Mason v. Mason

• Decision Date: 20 June 1977
• Docket Number: No. 13588,13588
• Citation: 49 Ill.App.3d 775,7 Ill.Dec. 544,364 N.E.2d 705
• Parties: , 7 Ill.Dec. 544 Janice K. MASON, now known as Janice K. Hoffa, Plaintiff-Appellant, v. Gary L. MASON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 705

364 N.E.2d 705

49 Ill.App.3d 775, 7 Ill.Dec. 544

Janice K. MASON, now known as Janice K. Hoffa, Plaintiff-Appellant, v. Gary L. MASON, Defendant-Appellee.

No. 13588.

Appellate Court of Illinois, Fourth District.

June 20, 1977.

Flynn & Flynn, Jacksonville (Leo F. Carroll, Jacksonville, of counsel), for plaintiff-appellant.

Knuppel, Grosboll, Becker & Tice, Petersburg (Eldon H. Becker, Petersburg, of counsel), for defendant-appellee.

STOUDER, Justice.

This appeal is from an order of the circuit court of Cass County denying Janice Mason's petition requesting that she be awarded the custody of her minor son.

Plaintiff and the defendant, Gary Mason, were granted a judgment of divorce in 1969. Custody of the two minor children of the marriage, a boy and a girl, was awarded to plaintiff. During a default proceeding in 1970, the defendant was awarded custody of both children. No appeal was taken from the order entered in that proceeding. This order was later modified in July, 1972, so that the defendant retained custody of the minor son and the plaintiff reobtained custody of the minor daughter. In 1975 plaintiff petitioned the court to change the custody of the minor son from the defendant to herself, but the trial court denied her petition. It is from this denial that plaintiff appeals.

During the hearing conducted on plaintiff's petition, the evidence established that the plaintiff is now remarried to a career serviceman in the air force and presently resides in Florida with her husband on an air force base at Egland, Florida. Both plaintiff and her husband are working and receive a combined gross income of $1,200 per month, together with full medical coverage for themselves and their children, and free annual physicals and dental check-ups. During the day, children are cared for at one of the two base nurseries which have a full time professional staff and a nurse is present during the daytime hours. Educational facilities also exist on the base. The plaintiff introduced evidence that the defendant's younger brother, age 13, did not get along well with her son and there had been fights between the two.

Defendant owns and operates a 426 acre farm from which he has realized in former years a profit of $4,000 or $5,000 per year. In 1974, the last full year before the hearing, defendant sustained a loss of $12,000. Defendant's occupation requires the following workload: from January to March, eight hours a day; April to June, fourteen hours a day in the field; July to December, eight hours a day in the field. Whenever school is not in session and defendant is working, defendant's mother cares for the child. After school days, the boy gets off the school bus at his grandmother's and eats dinner there. Defendant's rigorous schedule does not always permit him to be present with his son during dinner hours. On the weekends which the defendant works, the boy is cared for by the defendant's sister. Defendant conceded during his testimony that his son had complained to him about being hit by the defendant's thirteen year old brother.

In 1973 the defendant had psychiatric problems that required hospitalization, but defendant stated and the trial court found that these problems no longer affect the defendant. The minor son is doing well in school and no testimony was introduced to show that he lacks material necessities or is not happy in his present environment. Plaintiff testified that the boy always looked forward to his visits with his sister and was sad when he had to leave.

Based upon the foregoing, the trial court ruled that there was nothing to show that it was not in the child's best interests to remain in the custody of his father.

On appeal plaintiff maintains several arguments. First, she contends the decision of the trial court was against the manifest weight of the evidence. Second, she maintains that the 1970 order changing custody of the minor child to the defendant was erroneous and since it was erroneous, she is not now required to prove in these proceedings that a change of circumstance has occurred. In support of her position, plaintiff argues that the trial judge in the 1970 proceeding removed her son from her as punishment for leaving the jurisdiction (to Indiana) with both children without informing the court. Lastly, plaintiff argues that the trial judge improperly refused to consider or admit the transcripts of the 1970 and 1972 proceedings.

The paramount concerns in any change of custody proceeding are the best interests and welfare of the child. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473.) Continuity in lifestyle and environment is important to a child's healthy and normal development, and while fluctuations in health, employment, or residence of the parents are relevant factors, they are not controlling unless they adversely affect the child's welfare. (See Randolph v. Dean, 27 Ill.App.3d 913, 327 N.E.2d 473; Maupin v. Maupin, 339 Ill.App. 484, 90 N.E.2d 234.) A change of circumstances of only the non- custodial parent may be considered, but it is not alone sufficient to warrant a change of custody unless the child's welfare is affected. (Rayburn v. Rayburn, 45 Ill. App.3d 712, 4 Ill.Dec. 395, 360 N.E.2d 142.) The standard of review we must apply in child custody cases is whether there is an obvious abuse of discretion or the order is contrary to the manifest weight of the evidence. (Windhorn v. Windhorn, 131 Ill.App.2d 785, 264 N.E.2d 531.)

We find nothing in the record to indicate that the trial court abused its discretion in denying plaintiff's petition or that the judgment is against the manifest weight of the evidence. It is true that the custodial parent in this case suffered a financial setback for the year prior to the custodial hearing, but it is not uncommon for farmers to sustain occasional losses. It is not the parent but the child we must look to and we find nothing to indicate that the child in this case has suffered in any way as a result of his father's financial loss. The evidence regarding the problems between the defendant's son and the defendant's younger brother were factors weighing in favor of plaintiff's petition, but we do not believe these problems, alone or in conjunction with other facts on the record, require us to find an abuse of discretion.

Plain...