Marriage of Ford, In re

• Decision Date: 18 December 1980
• Docket Number: No. 79-1317,79-1317
• Citation: 47 Ill.Dec. 541,415 N.E.2d 546,91 Ill.App.3d 1066
• Parties: , 47 Ill.Dec. 541 In re the MARRIAGE OF Mary C. FORD, Petitioner/Appellee, and William Ford, Respondent/Appellant.
• Court: United States Appellate Court of Illinois

Page 546

415 N.E.2d 546

91 Ill.App.3d 1066, 47 Ill.Dec. 541

In re the MARRIAGE OF Mary C. FORD, Petitioner/Appellee,

and

William Ford, Respondent/Appellant.

No. 79-1317.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 18, 1980.

Rehearing Denied Jan. 16, 1981.

Bernard Hammer, Ltd., Chicago, for respondent/appellant.

Laurie A. Shatsoff, Chicago, for petitioner/appellee.

JIGANTI, Justice:

The petitioner, Mary C. Ford, and the respondent, William Ford, were married on September 28, 1968. The parties had two children, Gary born February 23, 1973, and Alice born April 17, 1977. Mary Ford filed for divorce on May 2, 1977. Judgment was entered dissolving the parties' marriage on May 17, 1978. On May 23, 1979, the court granted custody of both children to Mary Ford.

William Ford's motion to vacate the custody order was denied on July 20, 1979. The court also denied his motion for a psychological examination of Gary Ford. Mary Ford was ordered to pay William Ford maintenance of $100 per month for four months and a hearing date was set to review the award. Each party was ordered to pay his own attorney's fees and each was granted the property in his possession, name or control. William Ford was granted liberal visitation.

William Ford appeals from those portions of the July 20 order concerning custody, maintenance, and attorney's fees. In support of his contention that the trial court erred in refusing to vacate the custody order, William Ford argues: (1) the trial court abused its discretion in refusing to consider certain evidence of the mother's character and personality; (2) the trial court gave excessive negative consideration to William Ford's inability to jump, run, hop, or play certain sports; (3) the trial court gave disproportionate weight to the testimony of the court appointed psychiatrist; (4) it was error to permit inquiry into his political beliefs; (5) it was error to permit inquiry into his religious beliefs; (6) the trial court exceeded the permissible scope of inquiry during an in camera interview with the child; and, (7) the cumulative effect of certain errors committed at the trial level was to deny him a fair trial.

William Ford's first argument on appeal is that in determining custody of the two children the trial court abused its discretion in refusing to consider certain evidence of the mother's character and personality. He describes one example of how the trial court allegedly refused such evidence.

Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1979, ch. 40, par. 602) lists factors to be considered in awarding custody. There must be some indication in the record that the trial court considered the listed factors. (Melear v. Melear (1979), 76 Ill.App.3d 706, 32 Ill.Dec. 261, 395 N.E.2d 208.) One of the factors which must be considered is the mental health of the parties. Ill.Rev.Stat.1979, ch. 40, par. 602(a)(5).

Here, both parties were examined by a court appointed psychiatrist. The psychiatrist, whose selection was agreed to by the parties, testified at trial concerning the parties' mental health. Further, counsel for William Ford cross-examined Mary at length concerning her mental health history.

The only incident referred to by William Ford in his brief to support his allegation that the trial court refused to consider relevant factors of the mother's character and personality was that the trial court terminated an inquiry into Mary Ford's relationship with her father. At the time of the questioning Mary Ford was 44 years old. Her father had been dead for 32 years. Mary Ford answered numerous questions concerning her relationship with her father. Counsel for William Ford asked her whether her father had hurt her, how he had hurt her emotionally, and in what ways he was unresponsive. Mary Ford answered these questions. Thereafter, counsel for William Ford then asked Mary Ford "is that all." She expounded on her previous answers. Counsel asked again "is that all." Mary Ford answered. Counsel asked whether there was anything else that the father had done or failed to do that hurt Mary Ford. Mary Ford answered. Finally, Mary Ford's counsel objected to the line of questioning and asked that it be terminated. The court terminated the questioning concerning Mary Ford's relationship with her father.

