Russell v. Russell

• Court: Appellate Court of Illinois
• Writing for the Court: KARNS; JONES, P. J., and KASSERMAN
• Citation: Russell v. Russell, 399 N.E.2d 212, 80 Ill.App.3d 41, 35 Ill.Dec. 378 (Ill. App. 1979)
• Decision Date: 21 December 1979
• Docket Number: No. 79-166,79-166
• Parties: , 35 Ill.Dec. 378 Ruthanna Belle RUSSELL, Plaintiff-Appellant, v. Fredrick RUSSELL, Defendant-Appellee.

Page 212

399 N.E.2d 212

80 Ill.App.3d 41, 35 Ill.Dec. 378

Ruthanna Belle RUSSELL, Plaintiff-Appellant, v. Fredrick RUSSELL, Defendant-Appellee.

No. 79-166.

Appellate Court of Illinois, Fifth District.

Dec. 21, 1979.

James A. Schraidt, Philip C. Milsk, Land of Lincoln Legal Assistance Foundation, Inc., Carbondale, for plaintiff-appellant.

KARNS, Justice:

Belle Russell Kellum and Frederick Russell were divorced in November, 1976, by decree of the Circuit Court of Williamson County. Belle was awarded custody of the couple's minor child, Tim, born May 9, 1974, subject to Fred's right of reasonable visitation.

In April, 1978, Fred filed a petition for temporary custody of Tim, alleging that circumstances in Belle's household and Belle's emotional problems were detrimental to Tim's health and welfare. Both parties had remarried, and a son, Rudy, had been born to Belle and her second husband, Donnell Kellum. Fred's petition was heard in February, 1979, at which time it was agreed that permanent rather than temporary custody was at issue. In aid of its determination, the court appointed counsel to represent Tim's interests, pursuant to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, Ch. 40, par. 506) and ordered an investigation and report by the Department of Children and Family Services as provided in section 605 of the Act (Ill.Rev.Stat.1977, Ch. 40, par. 605). Counsel for Tim participated fully in the proceedings and the caseworker from the Department who conducted the investigation testified at trial. The court awarded custody to Fred and this appeal followed.

The Illinois Marriage and Dissolution of Marriage Act provides that upon dissolution, custody shall be determined according to the best interests of the child. (Ill.Rev.Stat.1977, Ch. 40, par. 602.) Custody may not be modified unless the court finds that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interests of the child. (Ill.Rev.Stat.1977, Ch. 40, par. 610(b).) The original custodian shall be retained "unless * * * 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).) The trial court concluded that circumstances in Belle's environment seriously endangered Tim's mental and emotional well-being and that a change of custody was in Tim's best interests.

It is uncontroverted that Belle changed residences with Tim and Rudy at least six times in the two years since her divorce from Fred and five times in the four months preceding the hearing. Some of the moves involved brief periods of time in the homes of relatives. Two weeks before the hearing Belle and her sons moved into a four-room garage apartment rented by her father. The apartment was on the second story and consisted of two bedrooms, a kitchen and a living room. Belle's father occupied the apartment on a part-time basis during layovers in his seasonal truck-driving job. He and the boys shared one of the bedrooms and Belle slept in the other.

Belle testified that she loved Tim, that she wanted custody of him, and that she thought it would be difficult for him to be separated from his half-brother. Belle plans to seek evening employment or attend night school and to leave the children with her brother and sister-in-law while she is away. These arrangements would involve driving the children nightly from Herrin, where Belle now resides, to Marion, where her brother and sister-in-law live. The plans are further complicated by the physical handicaps of the brother and his wife, who both have cerebral palsy. Belle asserted that her brother can walk "pretty good," but his wife requires the assistance of a walker. Belle does not regard these conditions as obstacles to child care. Belle's present income is approximately $300 a month from child support payments by Fred and Donnell, supplemented by occasional contributions from her father.

Donnell testified that he loved Tim and was willing to adopt him. He and Belle both testified that after Tim returned from visits with the Russells, he would regress in his toilet habits and act moody and upset. Both also agreed that Tim and Rudy were very close and get along well with each other.

Belle and Donnell separated a month before the hearing. They each testified that reconciliation was possible, though uncertain, and that many of their marital difficulties arose from tensions surrounding this case. There were several incidents of physical violence between Belle and Donnell. Belle was hospitalized overnight following one argument. If reconciliation were effected, there was some indication that they would move to Chicago.

Fred Russell, his current wife, Sondra, and his mother all testified that Tim enjoyed himself during his weekend visits to the Russell home and objected to leaving when it was time to return to Belle's. Fred and Sondra both stated that they loved Tim. Each of them also observed teeth marks on Tim's scalp and bruises on his back when he came to visit them, but Belle and Donnell both denied inflicting excessive punishment on Tim, and there was no direct evidence of child abuse. Fred and Sondra live in a five-room home with Sondra's two children by her prior marriage. When Tim is visiting, he and Sondra's son share one of the bedrooms. Sondra is not employed and is home to care for the children. She and Fred both testified that their marriage is stable and that Tim and Sondra's son get along well with each other. Fred earns $150 per week as a barber. A judgment of $2,238.36 has been entered against Fred and Sondra on a bank loan.

Following her divorce from Fred, Belle sought counselling at the Franklin-Williamson County Mental Health Center. On the advice of her counsellor, Belle was hospitalized for four days in February, 1978, to recuperate from emotional strain. Belle's counselor, Barbara Young, testified that Belle is now able to cope on her own with stress and can provide love and emotional support for Tim.

Peggy Demeretti, an employee of the Department of Children and Family Services who conducted the...