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Brudd v. Brudd

August 05, 1999

LINDA M. BRUDD PLAINTIFF-APPELLANT,
v.
FRANK A. BRUDD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 93--D--8042 Honorable Kathleen Kallan Judge Presiding

The opinion of the court was delivered by: Justice Koehler

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The plaintiff in this custody modification action, Linda Brudd, appeals the Will County circuit court's order transferring the custody of her minor child to the defendant, Frank Brudd. We must decide whether the circuit court abused its discretion in determining there was a material change in circumstances since the initial judgment that justified a change in custody of the child from the mother to the father. In so doing, we must answer the following question: Was the transfer in custody necessary to serve the child's best interest (750 ILCS 5/610(b) (West 1994))? Because the circuit court did not abuse its discretion, we affirm.

I. FACTS

In September 1997, the defendant filed a petition to modify custody pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610 (West 1994)) alleging a substantial change in circumstances since the judgment of dissolution of marriage was entered in December 1993. Specifically, the defendant alleged that the plaintiff provided an unstable home environment for their five-year-old child. Furthermore, the defendant alleged that: (1) the child was exposed to violence when the plaintiff's male friend fractured the plaintiff's jaw in the child's presence; (2) the plaintiff and her male companions were intoxicated while in the child's presence; and (3) the plaintiff lacks the ability and willingness to properly supervise the child. Moreover, the defendant asserted that the plaintiff's arrest for endangering the life or health of a minor and her conviction for indirect criminal contempt for violation of visitation rights contributed to a substantial change in circumstances.

After a hearing on the petition to modify custody, the circuit court granted the defendant's petition, concluding that he had proven by clear and convincing evidence that there had been a material change in circumstance since the initial judgment; therefore, a modification was in the best interest of the child. In August 1998, the circuit court entered its final order transferring the custody of the minor to the defendant, and the plaintiff now appeals.

II. ANALYSIS

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 1994)), which governs modification of child custody judgments, reads in pertinent part:

"(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child. *** The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification of termination."

Given that the circuit court hears the testimony of witnesses, observes their demeanor and receives the evidence firsthand, it is in the better position to determine the best interests of a minor. Consequently, child custody matters are left to the sound discretion of the circuit court. In re Marriage of Fuesting, 228 Ill. App. 3d 339, 344, 591 N.E.2d 960 (1992). A reviewing court will not disturb the circuit court's decision unless it was against the manifest weight of the evidence. In re Custody of Sussenbach, 108 Ill. 2d 489, 498-99, 485 N.E.2d 367, 370-71 (1985). In In re Custody of Sussenbach, our supreme court stated:

"Under section 610(b) the court must find by clear and convincing evidence that a change in custody is necessary to serve the best interest of the child. [Citation.] Once the court concludes that a change in custody is necessary, great deference must be accorded that decision, since the trial court is in the best position to Judge the credibility of the witnesses and determine the needs of the child. [Citation.] It is not for a reviewing court to try the case de novo but merely to determine whether the trial court's transfer of custody constituted an abuse of discretion. In other words, the question for the reviewing court is whether the trial court's decision is contrary to the manifest weight of the evidence." Sussenbach, 108 Ill. 2d at 498-99, 485 N.E.2d at 370-71.

Child custody cannot be modified unless there is a material change in the circumstances of the minor related to the best interests of the minor. In re Marriage of Nolte, 241 Ill. App. 3d 320, 326, 609 N.E.2d 381, 385 (1993). Furthermore, changed conditions alone do not warrant a modification of custody without finding that such changes also affect the welfare of the minor. Nolte, 241 Ill. App. At 325-26, 609 N.E.2d at 385.

In the case at bar, the plaintiff argues that the circuit court improperly granted the defendant's petition because its determination of a change in circumstances was against the manifest weight of the evidence. The plaintiff urges that Nolte, 241 Ill. App. 3d 320, 609 N.E.2d 381 (1993), compels reversal. In Nolte, the father filed a petition to modify an award of custody of his children to their mother. At the ensuing hearing, the father established that the mother was cohabitating with a man not her husband, she had lived at four different locations since their divorce, he had remarried, and he was financially better able to take care of the children. At the close of the evidence, the circuit court modified the prior order by terminating the mother's custody, awarding the father custody, terminating the father's child support payments, and awarding the mother nonovernight visitation. Nolte, 241 Ill. App. 3d at 326-30, 609 N.E.2d at 385-88.

The mother appealed, and this court reversed because the circuit court failed to apply the appropriate standard. Instead of examining the evidence to determine whether the father had proven a change in circumstances by clear and convincing evidence, the circuit court simply made a determination that the father could provide a more appropriate family unit. In other words, the circuit court visited the custody issue de novo. In the instant case, on the other hand, the circuit court weighed the evidence under the appropriate standard and determined that the defendant had established, by clear and ...


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