Hirth v. Hirth

• Decision Date: 11 May 1965
• Docket Number: Gen. No. 64-115
• Parties: Shirley HIRTH, Appellant, v. Kenneth HIRTH, Appellee.
• Court: United States Appellate Court of Illinois

Page 114

207 N.E.2d 114

59 Ill.App.2d 240

Shirley HIRTH, Appellant, v. Kenneth HIRTH, Appellee.

Gen. No. 64-115.

Appellate Court of Illinois, Second District.

May 11, 1965.

Downey, Laying, Anderson & Martenson, Rockford, for appellant.

No appearance or briefs filed on behalf of appellee.

DAVIS, Justice.

This is a post-divorce decree proceeding wherein defendant, Kenneth Hirth, filed petition to modify decree for divorce by changing custody of the minor children from the plaintiff, Shirley Hirth (now Shirley Hirth Murphy), to him.

Order was entered on said petition, after hearing on August 10, 1964. By said order, the court vacated all prior custody orders and awarded the custody of the children to defendant for the 1964-65 school year, permitted him to take said children to Las Vegas, Nevada, but required him to return them to Illinois within two weeks after the end of said school year. This order made no provision for the custody of the children after their return to Illinois. Plaintiff appealed therefrom.

The petition filed by defendant shows that decree for divorce was entered on June 28, 1962. Therein, the care and custody of Kathryn Hirth, then age 7, and Douglas Hirth, then age 4, was awarded to plaintiff, subject to visitation rights in the defendant, and plaintiff was awarded support and alimony payments in the sum of $31 per week.

The record reveals that plaintiff has been remarried twice since, and defendant has been re-married once. Plaintiff appears to be presently happily married and defendant's new marital venture is progessing toward stability.

Plaintiff's second marriage terminated in divorce at her then husband's fault. During said marriage, she moved from place to place with her then husband and the children. After this divorce, she was working and unable to care for the children and she then called the defendant concerning her situation. As a result, the court entered an order, on September 17, 1963, pursuant to stipulation of the parties, which provided that the defendant should have the custody of the minor children for the 1963-64 school year and should return them to plaintiff upon the completion of said school year. The defendant complied with this order and upon returning the children to plaintiff, filed the petition in question for change of custody.

The trial court, during the hearing on this petition, found that both of the parties were proper persons to have the custody of the children. We agree. Kathy, age 9, at the hearing, expressed a preference to live with her mother, the plaintiff; Douglas, age 6, was not called upon to offer an expression of choice.

At the conclusion of the hearing, the trial court directed plaintiff's counsel to proceed in that he had requested a formal hearing on the petition filed by defendant. While custody provisions can be modified, the party seeking to modify such provisions, has the burden of proving altered conditions. Stern v. Stern, 40 Ill.App.2d 374, 383, 188 N.E.2d 97 (1st Dist. 1963). Every presumption is indulged in favor of a divorce decree. If its provisions are to be changed, the burden of proof is on the party so moving to show why it should be done. Szczawinski v. Szczawinski, 37 Ill.App.2d 350, 353, 354, 185 N.E.2d 375 (1st Dist. 1962).

In People ex rel. v. Schaedel (1930), 340 Ill. 560, at pages 564 and 565, 173 N.E. 172, at page 174, the court stated:

'After a divorce decree in this state, the custody of the children is always subject to the order of the court which enters the decree and may be changed from time to time as the best interests of the children demand. The decree rendered was res judicata as to the facts which existed at the time it was entered but it was not res judicata as to facts and circumstances arising thereafter * * *.'

In the case at bar, the trial court erred in placing upon the plaintiff the burden of sustaining the provisions of the divorce decree which awarded her the care and custody of the children. The order of September 17, 1963, giving the defendant custody of the children, pursuant to stipulation, for the 1963-64 school year, left the care and custody of said children in the plaintiff, subject to this deviation from the provisions of the decree for divorce. In the ...