Marriage of Kading, In re

• Court: Appellate Court of Illinois
• Writing for the Court: HOPF
• Citation: Marriage of Kading, In re, 501 N.E.2d 971, 150 Ill.App.3d 623, 103 Ill.Dec. 654 (Ill. App. 1986)
• Decision Date: 09 December 1986
• Docket Number: Nos. 2-85-0989,2-85-1055,s. 2-85-0989
• Parties: , 103 Ill.Dec. 654 In re the MARRIAGE OF Diana Marie KADING, Petitioner-Appellant, and Douglas Kent Kading, Respondent-Appellee.

Page 971

501 N.E.2d 971

150 Ill.App.3d 623, 103 Ill.Dec. 654

In re the MARRIAGE OF Diana Marie KADING, Petitioner-Appellant and Douglas Kent Kading, Respondent-Appellee.

Nos. 2-85-0989, 2-85-1055.

Appellate Court of Illinois Second District.

Dec. 9, 1986.

H. Joseph Gitlin, Harold Richter, Woodstock, for petitioner-appellant.

Mohr Reilly Prather McNerney & Graham, McHenry, for respondent-appellee.

Justice HOPF delivered the opinion of the court:

Petitioner, Diana Marie Kading, and respondent, Douglas Kent Kading, were divorced in September 1983. In June 1984 respondent petitioned the trial court to amend the judgment of dissolution of marriage by transferring the custody of the minor children of the parties from petitioner to respondent. On September 10, 1984, a hearing was held on respondent's application for change of custody. The trial court ruled in respondent's favor and ordered the transfer of custody. Petitioner moved to vacate the transfer of custody. The court denied this motion and petitioner's subsequent motion for reconsideration. Petitioner filed a notice of appeal regarding the custody issue. Subsequently, another judge ordered petitioner to pay respondent's attorney fees. Petitioner also appealed from this order, and the two actions were consolidated on appeal.

In this court petitioner argues: (1) that the trial court lacked subject matter jurisdiction to order a transfer of custody within less than two years of the prior custody award absent respondent's timely filing of an affidavit showing "endangerment" pursuant to section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill.Rev.Stat.1983, ch. 40, par. 610(a)); and (2) that the trial court erred in requiring petitioner to pay respondent's attorney fees since there was no showing of respondent's inability to pay his fees and petitioner's ability to pay respondent's fees.

Petitioner and respondent were married in September 1978; two children were born of the marriage. At the time the marriage was dissolved in September 1983, petitioner was granted custody of the children. Shortly thereafter, the petitioner remarried, and in March 1984 petitioner, her new husband, and the children moved to Michigan without leave of court.

In April 1984, respondent filed a Petition for Rule to Show Cause against petitioner for removal of the minor children from Illinois. On May 17, 1984, the court granted the petitioner's attorneys time to answer or plead to the Petition for Rule to Show Cause. On June 5, 1984, the court entered an order allowing respondent to file a petition for change of custody, and on June 29, 1984, respondent filed his petition, seeking to have custody of the children transferred to him.

The petition alleged that petitioner had remarried and that her new husband had a past history of criminal charges relating to child abuse; that petitioner, her husband, and the minor children were living in a trailer which was insufficient to properly house the number of people living therein; that petitioner's frequent moves resulted in a lack of stability for the children; and that petitioner's move from Illinois to Michigan was without court permission. Petitioner was given 14 days to respond to the petition.

On June 6, 1984, on notice to petitioner's attorneys, respondent filed a petition for visitation. On that same date the court entered an order requiring petitioner to allow visitation by respondent in Illinois. The order further stated that, "Hearing on other motions is set for September 10, 1984 * * *." It was necessary for respondent to file an action in Michigan to enforce his visitation rights. On July 24, 1984, on notice to petitioner in Michigan, petitioner's attorney in Michigan, and respondent's attorney, petitioner's attorney in Illinois withdrew his appearance.

On September 10, 1984, a hearing was held on respondent's petition for change of custody. At the beginning of the proceeding, the court noted that on July 6, 1984, the court had been contacted by Theodore Albert, an attorney practicing in Michigan and representing petitioner in Michigan, expressing a desire that the September 10 hearing be continued. The court noted that it informed Albert that the matter had been set for trial for a substantial time and that the proceeding would not be continued but would proceed on September 10 as set. Additionally, the court noted on the record that respondent's attorney had been contacted by Albert a few days prior to the September 10 hearing, again requesting that the matter be continued. Respondent's attorney informed Albert the matter was going to proceed as scheduled. Petitioner was not present at the September 10 hearing nor was she represented by counsel.

