Solomon v. Solomon

• Decision Date: 28 June 1943
• Docket Number: Gen. No. 42667.
• Citation: 49 N.E.2d 807,319 Ill.App. 618
• Parties: SOLOMON v. SOLOMON.
• Court: United States Appellate Court of Illinois

319 Ill.App. 618

49 N.E.2d 807

SOLOMON

v.SOLOMON.

Gen. No. 42667.

Appellate Court of Illinois, First District, Second Division.

June 16, 1943.

Rehearing Denied June 28, 1943.

Appeal from Superior Court, Cook County; Joseph A. Graber, Judge.

Action for divorce by Hortense G. Solomon, now known as Hortense G. Stone, against Harold N. Solomon, wherein plaintiff was granted a divorce and awarded custody of a son. The defendant filed a petition requesting that reasonable rights of visitation be granted to defendant's parents during defendant's absence in the military service. From an order granting defendant's petition, the plaintiff appeals.

Order reversed and cause remanded with directions. Welch & Hoffman, of Chicago (Maurice L. Davis, of Chicago, of counsel), for appellant.

Rothbart & Rosenfield, of Chicago (Edward Rothbart, of Chicago, of counsel), for appellee.

FRIEND, Justice.

By decree of the superior court entered on April 28, 1938, plaintiff was granted a divorce from defendant and awarded the custody of their son, then approximately two years old. Under the terms of the decree and subsequent orders entered, the father was given the right to visit and take the child out with him on certain days each week and during vacation periods. Plaintiff remarried in 1941. Defendant was notified that he would be inducted into the armed forces of the United States on October 9, 1942, and was ordered to report for active duty on October 23. Pending his induction, the court awarded him the custody of the child for four days, and provision was made that in the event any furlough were given him, plaintiff would appear in court on six hours' notice, without the formality of a petition, to determine the matter of the custody of the child during the period of such furlough. In January, 1943, defendant, who had been assigned for training to Camp Adair in the State of Oregon, through his counsel filed a petition alleging, in substance, that it was impossible for him to obtain a furlough, that the distance between Oregon and Chicago was so great as to make travel impossible, that prior to his induction into the army it was customary for his child to spend week-ends with him in the home of his parents, that his only method of maintaining contact with his child was through his parents, who had demonstrated a great affection and love for the child, and he asked that reasonable rights of visitation be granted to his parents during his absence in the military service. Plaintiff denied the material allegations of the petition, averred that defendant had theretofore sought the same relief, which was denied by the court, alleged that the parents and brother of the defendant were emotionally and temperamentally unstable, that the parents of defendant were without legal right to the custody of the child, and that the proper interests of the minor would not be best served by granting defendant's petition.

The chancellor, who was familiar with the cause, pursuant to an agreement between the parties in court, interviewed the minor child in chambers, out of the presence of any of the parties or their counsel, and satisfied himself, as he stated, that the minor had a friendly feeling for his grandmother, “likes to go there,” and that he would not be in any wise injured by visiting his grandparents. The court also stated that plaintiff had called on him in chambers for a consultation with respect to the proposed right of visitation by the grandparents, and as a result of his interview with plaintiff and his interrogation of the minor, he considered it unnecessary to hear further evidence, and there appearing to be no valid reason why the boy should not visit his grandparents' home, the court allowed the defendant's petition and entered an order which provided that the minor should be allowed to visit with his grandparents on Saturday of each week from 10 to 12 o'clock in the forenoon. Plaintiff appeals from that order.

Plaintiff's counsel urge two principal grounds for reversal: (1) as against the paternal grandparents of a minor child, the mother is entitled to the exclusive care and custody of the child where her fitness is unquestioned; and (2) plaintiff was entitled to be heard and to offer evidence...