Anagnostopoulos v. Anagnostopoulos
| Decision Date | 03 September 1974 |
| Docket Number | No. 58739,58739 |
| Citation | 22 Ill.App.3d 479,317 N.E.2d 681 |
| Parties | Marian G. ANAGNOSTOPOULOS, Plaintiff-Counter Defendant, Appellant, v. Lampis D. ANAGNOSTOPOULOS, Defendant-Counter Plaintiff, Appellee. |
| Court | United States Appellate Court of Illinois |
Stuart Litwin, Chicago, for appellant.
Herbert A. Glieberman, Chicago (Harry G. Fins, Chicago, of Counsel), for appellee.
This case arose from a divorce action brought by Marian Anagnostopoulos, the plaintiff-counter defendant (hereinafter plaintiff) against Lampis Anagnostopoulos, the defendant-counter plaintiff (hereinafter defendant), who filed a counter-complaint for divorce. Both parties alleged mental cruelty as the grounds for their respective actions. On January 17, 1973, a decree was entered granting a divorce to the defendant and awarding custody of the parties' minor child to him. The order further provided that the plaintiff be awarded $3000 of $21,000 which had at one time been held in joint tenancy with the defendant. Finally, the order directed the defendant to pay to the plaintiff's attorney $3000 in fees.
The plaintiff appeals on the grounds: (1) that the court's decision with respect to child custody was contrary to the manifest weight of the evidence and constituted an abuse of the court's discretion; and (2) that she should have been awarded one-half of the amount once held in joint tenancy. The defendant cross-appeals on the grounds that a $3000 award for the plaintiff's attorney's fees is not supported by the record. No appeal is taken from that part of the order granting the divorce to the defendant.
The parties were married in Chicago in July, 1962. One child, a daughter, was born of that union, and at the time of the entry of the decree was 10 years old. On December 30, 1971, the plaintiff filed suit for divorce, alleging as her grounds mental cruelty. The defendant filed a counter-complaint for divorce on January 26, 1972, alleging the same grounds. Both parties sought custody of the child.
Hearings commenced on July 20, 1972, at the conclusion of which the court granted a divorce to the defendant and awarded him custody of the child. In her brief the plaintiff states:
'The trial court based its determination upon the following allusions:
1. that the plaintiff drove a motorcycle;
2. that she had on three past occasions used marijuana;
3. that she had continued her educational pursuits after the child was born;
4. that she did not hold religion in high favor;
5. that she occasionally employed words characterized by the court as obscene;
6. that the possibly had friends who were homosexuals and may have been one herself;
7. that she had made derogatory remarks to a woman who devoted the majority of her time to the maintenance of her home;
8. that once she achieved her Ph.D. in psychology she would probably pursue a career;
9. that the child had at one time been malnourished; and,
10. that the mother desired the child to be independent (R. 783--790).
'In summary, the lower court stated that the child custody issue revolved around the contentions that the father devoted too much time to his profession while 'the mother is one of the members of the current avant-garde."
The court also determined the division of the parties' property. The defendant testified that as of October, 1971, a joint savings account held in the names of himself and the plaintiff contained about $21,000. The defendant closed the account in that month, two months before the complaint was filed by the plaintiff, and placed the funds in an account in his own name. He subsequently withdrew approximately $13,000 for the purchase of medical equipment used in his practice.
The plaintiff's first argument is that the award of custody of the parties' child to the defendant was against the manifest weight of the evidence. She cites authority for her argument that the mother has a paramount claim to custody of a young child (Hahn v. Hahn, 69 Ill.App.2d 302, 216 N.E.2d 229) and asserts that the defendant failed to overcome this presumption. While giving custody to the mother may be the usual result of a custody hearing, there is no rule in Illinois that unless she is shown to be unfit, custody should be given to the mother. (Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.) Furthermore, our 1970 Illinois Constitution provides that equal protection of the law shall not be denied or abridged because of sex. (Ill.Const. Art. I, sec. 18, S.H.A.) in light of this provision the argument advanced by the plaintiff is unacceptable.
The criterion for determining custody of a minor child in a divorce action is the welfare and best interests of the child. (Smith v. Smith, 122 Ill.App.2d 317, 258 N.E.2d 830.) The determination of custody is within the discretion of the trial judge and will not be disturbed on review unless it appears that manifest injustice was done or that the court has abused its discretion. Barbara v. Barbara, 110 Ill.App.2d 189, 249 N.E.2d 269.
The custody of the parties' child was a bitterly contested issue. There was much conflicting testimony as to the relationships of the parties to each other and each party to the child. The parties accused each other, at least indirectly, of abnormal sexual activities, as well as of numerous failings with respect to the care of their child. It would serve no useful purpose to summarize these allegations here.
It is necessary, however, to examine the plaintiff's claim that the custody determination was based on conclusions of the trial court which are not supported by the evidence adduced at trial. She proceeds to refute each point noted above, upon which she states the trial court based its erroneous determination.
Conceding without deciding that the plaintiff is correct in her attack on the court's reasoning, we are not as a consequence required to reverse unless the ultimate decision was contrary to the manifest weight of the evidence. (Hoffmann v. Hoffmann, 40 Ill.2d 344, 239 N.E.2d 792.) The standard of the child's best interests is still the overriding concern. Since both parents had equal rights to custody, it was a determination of which parent would best serve the interests of the child that concerned the trial court. The court determined that custody in the defendant would best serve his daughter's interests. The fact that in so doing the court had to decide that custody in the plaintiff would not serve the best interests of the child does not mean that the plaintiff may prevail on appeal by showing this latter determination alone to be erroneous. To prevail she must show, as she states in her brief,...
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