Canham v. Saisi

• Decision Date: 27 October 1978
• Docket Number: 78-407,Nos. 78-126,s. 78-126
• Citation: 382 N.E.2d 654,22 Ill.Dec. 334,65 Ill.App.3d 686
• Parties: , 22 Ill.Dec. 334 Fred CANHAM, Respondent-Appellant, v. Edith SAISI, a/k/a Edith Canham, Petitioner-Appellee.
• Court: United States Appellate Court of Illinois

Page 654

382 N.E.2d 654

65 Ill.App.3d 686, 22 Ill.Dec. 334

Fred CANHAM, Respondent-Appellant, v. Edith SAISI, a/k/a Edith Canham, Petitioner-Appellee.

Nos. 78-126, 78-407.

Appellate Court of Illinois, First District, Fifth Division.

Oct. 27, 1978.

[22 Ill.Dec. 335] Joseph B. Platt, Chicago, for respondent-appellant

G. Wallace Roth, Chicago (Francis X. Riley, Glen Ellyn, of counsel), for petitioner-appellee.

SULLIVAN, Presiding Justice:

This is an appeal from an order changing the custody of the couple's two minor children from respondent (father) to petitioner (mother). Respondent presents the following issues for review: whether the trial court abused its discretion (a) by changing custody based solely upon the preference of the minor children; and (b) by granting attorney's fees and costs to petitioner for the defense of this appeal.

Petitioner and respondent were married in 1955 and divorced in 1963 with custody of Joan, born March 27, 1960, and Tom, born August 1, 1961, awarded to petitioner. In 1966 by an agreed order the divorce decree was amended granting custody of the children to respondent. He and his present wife provided a home for both children until December 1975 when Tom ran away to live with petitioner and her present husband. Six months later Joan also abandoned her father's home to live with petitioner who then brought this change of custody proceeding.

A hearing was held on September 21, 1977, at which it was adduced that Joan was 171/2 and Tom 16 years old; that they had each left their father's home voluntarily; that when Tom ran away his father The record indicates that, for the most part, the children's life with their father and stepmother ran smoothly. Joan was an excellent student; spent time with her stepmother playing tennis and shopping; and reached an agreement with her stepmother to share the housework and the care of her young stepsister. Tom, however, was a poor student, who was grounded because he cut class and received failing grades although he was offered cash bonuses for passing marks. He did, however, work part-time in his father's television repair shop doing basic maintenance work. Both Joan and Tom were paid for the above-mentioned chores, were provided with their own rooms, and were given televisions, stereos, and 10-speed bicycles.

[22 Ill.Dec. 336] took no action on the assumption that he would return in a week or two; that as the result of certain occurrences the children had developed hardened attitudes toward their stepmother; and that they were now happy and wished to remain in their mother's home. The trial court noted that as the children were nearing the age of legal majority it would adhere to their wishes unless a showing was made that living with petitioner would not be in their best interests.

During oral argument before this court, the parties agreed that the appeal regarding Joan was moot as she had reached legal majority. Consequently, only such facts as relate to Tom need be summarized. In this regard it appears that discord in the house began sometime prior to December 1975 when Tom was accused of certain misconduct by his father ¹ and his father demanded that he do certain things in reparation. In December 1975 his father made another similar accusation and again demanded certain conduct of Tom which was possible only if the accusation was correct. Upon receiving this ultimatum from his father, Tom went to live with his mother who transferred him the next day to a school located near her home.

At the hearing Joan and Tom testified that he had not committed the act of misconduct allegedly occurring in December 1975. Respondent testified that Joan had notified him of the misconduct but Joan denied this. Joan and Tom further stated that their stepmother found Tom's presence in the house burdensome; that she had announced to each of them that she would use any device to drive him out of the home; and she had warned them that a report of this scheme to their father would be unavailing as he would believe her rather than either of them. Neither respondent nor his wife were asked whether such a scheme was devised or executed, but he testified that the children did not complain to him of any problems with their stepmother.

During the years Tom lived with his father his grades were low but passing; however, during the year and a half he lived with his mother he failed three successive semesters. While such failure was in part attributable to poor scholarship, the primary cause was frequent absences only some of which could be traced to legitimate excuses such as court appearances and illness. Petitioner and her husband employed the same remedial techniques as had respondent and his wife; I. e., grounding Tom for cutting class and poor scholarship, and helping him with his school work. Moreover, petitioner testified that at her request the school was notifying her immediately of each absence and that in the weeks since the commencement of the 1977-78 school year Tom's teachers had reported that he was improving.

