Marriage of Dobey, In re

• Decision Date: 18 February 1994
• Docket Number: No. 4-93-0468,4-93-0468
• Citation: 629 N.E.2d 812,258 Ill.App.3d 874,196 Ill.Dec. 267
• Parties: , 196 Ill.Dec. 267 In re the MARRIAGE OF Tina Marie DOBEY, Petitioner-Appellee, and Matthew L. Dobey, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 812

629 N.E.2d 812

258 Ill.App.3d 874, 196 Ill.Dec. 267

In re the MARRIAGE OF Tina Marie DOBEY, Petitioner-Appellee,

and

Matthew L. Dobey, Respondent-Appellant.

No. 4-93-0468.

Appellate Court of Illinois,

Fourth District.

Argued Dec. 15, 1993.

Decided Feb. 18, 1994.

Thomas K. Leeper (argued), Leeper, Farha and Erwin, P.C., Quincy, for respondent-appellant.

Andrew C. Schnack, III and Devin Cashman (argued), Schnack, Schnack & Cashman, Quincy, for petitioner-appellee.

Justice STEIGMANN delivered the opinion of the court:

In March 1993, petitioner, Tina Marie Dobey, and respondent, Matthew L. Dobey, were granted a dissolution of marriage. The parties stipulated to all matters regarding the dissolution except child support, custody, and visitation. The trial court awarded Tina custody of the child, ordered Matt to pay $70 per week in child support, and established a visitation schedule for Matt pursuant to the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1991, ch. 40, par. 101 et seq.). Matt appeals the custody award and the visitation schedule. We affirm the custody award, but reverse and remand the visitation order for further proceedings consistent with the interim order we entered from the bench following oral arguments. That order expanded Matt's visitation to include the weekday hours when Tina is working and Matt is available to care for their child.

I. BACKGROUND

Tina initiated divorce proceedings against Matt in August 1992. Tina sought legal custody of their only child, Tyler Dobey, born November 27, 1991. She also filed a petition for temporary custody and support. After an initial hearing, the trial court awarded temporary joint custody, giving Tina physical custody while Matt was out of town due to his work, approximately 40 continuous days every two months; the court awarded Matt physical custody while home from work, approximately 20 continuous days every two months. This joint-custody arrangement continued for seven months until March 1993 when the court entered its final judgment of dissolution of marriage following a hearing on the issues of custody and visitation.

Matt worked as a trainee engineer for American Commercial Barge Line, where he had worked for 10 years at the time of the custody hearing. Because he travels throughout the Midwest rivers, he must live on the barges while at work. His typical schedule consists of 40 continuous days on the barge and then 20 continuous days at home, every two months, but may vary somewhat because he does not control his schedule. Because one engineer must always be on board the barge, Matt is also dependent on the arrival of a relief engineer.

Tina works a typical 40-hour week at Micro Manufacturing plant in Quincy. Tyler stays at a baby-sitter's residence while she is at work.

Matt sought joint custody of Tyler after realizing that his schedule would not allow him to have sole custody. In preparation, Matt promptly completed the court's Children First program; Tina also completed the program. Upon the parties' separation, Matt rented a two-bedroom trailer and purchased formula, diapers, wipes, clothing, and a baby bed for Tyler. Prior to the separation and during the temporary joint-custody arrangement, Matt was involved in all aspects of Tyler's care, including feeding, changing diapers, bathing, and giving medication. In caring for Tyler, Matt attempted to follow a written schedule provided by Tina for his feeding, napping, and bed times. Matt stated that one of the reasons he sought joint custody was to give his son a strong father-son relationship; Matt had not known his own father.

Tina sought sole custody because she believed that she and Matt could not get along and that his being away on the job would make difficult coordinating joint care of Tyler. Tina made no allegations that Matt was an unfit parent, although she expressed concern about Matt's drinking alcohol around Tyler. Although Tina disfavored joint custody because of the parties' inability to communicate, she found acceptable allowing visitation during the weekdays while she was at work and Matt was at home.

The trial court awarded Tina sole custody of Tyler. Matt received visitation from 6 p.m. on Friday to 6 p.m. on Sunday during the weekends he was home, plus certain holidays, and four weeks' summer vacation. Matt filed a motion for reconsideration of the joint custody and visitation rulings, which the court denied. This appeal followed.

II. CUSTODY

Matt first argues that the trial court erred in awarding Tina sole custody of Tyler. Matt contends that the trial court should have awarded joint custody, with essentially the same terms as the temporary joint-custody award.

In determining custody, the trial court should consider all relevant factors, including those listed in section 602 of the Act (Ill.Rev.Stat.1991, ch. 40, par. 602), and decide what custodial order serves the best interest of the child. The court has broad discretion in making this determination, and this court will afford great deference to the trial court's determination in recognition of that court's far superior position for evaluating the parents, child, and all other evidence. Accordingly, this court will not disturb the trial court's ruling on appeal unless it is against the manifest weight of the evidence or the trial court abused its discretion. In re Marriage of Lee (1993), 246 Ill.App.3d 628, 641, 186 Ill.Dec. 257, 267, 615 N.E.2d 1314, 1324; In re Marriage of Evans (1992), 229 Ill.App.3d 932, 936, 172 Ill.Dec. 174, 176, 595 N.E.2d 237, 240.

In In re Marriage of Bush (1989), 191 Ill.App.3d 249, 263, 138 Ill.Dec. 423, 431, 547 N.E.2d 590, 598, this court reversed a joint-custody award as manifestly an abuse of discretion where the parties were hostile and uncooperative. In Bush, this court also noted the absence of a joint-parenting agreement, as described by section 602.1 of the Act (Ill.Rev.Stat.1987, ch. 40, par. 602.1). Bush, 191 Ill.App.3d at 262-63, 138 Ill.Dec. at 430-31, 547 N.E.2d at 597-98.

In this case, the trial court specifically found that (1) the parties had not entered any joint-parenting agreement, (2) the parties had not shown an ability to cooperate effectively and consistently with each other for the best interest of Tyler, and (3) Matt's employment required him to be out of town for 40 consecutive days. The court then awarded Tina sole custody.

The trial court's main concern must be the well-being of the child, and placing the child continuously between two uncooperative parents cannot be in the child's best interest. In this case, where ample evidence exists that the parents had not shown an ability to cooperate, the trial court did not abuse its discretion in awarding Tina sole custody of Tyler, nor was its finding against the manifest weight of the evidence. We add that we view joint custody as most extraordinary and counsel skepticism when trial courts hear promises from newly divorcing parents that they can surmount the manifest difficulties of a joint-custody order.

III. VISITATION

We next review the trial court's visitation order. The trial court gave Matt visitation from 6 p.m. Friday to 6 p.m. Sunday on the weekends he was home from work, certain holidays, and two two-week periods during the summer. Matt argues that this visitation schedule is inadequate and does not fit the specific, unusual circumstances of this case. Tina maintains that the visitation schedule is appropriate.

Courts favor liberal visitation for the noncustodial parent because the child is entitled to a healthy, close relationship with both parents. (Hock v. Hock (1977), 50 Ill.App.3d 583, 584, 8 Ill.Dec. 639, 641, 365 N.E.2d...