Valencia v. Valencia

• Decision Date: 25 March 1977
• Docket Number: No. 76--200,76--200
• Parties: , 4 Ill.Dec. 951 Donald L. VALENCIA, Plaintiff-Appellant, v. Palmetta VALENCIA, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1384

360 N.E.2d 1384

46 Ill.App.3d 741, 4 Ill.Dec. 951

Donald L. VALENCIA, Plaintiff-Appellant, v. Palmetta VALENCIA, Defendant-Appellee.

No. 76--200.

Appellate Court of Illinois, Fifth District.

March 25, 1977.

George J. Moran, Jr., Granite City, for plaintiff-appellant; John P. Long, Granite City, of counsel.

Alan T. Stentz, Land of Lincoln Legal Assistance Foundation, Inc., Madison, for defendant-appellee.

KARNS, Justice:

This is an appeal by plaintiff Donald L. Valencia from two orders of the Circuit Court of Madison County, the first denying his petition to modify a divorce decree, the second finding him in contempt for refusing to permit his ex-wife, defendant-appellee Palmetta Valencia, to exercise her visitation rights with the parties' daughter Trisha as provided in the decree.

The history of the case is as follows: On October 30, 1975, plaintiff was granted a default divorce in Madison County Circuit Court on the grounds of extreme and repeated mental cruelty. At the time the decree was entered, defendant was living in Missouri with Trisha, who was then one year old. The decree gave custody of Trisha to plaintiff. In December 1975, plaintiff sought by writ of habeas corpus in a Missouri circuit court to compel his ex-wife to surrender custody of Trisha to him. After a hearing at which both parties appeared represented by counsel, Palmetta Valencia was ordered to deliver custody of the child to Donald Valencia. The order of the Missouri court further set out Mrs. Valencia's rights of visitation with the child.

On February 23, 1976, plaintiff filed a motion praying that the Madison County court amend its decree to incorporate the provisions of the Missouri court's order pertaining to rights of visitation. Plaintiff's motion, which was accompanied by a copy of the Missouri order and the verified consents of both parties, was granted the same day. By the terms of the amended decree, defendant was to surrender custody of the child to plaintiff on or before March 1, 1976. Subsequently, defendant was to have rights of visitation for the fourth week of every month, for six weeks in the summer, and on a reasonable number of the major holidays. On February 29, 1976, plaintiff brought Trisha back to Illinois from defendant's home in Missouri.

At no time did plaintiff seek to vacate the amended decree, nor appellate review of its terms. Nor was the procedure of the Missouri court in detailing Mrs. Valencia's visitation rights as part of the habeas corpus proceeding called into question. However, on March 18, 1976, less than a month after the divorce decree was amended, plaintiff went back into the Circuit Court of Madison County with a petition for a temporary injunction to restrain defendant from exercising her visitation rights. Plaintiff also sought further modification of the decree to require defendant to visit the child only in the presence of the plaintiff. Plaintiff alleged that this modification was in the best interest of the child because of the death of Trisha's sister Tammie while in defendant's care on March 7, 1974, more than a year and half Before the parties were divorced. A temporary injunction without notice was granted on March 18, 1976. On April 13, 1976, the court dismissed the motion for modification of the decree, dissolved the injunction and denied further injunctive relief.

On April 28, 1976, plaintiff filed a petition to amend his motion to modify the divorce decree. This petition alleged, Inter alia, that the court would not have allowed the amendment to the original decree had it first held a hearing and ascertained the 'true facts'; that 'the defendant is living with James McReynolds and that while Tammie L. Valencia, a natural child of the parties hereto, was in the custody of the defendant and James McReynolds the child was badly beaten and was declared to be dead on arrival at the hospital in Kansas City, Missouri * * *'; that 'there are compelling reasons why the defendant should not have visitation rights which have occurred after February 23, 1976, in that the child, Trisha Valencia, had bruises on her body indicating she had been beaten when she was delivered from' defendant to plaintiff; and that 'it is not in the best interest of the parties' minor child, Trisha Valencia, that the defendant, Palmetta Valencia, be permitted to remove the said child outside the jurisdiction and control of the Court * * *.'

The petition came on to be heard on May 20, 1976. Pursuant to motion by defendant, the court ruled that testimony at the hearing would be limited to events that occurred after the date of the amended decree, February 23, 1976. Plaintiff's introduced evidence that on February 29, 1976, he and his girlfriend observed bruises on the child's forehead and legs, and that ten days later he took the child to a hospital for examination and for treatment of a bowel problem. The testimony indicated that as of the date of the amended decree, plaintiff had been aware of the bruises and the fact that defendant was living with the same man, McReynolds, with whom she was living at the time of the other child's death. The court found that plaintiff had failed to show a substantial change of circumstances since February 23, 1976, and therefore denied the petition to modify the decree. The court then received an offer of proof relating to events before February 23, 1976; the court refused, however, to permit the offer of proof to extend to events occurring before the date of the original decree--specifically, to the events surrounding the death of the other child. Although counsel for plaintif stated at the outset of the hearing that he intended to show that his consent to the visitation provisions of the amended decree was not valid because given under duress, that was not one of the allegations of the petition to modify the decree, no attempt to introduce any evidence to that effect was ever made, and there is nothing in the record to support counsel's statement.

Acting on the advice of counsel, plaintiff continued to deny defendant any visitation with Trisha. On defendant's petition for a writ of citation to show cause, plaintiff was found in contempt of court for failure to comply with the visitation provisions of the divorce decree as amended. The court did not punish plaintiff for this contempt, finding that it was not willful because his action was taken on advice of counsel. The court ordered plaintiff to deliver the child to defendant for one week beginning August 28, 1976, for six weeks beginning September 21, 1976, and thereafter as required by the amended divorce decree.

On appeal, plaintiff contends that the trial court erred in restricting his evidence to events after the date of the amended divorce decree; in refusing to allow his offer of proof as to the events that occurred before the date of the original divorce decree; in refusing to amend the divorce decree for a second time to require the defendant to visit the daughter of the parties only in the presence of the plaintiff; and in holding the plaintiff in contempt of court for his refusal to allow the defendant to take the child out of his presence and out of this State.

Of all the difficult human situations which a court has the duty to resolve, surely the most tragic is that in which an innocent child 'becomes a pawn in the game of bitterness and recrimination played by its divorced parents.' (Aud v. Etienne, 47 Ill.2d 110, 112, 264 N.E.2d 196, 197 (1970).) In addition to deciding which parent is to have the care and custody of the child, a court must, where called upon to do so, determine the visitation rights of the parent who does not have custody of the child.

In this State, the burden of making this decision falls initially on the circuit court, which has been endowed by the General Assembly with broad discretion. (See Section 18 of the Divorce Act, Ill.Rev.Stat.1975, ch. 40, par. 19.) Ordinarily, it is believed to be in the best interest of a child--the touchstone against which all the court's determinations as to visitation must be evaluated--that he or she have a healthy and close relationship with both parents. (Keefer v. Keefer, 107 Ill.App.2d 74, 78, 245 N.E.2d 784, 786 (2d Dist.1969).) Thus, we have said that '(t)he...