De Franco v. De Franco

• Decision Date: 26 December 1978
• Docket Number: No. 78-1331,78-1331
• Citation: 384 N.E.2d 997,67 Ill.App.3d 760,24 Ill.Dec. 130
• Parties: , 24 Ill.Dec. 130 Sharon Lee DE FRANCO, Petitioner-Appellant, v. Ronald D. DE FRANCO, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 997

384 N.E.2d 997

67 Ill.App.3d 760, 24 Ill.Dec. 130

Sharon Lee DE FRANCO, Petitioner-Appellant, v. Ronald D. DE FRANCO, Respondent-Appellee.

No. 78-1331.

Appellate Court of Illinois, First District, First Division.

Dec. 26, 1978.

As Modified On Denial of Rehearing Feb. 6, 1979.

Fumel & Haberman, and Synek, Bishart & Porikos, Chicago (Morton J. Haberman, Henry T. Synek, Chicago, of counsel), for petitioner-appellant.

Kaufman & Litwin, Chicago (Stuart Litwin, J. Scott Bonner, Chicago, of counsel), for respondent-appellee.

BUCKLEY ^*, Justice:

This is an appeal from an order of the circuit court of Cook County which modified a decree of divorce by transferring custody of minor children from the mother, Petitioner-Appellant Sharon De Franco, to their father, Respondent-Appellee, Ronald De Franco.

Sharon and Ronald De Franco were married on March 30, 1968. Their marriage was dissolved on March 23, 1977, when petitioner obtained a divorce from respondent on the grounds of extreme and repeated mental cruelty. Pursuant to the divorce decree and Property Settlement Agreement, petitioner, having been found to be a fit and proper person, was granted the care, custody, control and education of Alissa Mae De Franco and Annette De Franco, the minor children of the parties. Respondent was granted rights of "liberal visitation."

On November 21, 1977, respondent filed a "Petition to Modify Judgment for Divorce" alleging that Sharon De Franco had commenced cohabiting with a male person in the residence occupied by her and the minor children. The petition further alleged that it was not in the best interest of the parties' minor children to remain in this unhealthy environment and prayed respondent be awarded their sole care and custody.

On November 29, 1977, petitioner filed a motion to strike respondent's petition for failure to comply with Section 610 of the Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, Ch. 40, par. 610).

On March 27, 1978 the circuit court entered an order allowing respondent to modify and amend his petition and to file a supporting affidavit in compliance with Section 610. This order was complied with on March 28, 1978 when respondent filed his "Verified Amended Petition to Modify Judgment for Divorce." This amended petition essentially repeated the allegations of the first petition and further alleged that the environment caused by petitioner's cohabitation with Joseph Bond will endanger seriously the minor children's mental, moral and emotional health. On April 4, 1978, petitioner filed her answer to respondent's verified petition and on April 24, 1978, this cause was heard by the circuit court. After hearing the testimony presented, the court made the following finding:

"(T)he Court finds that the unequivocal evidence shows that the custodial parent, Sharon, has been living in the conjugal relationship in the presence of the children with one Joseph Bond.

The Custodial Parent, Sharon, has called a witness who has testified that the older child, * * * Alissa was high-strung and upset and this occurred during the middle of the week."

In ordering that custody of the minor children be transferred from the mother to the father, the court further stated that:

"(I)t would appear that there has been evidence adduced that this course of conduct * * * could be or is a factor or a contributing factor to Alissa's high-strung and upset condition."

The record establishes the following pertinent facts. In June of 1977, Joseph Bond moved into the residence of Sharon De Franco and her two minor children, Alissa, age five, and Annette, age two. Bond was married, but separated from his wife and was attempting to secure a divorce. Petitioner testified that she and Bond planned to marry when he became divorced.

From June, 1977, until the end of October, 1977, petitioner and Bond openly cohabited in the presence of the minor children. Petitioner testified that Bond moved his clothing and personal effects into her home; that he slept in her bedroom sharing her double bed and that they engaged in sexual intercourse and other sexual activities during that time. She further testified that for the most part Bond did not contribute to the support of herself and the minor children. She was not gainfully employed and was expending child support funds for food and accessories for her "enlarged family."