After finding that remaining with petitioner was in the best interests of the children, the trial court awarded custody to her and based upon respondent's gross income of $13,500 per year ordered him to pay $50 per week for support. Although petitioner was denied trial-related attorney's fees and costs, the trial court three months later

[22 Ill.Dec. 337] ordered respondent to pay fees in the amount of $2000 and costs of $250 for her defense of this appeal.

OPINION

Respondent first contends that the trial court abused its discretion by transferring custody. His position is that the evidence shows petitioner is unfit; that awarding her custody is not in the best interests of the child; and that changing custody here was a violation of parental rights. We cannot agree.

Based upon a substantial change in circumstances since the divorce decree (or an amended decree) and upon consideration of the best interests of the child, the trial court may as an exercise of sound discretion order a transfer of custody. (Eggemeyer v. Eggemeyer (1967), 86 Ill.App.2d 224, 229 N.E.2d 144.) In reviewing custody decisions, it has been noted that:

"In the first reported decision involving custody of a child, (see First Kings 3:16), Solomon, vested with plenary powers and unhampered by precedent, rendered a judgment which has been cited through the ages as incontrovertible evidence of his great wisdom. Today, a trial judge is almost daily presented with custody problems which are far more complex. (Citations.)

"In Jenkins v. Jenkins, 81 Ill.App.2d 67, at page 71, 225 N.E.2d 698, the Court said: 'It must be emphasized that custody cases present among the most vexing and difficult situations facing a trial judge in the discharge of his duties. Generally, no decision a court makes in such cases can be considered either "right" or "wrong. " The responsibility of a judge is, instead, to exercise his own best judgment in attempting to find the most satisfactory solution under all the circumstances in each case.' " (Elble v. Elble (1968), 100 Ill.App.2d 221, 225-26, 241 N.E.2d 328, 331.)

As will be detailed below, those cases involving teen-aged children who have left the home of the custodial parent to live with the other parent and express a desire to remain in the latter's custody are certainly among the most difficult for a trial court to decide.

In Stickler v. Stickler (1965), 57 Ill.App.2d 286, 206 N.E.2d 720, a 16-year-old girl left her father's home to reside with her noncustodial mother. Based solely upon the child's desire to live with her mother, the trial court ordered the custodial change without hearing testimony as to whether it was in her best interests to have left the father's home. The trial court did find, however, that the child loved both parents and would comply with whatever order was rendered. After noting both the likely frustration of teenage discipline should custody follow the temporary preferential whim of the child and the tendency of competing parents to vie for the favors and affection of the child, the Stickler court held that under the circumstances the child's preference alone could not support a change of custody.

In Elble v. Elble, a 17-year-old girl was living with her noncustodial mother. In answer to the mother's petition for a change of custody, the father stated "that plaintiff (mother) had 'defied orders of this court respecting custody of the child,' that it has become impractical, if not impossible, physically to coerce Gail to remain with him, (and) that to 'maintain peace' he has allowed her a wider latitude in association with plaintiff." (100 Ill.App.2d at 223, 241 N.E.2d at 329.) The trial court denied the change of custody but stated "that it could not, and would not, 'force a 17-year-old girl to live with her father if she does not desire.' " (100 Ill.App.2d at 223, 241 N.E.2d at 330.) Defendant was then ordered to pay plaintiff support for his daughter. On appeal he argued that ordering him to pay support was tacit approval of plaintiff's unlawful custody and control of the child. After noting that while the child's preference alone was not sufficient to warrant a transfer of custody, a father's duty to support his minor child is unaffected by divorce and that the Divorce Act (Ill.Rev.Stat.1967, ch. 40, par. 19) grants the trial court wide latitude to provide for the care, custody and support of children, this court found the trial court's solution was the most satisfactory under the circumstances.

In Marcus v. Marcus (1969), 109 Ill.App.2d 423, 248 N.E.2d 800, a 14-year-old boy repeatedly ran away from the home of his custodial mother. The trial court ordered that custody be transferred to the paternal grandmother but upon rehearing returned custody to the mother. On appeal this court reversed the transfer of custody from the child's paternal grandmother to his mother stating:

"We agree the trial...