Leary v. Leary
| Decision Date | 13 July 1965 |
| Docket Number | Gen. No. 65-11 |
| Citation | 209 N.E.2d 663,61 Ill.App.2d 152 |
| Parties | Sheila B. LEARY, Plaintiff-Appellant, v. Robert E. LEARY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Wagner, Conner, Ferguson, Bertrand & Baker, Belleville, Paul M. Storment, Jr., and John D. Bauman, Belleville, of counsel, for plaintiff-appellant.
Jones, Ottesen & Fleming, Belleville, Ralph J. Derango, Jr., and Patrick J. Fleming, Belleville, of counsel, for defendant-appellee.
This is an appeal by plaintiff, Sheila B. Leary, from a decree of the Circuit Court of St. Clair County, Illinois, awarding defendant, Robert E. Leary, a divorce and custody of the four minor children of the parties on his counterclaim.
The plaintiff filed a complaint for divorce on November 20, 1963, charging defendant with extreme and repeated cruelty and asking for custody of their four minor children, Dennis, 8 1/2, Deirdre, 7, Christopher, 5, and Eileen, 3. The defendant filed a counterclaim for divorce, charging the plaintiff with adultery and asking for custody of the said children. Both plaintiff and defendant alleged that they were separated on November 16, 1963.
The trial of this cause commenced on January 17, 1964 and proceeded intermittently until March 6, 1964 when the trial judge entered a decree dismissing plaintiff's complaint and granting defendant a divorce on his counterclaim of adultery. The plaintiff was awarded the care, custody and control of the aforesaid children, and the defendant was ordered to make support payments. The defendant then filed a post trial motion requesting the court to vacate that portion of the decree awarding custody of the children to the plaintiff and ordering him to make support payments. On October 5, 1964, the court allowed defendant's post trial motion, modified the decree and granted custody of the children to the defendant.
Appellant contends that the trial judge erred in granting defendant's post trial motion and in modifying the original decree, especially after so long a time. Appellee contends that the trial judge was correct in partially vacating the original decree in order to grant custody of the children to him.
In view of the position we take of this case, an extended recitation of the facts is not necessary. Plaintiff and defendant, an Air Force officer, were married on August 27, 1954. Four children were born of this marriage, Dennis, now 10 years of age, Deirdre, 8 1/2, Christopher, 6 1/2 and Eileen, 4 1/2. At the time of the filing of the aforementioned complaint in November of 1963, they were 8 1/2, 7, 5 and 3, respectively. The plaintiff has had the exclusive care, custody and control of the children since that time.
The evidence on behalf of the defendant disclosed that the plaintiff, while under treatment by a psychiatrist, indulged in moral indiscretions with one or more men and that she was separated from her children from June, 1961 to September, 1961 and from July, 1962 until June, 1963. During this time the children stayed with defendant's brother-in-law and sister, Dr. and Mrs. Joseph Farrell of Long Island, New York. The Farrells, who have three children of their own, testified that the Leary children were happy and content with them and that they would provide a home for the Leary children, if necessary. A spinster sister of the defendant testified that she would be willing to give up a high paying job in New York and move to St. Clair County to take care of the children, if necessary. The Farrells and defendant's sister were all of the opinion that plaintiff was not a proper person to take care of the children. Defendant is an Air Force officer and the transitory nature of his employment made it impossible for him to personally take adequate care of the children.
Evidence on behalf of the plaintiff tended to prove that she took proper care of the children. Dr. Edward H. Cord, a psychiatrist, testified that he had treated her since 1961; that she was capable of handling her own affairs, including taking care of her children. He felt that she was a good mother. He also stated that her problems were emotional and that she was not psychotic, her biggest problem being a neurotic fear of her husband.
When the trial court entered its decree on March 6, 1964, awarding the custody of the children to the plaintiff, they had already been in her exclusive custody for approximately six months. When it entered the amended decree seven months later taking the children from ...
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