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In re Marriage of Frank Wheatley

July 17, 1998

IN RE MARRIAGE OF FRANK WHEATLEY, PETITIONER-APPELLANT, AND MARY JANE WHEATLEY, RESPONDENT-APPELLEE.


The opinion of the court was delivered by: Presiding Justice Welch

IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

Appeal from the Circuit Court of Williamson County. No. 96-D-187

Honorable William H. Wilson, Judge, presiding.

The Code of Judicial conduct states in part as follows:

"CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities

A. A Judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CANON 3

A Judge Should Perform the Duties of Judicial Office Impartially and Diligently

A. Adjudicative Responsibilities

(4) A Judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A Judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the Judge outside the presence of the parties concerning a pending or impending proceeding ***." 155 Ill. 2d Rs. 62A, 63A(4).

In the instant case, the petitioner, Frank Wheatley, argues that the circuit court of Williamson County violated these canons of the Code of Judicial Conduct in resolving the custody dispute between himself and respondent, Mary Jane Wheatley, for their five-year-old daughter, Tory Lynn Wheatley. Frank argues that the trial Judge hearing the custody matter received an ex parte communication intended to influence his decision in the case and that the receipt of this communication and the Judge's handling of it create an appearance of impropriety in violation of the Code of Judicial Conduct. He asks that we vacate the custody determination and remand the matter for a new hearing. The facts can be briefly stated.

Tory was born to the parties on August 11, 1992, and the parties were married on May 27, 1995. In May 1996, each party filed a petition to dissolve the marriage. Both parties sought the custody of Tory. On August 20, 1997, the matter came on for hearing on the issue of custody. The guardian ad litem, who had interviewed both parties as well as interested relatives and friends, acknowledged that both parties are good parents, but she recommended that sole custody be given to Frank. The court-appointed home-study investigator also interviewed both parties and interested relatives and friends and, after acknowledging that both parties are good parents, recommended that sole custody be given to Frank. The court heard extensive testimony from various witnesses. After hearing the evidence, the guardian ad litem confirmed that she still believed that the best interests of the child would be served by granting sole custody to Frank.

The trial court, in an order entered August 26, 1997, found that both parents are fit and proper persons to have custody, but having found Mary Jane's witnesses to be more credible than ...


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