Marriage of Wiley, In re

• Citation: 145 Ill.Dec. 191,199 Ill.App.3d 169,556 N.E.2d 809
• Decision Date: 27 June 1990
• Docket Number: No. 4-89-0819,4-89-0819
• Parties: , 145 Ill.Dec. 191 In re the MARRIAGE OF Randolph B. WILEY, Petitioner-Appellant, and Amber L. Wiley, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

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556 N.E.2d 809 199 Ill.App.3d 169, 145 Ill.Dec. 191 In re the MARRIAGE OF Randolph B. WILEY, Petitioner-Appellant,
and
Amber L. Wiley, Respondent-Appellee. No. 4-89-0819. Appellate Court of Illinois,
Fourth District. June 27, 1990.

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[199 Ill.App.3d 170] [145 Ill.Dec. 192] Norman J. Fombelle, Kent A. Rathbun, Burger, Fombelle, Zachry & Rathbun, P.C., Decatur, Ill., for petitioner-appellant.

[199 Ill.App.3d 171] Frederick P. Erickson, Erickson, Davis & Murphy, Ltd., Decatur, Ill., for respondent-appellee.

Presiding Justice KNECHT delivered the opinion of the court:

The petitioner, Randolph Wiley, appeals the judgment of dissolution, challenging (1) the award of joint custody insofar as it places primary physical custody with respondent Amber Wiley; and (2) the method the court used in awarding the marital residence to the respondent and his pension rights to him. We affirm.

Petitioner and respondent were married in 1978. Their children, C.T. and C.G., were born fraternal twins on April 17, 1988. Petitioner first challenges the custody award of the court by asserting the respondent has been guilty of negligence in her care of the twins.

Petitioner testified respondent allowed the babies to play with an allegedly dangerous music box, which respondent denied. Petitioner also testified he walked into the house and discovered the babies on the floor of one room while the respondent was in another room, brushing her hair, allegedly after taking a shower. On another occasion, petitioner discovered one of the children unattended in a child's bathtub in the sink, and he contends the child could have drowned; respondent contended she had gone to another room temporarily to get some of the children's clothes.

Petitioner's mother testified the respondent walked the children in a stroller on a hot day with the sun shining on them and a dog leashed to the stroller. She also testified to an incident at the doctor's office when one twin walked into another room while the respondent tied the other twin's shoe. The petitioner and his mother were also present in the doctor's office but did not prevent this from happening. She also testified respondent frequently would walk several feet away from the changing table while changing the baby in order to get something from another table and then return to the changing table. Much is made by the petitioner of respondent's admission she once allowed a baby to roll off the counter, catching him before he reached the floor. There were no witnesses to this incident, and respondent contends she was close enough to the counter so the baby rolled into her arms and never fell below the countertop.

The most serious allegations involve two occasions, admitted by the respondent, when she left the children in the playpen locked in the house while she went to the store for 15 minutes on one occasion, and to the post office for 5 minutes on the other. The respondent contended she ran to the store and back, an eight-block trip, while the [199 Ill.App.3d 172] petitioner produced a witness who saw respondent walking, and to whom respondent showed the keys of the house

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[145 Ill.Dec. 193] and said the children were locked in the house.

On November 15, 1988, petitioner requested and received an order of protection enjoining the respondent from beating, striking, threatening, or interfering with the personal liberty of the children, although it is undisputed respondent never physically abused the children in the ways described in the order. Also on this date, petitioner filed for temporary custody, which was later granted. On August 31, 1989, petitioner filed for and was granted another order of protection against the respondent.

Testimony from the petitioner's sister and baby-sitter portray the respondent as a passive, distracted, out-of-touch, nervous individual. Neither of these witnesses testified respondent was physically or verbally abusive or violent. Instead, testimony from these witnesses indicated respondent was a kind person who loved her children. Ron Little, counselor at the Caring Center, testified on behalf of petitioner. He had five sessions with both petitioner and respondent, and six later sessions with only the respondent. He found respondent to have a passive personality, but found both parties stable enough to be parents. A test given to both petitioner and respondent indicated petitioner had normal results while respondent tried to answer questions so as to make a more favorable impression on the tester. Little testified petitioner was a critical and demanding person; Little was concerned this would transfer to petitioner's behavior toward the children. In Little's assessment, respondent would provide the best warmth and caring for the children, and the previously described incidents were bad judgment, not a sign of instability.

Petitioner testified about an incident involving one child having runny stools, for which he saw no need to see a doctor. When respondent took the child to the doctor during a visitation, she obtained medicine for diarrhea. The petitioner alleges respondent gave both children the medicine, as indicated by (1) the large amount of medicine allegedly missing from the bottle, and (2) the other child's alleged constipation following the incident. The petitioner also testified to respondent taking one of the children to get an ear examination during another visitation, at which time the doctor mislabeled the medicine, putting the wrong twin's name on the bottle. He...