Lucchesi v. Lucchesi

• Decision Date: 20 February 1947
• Docket Number: Gen. No. 43934.
• Citation: Lucchesi v. Lucchesi, 330 Ill.App. 506, 71 N.E.2d 920 (Ill. App. 1947)
• Parties: LUCCHESI v. LUCCHESI. LUCCHESI et al. v. SAME.
• Court: Appellate Court of Illinois

330 Ill.App. 506

71 N.E.2d 920

LUCCHESI

v.LUCCHESI.

LUCCHESI et al.

v.SAME.

Gen. No. 43934.

Appellate Court of Illinois, First District, Second Division.

Feb. 20, 1947.

Appeal from Circuit Court, Cook County; E. J. Schnackenberg, Judge.

Suit for divorce by Genevieve Lucchesi against Adolph A. Lucchesi, wherein the plaintiff was awarded a divorce decree and the care and custody of a minor child of the parties. After the defendant's death, his parents and the grandparents of the minor child filed an intervening petition seeking a right to visit the child. From an order granting the intervening petitioners the custody and control of the minor child for certain hours on the first and third Sundays of each month, the plaintiff appeals.

Order reversed and cause remanded with directions.Coburn & Coburn, of Chicago (Archie T. Coburn and Louis T. Herzon, both of Chicago, of counsel), for appellant.

No appearance for appellees.

SCANLAN, Justice.

Respondent, Genevieve Lucchesi, commenced divorce proceedings in the Circuit Court of Cook County against her husband, Adolph A. Lucchesi, and on December 28, 1942, a final decree of divorce was entered in her favor in which she was awarded the care, custody and education of the minor child, Anna Mae Lucchesi. The decree also provided that the husband be given the right to visit the child at all reasonable times, more specifically, on each Sunday between the hours of 1 to 7 P. M., and that he pay respondent $7.50 per week for the maintenance and support of the child. On May 13, 1946, George Luccesi and Emelia Lucchesi filed a verified petition in the divorce proceedings, which alleged, in substance, that they were the parents of respondent's husband, who was the father of the minor child, and that he was killed in action, in France, on November 21, 1944, while a member of the armed forces of the United States of America; that in the lifetime of their son the said child visited them, but that since the death of their son respondent has not permitted the child to visit them at any time; that petitioners ‘qualified as executors of the estate of the said Adolph A. Lucchesi in the Probate Court of Cook County and are now acting as such, and also as trustees and under and by virtue of the terms of the Last Will and Testament of the said Adolph A. Lucchesi, your petitioners have possession of said fund from which they are required to pay for the benefit of the said minor child the sum of $10.00 per month and more, but not to exceed an additional $10.00 per month if in their discretion it is necessary for the maintenance of said child; your petitioners further represent that they have delivered all funds due under the terms of said Will and said Trust to the plaintiff, Genevieve Lucchesi but have been denied reasonable rights of visitation by the said Genevieve Lucchesi and have not had the said child Anna Mae Lucchesi with them at any time, since prior to the death of the defendant, Adolph A. Lucchesi. * * * that they stand in loco parentis to the said child Anna Mae Lucchesi now approximately eight years old, and desire the privilege of spending some time with said child not in interfere, however, with the usual customs, practices and habits of the said child. Wherefore your petitioners pray that an order may be entered herein giving and granting your petitioners specified hours on specified days when they shall have the right to visit the said minor child of the parties to this litigation * * *.’ (Italics ours.) Respondent filed a motion to strike the petition, in which she alleged that the claim of petitioners that they stand ‘in loco parentis' to the child is erroneous as a question of fact as well as a question of law, and she sets up that part of the decree of divorce in which she was awarded the care, custody and education of the child. The motion to strike was denied, and respondent was ordered to file an answer to the petition. She filed an answer in which she asserts her right to the care, custody and maintenance of the child under the decree of divorce, and asserts that it is for the best interests of the child that the care, etc., of the child be retained by respondent; denies that petitioners stand in loco parentis; asserts that she is the natural mother of the child and legally is entitled to the care, custody and education of the child to the exclusion of every other person including petitioners. After a hearing, in which the facts were stipulated, the chancellor entered a decretal order in which he found:

‘* * * that it is to the best interests of said minor child that the intervenors, George L. Lucchesi and Emelia Lucchesi be allowed to spend some time with the said minor child;

‘Wherefore It Is Ordered, Adjudged and Decreed,

‘(1) That the intervenors, George Lucchesi and Emelia Lucchesi be permitted to take the said minor child, Anna Mae Lucchesi, on the first Sunday of each month beginning July, 1946, from the hours of 10:00 A. M. until approximately 1:00 P. M. for the purpose of attending church services and...