99 N.E.2d 574 (Ill.App. 1 Dist. 1951), 45279, Nye v. Nye

Docket Nº:Gen. No. 45279.
Citation:99 N.E.2d 574, 343 Ill.App. 477
Party Name:NYE v. NYE.
Case Date:May 09, 1951
Court:Court of Appeals of Illinois
 
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Page 574

99 N.E.2d 574 (Ill.App. 1 Dist. 1951)

343 Ill.App. 477

NYE

v.

NYE.

Gen. No. 45279.

Court of Appeals of Illinois, First District, Third Division.

May 9, 1951.

Poppenhusen, Johnston, Thompson & Raymond, Chicago, Albert E. Jenner, Jr., Roger W. Barrett, Chicago, of counsel, for appellant.

Fred Gariepy, Robert E. Cantwell, Jr., Louis Yager Cantwell, Chicago, John Spalding, Chicago, of counsel, for appellee.

KILEY, Justice.

This is a child custody proceeding. The parties were married in 1938 and divorced upon plaintiff's suit December 21, 1948. Under an agreement of the parties, incorporated in the decree, plaintiff had custody during the first year of their only child Diane, called Penny. During the early morning hours of February 25, 1949, the defendant carried the child away from plaintiff's custody without

Page 575

permission. She petitioned the court [343 Ill.App. 480] for an order restoring to her the custody of Penny and for other relief. Issues were made on this petition and defendant's cross-petition for permanent custody which charged plaintiff's unfitness.

December 22, 1949, after several hearings on the pending issues, the custody provisions of the divorce decree were modified. Plaintiff was found unfit for custody of Penny and permanent custody was awarded defendant. The modification decree contained no findings or orders with respect to other relief prayed for by plaintiff. This appeal followed. The chancellor entered an order refusing to make the appeal act as a supersedeas. That order was reversed and supersedeas allowed. Nye v. Nye, 342 Ill.App. 11, 94 N.E.2d 909.

The divorce complaint charged defendant with wilful desertion without cause since November 1, 1947. The chancellor found that defendant had deserted plaintiff without cause for more than one year immediately prior to the suit filed November 15, 1948. He also found the best interests of the child were served by dividing custody of Penny in accordance with the agreement of the parties. Under the agreement made August 6, 1948, custody of Penny was given each party, alternately, beginning with plaintiff, for periods of one year each. Possession of a small house in Wayne, Illinois, was to be concurrent with custody.

The chancellor decided the instant issues in favor of defendant on his cross-petition. He found that the circumstances of the parties had materially changed since the divorce decree and that plaintiff was unfit for custody of Penny. He modified the custody provisions of the divorce decree by giving sole custody of Penny to defendant subject to visitation privileges of plaintiff which included six weeks custody each summer.

The question on appeal is whether the chancellor abused his discretion in modifying the custody provisions of the divorce decree.

[343 Ill.App. 481] The findings of change in circumstances indicates that the chancellor...

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