Jenkins v. Jenkins

• Decision Date: 15 March 1967
• Docket Number: Gen. No. 50307
• Citation: 225 N.E.2d 698,81 Ill.App.2d 67
• Parties: Charles JENKINS, Plaintiff, Respondent-Appellee, v. Jean D. JENKINS, Defendant, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 698

225 N.E.2d 698

81 Ill.App.2d 67

Charles JENKINS, Plaintiff, Respondent-Appellee, v. Jean D. JENKINS, Defendant, Petitioner-Appellant.

Gen. No. 50307.

Appellate Court of Illinois, First District, Fourth Division.

March 15, 1967.

Abrams, Linn & Mix, David Linn, B. John Mix, Jr., Chicago, for defendant, petitioner-appellant.

George B. Collins, Chicago, Harry B. Bainbridge, Chicago Heights, for plaintiff, respondent-appellee.

ENGLISH, Presiding Justice.

Petitioner appeals from denial of her petition to modify a divorce decree so as to grant her the custody of her son.

Petitioner and Respondent were married in 1953, and were separated in January 1963 after a series of violent family quarrels, following one of which Respondent required several stitches in his head. At the time of the separation, the daughter (age three) went with Petitioner to live in her maternal grandmother's home, and the son (age eight) remained with his father, who rented another abode and leased the family house to third persons. On April 19, 1963, Petitioner received from Respondent's attorney a proposed stipulation in connection with contemplated divorce proceedings, under the terms of which the mother would retain custody of the little girl and the boy would live with the father. On June 21, 1963, the Respondent filed his complaint seeking divorce on the ground of cruelty. An appearance, answer, and the stipulation referred to above were filed on behalf of the Petition. The case was heard as a default matter on June 22, 1963, and a decree of divorce was entered July 11, 1963, awarding custody of the daughter to her mother, and custody of the son to his father.

At the hearing on Petitioner's request for modification of this custody arrangement, she testified that at the time of the divorce she and Respondent had entered into an oral agreement that she would have custody of both children, notwithstanding the decree, once she got settled and was able to support and care for them. Respondent denies the existence of such an agreement. Petitioner also testified that she asked Respondent but was refused permission to live with both their children in the jointly-owned house.

In November 1963, Petitioner had left the daughter with her grandmother in Chicago and gone to Arizona to work at a resort. While there, she met her present husband, Mr. Golston, to whom she was married in January 1964. Shortly after their marriage, she took her daughter to live with them in Mr. Golston's large, modern home in Casa Grande, Arizona.

During the Christmastime immediately prior to her marriage to Mr. Golston, Petitioner had returned to Chicago for a week. She visited her son and allegedly discussed a change in his custody with Respondent. She next saw the boy when he went to spend his vacation, during the summer of 1964, with Petitioner and her second husband. It is not contested that Mr. Golston is financially more secure than Respondent, but it is admitted by both parties that economic affluence will not of itself justify modification of the custody provisions in the decree.

This petition was filed on October 24, 1964, and Petitioner alleged in the trial court, as she does here, that: (1) the primary concern of a court in custody cases must be the welfare of the child; (2) in cases involving children of tender age, where both parents are fit, custody of the child should be granted to the mother; (3) the court has power to modify custody provisions of a divorce decree notwithstanding the fact that it had incorporated the custody arrangement set forth in a written agreement between the parties; and (4) in determining who should have custody, it is of considerable importance that children of the same parents should live together as members of one family.

Respondent contends that: (1) a change in custody is justified only after a change in circumstances of the child and there is no such change in this case; (2) the decision of the trial court as to what is best for the child should stand, since he saw and heard the witnesses at trial; (3) the rule favoring the mother in questions of custody does not apply when the mother has voluntarily given up a child; (4) the separation of brother and sister was brought about by the Petitioner and there is no rule of law requiring that the children live together, particularly where the boy had adjusted to the conditions of separation.

The trial court agreed generally with Petitioner's first two contentions and also with the argument that the decree is not permanently binding and may be modified under proper circumstances. As to petitioner's fourth argument, the court pointed out that 'the ideal situation' would be for the children to live together and with both of their parents, but when this is impossible the court must seek a satisfactory alternative, and in so doing 'the Court cannot accept the blanket solution that in all cases * * * it is best for a brother and sister to always be together but must be modified by circumstances in each case.' The court emphasized that it felt both parties were fit parents, then held:

Now, as to the boy, the Court has to consider the fact that he has lived with the father for the last almost year and a half; that he seems to be getting along well; is being kept in a proper manner and that he has some roots which have grown with his living with his father in respect to schoolhood playments, to the educational system, to acquaintanceships, his familiarity with his surroundings; and the Court feels that to take the chap from that situation at this time would be unwise and would result in too much trauma to the child.

I do not think that there has been a sufficient showing of a change of circumstances or a need for a return to the mother to justify saying that the welfare of the child requires this change. In fact, I think the opposite at this time would be true.

We affirm the decision of the trial court. Because of his first-hand opportunity to observe and hear the witnesses and parties, the trial court is ordinarily in a position superior to that of this court for reaching the most equitable solution in this kind of case. We would not hesitate to disturb a lower-court finding if we were convinced that an injustice was being committed in light of the evidence, or if we found the trial court had incorrectly applied principles of law, but we find neither circumstance in this case. It must be emphasized that custody cases present among the most vexing and difficult situations facing a trial judge in the discharge of his duties. Generally, no decision a court makes in such cases can be considered either 'right' or 'wrong.' The responsibility of a judge is, instead, to exercise his own best judgment in attempting to find the most satisfactory solution under all the circumstances in each case. The conscientious chancellor in the instant case recognized his proper function in this regard, ¹ and, after doing so, determined that it would be best to leave the boy with his father in familiar surroundings to which he had satisfactorily adjusted and become accustomed. We concur in that conclusion and find nothing in fact or law which would warrant our disturbing the order of the trial court.

The principal cases cited by Petitioner are either distinguishable or support Respondent's position. Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, is cited for ...