*1 That is contrary statement erroneous and is to the testimony the wit- nesses.
The majority opinion states that “installation of fireplaces only was However, incidental to Brown’s main business.” Brown had one of his employees, facing Walter do the stone Petty, work necessary complete the installation the fireplace. Additionally, installation of this fireplace part was of the sales contract with the Spiveys who Brown one paid lump Thus, sum for the fireplace. installed installation the fireplace anwas integral part the business at transaction issue here.
The totality circumstances indicates that Lenz an employee/ agent of Brown and that Brown for the responsible damages resulting from the I negligence Lenz. would reverse the order of trial court Brown, action dismissing Spivey’s against cause of James doing business I as Tri-State Stone & Brick would Company, direct be entered in favor of plaintiff. MELANIE ZUCCO, re OF G. GARRETT
In MARRIAGE Petitioner-Appel GARRETT, lant, Respondent-Appellee. and REED A.
Fifth District No. 5—85—0824 Opinion filed December 1986.
KASSERMAN, P.J., concurring. specially *3 Gibson, Vernon, appellant. of Mt. Larry D. for Wilzbach, Wilzbach, Elliott, Salem, Scott of & of for appellee. Hillis the opinion JUSTICE HARRISON delivered of the court: Zueco, Petitioner, Melanie an appeals Garrett from order of the circuit modifying court of Marion the County joint-custody provisions of a the judgment previously by marriage entered court in a dissolu tion order, between the its the circuit proceeding parties. court joint refused to terminate but custody, primary physical awarded cus son, Garrett, of tody parties’ respondent, the minor Shawn to Reed Garrett, to petitioner’s rights of visitation. On subject appeal, peti tioner (1) contends: that the circuit court’s order does not comport 610(b) with the of section of the Illinois requirements Marriage and Dissolution of Act Rev. Stat. (Ill. par. 610(b)) because it not contain to findings does of fact show a specific change in which would of the prior circumstances warrant modification joint- court custody arrangement; (2) relying that erred in on state ments study made child a home the De by report prepared by partment concerning of Children and Services his Family that (3) religious the court’s consideration of beliefs as a custody; of the first clause violated establishment factor its decision Const., I) (U.S. amend. amendment to the United Constitution States Const. I, (Ill. and article section of the Illinois Constitution of I, an 3); art. sec. and that the court’s decision constituted abuse weight discretion and the manifest evidence. contrary was follow, For the which we and remand. reasons reverse respondent January They Petitioner and were married on 1976. child, Shawn, one The parties’ had who was bom November 1978. of en- marriage judgment marriage was dissolved of dissolution County tered the circuit court of Marion on June 1982. That a marital settlement which incorporated agreement pro- vided, that and shall part, custody “husband wife have joint agreement The parent further shall provided [Shawn].” “[e]ach of said child on custody alternating have weeks.” At dissolution, the time Kin- parties both resided in mundy, Illinois. Petitioner remarried and moved to Sa- subsequently lem, Illinois, which another school In August district. when Shawn was enter kindergarten, petitioner about to the applied court for an order modifying original judgment dissolution to her Shawn, award full custody control of to give respondent lib- eral Shawn, visitation and to make appropriate changes to child-support arrangements. (Petitioner later filed two ver- amended sions of this petition modify, sought but each essentially same relief.) On August petitioner moved for custody temporary of Shawn pending on hearing her so petition that Shawn modify could be enrolled in the schools, Salem were scheduled to com- mence August classes on 30. That motion was denied when respond- ent decided to relocate to begin Salem too and Shawn able to school there without immediate alteration his parents’ rights. On June further petitioner moved the court for leave take from Nashville, Tennessee, Shawn the State of Illinois to petitioner’s where new husband had secured employment.
