many sports activities with the twins and has coached or assisted with coaching the boys' soccer, basketball, and baseball teams. He has spent time hiking, fishing, and hunting with Greg and Scott, and the three of them belong to Indian Guides. He also attends school field trips with Greg and Scott.

During their marriage, the parties owned the marital home and were free of debt. They had an effective savings plan and were able to take family vacations. One of their investments was an interest in a parcel of land located in Wapella Township, De Witt County, Illinois. In 1990, Allen and Alice purchased approximately 10 acres of this parcel from Allen's sister and brother-in-law. The trial court valued this property at its purchase price and awarded it to Allen.

II. JOINT CUSTODY

Alice argues that the joint custody order and the twins' shifting residence constitute an abuse of the trial court's discretion because they are not in the best interests of the children. We agree.

The trial court stated that a joint custody arrangement is rare and "is not the type of arrangement which should be imposed forcibly on either the children or the parents." Nevertheless, the court determined that the parties had "an unusual capacity to cooperate" and ordered joint custody of the children. When the parties failed to produce a joint parenting agreement, the trial court drafted one. The court's joint parenting order established Alice's home as the twins' primary physical residence, and awarded visitation to Allen for the last 14 days of every month.

The statutory prerequisites for joint custody outlined in section 602.1(b) of the Act indicate the legislature's intent that joint custody be awarded only where the parents are willing to cooperate in the upbringing of their children. ( In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 680, 509 N.E.2d 707, 713, 109 Ill. Dec. 46.) In 1986, the legislature amended the statute to eliminate the requirement that both parents agree to joint custody. Nevertheless, the statute still requires that the parents be able to "cooperate effectively and consistently with each other towards the best interest of the child." 750 ILCS 5/602.1(c)(1) (West 1992).

Section 602.1(c) of the Act sets forth the criteria for an award of joint custody, as follows:

"The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

(1) the ability of the parents to cooperate effectively and consistently with each other towards the ...


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