Johnson v. Johnson

• Decision Date: 18 November 1975
• Docket Number: No. 60333,60333
• Citation: 340 N.E.2d 68,34 Ill.App.3d 356
• Parties: Wayne JOHNSON, Plaintiff-Appellee, v. Kathleen JOHNSON, a/k/a Kathleen Pacatte, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 68

340 N.E.2d 68

34 Ill.App.3d 356

Wayne JOHNSON, Plaintiff-Appellee, v. Kathleen JOHNSON, a/k/a Kathleen Pacatte, Defendant-Appellant.

No. 60333.

Appellate Court of Illinois, First District, Second Division.

Nov. 18, 1975.

Frana Biederman, Chicago, for defendant-appellant.

Richard Rinella, Rinella & Rinella, Chicago, for plaintiff-appellee.

LEIGHTON, Justice.

This is an appeal from two orders entered in a post-decree proceeding. In one, the trial court disposed of a petition for change of venue; in the other, it resolved a controversy concerning which parent was to have actual physical custody of two boys, the children of the former marriage. By the issues presented, we are asked to decide whether the court erred in denying the petition for change of venue and in ordering actual physical custody of the boys changed from their mother two lives in Blowing Rock, North Carolina to their father who lives in Glenview, Illinois.

I.

In August 1972, a divorce sui which Wayne Johnson had filed against his wife, Kathleen, was before Judge Reuben J. Liffshin to be heard as a contested matter. The Johnsons were parents of two boys, Matthew and Andrew, then aged five and two, respectively. In an effort to help the parties reach agreement concerning the custody of their children, Judge Liffshin conducted a two-hour pre-trial conference in his chambers. No record was kept of this conference. But as a result of it, the parties entered into a settlement agreement which included a provision that in the event a decree granted, custody of the two boys was to be joint; but their residence was to be with the mother for 10 months of the year, subject to the father's rights of visitation. It was also agreed '(t)hat any post-decretal hearing relative to the minor children herein shall be submitted to Judge Liffshin, whether or not he is then assigned to the Divorce Division providing said Judge is agreeable to entertaining any such matters.'

Wayne Johnson was granted a divorce on August 21, 1972 by a decree into which was merged the agreement he made with his wife. Less than a month later, Kathleen Johnson married Charles Baker Pacatte. Then, a month or so after that, she petitioned for leave to take Matthew and Andrew out of the state, but Judge Iffshin denied her request. Thereafter, she lived in Illinois; and the two boys, in accordance with the divorce decree, spent the agreed visitation periods with their father.

In June 1973, during the time for a summer vacation, Kathleen, her second husband and the two boys, drove a camper bus to Blowing Rock, North Carolina, where they visited her parents, Mr. and Mrs. James Hathaway, the owners of a resort restaurant and tavern called the Villa Marie. While they were there, Matthew and Andrew were returned to Illinois for the summer vacation visit with their father. At his election, however, the boys stayed for only three weeks and returned to Blowing Rock. In the meantime, Kathleen's parents offered her and her husband employment in the Villa Marie restaurant by which each could earn approximately $200 per week, a gross earning that materially improved their economic condition. In addition, they were to have rent free, starting November 1, 1973, a four bedroom home. They accepted the offer; and as a result, Kathleen decided to stay in North Carolina, a decision that led to a concern about getting authority to keep Matthew and Andrew with her.

She wrote to Judge Liffshin. He answered, saying that '(b)ased upon the statements contained in your letter and the affidavit enclosed therein, I am of the opinion this Court would permit the relief asked for. However, it is necessary for you to file a proper petition or have some attorney do it on your behalf so a proper order may be entered.' Accordingly, Kathleen Pacatte obtained the services of North Carolina lawyers who prepared a petition asking that she be allowed to keep Matthew and Andrew with her in Blowing Rock. The original was sent to Judge Liffshin; a copy was served on counsel who represented Wayne Johnson. They filed an answer and a counter-petition asking the court to transfer physical custody of Matthew and Andrew to Wayne Johnson. On August 31, 1973, the parties were before Judge Liffshin. Kathleen Pacatte was present but the boys were not. The petition and counter-petition were continued for hearing to September 3 with a provision in the order that the boys be returned to Illinois on or before that date. This was not done; but nothing further occurred concerning the matter. The causes were continued again.

