text:
      In re MARRIAGE OF JANET A. CREEDON, Petitioner-Appellant, and TIMOTHY J. CREEDON III, Respondent-Appellee.
    Third District
    No. 3 — 92—0425
    Opinion filed June 3, 1993.
    Roger B. Gomien, of Gomien, Root & Rigazio, of Morris, and Karen K. Jesiolowski, of Coal City, for appellant.
    Melvin H. Hoffman, of Hoffman, Mueller, Creedon & Twohey, of Ottawa, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Petitioner Janet Creedon filed a petition in the circuit court of La Salle County, seeking leave to remove the parties’ minor children to the State of Texas. Her former husband, respondent Timothy J. Creedon, objected. The trial court denied the petition and petitioner appeals. We affirm.

Petitioner and respondent were married in August 1976. They have two minor children, Timothy, born August 7, 1978, and Kyle, bom May 23, 1980. On January 6, 1992, the trial court entered an agreed judgment for dissolution of marriage awarding joint custody to the parties, with physical custody of the children to petitioner. Fifteen days later, on January 21, petitioner filed a petition for leave to remove the children from the State of Illinois pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 609).

At the hearing, petitioner, age 45, testified she currently resides in Ottawa, Illinois, with her two children. Petitioner moved to Ottawa, respondent’s hometown, after her marriage and resided there during most of the marriage and all of the children’s lives. Petitioner desires to move to Burleson, Texas, where her only sibling, a brother, resides. Burleson is about 30 minutes from Dallas and has a population of 20,000. It is located about fck hours from Burton, Kansas, where petitioner was raised and where her parents still reside. Petitioner has maintained close contact with her brother and parents even though they are a 12-hour drive from Ottawa. Timothy and Kyle have regularly traveled to see petitioner’s family during Christmas and other holidays and have developed a good relationship with them. Petitioner’s brother has two sons near in age to Timothy and Kyle, and the cousins enjoy playing together.

Petitioner stated that respondent left the marital home in May 1991. He initially agreed to allow petitioner to move to Texas with the children, and she began investigating the Burleson area during that summer. Petitioner believed respondent changed his mind in October 1991. She testified that respondent exercised visitation with the children sporadically during the summer and fall of 1991 but has regularly kept the children every other weekend since January 1992.

Petitioner, an elementary school teacher, initially desired to move to Kansas but found her opportunities for employment more favorable in Texas. She has taught full-time in Ottawa since 1985 and has an excellent reputation with peers and parents. She currently earns $31,961, which would increase to $32,700 next year. Petitioner would then be frozen at that level for eight years unless she completes additional college credit hours. She has 21 hours toward her master’s degree but needs 36 hours to be eligible for a higher salary. Although the appropriate courses may at some time be offered locally, she would most likely have to drive to De Kalb for the courses, 45 miles from Ottawa. Petitioner is tenured in her present position.

Petitioner recently visited Burleson and inquired into available teaching positions there. She submitted into evidence a letter from the Burleson School District which stated that she had an excellent chance for employment and with her work experience she would probably begin at $29,500. The Burleson district has a merit ladder for which petitioner would be eligible after one year. Petitioner could receive a $1,500 bonus for favorable testing scores. After teaching in the Texas school system for five years, she could also earn $3,000 over her base salary with high points on evaluations and extra coursework. The appropriate classes are available at a college 20 minutes from Burleson.

Petitioner investigated Burleson schools for Timothy and Kyle and found them to be of comparable quality to those in Ottawa. The children would also benefit from the opportunity to play on a junior high school tennis team, an opportunity not available in Ottawa. Petitioner looked at houses in several locations and found busing to be convenient for the children. Petitioner compared housing, food, taxes, and other community services and found the cost of living to be comparable or less than in Ottawa. Petitioner proposed a visitation schedule if allowed to move to Texas. She suggested the children stay with respondent for an extended period of five or six weeks during the summer and additionally for the longer breaks during the school year. The record indicates petitioner has never interfered with respondent’s scheduled visitations.