What aspects of petitioner's conjugal relationship with Bond were witnessed by the children and the effects of this relationship on them are matters of dispute. Nonetheless, the following facts are uncontroverted: Petitioner and Bond slept in a double bed with the door unlocked. Moreover, the door to the master bedroom had been removed during remodeling for a seven to ten day period. Petitioner testified that Alissa knew her mother and Bond were not married but were sleeping together. She further testified that Alissa would wake from a nightmare and come into the master bedroom for comforting a few times per week.

Petitioner neither discussed nor explained her living arrangement with her children because they never asked. She merely told Alissa that Bond "will be staying with us for a while." The children referred to Bond as "Uncle Joe."

According to petitioner, Bond moved out at the end of October, 1977. Nonetheless, Bond continued to visit petitioner at least twice a week at her Northlake residence. On those occasions the two had sexual relations on the couch while the children were upstairs. Petitioner testified that these sexual relations continued until about February 1, 1978 when she and her children moved to Wheeling, Illinois. She continued to see Bond at her Wheeling residence about once a week but denied that sexual contacts continued.

At the hearing petitioner remarked that although she originally thought it right to allow Bond to move in, she would never do it again. Nonetheless, she admitted that under some circumstances she would approve of her daughter living with a man without the benefit of marriage.

Lee Koziol, a neighbor of petitioner and respondent in Palatine, testified on behalf of petitioner. She said that she had visited petitioner and her children once or twice a week at their Northlake residence and had observed the children's home life. In her opinion Alissa often appeared highstrung and at times upset. These disturbances were manifested during the middle of the week.

Respondent first learned that his ex-wife was cohabiting with Bond from Alissa. He testified that he had attempted to dissuade petitioner from continuing this living arrangement but she refused to discuss the matter. Respondent objected to petitioner's behavior from a moral standpoint and believed his daughters were being subjected to an unhealthy environment.

Respondent was also permitted to testify as to some of Alissa's statements to him for purposes of establishing her state of mind. (See Quick v. Michigan Millers Mutual Ins. (1969), 112 Ill.App.2d 314, 250 N.E.2d 819 (exception to rule precluding hearsay testimony: a statement of declarant's then existing state of mind, emotion, sensation, or mental condition.) Alissa told her father that she had slept with her mother and Bond and that she "had seen Joe and mama kissing in the bed and Joe calling, mama, mama."

The record also establishes that respondent was a contractor in the heating and air conditioning business. On April 10, 1978 he married his secretary, Deborah. Ronald De Franco moved in with Deborah, her 10-year old daughter, and her parents in Northbrook, Illinois. At the time of the hearing, respondent was in the process of building a four-bedroom home in Kildeer, Lake County, Illinois. Deborah testified that she would remain at home during the day to care for the children in the event their custody was granted to respondent.

Petitioner contends on appeal that the circuit court erred: (1) in transferring custody of the minor daughters to respondent because her sexual impropriety was not proved to negatively affect the children; (2) in not considering factors bearing upon child custody mandated by Section 602 of the Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 602); (3) in failing to delineate written findings of fact as to the basis for its order; (4) and abused its discretion in neither interviewing the children, nor appointing a guardian ad litem on their behalf, nor ordering an investigation and report by the Department of Children and Family Services (D.C.F.S.); and (5) in denying petitioner's post-trial motion.

We find the circuit court's rulings proper in all respects and address petitioner's contentions sequentially as above.

In custody modification cases courts are cognizant of competing social concerns: the social interest favoring the finality of judgments and the Parens patriae duty of the state to protect the welfare of children. Avoidance of unnecessary disturbance of children requires that the non-custodial parent bear the burden of proving the best interest of the children necessitates a custody change. King v. Vancil (1975), 34 Ill.App.3d 831, 341 N.E.2d 65; Jacobs v. Jacobs (1974), 25 Ill.App.3d 175, 323 N.E.2d 21.

Case law and Section 610 of the Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 610) require that a divorce judgment be modified only if there has been a material change of circumstances since its entry. (Taylor v. Taylor (1961), 32 Ill.App.2d 45, 176 N.E.2d 640.) Furthermore, that material change must impact upon the welfare and best interests of the children or the custodial parent must be proved unfit (Vanderlaan v. Vanderlaan (1972), 9 Ill.App.3d 260, 292 N.E.2d 145). Section 610 of the new Act additionally provides:

"(T)he court shall retain the custodian appointed pursuant to the prior judgment unless:

(3) The child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused...