Gottlieb v. Gottlieb, Gen. No. 48242

CourtUnited States Appellate Court of Illinois
Writing for the CourtFRIEND; BRYANT; BURKE
Citation31 Ill.App.2d 120,175 N.E.2d 619
PartiesMary Jane GOTTLIEB, Appellee and Cross-Appellant, v. Jerry Robert GOTTLIEB, Appellant and Cross-Appellee.
Docket NumberGen. No. 48242
Decision Date18 April 1961

Page 619

175 N.E.2d 619
31 Ill.App.2d 120
Mary Jane GOTTLIEB, Appellee and Cross-Appellant,
Jerry Robert GOTTLIEB, Appellant and Cross-Appellee.
Gen. No. 48242.
Appellate Court of Illinois, First District, Second Division.
April 18, 1961.

[31 Ill.App.2d 121]

Page 620

Cohen & Berger, Chicago (Samuel S. Berger, Warren Krinsky, Chicago, of counsel), for appellant.

No appearance for appellee.

FRIEND, Justice.

Defendant appeals from an order of the Superior Court of July 1, 1960, which modified one of the provisions of a decree of divorce, entered in favor of plaintiff on September 29, 1955, with respect to the religious training of the two minor children. Plaintiff has not filed an appearance nor a brief in this court.

No evidence was adduced before the chancellor, but from the record it appears that the parties were married in Chicago on March 21, 1942 and lived together [31 Ill.App.2d 122] as husband and wife until April 23, 1954. Two children were born of the marriage, Dianne in 1943 and Steven in 1949. In June 1955 plaintiff filed her complaint for divorce, charging desertion, and defendant answered. While the suit was pending, the parties entered into a written agreement affecting their property rights, and providing specifically for the religious training of their children, subject to the approval of the court. By stipulation, the matter was then heard without contest. On September 29, 1955 the court entered a decree for divorce which incorporated the terms of the written agreement. It provided that plaintiff should have the care, custody, and education of the minor children, with reasonable visitation rights reserved to defendant. He was to pay $440 per month for alimony and child support, in equal proportions, the income tax chargeable to plaintiff on the alimony payments, and $1,000 in cash twelve months after the entry of the decree. Child support was to continue until each of the children reached the age of twenty-one years. Defendant was to provide, at his expense, a college and professional education for both children if they so desired, regardless of their age. He was also to purchase an automobile for plaintiff's exclusive use and assume payment of State license fees, city vehicle taxes, and all insurance. Defendant was further required to maintain a $10,000 life insurance policy for the benefit of plaintiff, and he gave her a written unconditional guarantee, executed by a relative, of all future payments of alimony and child support, as set forth in the decree, as well as the payments of premiums on the $10,000 life insurance policy. Defendant was also required to pay and discharge all extraordinary medical, dental, and hospital expenses for the children. Plaintiff was permitted to remove the children from the State of Illinois in her discretion, which she has done from time to time. The household furniture and [31 Ill.App.2d 123] equipment was given to plaintiff. Each party released all interest in the property of the other, and defendant was to pay plaintiff's attorney's fees in the sum of $500. Defendant, on his part, faithfully carried out all the provisions of the decree; in fact, in 1957, he voluntarily increased the alimony and child support from $440 to $560 per month, and later in 1958, when Dianne took up residence with him, he reduced the payment to $500 a month which he is presently paying.

Page 621

The sole controversy arises over paragraph 13 of the agreement which was incorporated in paragraph 14 of the decree and reads as follows: 'That the plaintiff, Mary Jane Gottlieb, raise Dianne Gottlieb and Steven Gottlieb, the children of the parties hereto, in the Jewish faith and the defendant, Jerry Robert Gottlieb, shall pay the annual temple dues.' Notwithstanding this provision of the agreement and decree, shortly after its entry plaintiff enrolled Dianne as a student at Marywood School for Girls and Steven as a student at St. Nicholas School, both Catholic educational institutions. Dianne never attended Marywood School. She has almost reached her majority and is not involved in this proceeding. Steven, however, has uninterruptedly attended Catholic schools, and from 1958 the question of his religious upbringing was repeatedly brought before the chancellor in one form or another by means of various petitions, in some of which defendant sought to have plaintiff cited for contempt for violation of the decree. The issue, however, was continued generally, and determination thereof was not final until an order was entered on July 1, 1960 permitting plaintiff to enroll Steven 'in a school of her [plaintiff's] own choosing.' This is the order from which defendant appeals.

From the petitions of record, there emerges a discernible design on plaintiff's part to repudiate and [31 Ill.App.2d 124] breach the agreement and decree. Steven has always attended Catholic schools, a practice to which defendant objected. Steven's mother petitioned the court to deprive the father, who maintained a Jewish household, of custody during the 1959 Christmas vacation for the reason that 'to deprive the said minor child of the festivities usually and ordinarily indulged in by a Christian household during that period is unfair and detrimental to the best interests and well-being of said child.' Plaintiff's possessive attitude toward Steven is evidenced by her unwillingness to allow him to continue any relationship with his father. It appears from one of the petitions that after she had established temporary residence in Lansing, Michigan, defendant made a trip there to visit his son; she refused to allow him to be with his son, except in the presence of a town constable. In open court plaintiff informed defendant that she intended to send Steven to a Catholic camp; he expressed his willingness to send the boy to a nonsectarian camp and to defray all expenses. In answer to one of defendant's petitions, when Steven was nine or ten years old, plaintiff averred that 'the said minor child * * * presently chooses to practice the Roman Catholic faith,' and about a year later, when plaintiff filed a petition to modify the decree, she alleged that 'subsequent to the entry of said decree of divorce the minor child Steven Gottlieb embraced the Roman Catholic religion, that said minor child is presently enrolled and has so been for a long period of time, in a Roman Catholic Parochial school, that he is practicing said religion regularly, and that as an integral part of the practice of said religion the education in a parochial school is of utmost importance.' She further contended that the choice of religion is guaranteed under the Constitution and is extended to minors as well as adults, and that the choice of religion of the children 'falls within the prerogative of the said petitioner[31 Ill.App.2d 125] [plaintiff].' She asked that an order be entered modifying the decree of divorce 'in that Paragraph 14 of said decree be vacated; and that in lieu thereof, a provision be made providing that the minor children of the parties hereto be allowed to follow the religion of their own choosing, to-wit, the Roman Catholic religion, without interference from the defendant and respondent.' No specific cognizance was taken of this request; the final order provided, as heretofore detailed, that plaintiff be allowed 'to enroll the minor child * * * in a school of her own choosing.'

Section 19 of the Divorce Act (Ill.Rev.Stat.1959, ch. 40) provides that 'the court may, on application, from time

Page 622

to time, make such alterations in * * * the care, custody and support of the children, as shall appear reasonable and proper.' Notwithstanding this statutory provision for the modification of a decree, the courts of this state have consistently held that such authority may not be invoked or exercised unless circumstances have arisen after the entry of the original decree which would require the modification thereof. This is so because the decree itself is determinative of all issues which have been raised and of the factual situation which was made known to the court prior to its entry. The Supreme Court, in Nye v. Nye, 1952, 411 Ill. 408, at page 416, 105 N.E.2d 300, at page 304, in discussing a requested modification of a decree with respect to custody of children, states the rule as follows: 'The decree is res judicata as to the facts which existed at the time it was entered but not as to facts arising thereafter. People ex rel. Stockham v. Schaedel, 340 Ill. 560, 173 N.E. 172. In proceedings involving child custody the order of the court or judge having competent jurisdiction is a final order, and is binding upon the parties under the same facts and so long as the same conditions exist as did at the time of the hearing and order. Cormack v. Marshall, 211 Ill. 519, 71 N.E. 1077, 67 L.R.A. 787. New conditions[31 Ill.App.2d 126] must have arisen to warrant the court changing its prior custody determination, Stafford v. Stafford, 299 Ill. 438, 132 N.E. 452, 20 A.L.R. 827, where the court was not imposed on by perjury or collusion of the parties.' (Emphasis added.) This rule is likewise enunciated in Dunning v. Dunning, 1957, 14 Ill.App.2d 242, 246, 144 N.E.2d 535, Peraza v. Tovar, 1957, 13 Ill.App.2d 405, 410, 142 N.E.2d 165, and Harms v. Harms, 1944, 323 Ill.App. 154, 158, 55 N.E.2d 301. Custody may, and frequently does, embrace provisions for religious training, and a modification of a custody order of this kind would, we think, be governed by the same rules.

Even though the decree granted plaintiff the care, custody, control, and education of the children, the provision for their religious rearing was a determination that their well-being would be best served by raising them in the Jewish faith. Both parties by written agreement had assented to this, secured the court's approval thereto, and caused the agreement to be incorporated in the decree. Why should not the same court, at a subsequent date, have given...

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5 cases
  • Marriage of Bennett, In re, 4-91-0244
    • United States
    • United States Appellate Court of Illinois
    • January 31, 1992
    ...of an antenuptial agreement or a settlement agreement." The circuit court went on to assert the case of Gottlieb v. Gottlieb (1961), 31 Ill.App.2d 120, 175 N.E.2d 619, was inapposite because in that case the parties had agreed at the time of dissolution it was in the best interests of the c......
  • Taylor v. Taylor, Gen. No. 48280
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1961
    ...the particular circumstances of that case, the court's action in modifying the decree was erroneous. Gottlieb v. Gottlieb, Ill.App., 175 N.E.2d 619. We there said that 'we do not hold that agreements of parties with respect to the religious training of children should be enforced in all sit......
  • Jacobs v. Jacobs, 59893
    • United States
    • United States Appellate Court of Illinois
    • December 13, 1974
    ...of a custody order of this kind is governed by the same rule requiring a material change of circumstances. (Gottlieb v. Gottlieb, 31 Ill.App.2d 120, 175 N.E.2d 619.) To justify such a modification of the original decree here, it was incumbent upon the father to show some change in circumsta......
  • Landis, In re
    • United States
    • United States Court of Appeals (Ohio)
    • July 27, 1982
    ...comply with a provision of a separation agreement as to the religious training of the child. See, however, Gottlieb v. Gottlieb (1961), 31 Ill.App.2d 120, 175 N.E.2d 619, in which an Illinois court enforced a separation agreement against the custodial parent in a case where apparently no co......
  • Request a trial to view additional results
1 books & journal articles
  • Exploring Identity
    • United States
    • ABA General Library Family Law Quarterly Nbr. 55-1, April 2020
    • April 1, 2020
    ...• Goodman v. Goodman, 141 N.W.2d 445 (Neb. 1966). • Gluckstern v. Gluckstern, 220 N.Y.S.2d 623 (Sup. Ct. 1961). • Gottlieb v. Gottlieb, 175 N.E.2d 619 (Ill. App. Ct. 1961). • Jackson v. Jackson, 309 P.2d 705 (Kan. 1957). • Boerger v. Boerger, 97 A.2d 419 (N.J. Super. Ct. Ch. Div. 1953). Pub......

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