Respondent opposed the petition to did not modify, want Shawn removed state, from the requested that the court award him per manent and control of the child. Pursuant to section 605 of the Illinois Marriage and Dissolution Marriage *4 1983, 40, ch. par. 605) the court the of Department directed Children and Family (DCFS) investigate Services the cus respective parties’ arrangements todial for findings. Shawn and to on its report submit That report (hereinafter referred to as the home study report) by 30, filed DCFS on 1985. On May June Shawn was inter viewed in by presiding chambers the Counsel for the judge. parties Thereafter, were present. 18, 27, on June 19 and a hearing was held on the of petitioner’s merits motion to remove Shawn from Illinois and petition 28, On June modify. the court ruling issued a from the on bench these pleadings, requested but that counsel prepare an ap- propriate order, written did. they That order was filed court on August 30 and amended on December to re- pursuant spondent’s post-trial order, motion. In amended, as the court de- nied petitioner’s petition to modify granted respondent’s request that he be given primary physical Shawn, of custody subject to liberal visitation but by petitioner, refused to formally terminate joint cus- Petitioner tody. appeals. now
Section 603.1(c) Marriage Illinois and Dissolution of Marriage Act (Ill. Rev. Stat. ch. par. 603.1(c))provides that “[a]ny joint order of may upon modified terminated petition one or both parents or on the court’s own motion under standards Section 610.” Section 610(b)(Ill. Rev. Stat. ch. 40, par. 610(b)) prohibits a modification of custody unless the court finds clear and convincing evidence that both: a change of cir cumstances has occurred and (2) modification of the prior custody to serve the necessary best interests of the child. (Vollmer v. Mattox 137 Ill. 313.) The order at issue here makes detailed findings regarding second of these requirements, but is silent as to the first. The explanation this omission appears be that the parties never disputed that peti tioner’s decision to move as just Shawn was about to start school would, fact, constitute a change of circumstances within the mean ing the statute. Because the court failed to that it specify relied on this change of circumstances in decision, its making however, peti tioner contends that the court’s order is technically deficient. Such is not the case. Act 84—795 repealed
Public section 603.1 and amended sec tion 610(b) to provide court shall state in its decisions spe “[t]he cific findings of fact in support of its modification or termination of joint if either parent opposes modification or termination.” (I ch. par. 610(b).) not, That Act did how ll. ever, become effective until after January the order at issue here was entered and the appeal filed. Pursuant 801(d) section the Illinois Dissolution of Marriage Stat. Rev. par. 801(d)), Public Act 84—795 is therefore inapplicable Rather, this case. we must review circuit court’s order ac cordance with the law effect at the time that the en order was tered. In re Marriage Brown (1984), 831, 834-35, *5 612, 614-15. 469 N.E.2d 1, 5-6, 484 137 Ill. 3d App. (1985), v. Mattox
In Vollmer modifica custody reverse a court did 311, 313, a of this panel N.E.2d section the same version for failure to with comply tion order on the 610(h)) par. ch. (Ill. here Rev. Stat. 610(b) involved findings sufficiently specific make that the order failed to grounds panel The Vollmer the in circumstances. concerning requisite change 77 Ill. 2d Custody (1979), in its decision In re Harne guided was explicit our court stated that supreme 396 N.E.2d wherein earlier under an version “indispensable requirements” findings were courts, 414, 420, 499, 501.) 396 N.E.2d Other Ill. 2d (77 of the law. custody held that similarly Harne have In following Custody re re must findings such be orders do not contain modification Ill. In re Carter (See, e.g., Custody versed. Blonsky 439, 441, Custody In In re 1177-78.) however, the N.E.2d Court, Division, Fourth In re distinguished First District Appellate specific findings Harne and concluded that are not neces Custody of where, here, sought to modified sary provided as change requiring and the in circumstances modification joint custody which, like the agree Blonsky established. We indisputably bar, case at involved a situation where the onset of the child’s school change arrangements in in order to serve years required interests. we find that the trial court Accordingly, child’s best failing change here not err in to articulate the in circumstances did its order was based. upon which change
In to the absence of on the in circum findings contrast stances, did, noted, findings make extensive previously the court as interests of the child. After each of the regarding considering best Illinois of the and Dissolu 602(a) Marriage factors set forth in section Marriage par. 602(a)), tion of Act following court reached the conclusion: case, in
“Although this is a close two factors the scales tip [respondent]: of the father balance child, although at the of the (a) looking preference stated, child in that he would not be mad at chambers stated, if to either the child parent, he awarded judge in Edith Holsapple Department the interview with Services, that conducting study the home Family Children & a little longer. he was with his dad happiest he was when of for in the Dissolution not (b) provided While of religious for consideration Act, the Adoption provides religion beliefs. It is the Court’s that opinion upbringing important a child of this age.”
