Marriage of Kennedy, In re, s. 79-494

• Decision Date: 18 March 1981
• Docket Number: 79-994,Nos. 79-494,s. 79-494
• Citation: 49 Ill.Dec. 927,418 N.E.2d 947,94 Ill.App.3d 537
• Parties: , 49 Ill.Dec. 927 In re the MARRIAGE OF Patricia A. KENNEDY, Petitioner-Appellant, and Robert J. Kennedy, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 947

418 N.E.2d 947

94 Ill.App.3d 537, 49 Ill.Dec. 927

In re the MARRIAGE OF Patricia A. KENNEDY, Petitioner-Appellant and Robert J. Kennedy, Respondent-Appellee.

Nos. 79-494, 79-994.

Appellate Court of Illinois, First District, Third Division.

March 18, 1981.

[49 Ill.Dec. 929] Jerome Marvin Kaplan, Chicago (Sidney Z. Karasik, Chicago, of counsel), for petitioner-appellant Patricia A. Kennedy.

Ronald S. Ladden and Beermann, Swerdlove, Woloshin & Barezky, Chicago (Miles N. Beermann, Chicago, of counsel), for respondent-appellee Robert J. Kennedy.

Laser, Schostok, Kolman & Frank, Chicago (Marc H. Schwartz, Chicago, of counsel), for appellee Milton J. Kolman.

RIZZI, Presiding Justice:

A judgment dissolving the marriage of petitioner, Patricia A. Kennedy, and respondent, Robert J. Kennedy, was obtained on Patricia's petition in 1978, on the grounds of mental cruelty. An order apportioning the property, determining custody of the children and granting attorney's fees was entered in early 1979. Patricia appeals the second half of the bifurcated judgment. We affirm in part, modify and reverse in part and remand.

Robert and Patricia were married in 1972. At that time, Robert owned four music stores, which retailed records and tapes. Though Robert's mother and father were employed in the operation, Robert was the chief stockholder and president with control over the business.

At first, the couple lived in Patricia's home in Glen Ellyn. Shortly after moving in, Robert learned that the mortgage payments on the house were 6 months in arrears, and he brought the payments up to date with his own savings. Shortly afterward, the couple sold the house and moved to Peoria, buying a new home there with the proceeds from the sale of the Glen Ellyn house along with a $10,000 loan from Patricia's mother, Mrs. Marguerite McNamara.

In July of 1973, Erin and Laurie, twin daughters, were born. Patricia's mother moved in to help her daughter with the housework. She resided with the couple for the rest of the marriage. In August of 1973, the family sold the Peoria house and bought a house in Naperville. Patricia's younger brother, Bryan, also moved into the house.

The live-in relatives apparently caused friction in the marriage. Patricia's mother expressed a belief in the supernatural, complaining that the Naperville house was haunted. According to Robert, Patricia at first went along with her mother's belief, perhaps in an effort to humor her. Later, however, Patricia also manifested a belief in a world of ghosts and the supernatural. The beliefs were carried over to the twins. While on vacation in Jamaica in 1974, Patricia and her mother refused to eat food prepared by the staff at a rented villa, claiming that it was poisoned. Both claimed to hear drums which were inaudible to Robert or other houseguests. During a local fishing festival, guitars and drums were played on a beach adjoining the villa. Patricia and her mother barricaded themselves and the twins in the villa in fear of a native uprising. Despite explanations of the festival by Robert and the houseguests, attempts to calm them were unsuccessful. One houseguest later learned from one of the twins that Patricia's mother kept voodoo dolls named for the houseguests, for Robert and for Robert's parents. According to the child, Mrs. McNamara stuck pins in the dolls.

At first, Robert accepted the supernatural beliefs as a joke. He suggested that the strange bangings and muffled footsteps in the Naperville house that Patricia thought came from a ghost were in fact caused by her brother entertaining his girlfriend in the evening. Patricia, the brother and the girlfriend each denied it. Patricia instead pleaded that the Naperville house be sold, saying that her neighbors had been staring in the windows and acting strangely.

