Carlson v. Carlson

• Decision Date: 16 January 1967
• Docket Number: Gen. No. 51258
• Citation: 80 Ill.App.2d 251,225 N.E.2d 130
• Parties: Richard CARLSON, Plaintiff-Appellee, v. Margaret CARLSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 130

225 N.E.2d 130

80 Ill.App.2d 251

Richard CARLSON, Plaintiff-Appellee, v. Margaret CARLSON, Defendant-Appellant.

Gen. No. 51258.

Appellate Court of Illinois, First District, First Division.

Jan. 16, 1967.

Sherwin & Sherwin, Chicago, Theodore R. Sherwin, Chicago, of counsel, for plaintiff-appellee.

Emilie N. Wandered, Chicago, for defendant-appellant.

BURMAN, Justice.

Defendant, Margaret Carlson, appeals from a supplemental decree, entered after a divorce decree, awarding custody of the three minor children of the parties to the father and from the adequacy of attorney's fees and from the entry of certain interlocutory orders.

The parties were married on May 21, 1955, with three children being born of this marriage, a girl and two boys who are now nine, ten, and seven, respectively. Margaret Carlson was adjudicated insane and committed to the Kankakee State Hospital on December 19, 1963, and received her absolute discharge therefrom on May 21, 1965. The plaintiff, Richard Carlson, filed a complaint for divorce on May 17, 1965. The defendant answered and filed a cross-complaint for separate maintenance and custody of the children.

On June 23, 1965, the motion judge, Judge Fiedler, on motion of the defendant, entered an order allowing the defendant temporary alimony of $25.00 weekly, temporary attorney's fees of $200.00 and set all other matters for hearing on September 16, 1965. On this latter date the defendant filed a petition that she be allowed to move into the residence of the parties; that she be awarded custody of the children and money for their support; that plaintiff keep current the mortgage payments on the home; that the court appoint Dr. Maltz to conduct a psychiatric examination of defendant and report to the court concerning her fitness to have custody of the children and that defendant's attorneys fees be paid by the plaintiff. The petition was heard before the motion judge on September 29, 1965, at which time Judge Fiedler entered an order denying the request for the appointment of a psychiatrist, the plaintiff having informed the court that there was no present charge of mental incompetency, and the attorneys having agreed that all other matters be referred to the trial judge for an early trial, it was so ordered.

On January 10, 1966, plaintiff petitioned for a psychiatric examination of the defendant, and Judge Hunter ordered both the parties to be examined by Dr. Maltz. Subsequently, on March 1, 1966, defendant was allowed to amend her cross-complaint to an action for divorce on the grounds of desertion and a decree of divorce was granted to her on that day with all other matters being reserved.

On March 4, 1966, the defendant filed a petition, alleging, amongst other things, that she was improperly evicted from her home by her husband after she had obtained her own release from the State Hospital; that there was considerable delay in obtaining a hearing through no fault of hers; that instead of a hearing the motion judge referred the parties to Dr. Burch with a view to a possible reconciliation which failed; that later the trial judge, on motion of the plaintiff, ordered the parties to be examined by Dr. Maltz, despite the representation made by plaintiff to the motion judge that this area would not be considered; that the proposed supplemental decree provides for an investigation to be made by the Cook County Department of Public Welfare and a written report filed with the court which defendant opposes as it deprives her of an opportunity to cross-examine the investigator's findings and recommendations; that although the proposed decree provides for a review of the matter of custody of the children on July 7, 1966, defendant feels that she is presently and wrongfully denied the custody of her children and prayed that the proposed supplemental decree not be signed and instead an order be made permitting defendant re-entry into her home, to have custody of the children and appropriate orders for their support and that her attorney be allowed additional fees.

The same day Judge Hunter entered the Supplemental Decree which recited that both parties were employed and were the owners in joint tenancy of a single family residence, the mortgage on which was presently delinquent. The plaintiff was found to be a fit and proper person to have the custody of the children with the defendant having fixed visitation rights. The decree directed the Cook County Department of Public Aid to investigate both parties and make a written report to the court concerning all matters related to the custody of the children, the matter of custody to be reviewed by the court on July 7, 1966. The residence was to be sold and the net profits divided equally and $300.00 in additional fees was to be paid to the defendant's attorney.

In appealing from this Supplemental Decree, Mrs. Carlson first contends that it was improper for the motion judge not to have decided the occupancy and custody issues presented to him for temporary relief...