On September 13, 1973, with Kathleen Pacatte absent but represented by a lawyer with whom she had had a telephone conversation, the case was before Judge Liffshin. The lawyer told the court that, after looking into the matter, he decided he could not represent Kathleen Pacatte. Therefore, he asked for another continuance so she could consider his advice and obtain another lawyer. This suggestion met with agreement. However, before the continued date was agreed to, Judge Liffshin made the following statements:

However, I am going to say this for the record and in your presence. I heard the case as a contest. Friedman, Donnelly, Armstrong and Connelly represented her, and Mr. Rinella's office represented Mr. Johnson. We had a two-hour pretrial conference in our chambers trying to arrive at some amiable agreement between the parties relative to the custody of the children, which was probably the one stumbling block in the whole proceeding.

Mr. Johnson refused to give up custody because of the evidence which they had, which they said they had which would prove Mr. Johnson and unfit mother.

I heard both of the allegations and the refutals therefore, and I think that the Court was convinced at that time prior to the entry of any Judgment based upon an agreed hearing that in a trial Mrs. Johnson would not get custody of these children if she were to request their leaving the jurisdiction. Based upon her promise to the Court that she would not leave the jurisdiction with the children and that they would be here so that Mr. Johnson would have visitation with them properly and guidance, I convinced Mr. Johnson to allow her to have the custody under a joint order.

There was also the question of a character named Pacatte with whom she was hob-nobbing at the time and wasn't married to, who was interfering in the marriage of the Johnson, who had an unsavory reputation which was not denied by Mrs. Johnson in the hearing and in the pre-trial conference. And she went so far as to make the statement at that time that she had no intentions of marrying Pacatte, if I remember. She didn't tell the Court that she intended to leave the jurisdiction, but she did leave the jurisdiction with Pacatte and the children.

Pacatte, I think had a criminal record.

Am I correct, Mr. Johnson?

MR. JOHNSON: Yes sir.

THE COURT: It was not denied.

I though that Pacatte wouldn't have been a good influence on these children.

I subsequently received a letter from Mrs. Pacatte under the Pacatte name with no mention of Johnson, asking me how to allow her to have the children live with her wherever she was. And I wrote back and answered her that the usual procedure was for some lawyer to present a petition and that normally would be granted as a matter of course based upon the fact that her husband, whom she represented that she had married, was living down there and had an opportunity to get into a business or work for her parents or his parents, I don't remember which one. Without realizing that Pacatte was Johnson, I wrote the letter.

Now, I will give you a chance to bring the people up here if they want to fight it out. But she violated her promise to the court. She induced this court to enter these orders upon the false premise well-knowing she intended never to keep that promse, and I am going to take the children away from her. * * *

The court doesn't find any change of circumstances or that she is entitled to have these children down there, in violation of her agreement to the Court which does not appear of record, however, but which the Court well remembers. * * *

That's why I put it in the record. She is playing pussy cat with the Court.

If she wants to have her true love, let her have her true love without the children.

The case was then continued; and on September 18, an order was entered setting the causes for hearing on September 24, 1973. On that day, Kathleen Pacatte was not present, nor was the represented by counsel. Judge Liffshin heard evidence and then entered an order which provided that '(t)he permanent physical custody, control and supervision of the two minor children of the parties is (sic) hereby awarded to the plaintiff Wayne Johnson.'

Before the end of 30 days, Kathleen Pacatte filed a petition to vacate the order of September 24. On October 24, 1973, she, her present counsel, assisted by another lawyer, and Wayne Johnson with his counsel, appeared before judge Liffshin. At that time, there was no petition on file accusing Kathleen Pacatte of contempt; no rule to show cause had been issued against her; no finding had been made that she had violated either a provision of the divorce decree or that of any court order. Her counsel, after an introductory statement for the record, said to the court, 'We would like to present today, your Honor, a motion for change of venue.' Judge Liffshin, replied, 'The motion is denied. Take her into custody. Your motion is denied.' When he was asked to read the petition because it alleged facts which showed judicial bias against Kathleen Pacatte, Judge Liffshin said: 'I am biased. She made promises to me when I heard the case. I am still in it. I say she is in contempt of Court for violation of the orders which I entered, which she permitted to be entered by agreement, and she is in custody of the Sheriff. Take her into custody.' This was done; and Kathleen Pacatte remained under arrest...