At the September 10 hearing respondent testified how the children were frequently left at night with a 10-year-old baby-sitter; that one of the children had injured the other with a BB gun; that the children now refer to respondent by his first name rather than by "father" and that the children had been threatened with a spanking by petitioner's present husband if they mentioned respondent's name in the house; that petitioner, her husband, and the children were living in a rundown trailer; that petitioner's husband would not allow respondent to speak with his children on the telephone and had threatened respondent with harm; and that respondent had information that petitioner's husband had spent time in jail for molesting his 10-year-old daughter. Following respondent's testimony respondent's attorney asked him if all the information set forth in respondent's petition to amend the dissolution judgment was true and if respondent would sign an affidavit to that effect. Respondent replied affirmatively.

In its oral findings the trial court noted that "on the basis of the affidavits that have been testified to, and will be filed, the Court will find that there is some basis for the Court to believe that * * * the children's present environment may seriously endanger their physical, moral, emotional and mental health." The court also found that clear and convincing evidence established that a change in circumstances had occurred since the judgment of dissolution. The court then found that a change of custody would be in the best interests of the children and transferred the custody of the minor children to respondent.

On September 14, 1984, respondent filed an affidavit stating "the children have been kept in an environment which is detrimental to their physical, mental and emotional health, in that they have been in an unstable environment geographically moving four (4) times since the entry of the Judgment for Dissolution of Marriage; permanently moving from the State of Illinois without Court permission; being prevented from addressing their natural father as 'Dad', and attempting to have him erased from their minds and memories." Additionally, respondent stated that the physical needs of the children were not properly provided for and that they were being left with an immature baby-sitter who had harmed the children. Finally, respondent set forth that the children were not properly clothed and kept clean and that their environment was detrimental to their emotional health.

Also, on September 14, 1984, the court entered its written order transferring custody of the children from petitioner to respondent.

On February 8, 1985, petitioner, by her new attorney, Sidney Axelrod, filed a petition to vacate certain orders, including the order for change of custody. In her petition petitioner averred that she had not received notice of the September 10, 1984, hearing and, therefore, did not have the opportunities to appear or request a continuance, to respond to any charges, or to present any evidence in her behalf. The court found petitioner had due notice of the hearing and denied petitioner's petition to vacate the orders.

Petitioner filed a motion for reconsideration which the court denied on May 13, 1985. Subsequently, another new attorney for petitioner filed a motion to vacate the trial court's change of custody. The motion stated that the trial court had lacked subject matter jurisdiction to hear respondent's petition since respondent had failed to file an affidavit showing that the children's present environment might seriously endanger their physical, mental, moral or emotional health. Petitioner's motion also asserted that no leave was given the respondent to file his petition for modification of custody judgment.

On September 20, 1985, petitioner amended her motion to vacate, stating that respondent did file an affidavit but that the affidavit was filed on September 14, 1984, several days after the September 10, 1984, hearing, and that the affidavit failed to allege endangerment as required by section 610(a) of the IMDMA. (Ill.Rev.Stat.1983, ch. 40, par. 610(a).) On November 12, 1985, the court denied petitioner's motion to vacate the change of custody order of September 14, 1984, finding that the jurisdictional requirements of section 610(a) had been met. Petitioner appealed the custody issue.

Subsequently, on September 10, 1985, another judge entered an order directing petitioner to pay one-third of respondent's attorney fees which he incurred in pursuing his claims and in responding to petitioner's defenses. The court found that petitioner had an interest in property which would allow her to pay the attorney fees. Petitioner also appealed from this order.

Petitioner first contends that the trial court lacked subject matter jurisdiction to order a transfer of custody within less than two years of the prior custody award since respondent did not timely file an affidavit showing "endangerment" as required by section 610(a) of the IMDMA. (Ill.Rev.Stat.1983, ch. 40, par. 610(a).) Further, petitioner maintains that she did not waive the affidavit requirements and that respondent's late filing of his affidavit admits that there...