*1 control questioned ability she that had never ing admitting not en- attorneys Trial on the of the accident. night automobile the precise to predict as to be able prophecy dowed with so gift the mere fact Nor does of personal injury litigation. outcome show that trial of case was unsuccessful company insurance Cas. Co. v. Citizens Ballard defense was made bad faith. See their 96. (7th 1952), Cir. 196 F.2d denied, verdict was motion for a directed addition, Royal’s when Likewise, received King offered when Royal’s limits. Johnson’s
Johnson offered its Royal the motion had been denied and that report full to offer Interstate’s limits, he authorized within 48 hours Johnson returned an adverse verdict limits also.* fact j'ury offer Royal’s issue in interim offer Interstate’s liability reasonably acted King not belie evidence shows does Therefore, limits to settlement offer. Interstate’s adding Royal’s pending Interstate, nor Johnson, we that neither Royal, through through hold or in bad faith before limits. negligent offering policy King, of our decision the defendants’ motion denying light n.o.v. remanded reversed and the cause is with directions judgment n.o.v. in to enter favor of defendants. judgments remanded with directions. Reversed and DRUCKER, BARRETT, J., P. concur. J., Chodzko, Carol Anne v. Thaddeus L. Plaintiff-Respondent-Appellant, Chodzko, Setecka, C. (John Petitioner- Intervening Defendant — Appellee). District Division)
First No. (4th filed December denied Opinion Rehearing January 1975.— * coverage policy provided “[l]iability policy Interstate’s excess this primary liability and until shall not attach unless insurers have admitted for the limits, has, by primary judgment, limit or unless or until the assured final adjudged pay primary a sum which limit or exceeds limits.”
BURMAN, J., dissenting. Haas, Louis & Haas both L. (Adolph Dienstag, Chicago Jaffe E. Gary for Dienstag, counsel), appellant. Steiner,
Branko M. Chicago, appellee. Mr. ADESKO delivered the the court: JUSTICE A decree divorce was entered favor of June herein, plaintiff-respondent-appellant hereinafter referred to respond- control, ent. The that die provided decree education minor be the mother, four awarded to the plaintiff-respondent.. since the Setecka, entry The maternal C. grandfather, John grandchildren with said decree, six visited years had for more than as on birthdays week as well an of once a consent on plaintiffs average them to various sporting had taken and other occasions. He out automobile trips and overnight events and on vacations each year advised On city. January reason any expressing he could no see the longer grandchildren therefor. intervene, 24, 1972, On said May petition Setecka presented John him visit with and order on the
seeking respondent permit respond- out said interference with minor grandchildren ent’s filed a motion custodial respondent of said children. denial file seeking petitioner of leave to said petition ground had no sufficient facts legal intervene and had not standing pleaded court, the relief over- entitling him to The trial after sought. hearing, ruled the motion and allowed intervene. 27, 1972, On filed answer substance alleging June
that petitioner’s visitations the children injurious have to her and and have interfered with her and disturbed raising of her home and dismissed and petition asked that an injunction be issued an- from restraining petitioner “harassing, *3 or noying or her children bothering respondent interfering or otherwise with of her home.”
The father of the children he advised trial that was desirous judge of having visit with their that said visitations grandfather; on a place when father had and Sunday that rights; he pick the children at up home, their mother’s take them return and them to their mother at the time in the agreed evening. 27,
On 1972, September entered following agreed by trial court:
“That parties shall continue to exercise one Sun- voluntary month day per visitation with petitioner as been had exercised since last the same hearing, allowed, exercised being and prejudice parties’ respective positions.” On 1972, 6, December the trial court entered the order: following
“It is ordered hereby that the grandfather of minor children be permitted until further order of the court visit said minor children one each in Sunday month manner as same such visitation has existed since 27, 1972, and June without prejudice.” 1973, the court’s said order 30, On moved vacate respondent July 6, 1972, custody that sole petitioner December had alleging 16, minor on November 1973. children. This motion came up the order of court denied the motion vacate respondent’s trial 6, December in that erred allow- claims on trial court
Plaintiff-appellant appeal in intervene and in him visitation ing petitioner to absence in and was an proof his petition that other warranting circumstances exist parent relief.
