Thomas v. Thomas

• Decision Date: 23 January 1978
• Docket Number: No. 77-82,77-82
• Citation: 14 Ill.Dec. 483,56 Ill.App.3d 806,372 N.E.2d 679
• Parties: , 14 Ill.Dec. 483 Lynn THOMAS, Plaintiff-Appellee, v. Kenneth R. THOMAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 679

372 N.E.2d 679

56 Ill.App.3d 806, 14 Ill.Dec. 483

Lynn THOMAS, Plaintiff-Appellee, v. Kenneth R. THOMAS, Defendant-Appellant.

No. 77-82.

Appellate Court of Illinois, Second District.

Jan. 23, 1978.

Albert S. Salvi, Lake Zurich, for defendant-appellant.

H. Joseph Gitlin, Victor P. Lundemo, Woodstock, for plaintiff-appellee.

WOODWARD, Justice.

Plaintiff, Lynn Thomas, and defendant, Kenneth Thomas, were divorced in 1971, and plaintiff was given custody of their minor son. In 1974 she obtained an order allowing her and the child to move to Georgia. While there, she initially lived with her parents, but later obtained an apartment for herself and her son. A number of relevant events occurred thereafter: she allowed a male friend to live in her apartment; she remarried and has been divorced again; she pleaded guilty to a charge of shoplifting; she was charged with theft, although the charge was dismissed; and after being robbed, she purchased a gun, although the purchase was a violation of probation. Defendant obtained information about these incidents and now seeks to change the custody of the minor son to him. The trial court refused to interview the child, denied the requested modification and ordered defendant to pay plaintiff's attorney's fees totaling $870.

We are first called on to consider whether the denial of custody modification was against the manifest weight of the evidence. Defendant here has the burden of proof of showing a change of circumstances materially affecting the welfare of the minor child. (Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300.) We view Nye as controlling because there is involved a modification of an original decree of custody; we have already distinguished this situation from one in which there has been no previous grant of custody of children by court order. (See Strand v. Strand (1976), 41 Ill.App.3d 651, 355 N.E.2d 47.) The record shows that plaintiff provided some explanation on each alleged impropriety which was raised by defendant. Because the weight to be given testimony and the determination of what constitutes the best interest of the child are properly matters for the trier of fact, absent an abuse by the trial court, we will not substitute our judgment for that of the finder of fact. (Wells v. Wells (1976), 36 Ill.App.3d 488, 344 N.E.2d 37.) Our review of the testimony given below does not show such an abuse, nor is the decision of the trial court palpably erroneous. We accordingly hold that the decision of the trial court was not contrary to the manifest weight of the evidence.

We next consider whether the trial court abused its discretion by not interviewing the minor in question. Defendant requested that the court make an in-camera examination of the minor. The court properly noted that such an examination of a minor, particularly one of tender years, is discretionary and noted further that if an interview were to be conducted, the court would defer it. We distinguish this case from Crownover v. Crownover (1975), 33 Ill.App.3d 327, 337 N.E.2d 56. In that case the trial court rejected outright the proposed testimony of an 11 year old,...