Petitioner objects to the court’s reliance on the made statements by Shawn the home study report on the grounds Shawn was not mature sufficiently age at six to intelligently express as to that his custody, statements were not made under conditions as- suring trustworthiness, their that petitioner was denied the opportu- nity to cross-examine the of Children and Ser- Department Family statements, investigator vices that the statements are regarding mere made hearsay, and that the statements contradicted remarks to the find- Shawn trial court in that the court’s agree chambers. We *6 ings regarding preference Shawn’s were we improper, but do not reach the merits of these for there are particular objections, more fundamental flaws with court’s decision.
First, the court’s apparent belief that Shawn preferred being is not respondent evidence, if supported by even we assume that Shawn’s statements in the home are study report not inadmissi ble as In the hearsay. report done while Shawn was re staying with spondent, the investigator reported Shawn as said that he having was,” “liked it custody arrangement] the it a way point omitted [the by trial court. The trial court further omitted reference to the conclusion by investigator drawn after her interview with Shawn petitioner’s at home that this point feeling Shawn is the strain “[a]t his battle. He loves them and doesn’t re parents] both [his ally want anything changed.” When Shawn was interviewed cham bers, this is the exchange took place:
“Court: So won’t you be if I tell upset you that are you going to live with mom and your you won’t be if I tell upset you you have to live with your dad?
Shawn: No. Court: So either way you would happy? be Shawn: Yeah.”
In evidence, view of this we cannot see how Shawn can reasonably be said to expressed have a preference favor of respondent.
Second, assuming Shawn’s remarks could somehow be con strued as favoring we respondent, nevertheless do not that the believe trial court should have relied on Shawn’s wishes in deci reaching its sion on the present facts here. Although 602(a) section the Illinois Marriage 1983, and Dissolution of Marriage par. 602(a))provides that a child’s wishes as to his custodian are a rel evant factor to be considered the court in by determining the child’s interests, best those wishes should affect the court’s decision only
153 his where child’s is based reasons related to best preference upon 951, 956, interests. (Garland (1974), v. Garland 3d 312 case, N.E.2d In 815.) given, this no reasons of kind were ei any ther in the home or in the study report interview conducted court in No citation of or authority chambers. elaborate analysis that, proposition six-year-old’s wishes necessary support may If actually influenced factors which are inimical his welfare. Shawn does indeed there is prefer custodianship respondent, simply no to ascertain from way this record whether that is based upon considerations which will in advance his best impede terests. Shawn’s professed preference, is, such as it thus contributes nothing toward resolution of this case.
Petitioner next argues that the court’s consideration of the parties’ religious beliefs violates the establishment clause of the first Const., amendment to the United (U.S. States Constitution amend. I). Again agree. we In re Marriage (1980), Ford 91 Ill. App. 3d 546, 550; 415 N.E.2d Kjellesvik v. (1976), Shannon Ill. App. 674, 678, 3d 124; N.E.2d and Wilner v. Wilner Ill. App. 898-99, 2d 266 N.E.2d each held that the ad mission of evidence regarding parent’s religious not, affiliations did itself, constitute cases, reversible however, error. those the ap pellate courts understood the evidence to have been admitted simply as a gaining means of “insight into the entire family re picture.” (In Ford 91 Ill. App. 550; Kjellesvik v. Shannon (1976), 41 Ill. N.E.2d 124.) More importantly, the appellate rulings courts’ were *7 expressly premised on fact that the trial courts’ decisions had not been or influenced determined by question of religious preference. This case is different. As quite indicated, previously the trial court here specifically religion cited as the second of the two factors which the scales” in favor of “tip[ped] respondent.