We with the that the law agree distinguishes court has to determine and visitation. The custody jurisdiction a is unfit or other parent a showing exist. A has a special, extenuating parent paramount in this of minor custody plaintiff-respondent-appellant 1971, Rev. appeal (Ill. to section the Probate Act Stat. refers 132 of 3, ch. good This “the court for reason 132). provides section par. to either may parent, and education the minor custody award or Act to some other The Divorce Rev. person.” added.) (Ill. (Emphasis 1971, 40, Stat. 19) ch. par. provides: time,
“The from time terminate may, application, make in and main- alimony such alterations the allowance of education, tenance, and the care, chil- support dren, appear shall proper.” (Emphasis added.) relief here sought is visitation There decisions privilege. in has been actual Illinois which awarded grandparent is far these cases than the remedy minor. more drastic remedy trial at requested the case bar. The Illinois granted Home, v. Florence Supreme Giacopelli Comt Crittenton Ill.2d in the home placed the Illinois Court to the denied parties, Supreme child and stated: has superior “It is always however, is not abso That right, of his child. Such superior the best of the child. yield lute and must in accord the best interest of it is obtains when right only *4 * * * to be totally need be shown not parent the child. the him the deny to rear factors to be con one of of the only child. Fitness of the child may the best interest how determining sidered ** s” be served. 14 v. Boyles, Ill.App.3d case Boyles a recent very recognized The court privileges. were visitation granted that both and held here the distinction inherent also recognized discretion. Said decision rest in the court’s it appears visitation rights court to modify right The court makes it advisable. child’s best interest and the proper held: its decision in basing that the trial court erred
“It is our opinion are not entitled to visitation says grandparents on a rule which that a natural parent it is true as a matter of law. While [citations], his child is entitled to exclusive care visitation, grandparents may if warrant we believe circumstances Lucchesi (See to visit grandchild. be granted Recent decisions Lucchesi, 920.) Ill.App.506, that all matters concerning custody courts indicate Illinois must be governed by and also those concerning in the best interest of the child.” Ill.App.3d what is above, case the court grand- the Lucchesi mentioned “That the saying: grandparents, of visitation privilege parental record, in this should be denied any all of the circumstances shown the latter re- at the home of respondent, to visit opportunity our sense of the shocks justice.” taining visitation rights In our cases where were study grandparents’ find that the were allowed more liberal recognized we than in the case at bar. Here the visitation privileges visitation, which existed for some six weekly years, reduced from prior and then time were with their during to once month time that not one moment of their their mother father, single so with the order. was disturbed by cases upon by respondent pertained
The Illinois relied cus The instant case deals solely of children. visita tody privilege in the instant case grandfather tion. The efforts of the reveal love and tire interference any affection for cus grandchildren off grand of the mother. As justification cutting todial the mother conclusions alleges father’s visitation privilege, to her and the children and have grandfather’s injurious visitations Nowhere the record is there raising interfered with interference with of the the mother of grandfather’s evidence any be detrimental grandfather children or act the mother. mother in the instant case to be
It is not to show the necessary visit the to allow the grandchildren. an unfit parent “other argues extenuating mother also existed” *5 which her denial of the visitation We justified believe privileges. the grandfather’s efforts extenu- to visit the children is a actually circumstance can ating be beneficial to the The love children. and affection for the children both the is a grandfather mother and by fortunate circumstance benefiting
The plaintiff-respondent the trial erred in finally argues to the allowing rights an evi grandfather conducting dentiary sustain his hearing requiring burden of contained in his An proving issue petition. of fact created was petition and No further reply. hearing requested vacate order. agreed law, trial had been a judge, who in the field capable lawyer of family stated that he hear repeatedly issue re proof on if pending spondent it. trial wished stated: “But we all look to judge have to wards what is best for the children. And it is in that connection that I’ll allow certainly to, if want Mr. Haas you, you [respondent’s attorney] to put on evidence that would indicate that for the best children, there should be abridgement termination suspension or or modification of the grandfather’s continuing privileges these I’ll be youngsters. glad set that at a time that’s convenient.”
Counsel for the respondent admitted court that the trial open judge gave full as to the best interests of the children. judgment of Circuit Court of Cook is affirmed. County Judgment affirmed.