Robert refused to move, explaining that he did not have enough money to buy a new home. His business was expanding, and he needed capital to satisfy commitments to open new stores. He complained to Patricia that her brother was freeloading. She testified that her brother contributed to the upkeep of the household by taking the twins to a fast food chain about once a week. Mrs. McNamara contributed to the household by caring for the children, purchasing the groceries and helping with the housework. Robert testified that he wanted Patricia's mother to move out, fearing that she was a bad influence on the children. He said that at one point Patricia agreed. Mrs. McNamara then insisted that she and Patricia's brother would not move out until Patricia and Robert signed a promissory note for the $10,000 loan. The note was signed on October 1, 1975. However, since none of Mrs. McNamara's other children would allow her to live with them, and since Patricia refused to put her mother in a nursing home, Mrs. McNamara stayed in the house.

In 1975, Robert needed financing to open a new store. The bank required Patricia's personal guaranty on the loan, but she refused to provide it unless her husband agreed to move to a new and larger home. He agreed. She signed the guaranty, and on June 1, 1975, they purchased a home in Inverness, using the proceeds from the sale of their Naperville house.

In September of 1976, Robert's business became overextended. He feared the bank would call in his loans. The entire business was threatened. Robert began to drink to excess, becoming intoxicated nightly. After 2 weeks, he stopped drinking and convinced the bank to refinance the business after a change in business strategy. The stores soon returned to profitability.

The twins were hyperactive children who, according to Patricia, needed close supervision. Their teacher at a Montessori school testified that they had some difficulties and were more aggressive than other children, but progressed when given close attention. With poor muscle control and visual discrimination problems, the twins were slightly immature for their age. Both parents participated in conferences at the school. Patricia explained that some of the twins' difficulties might be caused by their premature birth.

Witnesses for each party testified that the twins received affection from their parents. They appeared to be slightly closer to their mother, who until the separation, stayed at home with them all day. Patricia kept a neat home, and the twins were always appropriately attired.

In 1977, after experiencing marital problems, the couple consulted a marriage counselor and a priest, but their difficulties continued. Patricia complained that Robert's parents were running their lives. His parents were allowed to visit only on the children's birthday and on Christmas. Robert discharged his mother from the business at Patricia's insistence. Robert complained that Patricia was mixing barbiturates and alcohol, while she complained that he was drinking daily. Witnesses testified that on occasion both Robert and Mrs. McNamara had allowed the twins to sip their drinks.

In April of 1977, the Kennedys bought a half interest in a vacation house in Lake Geneva, Wisconsin. After one visit to the house, Patricia refused to return. Her mother claimed that poltergeists, ghosts who manifest themselves by rapping noises, lived on the second floor. Patricia forced Robert to agree never to allow the twins to spend a night in the house. Instead, she required that they spend the night in a hotel while visiting Lake Geneva on vacation.

On November 8, 1977, without warning to Robert, Patricia and her mother moved the twins and all the furniture out of the Inverness home. Robert was left with a single bed. He admitted to drinking to excess that evening.

Patricia bought a home in Palatine. The girls lived with her until the determination of permanent custody in favor of Robert in 1979. Although Mrs. McNamara initially lived with Patricia and the children, her deteriorating health eventually forced her to leave on August 2, 1978. Patricia obtained a job selling cosmetics and was working 20 hours a week at the time of the hearing. On working days, the teenage daughters of a neighbor looked after the children after school until Patricia returned home.

Robert bought a home in Rolling Meadows. In anticipation of obtaining custody, he talked with three potential housekeepers who would work full time to care for the twins while he was at work.

Robert claimed that after the suit for custody was joined, Patricia wrote anonymous letters to shopping centers in which his music stores were located. The stores paid percentage rentals, and the letters suggested that Robert was concealing sales from his landlords. A similar letter to the Internal Revenue Service suggested an audit. Patricia denied writing the letters. Audits revealed that there had not been any concealed sales.

When the petition for dissolution was filed, the children remained in the custody of their mother. Robert was ordered to pay $150 per week in support. The twins were enrolled in public school, where they were diagnosed as having learning disabilities. They were given special education and special tutoring.

Patricia claimed that incidents during Robert's periods of visitation demonstrated his unworthiness as permanent custodian. She claimed that in April of 1978, he was intoxicated when he returned the twins. He denied being intoxicated. In July of 1978, Erin was upset while with her father on vacation and demanded to return home. He brought her home, and Patricia claimed that the daughter then calmed down. Robert acknowledged that he took the child home, but said that Erin had wanted to rejoin her friends in the neighborhood. The next day Erin returned to vacation with her father. In December 1978, Laurie returned from visitation with a burn on her back. Patricia claimed it was caused by a cigarette; Robert denied it. In January 1979, Erin returned from visitation with a black eye.

After the separation, the house in Inverness was sold for $260,000. The...