Respondent, age 39, testified he is a practicing attorney in Ottawa. He has been granted and has regularly exercised visitation with the children on alternate weekends since the dissolution. Respondent attends the children’s sporting events, assists with coaching, and occasionally attends meetings with teachers. He admitted visitation does not always go well and characterized his children as “hesitant” when with him. He admitted their relationship was sometimes “stormy.” On occasion, petitioner has had to be firm with the children about going to visitation with respondent because they did not want to go. Sometimes the children requested to go home early. Respondent admitted that petitioner usually puts the children’s welfare before her own and that petitioner would be more at ease being close to her family.

The trial judge conducted in camera interviews with both Timothy and Kyle, but properly declined to ask the children directly where they preferred to live. We have carefully reviewed the in camera testimony and choose not to discuss it further here. The in camera testimony adds little to the other testimony presented at trial; unnecessarily revealing it would destroy one of the reasons for taking the testimony in camera in the first place, and it is important that children not be forced to choose between their parents (or led to believe that it is their decision which is controlling). Of course children sometimes have something which they very much wish to say and, in those cases, the trial court should be available for an in camera hearing.

The trial judge denied the petition for removal. The judge found some familial benefits and possible future career benefits in moving and indicated petitioner’s motives in relocating were sincere. She commented that “Wherever they (the children) live with their mother I’m confident that they will be well taken care of and very happy.” However, she found it compelling that the move would affect the stability of the children since they have many friends in Ottawa. The judge concluded that the children need to maintain significant contact with both parents, and with their friends in Ottawa as well. The judge found no realistic or reasonable visitation schedule was available should petitioner move with the children to Texas.

Removal of a child from Illinois by the custodial parent is governed by section 609 of the Act, which provides in part:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” Ill. Rev. Stat. 1991, ch. 40, par. 609(a).

In interpreting this Act, it is relevant to consider that the children of divorced parents are a disadvantaged group even under ideal circumstances. It is important for divorced parents to work together to lessen the impact of their problems upon their children. Unfortunately, children are often the only thing left for divorced parents to fight over. We do not suggest that is the case here, but the possibility is one which must be kept in mind in all cases.

There are strong arguments on each side of the question whether a custodian should be able to remove a child from the State. The child’s visitation with the noncustodian is important, not just for the noncustodian, but for the happiness and successful development of the child. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 327-28, 518 N.E.2d 1041, 1045-46.) A custodian should not be allowed to employ removal as a weapon, especially in light of the severe statutory limitations placed upon restriction or termination of visitation. (Ill. Rev. Stat. 1991, ch. 40, par. 607(c).) On the other hand, noncustodians should not be allowed to use objections to removal to satisfy their spite or as a bargaining chip. Noncustodians need not seek leave of court to move out of State, or to marry persons living out of State, and that fact should be considered when a custodian seeks to do the same. Cf In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 465, 574 N.E.2d 1364, 1368 (“Custodial parents and their spouses must remember that they do not make decisions in a vacuum. Decisions must be made in an environment in which the best interests of the children are paramount”).

Some divorce rights advocates see this issue in absolute terms and feel that removal should usually, or rarely, be allowed, depending upon the group for which they are advocates. (See, e.g., Toback, “Removal: A Historical and Practical Perspective,” 1992 Ill. Fam. L. Rep. 229.) It is important that the courts be evenhanded in deciding these cases. (See In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 1082, 576 N.E.2d 578, 581 (“[t]he inquiry becomes not what is ‘fair’ or ‘unfair’ for each parent, but what is best for the affected children”).) Complaints about the unpredictability of these decisions, and the lack of black-letter rules, to some extent reflect a refusal to accept that the resolution of these cases requires a balancing process. The supreme court has wisely refused to take a one-sided approach: “A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.

Among the factors which Eckert saw as especially significant was the “likelihood [of the move] for enhancing the general quality of life for both the custodial parent and the children.” (Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045.) It is significant that custodial parent and children are both mentioned in that sentence; it is sometimes difficult to consider what is good for one without considering what is good for the other. It is not always necessary, on a petition for leave to remove, to show some direct benefit to the children. (Carlson, 216 Ill. App. 3d at 1081, 576 N.E.2d at 580; In re Marriage of Ballegeer (1992), 236 Ill. App. 3d 941, 945, 602 N.E.2d 852, 855; In re Marriage of Miroballi (1991), 225 Ill. App. 3d 1094, 1098, 589 N.E.2d 565, 568.) “[I]f the best interests of the children would not be affected by a move to another State, the custodial parent should be free to move.” (Emphasis added.) (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) The court is also to consider the motives both of the custodial parent and of the noncustodial parent. Some courts have stated that where the record contains no evidence of motive, the motive factor need not be considered. (See, e.g., In re Marriage of Davis (1992), 229 Ill. App. 3d 653, 661, 594 N.E.2d 734, 739; Miroballi, 225 Ill. App. 3d at 1098, 589 N.E.2d at 568.) Motive may also be considered in evaluating credibility of witnesses. The decision to be made in these cases is one especially within the province of the trial court. “A trial court’s determination of what is in the best interests of the child should not be reversed unless it it clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred.” Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.