The us only record before shows that petitioner is an Episcopalian husband, III, and her Peter Catholic, Zueco a but neither attends church. on the Respondent, hand, other is a regular churchgoer. He attends services on Sundays and in participates church-sponsored acti- addition, In vities with Shawn. Shawn told the trial in cham- judge, bers, that he to goes father, church with his but has not been to his facts, mother’s church. Given these limited we interpret the trial court’s decision as being premised on the belief active participa- tion in an organized religion given should be preference over a more form of faith in passive religious awarding child Such a custody. belief cannot countenanced this be court. Const., (U.S.
The of the establishment clause first amendment or I) “favoring amend. State Federal the tenets prohibits and action any religion religion (McDaniel adherents or over nonreligion.” 618, 638, v. Paty (1978), U.S. 55 L. Ed. 2d 98 Ct. S. 1322, 1334 (Brennan, J., concurring).) determining govern- whether mental clause, action offends the establishment a court must apply tripartite test established Lemon v. Kurtzman 403 U.S. 602, 745, 29 L. 2d Ed. 91 Ct. 2105. That test requires: (1) S. that the action have a purpose, (2) secular that its principal primary or effect neither nor religion, advances inhibits and that it does not foster entanglement an excessive religion. (403 612-13, with U.S. 29 L. 91 S. 2111.) Although Ed. Ct. test was this devel- enactments, of statutory the context we that it oped applies believe to as to equal custody. force determinations child See judicial Note, The Dis- Religion Custody Establishment and in Child Clause putes: Factoring L. Religion Equation, into the Best Interest 82 Mich. (1984). Rev.
To muster, constitutional pass governmental action as challenged violative establishment clause must meet all three of the afore- (See mentioned criteria. v. Lemon Kurtzman 403 U.S. 612-13, 29 L. Ed. 91 S. 2111.) Ct. The trial court’s decision here does not.
The record no suggestion religious beliefs, contains that the lack thereof, or of either parent pose of, a substantial threat would in, physical, result actual emotional or mental (See Shawn. injury Bonjour Bonjour (Alaska 1233, 1240; v. 1979), Quiner 592 P.2d v. Quiner (Cal. App. 1967), 59 Cal. Rptr. such 516.) Absent evi dence, we cannot see how awarding respondent Shawn advances secular A any purpose. “religiousness,” party’s standing alone, is an guide uncertain to his as a parent. fitness As our supreme court noted than a century ago: more
“It is unnecessary say, church, that a woman attend may school, in a may teach Sabbath play both and piano organ, wholly be unfit be the a yet girl mistress over reared tenderness and affection ***.” Hewitt v. Ill. Long (1875), 76 399, 402-03.
While religion consideration of may proper where child shown to actual religious (see Bonjour Bonjour have needs v. (Alaska 1979), 1242; Developments P.2d the Law: The Constitu- Family, tion and the 93 Harv. L. 1339 (1980)), Rev. this is not nor such case. Neither Shawn other any questioned witness *8 what, if preferences determine any, personal religious Shawn might that of say have. One therefore cannot Shawn’s exercise his own reli- he gious (assuming, arguendo, beliefs that mature to sufficiently an intelligent opinion subject) have formed on the would be better ac- commodated, might thwarted, or one or parent be the other. To to of Shawn under these respondent award circumstances is a religious per to that environment is beneficial providing conclude se however, benefits, believe, to that the intrinsic if a child’s welfare. We of of power an are a civil any, “upbringing religion” beyond court to It is for in and of comprehend. religion, this reason that very itself, play judicial must no role in to child custody. determinations as In the of the Appeals: words California Court of because a
“Precisely another, court cannot know one way or degree with any of or certainty, proper sure road to per- security sonal and happiness religious salvation, or to which lat- ter to untold millions is their primary ultimate best inter- est, a valuation of religious training and its teaching and projected as distinguished from immediate effect (psychologists to psychiatrists the contrary notwithstanding) upon mental and physical, child, emotional well-being of must be judicial from forcibly determinations. kept profound Numerous bad, religion thinkers have fixed convictions that all is particu- so in larly rearing right If court has the children. religious weigh beliefs or lack them of one parent against other, those of the for the purpose making the pre- cise conclusion as one for the best interests aof child, we a Pandora’s can open box which never be By closed. their very religious nature are subject evaluations question, disbelief, and difference of or opinion. Whether not this was “foresight” planners, our constitutional the First in conjunction Amendment Fourteenth solves it problem; legally prohibits such religious evaluations.” (Em- Quiner phasis Quiner v. original.) (Cal. 59 Cal. App. 1967), Rptr. 516-17. if the