The latitude allowed in the cross-examination of a witness rests largely in the discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion resulting in manifest prejudice. (People v. Leonard (1979), 79 Ill.App.3d 1046, 35 Ill.Dec. 104, 398 N.E.2d 1054; People v. Hampton (1977), 46 Ill.App.3d 455, 4 Ill.Dec. 900, 360 N.E.2d 1333. Here, William Ford's counsel was allowed to cross-examine Mary Ford at length on her relationship with her father, although he had died 32 years previously when she was 12 years old. Mary Ford and the court appointed psychiatrist each testified at length on matters relating to her mental health. Therefore, we do not believe the trial court abused its discretion in terminating the lengthy inquiry into Mary Ford's relationship with her father.

William Ford next argues that the trial court abused its discretion in considering that because of an injury he was unable to jump, run, hop, or play certain sports. He argues further that the trial court gave excessive negative consideration to his handicap.

First, the Marriage Act requires the trial judge to consider the physical health of the parties in determining custody. (Ill.Rev.Stat.1979, ch. 40, par. 602(a)(5).) It was not error therefore for the trial court to allow evidence that because of an injury to his ankles and hips William Ford was unable to run, jump, hop or play certain sports. Second, there is no evidence in the record that the trial court gave disproportionate weight to William Ford's physical disabilities. William Ford makes no citation to the record in arguing otherwise. We therefore conclude that the trial court did not abuse its discretion concerning the evidence of William Ford's health.

William Ford next argues that the trial court gave disproportionate weight to the testimony of the court appointed psychiatrist. Pursuant to section 604(b) of the Marriage Act (Ill.Rev.Stat.1979, ch. 40, par. 604(b)), an impartial psychiatrist was appointed by the court to interview the parties and the children and to make recommendations as to custody and visitation. Both parties agreed to the choice of psychiatrists. The psychiatrist was called as the court's witness. He stated that he examined both parties and the children on several occasions. He observed the parties individually and with the children.

The psychiatrist has practiced for 30 years. He has been teaching at Loyola Medical School and Loyola School of Social Work for 20 years, and has been the director of the psychiatric out-patient unit of St. Francis Hospital for 16 years. Prior to working at St. Francis Hospital, he was director of out-patient psychiatry at Mercy Hospital. Based upon his study of the parties and the children, the psychiatrist recommended that Mary Ford receive custody of both children.

William Ford's arguments are that the psychiatrist did not know the Fords prior to the litigation, was not a child psychiatrist, and made a recommendation that was contrary to that given by the children's pediatrician. We do not believe that these arguments support a reversal of the trial court's custody order.

First, there is no evidence in the record as to the weight given by the trial court to the psychiatrist's testimony. Second, the psychiatrist was qualified notwithstanding that he did not know the Fords prior to the litigation and was not a child psychiatrist. His lack of previous contact with the Fords was a function of the fact that he was an impartial psychiatrist appointed by the court pursuant to section 604(b) of the Marriage Act. While the witness is not a child psychiatrist, his qualifications include 30 years of teaching and clinical experience. Further, the selection of the psychiatrist had been agreed to by the parties, and no objection was made to the psychiatrist's qualifications at the time he testified. That the children's pediatrician may have disagreed with the court appointed psychiatrist does not in and of itself render the trial court's award of custody to the mother an abuse of discretion.

William Ford next contends that the trial court erred in permitting inquiry into and in considering his political beliefs. Specifically, he objects to an inquiry into a conversation which occurred between the parties when they first met. William Ford did not answer the question concerning the conversation and we therefore find no reversible error.

William Ford next argues that the trial court erred in allowing questioning about his religious affiliation. He was asked what religion he observed and answered that he was a Buddhist. His counsel objected to further questioning concerning his religious belief. The trial court overruled the objection stating, "I think in a custody case all things are important regarding the physical and spiritual well-being of a child." Mary Ford was cross-examined on her religious beliefs over the objection of her counsel.

In each of the cases cited by William Ford, the reviewing court reversed child custody awards which were based solely or primarily on the religious beliefs of the parents. (Osier v. Osier (Me.1980), 410 A.2d 1027 (award of custody to father reversed because the mother's religious beliefs on blood transfusions were "plainly" the sole basis of the award); Waites v. Waites (Mo.1978), 567 S.W.2d 326 (award of custody to father reversed where trial court focused primarily on the mother's religious belief rather than on children's best interest and where, excluding consideration of religion, children's best interests best served by award of custody to mother); Bonjour v....