A custodian’s petition for removal and a noncustodian’s petition to change custody must be decided under different sections of the Act, and there is potential for confusion if the two petitions are ruled upon at the same time. In Ballegeer, for example, the trial court granted a change of custody without considering the petition for leave to remove. Even if the petition for leave to remove would have been denied, the custodian had the right to decide to remain in the State and retain custody. (See also In re Marriage of Benson (1991), 217 Ill. App. 3d 564, 567, 577 N.E.2d 867, 870 (if a custody petition is unrelated to a removal petition, a trial court is not required to rule on the removal petition first).) Nevertheless, where the custodian will choose to leave the State without the children if the petition for removal is denied, a trial court which does not consider whether the children are better off out of State with the custodian, or in State with the non-custodian, is ignoring reality. In Berk the court stated, “Karen has made her choice to move to Humboldt. She must now live with the consequences of that decision.” (Berk, 215 Ill. App. 3d at 465, 574 N.E.2d at 1368.) It is certainly true that courts should not be intimidated by “irrevocable” actions of parents, and that custodians must live with the consequences of their decisions. Still a court must not abandon consideration of the best interests of the child when a parent whom the court would prefer remain in the State of Illinois determines for his or her own reasons to leave.

Stability is important for divorced children, as manifested by several provisions of the Act. (Ill. Rev. Stat. 1991, ch. 40, pars. 602(aX3), (aX4), 610.) Moving children to another State is often disruptive, but children in intact families move from one State to another without any court involvement. Visitation with the noncustodial parent is important. “When a parent has assiduously exercised his or her visitation rights, ‘a court should be loath to interfere with [those visitation rights] by permitting removal of the children for frivolous or unpersuasive or inadequate reasons.’ ” (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) Regularity of visitation, as opposed to the total number of days per year, may be important. In some cases a longer, uninterrupted period of visitation might have advantages over short but regular visitation (In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325), but that is probably exceptional. Large blocks of consecutive visitation may be traumatic to children. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 131, 416 N.E.2d 785, 790; In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 264, 547 N.E.2d 590, 598 (custodial parent should be allowed contact with the child during lengthy periods of visitation).) Visitation is meant as a benefit to the child, not as an entitlement which the noncustodian may insist upon at all costs. Visitation which takes a child away from his friends and activities during an entire summer may be worse for the child than no visitation at all.

It is striking that the parties here agreed that a judgment of dissolution would be entered in which they would have joint custody, and petitioner was awarded the marital residence, but 15 days later petitioner sought leave to remove the children from the State. It seems obvious that petitioner sought to obtain the benefits of the agreed order but not bear the burdens, at least as far as the agreement contemplated that petitioner would continue to reside in Ottawa. Whatever other remedies respondent may have, however, it is clear that petitions for leave to remove are governed by section 609 of the Act, despite the fact that joint custody has been agreed to or awarded. (In re Marriage of Yndestad (1992), 232 Ill. App. 3d 1, 7, 597 N.E.2d 215, 219; In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 744, 559 N.E.2d 1150, 1152.) Still, to the extent that an order of joint custody actually reflects a closer than customary relationship between the noncustodian and the child, the existence of a joint custody order may be considered in determining whether removal is in a child’s best interests. Yndestad, 232 Ill. App. 3d at 7, 597 N.E.2d at 219; In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 711, 496 N.E.2d 1149,1153.

