Doggett v. Doggett

• Decision Date: 04 August 1977
• Docket Number: No. 76-514,76-514
• Parties: , 9 Ill.Dec. 474 Janice Lee DOGGETT, Plaintiff-Appellant, v. Billy Joe DOGGETT, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 985

366 N.E.2d 985

51 Ill.App.3d 868, 9 Ill.Dec. 474

Janice Lee DOGGETT, Plaintiff-Appellant, v. Billy Joe DOGGETT, Defendant-Appellee.

No. 76-514.

Appellate Court of Illinois, Fifth District.

Aug. 4, 1977.

Cochran & Harrison, Fairfield, for plaintiff-appellant.

Marshall, Feiger, Quindry & Molt, Fairfield, for defendant-appellee.

CARTER, Presiding Justice:

This is an appeal from an Order of the Circuit Court of Wayne County finding appellant in contempt of court for her failure to comply with the visitation provisions of a divorce decree. The circuit court also amended the visitation provisions of the divorce decree and assessed a Three Hundred Dollar ($300.00) forfeiture for appellee's attorney fees. Appellant raises five issues for review: 1) the evidence does not show appellant guilty of contempt of court; 2) the evidence shows appellee guilty of abuse of the minor children of the parties; 3) the Court erred in considering evidence not in the record and not subject to cross examination; 4) the Court erred in modifying the divorce decree; 5) the Court erred in awarding appellee his attorney fees.

A decree of divorce was entered in this cause on September 12, 1974 which awarded the care, custody and control of the three minor children to appellant Janice Lee Doggett and awarded appellee Billy Joe Doggett visitation privileges every other weekend, for one week each summer during his vacation, and on alternating holidays throughout each year.

Numerous petitions to show cause were filed by both parties subsequent to the divorce and prior to the order now appealed from. In February of 1976 appellant's petition stated that appellee had failed to make child support payments to her for two consecutive weeks of that month, in violation of the divorce decree. In March of 1976 appellee's petition claimed that appellant had refused to allow him to visit the children as provided by the provisions in the decree. These petitions were consolidated for hearing on June 17, and after hearing the evidence, the court found each of the parties guilty of contempt and ordered that each post a bond in the amount of One Thousand Dollars ($1,000.00) to guarantee faithful performance of the Decree provisions. Bond was duly filed by each of the parties.

On July 8, 1976 appellee filed a petition alleging that appellant had continued to deny him visitation rights. The petition asked that the court order appellant to have the three children available to appellee for the first week of August, during his vacation, that appellant be ordered to show cause why she should not be held in contempt of court for her previous refusal to comply with the Decree, and that appellant be assessed Three Hundred Dollars ($300.00) as appellee's attorney fees. Appellant's answer to the petition denied that she had refused to comply with the decree and stated that the three minor children had refused to go with appellee on each occasion when he came to pick them up. A court order issued on July 22, 1976 ordered that appellant make the children available to appellee and that they remain with him during his vacation from July 31 to August 8.

On August 16 appellant filed a petition asking that the Court terminate all of appellee's visitation rights for the reason that during his one week vacation with the children he repeatedly beat, kicked and otherwise threatened and abused them. Appellee's answer denied these allegations.

At the hearing on these petitions appellee testified that for the past several months he had been denied his regular visitation rights by the appellant in that she had made excuses for not having the children ready or that the children's grandfather had them tell appellee that they did not want to go with him when he came to pick them up. Appellee further testified that he sought the assistance of a deputy sheriff from White County to help him get the children on July 31, 1976 so that he could take them on his one week vacation as ordered by the court. At this time the children's grandfather tried to prevent appellee from taking the children by telling him that they did not want to go with him. Appellee also denied beating or otherwise abusing the children during the vacation or at any other time.

Appellant Janice Lee Doggett testified that when the children had returned from visitations with their father they related stories of being physically abused and beaten or threatened with beating. She also stated that she had been told by the Judge at the time of the divorce that the children need not be forced to visit their father against their will. She testified further that on the weekends scheduled for visitation she had the children ready but that they had refused to accompany their father.

The two older Doggett children were questioned by the court in chambers with the consent of, but out of the presence of, the parties or their attorneys. There they told the court that their father had beaten and slapped them and that they did not want to see their father again.

After hearing the above evidence, the court entered an order finding appellant in contempt of court, modifying the divorce decree to require her to deliver the children to appellee's home for each designated visitation period, and to pay from the proceeds of the bond filed Three Hundred Dollars ($300.00) for appellee's attorney fees.

Appellant's first contentions concern the lower court's finding that she was in contempt of court and that appellee was not guilty of abusing the children. Both of these issues involved the trial court's findings based on its observation and consideration of the evidence. It is a long-standing axiom that the findings of a trial judge will not be disturbed and his opinion substituted by that of a court of review unless the holding of the trial judge is manifestly against the weight of the evidence. Brown v. Zimmerman, 18 Ill.2d 94, 163 N.E.2d 518; Shores v. Shores, 119 Ill.App.2d 85, 225 N.E.2d 214. Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to assess their credibility, and to weigh the evidence and determine the preponderance thereof. Rude v. Seibert, 22 Ill.App.2d 477, 161 N.E.2d 39; Schulenberg v. Signatrol, 37 Ill.2d 352, 226 N.E.2d 624; People ex rel. Lutz v. Lutz, 24 Ill.App.3d 948, 322 N.E.2d 62. A reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn, or if such reversal would entail a mere substitution of judgment for that of the trier of fact.

In the instant case, the testimony on the issue of abuse of the children was directly contradictory, with each side presenting evidence favorable to its own position. Upon examination of the record before us, we are not persuaded that the trial court erred in rejection of appellant's claim that the children had been abused by their father. In this situation, determination of the credibility of the witnesses was paramount, and we are not prepared to substitute our judgment for that of the trier of fact who was able to observe first-hand the demeanor of the witnesses during their testimony.

Moreover, we find ample evidence in the record in support of the lower court's finding that appellant was guilty of contempt for failure to comply with the visitation provisions of the divorce decree. Appellant argues that virtually each time the visitation was denied appellee, it was refused either by the children themselves or by some person other than herself who was caring for the children at the time they were called for by their father. This argument overlooks the fact that under the decree the ultimate responsibility for compliance with the visitation provisions ordered therein rests...