Wade v. Wade
| Decision Date | 05 December 1951 |
| Docket Number | Gen. No. 10558 |
| Citation | 102 N.E.2d 356,345 Ill.App. 170 |
| Parties | WADE v. WADE. |
| Court | United States Appellate Court of Illinois |
McNeilly & Ryan, Peru, Miller, Leach & Armstrong, Decatur, for appellant.
Melvin Finer, Mt. Carroll, for appellee.
The plaintiff-appellant, Vivian M. Shures, formerly Vivian M. Wade, and the defendant, Robert G. Wade, were married in 1942 and lived together as husband and wife as Savanna, Illinois, until February, 1945. Two children were born as issue of this marriage, Roger Wade, born May 22, 1943, and Sharon Wade, born July 23, 1944. In February, 1945, the parties separated. The wife took the son, Roger, to Decatur, where she has resided continuously since that time. She obtained employment as a waitress in Decatur, and left the daughter, Sharon, with her father, Robert G. Wade, the defendant. After the separation, he took Sharon to his parents' home in Decatur, where she lived until the divorce was obtained.
In October, 1945, the parties had some conversation about a divorce. It appears from the record that probably both parties wished to remarry. Wade told his wife that he wanted to marry another woman, and it was agreed between the parties, in the event the divorce was obtained, that the plaintiff would have custody of their son, Roger, and the defendant of their daughter, Sharon. On October 29, 1945, the plaintiff procured a divorce from the defendant in the Circuit Court of Carroll County. The decree provided that the plaintiff should have permanent care, custody, control, and education of their son, Roger, and the defendant have the permanent care, custody, control, and education of their daughter, Sharon. There is no other provision in the decree concerning the two children. Within two months after the divorce the defendant remarried, and Sharon, who prior to that time had been living with the defendant's parents in Decatur, came to Savanna, Illinois, and lived with the defendant and his second wife until the fall of 1947, at which time the defendant and his second wife separated. The defendant again took Sharon to Decatur to the home of his parents to reside. The defendant continued to live in Savanna until 1949. It appears that in January, 1948, the defendant's parents, due to illness and other reasons, did not care to keep Sharon any longer. At that time Bruce Smith, cousin of the defendant, and his wife, Doris, asked him for permission to take Sharon to live with them in Des Moines, Iowa. Defendant gave them this permission, and Sharon was taken by the Smiths. Since that time she has resided in their home in Des Moines, and they now have her physical custody. There is no contention made by anyone that Sharon, during the time she was with the defendant his parents, and the Smiths, has not received excellent care.
The record discloses that since Sharon was six months old, her mother has seen her but twice. On July 3, 1948, the plaintiff was married to Richard Shures. Subsequent to this marriage, with the consent of the defendant, the son, Roger, was adopted by Mr. and Mrs. Shures. On June 15, 1951, the plaintiff was served with notice that the Smiths had instituted adoption proceedings in Polk County, Iowa, to adopt Sharon. Immediately thereafter plaintiff filed in the Circuit Court of Carroll County a petition for a rule to show cause, and a petition for modification of the divorce decree. The petition for rule to show cause avers in substance that the defendant has, without the consent of the court and without notifying plaintiff, removed Sharon from the jurisdiction of the court, and asked that for so doing, defendant be held in contempt of court. The other petition for modification of the divorce decree alleges, in substance, that petitioner be granted the custody of her daughter, Sharon; that she has adequate financial means to care for Sharon; that the defendant is an unfit person to have her custody, because he took her from the jurisdiction of the court, abandoned her, left her in the custody of strangers, and consented to her adoption by the Smiths. The petition then requests that plaintiff-petitioner be awarded the care, custody, control, and education of Sharon.
After evidence was taken on these two petitions, the chancellor denied both petitions, and the plaintiff has appealed to this court. At the hearing Robert G. Wade, defendant, testified and was examined by the plaintiff's attorney under section 60 of the Practice Act, Ill.Rev.Stat.1951, chap. 110, par. 184. He testified that he now resides with his parents in Decatur, Illinois; that he is a musician, and also works for his father, who is a painting contractor; that 'he contacted his former wife with regard to visitation of this child,' prior to their divorce. He further testified that 'he went back and got the child for her to see'; that after the divorce he never had any conversation with the plaintiff concerning her visitations of the child; that the child stayed with defendant's parents through 1947 until the latter part of January, 1948. At that time Sharon went to live with his cousin, Bruce Smith, and his wife, Doris. The defendant was then living in Savanna. The child was permitted to go to Iowa because defendant's parents could no longer look after her due to illness. He testified that within a month after the child was taken to Iowa he told the plaintiff's mother that the child was in Des Moines, and who she was with; that he had never asked the court for permission to take the child out of the state; that he subsequently consented to the adoption of the child by the Smiths, who provide a wonderful home for her, with the understanding that the child should know who was her father and he would have a right to visit her; that he could not take care of her and was satisfied with the arrangements that the Smiths have her custody; that he sees the child every summer and holidays, when the Smiths have brought her to Decatur; that he has never informed the plaintiff when the child was in Decatur; that about the time his wife applied for a divorce he asked her what she wanted to do about the children. She said he could take Sharon and she would take Roger. He has had the custody of Sharon since she was six months old and is in a position physically and financially to provide a home for the child at this time. While he is working his parents will take care of her. He further testified that Sharon has been with the Smiths in Des Moines, Iowa, since January, 1948, and to his knowledge the mother never asked to have the child brought back from Iowa. She had visited the child once at his home in Decatur where both parents then and now reside. Each party knew where the other lived. In 1949 he told the plaintiff that the Smiths wanted to adopt Sharon. The plaintiff told him that she wanted her custody. In 1951 the Smiths filed a petition to adopt Sharon.
He further testified, being recalled under the provisions of section 60 of the Practice Act, supra 'Q. Mr. Wade, in the event the Court denies this petition, the child will continue to live with the Smiths, is that correct? A. Not necessarily. No.
Vivian M. Shures, plaintiff, testified in part as follows: At the time the divorce was granted she earned $25.00 a week as a waitress in a tavern. She took the boy but did not take Sharon because she could not take care of two children. Her husband informed her prior to his second marriage that Sharon was going to live with him and his second wife in Savanna. After the divorce was granted, plaintiff testified, she continued to work in Decatur until the last two years; that prior to her remarriage in 1948, she had all she could do to look after the boy, her son, and herself, but now she has an adequate home, and is seeking Sharon's custody. She had never been contracted by the defendant concerning the whereabouts of Sharon, did not know that she was in Iowa until last fall, but thought she was in Chicago. As soon as she found out where the child was, she filed the petition for her custody. About two years ago the defendant called the plaintiff and asked her to consent to the adoption of the child by the Smiths. Plaintiff said that she refused and knew nothing of the adoption proceedings until June 15, 1951. She knew the child was with the Smiths, but did not know where, and did not know she was with them until her husband called her about the adoption proceedings. Since the divorce was granted, plaintiff testified, she saw the child once when plaintiff was working in a drug store in Decatur, and once at her mother's home in Decatur. She had sent the child two birthday gifts which she had given to the defendant's mother to include in a box. The defendant's mother had informed her the child was in Chicago. The child was six months old at the time of the divorce. She had been separated from Wade one year before the divorce. Before the divorce was granted she had telephoned the defendant's mother and told her she wanted the custody of the daughter, but she understood at the time the decree was granted that her husband was to have her custody. From February, 1945, the date of separation, until the divorce, plaintiff never actually knew where the child was, but thought she was in the defendant's mother's home in Decatur.
Richard Shures, husband of the...
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