Even circuit court’s respondent’s reli gious practices would advance some secular it never purpose, would theless fail the second prong Lemon test and imme by directly diately advancing religion. The principle primary giving effects preference to parents who are active adherents of organized religion will (1) to punish parents who do not going believe God or church it by making likely they gain less will their children (Note, The Establishment Clause in Religion and Child Cus tody Disputes: Factoring into the Religion Best Interest Equation, antire- encourage nonreligious, (1984)),
Mich. L. Rev. *9 religious prac- in parents engage to disinterested ligious, simply sincere, to increase the num- (3) if their are not and tices even beliefs goes beyond households. This religious of raised in children ber not neutrality religion, benevolent towards while accommodation and (Bonjour exercise clause. the free protected by values advancing any 1233, It the 1243.) places Bonjour (Alaska v. 1979), authority, 592 P.2d orga- on the side influence, power government and of the support is de- the establishment clause a nonsecular result that religion, nized signed to prevent. first two require- the thus fails the
Because trial court’s decision 745, L. 2d Lemon v. Kurtzman 29 Ed. (1971), ments U.S. factor, it fos- need address the third whether 91 S. we not Ct. Nor need we address its entanglement religion. an ters excessive our State constitution. validity under is matters, the trial court vested with broad child-custody review, in the best interests
discretion, determining where subject in a to deter position lie. the court is superior of the child As trial interests, will not be disturbed its determination mine the child’s best the the evi against weight manifest clearly unless it is on review v. (Kjellesvik Shannon an of discretion. represents dence or abuse For the rea 124.) Ill. 3d (1976), above, however, that the trial here forth we believe court sons set for professed preference in on Shawn’s relying abused its discretion practices the as the determinative custodianship parties’ religious and must Accordingly, judgment its the court’s making factors in decision. case for a determination as cus and the remanded new be reversed the cir argument, final that ruling, petitioner’s In view this tody. the weight manifest contrary cuit otherwise court’s evidence, reached. the need not be and remanded.
Reversed
EARNS, P.J., concurs. EASSERMAN, concurring: specially JUSTICE court, in of the that the trial majority I with the conclusion concur awarding custody, in abused its the factors considering determinative parties’ of the on: (1) professed discretion relying I also religious parties’ practices. custodianship son for trial court remanded cause must be agree that instant custody. as to new determination
Although agree
I
with this
of the decision of
I
aspect
the majority,
would
at
also reverse and remand the case
bar on the
basis
trial court failed to comply with the
of In re
requirements
Custody Harne
77 Ill.
Section Illinois and Dissolution of Marriage par. requires 610(b)), finding by the change trial court that a of circumstances has occurred. The majority recognizes Harne, finding that under the decision in an that a express change in “indispensable require circumstances has occurred is an ment.” The further majority recognizes that this court dic applied tates of Harne Vollmer v. Mattox
N.E.2d reversed trial court for its failure to make suffi ciently specific findings concerning the requisite change circum stances. In of this spite precedent, majority chooses follow an earlier of the Appellate decision Court for the First District in In re *10 Custody (1980), 84 Ill. Blonsky 405 N.E.2d which attempted distinguish Harne. I see no reason for this court in the instant appeal depart from the rationale of Harne and the prior decision of this court in v. Vollmer Mattox.
Furthermore, as stated by the majority, Public Act 84—795 has been amended to provide that the court shall state in its decision “specific findings of fact” in support of its modification termina tion if joint either parent opposes modification or termination. (Il par. 610(b).)In this Illi regard, l. nois courts recognized have that it proper consider a subsequent amendment as an expression of legislative intent original as statute. In re Marriage Semmler 107 Ill. 2d 716, 719; N.E.2d People v. Williams 945.
Based on the foregoing, I would also reverse the decision circuit court of Marion for its County specific failure to make the find- ings required by section 610(b) the Illinois Marriage and Dissolution of Marriage Act and would remand the instant cause to the trial court for the purpose making findings. such