JOHNSON, J., concurs. BURMAN,
Mr. dissenting: JUSTICE I must In this respectfully dissent. cause a final decree of divorce had been granted to plaintiff-respondent, Chodzko, Carol Anne on June The decree awarded plaintiff “the sole education custody, * * control of four minor children (4) to the father’s subject of visitation at right reasonable Seven times. later years plaintiff’s father filed an intervening an order of petition seeking visitation which plain- tiff I opposed. believe attendant the court erred the. permitting petition to filed awarding grandfather. my such action opinion was neither nor proper. notes,
As the the courts are majority concerned with and guided by best interest of the This however, child. is not say, the matter of a child’s welfare invites uncontrolled intrusion. judicial The law that a recognizes child’s welfare is left best to the effec- presumptively responsibility the daily has who of the parent and discretion control tive showing absent a is clear law I believe the the child. of rearing the court circumstances, extenuating other unfitness or of parental over to a award visitation authority in the The cases cited the custodial parent. objection this assertion. fully support 556,158 Home, 16 Ill.2d Florence Crittenton Giacopelli v. the case of superior the natural parent’s Court our Supreme
N.E.2d held, however, that where of his child. The he will be deemed abandons parent affirmatively child by opera Over said authority all control and right, have forfeited at bar that is made in the case tion statute. No contention or other-wise forfeited her has her children abandoned *6 different entirely and situation. Giacopelli presents accordingly, 602, N.E.2d cites v. 14 302 Boyles Boyles, Ill.App.3d also 199, for the that'the matter of third rights proposition In rests in the discretion of the court. my opinion reading solely the Boyles intended bounds. In natural mother had been goes beyond sole of her minor pursuant awarded to decree of divorce. died, she and the maternal thereafter Shortly grandparents petitioned the as intervenors the seeking court child or the alternative After evidence the court the rights. found natural father, time, in Colorado at who resided the to be a fit and proper parent and awarded to him. The court also awarded visitation rights to the maternal who resided in grandparents Illinois. The visitation pro- vision the order was with the consent father. A year later the petitioned court to issue a rule grandparents requiring father he show cause should not be held in why for contempt failure to order of comply visitation. court appellate considered the best interest of the child in of evidence light that the child had just mother, he lost his was close to his maternal grandparents, he had visited maternal grandparents every day prior his mother’s held that death. under those special circumstances the father was not free to consequently disregard the provisions of a valid decree. No.such special circumstances exist in the case at bar. in Boyles
That the decision is grounded on special circumstances is from its reliance apparent on Lucchesi Lucchesi, v. 330 Ill.App. N.E.2d also cited majority. Lucchesi the natural mother from order appealed paternal grandparents of her minor child for specified hours on alternate Sundays. She contended that as natural mother of the she had the sole right and that the order was a material abridgement that right.
The appellate stated, contention (330 “This is a meritorious one” Anderson, Ill.App. Kulan 511), citing Ill.App. court, however, did take note of the fact that the child’s
father recently combat, been killed in and that under his last will testament he created for naming trust the benefit of the minor as trustees. Under grand the terms of trust parents required mother month the use and pay per $10 benefit of the child. The power further were given an additional pay $10 month if in their per they discretion deemed that amount necessary for maintenance of the held child. The court that “in case,” view of the particular facts of instant the grand permitted should be visit the home of the The court its of the expressed mother. that the mother further not would seriously oppose such an order. case at bar no contention is made that or the father plaintiff Moreover, tire parents. allega-, makes no petition tion of exceptional allow would the court to substitute its discretion for that of award visitation own her father. The petition merely alleges regular pattern of visits and past love and affection of a grandfather for his grandchildren. While such commendable, devotion interest is it is insufficient to legally warrant intrusion into a judicial domestic matter of purely char- discretionary acter.
Plaintiff has expressed apprehension and her disapproval grant- to her father. ing In her reply intervening petition she such action stated affect her adversely control and discipline children. She further enumerated several instances had embarrassed her of third company parties, *7 toward her for no exploded rage logical reason, demanded that she not invite certain into home, and otherwise disrupted of her true, household. If these be the decision of will intolerable majority perpetuate situation. child has the love
The who and affection both his But, is indeed fortunate. de- my opinion, original maintained continuity cree divorce family possible by degree reasonable visitation rights to the natural father. The record has in father fact taken discloses of his Sunday, hours every generally, several every Wednesday well. It to believe the best optimistic unduly plain- tiff s four children is served by awarding to yet another to determine which third parties may share the cus- party. is the lies It cus- tody parent. influence of properly todial has the daily who responsibility rearing who make such determinations. occupies optimum position their time that “not one moment of majority’s observation single misses point. their mother disturbed the order” simply she can best a mother’s her children as attempt disturbs to rear and without interference her own father. be drawn conclusion, ask, one now must line it
respect to visitation of third Is limited parties? Re- and other relatives? can intervene? blood Or now answer, is certain to have decision of the gardless effect internal domestic unsettling management orderly matters, is in the best interest and I whether such a result question the children. People Murphy Doss, rel. ex Plaintiff-Appellee, Doss, Pearline
Defendant-Appellant. First No. 61307 District (5th Division)
Opinion filed December