Rippon v. Rippon

• Court: Appellate Court of Illinois
• Writing for the Court: BARRY
• Citation: Rippon v. Rippon, 381 N.E.2d 70, 64 Ill.App.3d 465, 21 Ill.Dec. 135 (Ill. App. 1978)
• Decision Date: 29 September 1978
• Docket Number: No. 78-12,78-12
• Parties: , 21 Ill.Dec. 135 Gail A. RIPPON, n/k/a Gail A. Robbins, Plaintiff-Appellee, v. James J. RIPPON, Jr., Defendant-Appellant.

Page 70

381 N.E.2d 70

64 Ill.App.3d 465, 21 Ill.Dec. 135

Gail A. RIPPON, n/k/a Gail A. Robbins, Plaintiff-Appellee, v. James J. RIPPON, Jr., Defendant-Appellant.

No. 78-12.

Appellate Court of Illinois, Third District.

Sept. 29, 1978.

Loren S. Golden, Mount Carroll, for defendant-appellant.

Walter C. Kilgus, Morrison, for plaintiff-appellee.

BARRY, Presiding Justice.

This appeal was instituted by James Rippon from the dismissal of his petition for change of custody. The petitioner sought to remove his two children from the custody of their mother, Gail Robbins, the respondent.

A review of the record established that, after the "agreed" divorce, the respondent was remarried, moved a number of times, and was divorced again. Most of the time she resided in the Clinton, Iowa, area with her children. The worst that can be said concerning the respondent's care for her children is that her selection of housing has not always been the best, her home is not always kept as neat as she could have kept it, and, at the time of the hearing, she was residing with a boyfriend. Her testimony was that she and her boyfriend were going to marry when her second divorce became final and were buying a three bedroom house in Clinton.

There is some evidence that in one school year one of the girls missed several days of school, partly because, in moving, she was transferred to a different school and did not adjust well and partly because she was, in fact, sick. In addition, there was testimony that some problem had arisen over the petitioner's right to visitation but that the problem had been alleviated by an agreement entered into by the parties in September of 1976.

As to the petitioner's complaints concerning housing, the record clearly establishes that, after the divorce, the respondent and the girls moved to Savannah, Illinois, in order for the respondent to be with Gregg Robbins, whom she later married. Though living with friends while Robbins was required to reside on base at the Savannah Army Depot, the housing was deplorable. However, this situation was temporary and lasted only three weeks.

Thereafter, the respondent moved in with her new in-laws who had a home in Clinton, Iowa. Because, however, the girls had been enrolled in an Illinois school, the petitioner and respondent agreed that the petitioner should temporarily have custody of the girls while they finished the school year in Illinois. It was during this time that the respondent went to Florida with one of her sisters. However, she returned in June, and she and her new husband took the girls to live with them in an apartment on Fourth Street in Clinton.

Subsequently, the respondent quit living with Robbins and after one year moved back with Robbins' parents before finding the apartment in which she and her children were living at the time of the hearing. Although her in-laws' house had some problems with the plumbing, their landlord fixed it. In addition, the ceiling in the apartment on Fourth Street had apparently been damaged because of a water leak in the upstairs apartment.

Having all of these facts before it, the trial court dismissed the petition. Although the petitioner appealed, the respondent has filed no responsive brief. Nevertheless, we believe justice requires that this court consider the merits of the appeal rather than awarding an outright reversal. (R. W. Horn Wholesale Meats, Inc. v. Lyman (1st Dist., 1977), 49 Ill.App.3d 379, 7 Ill.App. 223, 364 N.E.2d 384; Smith v. Lemont Fire Protection District (3rd Dist., 1977), 45 Ill.App.3d 52, 3 Ill.Dec. 684, 359 N.E.2d 2).

A prior judgment as to custody will not be modified unless the trial court finds that, based on facts arising since the judgment or which were unknown to the court at the time of the judgment, a change has occurred in the circumstances of the child or his custodian and modification is necessary to serve the best interests of the child. (Ill.Rev.Stat.1977, ch. 40, par. 610(b)). However, the custodian must be retained unless the custodian agrees to a change or the child, with the consent of the custodian, has been integrated into the petitioner's family or "the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him." (Ill.Rev.Stat.1977, ch. 40, par. 610(b)).

Once a trial court makes its decision as to change of custody, that decision will be disturbed only if there is an obvious abuse of discretion or if the order in contrary to the weight of the evidence. (People ex rel. Rathbun v. Rathbun (4th Dist., 1977), 48 Ill.App.3d 328, 6 Ill.Dec. 314, 362 N.E.2d 1136; Rayburn v. Rayburn (3rd Dist., 1977), 45 Ill.App.3d 712, 4 Ill.Dec. 395, 360 N.E.2d 142). In determining what is in a child's best interests, stability of environment is an important factor. (Holloway v. Holloway (1st Dist., 1973), 10 Ill.App.3d 662, 294 N.E.2d 759).

As contemplated by statute, voluntary relinquishment of a child's custody by the authorized custodian is a factor to be considered. (Holloway v. Holloway (1st Dist., 1973), 10 Ill.App.3d 662, 294 N.E.2d 759). In Holloway the child's mother, on at least three occasions, had voluntarily relinquished custody to the father and had discharged much of the actual care of the child to babysitters. These facts are not present in this case. The only time the respondent relinquished custody to the petitioner was to maintain the children in the Illinois schools in which they were enrolled. It was a responsible gesture for the respondent to decide not to disrupt the girls' education. The fact that she also went to Florida during this period does not lessen that conclusion. Moreover, the respondent alone has seen to the care and custody of the children since the end of that particular school year.

Although the respondent admitted having sexual intercourse with Robbins before she married him and with her present boyfriend after divorcing Robbins,...