Jarrett v. Jarrett

• Decision Date: 20 December 1979
• Docket Number: No. 51431,51431
• Parties: , 36 Ill.Dec. 1 Jacqueline JARRETT, Appellee, v. Walter JARRETT, Appellant.
• Court: Illinois Supreme Court

Page 421

400 N.E.2d 421

78 Ill.2d 337, 36 Ill.Dec. 1

Jacqueline JARRETT, Appellee, v. Walter JARRETT, Appellant.

No. 51431.

Supreme Court of Illinois.

Dec. 20, 1979.

Rehearing Denied Feb. 1, 1980.

Lois A. Solomon and Arthur M. Solomon of Solomon & Behrendt, Chicago, for appellant.

Michael H. Minton of Facchini & Minton, Arlington Heights, for appellee.

Donald C. Schiller, Douglas P. Maloney, and James T. Friedman, Chicago, for amicus curiae American Academy of Matrimonial Lawyers (Illinois Chapter).

UNDERWOOD, Justice:

On December 6, 1976, Jacqueline Jarrett received a divorce from Walter Jarrett in the circuit court of Cook County on grounds of extreme and repeated mental cruelty. The divorce decree, by agreement, also awarded Jacqueline custody of the three Jarrett children subject to the father's right of visitation at reasonable times. Seven months later, alleging changed conditions, Walter petitioned the circuit court to modify the divorce decree and award him custody of the children. The circuit court granted his petition subject to the mother's right of visitation at reasonable times, but a majority of the appellate court reversed (64 Ill.App.3d 932, 21 Ill.Dec. 718, 382 N.E.2d 12), and we granted leave to appeal.

During their marriage, Walter and Jacqueline had three daughters, who, at the time of the divorce, were 12, 10 and 7 years old. In addition to custody of the children, the divorce decree also awarded Jacqueline the use of the family home, and child support; Walter received visitation rights at all reasonable times and usually had the children from Saturday evening to Sunday evening. In April 1977, five months after the divorce, Jacqueline informed Walter that she planned to have her boyfriend, Wayne Hammon, move into the family home with her. Walter protested, but Hammon moved in on May 1, 1977. Jacqueline and Hammon thereafter cohabited in the Jarrett home but did not marry.

The children, who were not "overly enthused" when they first learned that Hammon would move into the family home with them, asked Jacqueline if she intended to marry Hammon, but Jacqueline responded that she did not know. At the modification hearing Jacqueline testified that she did not want to remarry because it was too soon after her divorce; because she did not believe that a marriage license makes a relationship; and because the divorce decree required her to sell the family home within six months after remarriage. She did not want to sell the house because the children did not want to move and she could not afford to do so. Jacqueline explained to the children that some people thought it was wrong for an unmarried man and woman to live together but she thought that what mattered was that they loved each other. Jacqueline testified that she told some neighbors that Hammon would move in with her but that she had not received any adverse comments. Jacqueline further testified that the children seemed to develop an affectionate relationship with Hammon, who played with them, helped them with their homework, and verbally disciplined them. Both Jacqueline and Hammon testified at the hearing that they did not at that time have any plans to marry. In oral argument before this court Jacqueline's counsel conceded that she and Hammon were still living together unmarried.

Walter Jarrett testified that he thought Jacqueline's living arrangements created a moral environment which was not a proper one in which to raise three young girls. He also testified that the children were always clean, healthy, well dressed and well nourished when he picked them up, and that when he talked with his oldest daughter, Kathleen, she did not object to Jacqueline's living arrangement.

The circuit court found that it was "necessary for the moral and spiritual well-being and development" of the children that Walter receive custody. In reversing, the appellate court reasoned that the record did not reveal any negative effects on the children caused by Jacqueline's cohabitation with Hammon, and that the circuit court had not found Jacqueline unfit. It declined to consider potential future harmful effects of the cohabitation on the children. 64 Ill.App.3d 932, 937, 21 Ill.Dec. 718, 382 N.E.2d 12.

Both parties to this litigation have relied on sections 602 and 610 of the new Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, pars. 602, 610), which provide:

"Sec. 602. Best interest of child.

(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school and community; and

(5) the mental and physical health of all individuals involved.

(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child."

"Sec. 610. Modification.

(a) No motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.

(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the 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 by a change of environment is outweighed by its advantages to him.

(c) * * * "

We note initially, however, that this appeal from the custody modification order was taken on August 11, 1977, two months before the effective date of the new act, and that the new act expressly provides that prior law shall govern such an appeal (Ill.Rev.Stat.1977, ch. 40, par. 801(d)). While the sections of the new act governing modification of custody orders require explicit findings (see In re Custody of Harne (1979), 77 Ill.2d 414, 33 Ill.Dec. 110, 396 N.E.2d 499), we believe those sections in substance codify the prior decisional law, and that our decision in this appeal is not affected by the applicability or nonapplicability of the new act.

The standards applicable to petitions for modification of custody appearing in section 610(b) are substantially those to which Illinois courts have long adhered. In Nye v. Nye (1952), 411 Ill. 408, 416, 105 N.E.2d 300, 304, this court said that a divorce decree "is res judicata as to the facts which existed at the time it was entered" and that "(n)ew conditions must have arisen to warrant the court changing its prior custody determination." Moreover, the guiding principle in custody adjudications is the best interests of the child (411 Ill. 408, 415, 105 N.E.2d 300) and the change in conditions must adversely affect the best interests of the child (411 Ill. 408, 416, 105 N.E.2d 300). The prior statute also directed the attention of the court to the interests of the child in custody adjudication. (sections 13 and 18 of the Divorce Act (Ill.Rev.Stat.1975, ch. 40, pars. 14, 19), repealed by the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, pars. 101 to 802.) Although prior Illinois decisions did not explicitly articulate the new act's command that no change be made in custody unless the harm inherent in any change in custody is outweighed by the advantages to the child of the new environment, they did recognize that continuity in the child's environment is in itself important. (Bergan v. Bergan (1976), 42 Ill.App.3d 740, 743, 1 Ill.Dec. 485, 356 N.E.2d 673; Holloway v. Holloway (1973), 10 Ill.App.3d 662, 665, 294 N.E.2d 759; Collings v. Collings (1970), 120 Ill.App.2d 125, 128, 256 N.E.2d 108; Jenkins v. Jenkins (1967), 81 Ill.App.2d 67, 72, 74, 225 N.E.2d 698; Leary v. Leary (1965), 61 Ill.App.2d 152, 155, 209 N.E.2d 663.) Finally, the commands of sections 602 and 610 of the new act to consider only whether the child's environment endangers his physical, mental, moral and emotional health (Ill.Rev.Stat.1977, ch. 40, par. 610) and to disregard any conduct of the custodian that does not affect his relationship with the child (Ill.Rev.Stat.1977, ch. 40, par. 602) reemphasize the principle stated in Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, that the focus of custody determinations must be the welfare of the child.

The chief issue in this case is whether a change of custody predicated upon the open and continuing cohabitation of the custodial parent with a member of the opposite sex is contrary to the manifest weight of the evidence in the absence of any tangible evidence of contemporaneous adverse effect upon the minor children. Considering the principles previously enunciated, and the statutory provisions, and prior decisions of the courts of this State, we conclude that under the facts in this case the trial court properly transferred custody of the Jarrett children from Jacqueline to Walter Jarrett.

The relevant standards of conduct are expressed in the statutes of this State: Section 11-8 of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 11-8) provides that "(a)ny person who cohabits or has sexual intercourse with another not his spouse commits fornication if the behavior is open and notorious." In Hewitt v. Hewitt (19...