The trial court could properly have found here that no compelling reasons justified petitioner’s proposed move. Petitioner testified to future economic benefits which could be available, but for the most part the move would appear to be a lateral one. Petitioner has a good job in Ottawa and is well thought of by her employers. This is not a case like In re Marriage of Good (1991), 208 Ill. App. 3d 775, 778, 566 N.E.2d 1001, 1003, where the court commented that custodial parents should not be expected to give up careers for the sake of remaining in the same geographical location. We recognize that Ottawa is respondent’s hometown and that petitioner moved there only after the marriage. Nevertheless petitioner has resided in Ottawa for a substantial period of time, has adapted well and made friends, and Ottawa is the only home the children have known. We understand petitioner’s desire to be near her parents, but petitioner does not propose to move to the town where her parents reside, but to a location some 6V2 hours distant. In some of the reported cases the custodian is placed in a quandary, whether to remain in Illinois with her children, or to leave the State to be with a new spouse who has ties to another State. That quandary is not present here. The trial court could properly have found that lengthy summer visitation, and infrequent visitation on other occasions, would not be a satisfactory substitute for the regular visitation which now exists. The fact that problems exist between the children and respondent may be another reason for not allowing a lessened visitation schedule. The language of Jaster applies here as well: “While the mother’s evidence may have supported a contrary conclusion by the trial court, the evidence also supports the conclusion before us on review.” In re Marriage of Jaster (1991), 222 Ill. App. 3d 122,128, 583 N.E.2d 659, 663.

Affirmed.

KNECHT and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    WILLI R. RAABE et al., Plaintiffs-Appellants and Plaintiffs-Appellees, v. MESSIAH EVANGELICAL LUTHERAN CHURCH OF PORT BYRON et al., Defendants-Appellees (Brinkman and Pessman Lumber Company, Defendant-Appellant).
    Third District
    No. 3-92-0578
    Opinion filed June 3, 1993.
    Stewart R. Winstein and David L. Cunningham, both of Winstein, Kavensky & Wallace, of Rock Island, for Willi R. Raabe and Diane R. Raabe.
    Robert T. Park, of Katz, McAndrews, Balch, Lefstein & Feiweger, of Rock Island, for appellant Brinkman and Pessman Lumber Company.
    John D. DeDoncker, of Lane & Waterman, of Davenport, Iowa, for appellee Messiah Evangelical Lutheran Church of Port Byron.

      Mark A. Woollums, of Betty, Neuman & McMahon, of Davenport, Iowa, for appellees J. Darwin Olsen and Susan Olsen.
   JUSTICE BARRY

delivered the opinion of the court:

As a result of the flooding of their home in Port Byron, Illinois, plaintiffs Willi and Diane Raabe brought an action to recover damages and to secure an injunction against the owners of certain realty across Highway 84 from them. The trial court entered summary judgment in favor of defendants Messiah Evangelical Lutheran Church (hereafter Church) and Darwin and Susan Olsen (Olsens) and denied summary judgment as to the other defendant, Brinkman & Pessman Lumber Co. (Brinkman). Two appeals were filed: Plaintiffs appealed from the summary judgments entered in favor of defendants, the Church and the Olsens, while we granted Brinkman leave to appeal from the denial of its motion for summary judgment. The two appeals have been consolidated before this court.

The facts of this case are straightforward. Since 1974 plaintiffs have owned a home in Port Byron on the west side of Route 84, downhill from the premises owned by defendants on the east side of the highway. In 1979 the Church constructed a parking lot on its property and changed the grade of its land. According to plaintiffs’ deposition testimony, immediately after the parking lot was constructed plaintiffs began to experience flooding each time there was a heavy rain. Gravel and mud would wash onto the highway, and water would overflow the drainage ditch along the highway and enter their home at least once each year.

Plaintiff Willi stated that heavy rains also caused water to flow from the Church parking lot onto the property of Brinkman Lumber Co. just north of the Church. Plaintiff saw deep ruts in the Brinkman property after each heavy rain. In 1981, Brinkman built a fence, designed like a wall, to keep the water from flowing onto its land. Plaintiff stated: “And what happened now was all the water that would run across their property would hit the wall [fence] and be channeled back into the church driveway, and then it just had like a water fall coming down the driveway, and then it would catapult all the way across to my side.” After the fence was built, the flooding of plaintiffs’ property became more intense.

The culmination of plaintiffs’ problems occurred in June of 1990 when an unusually heavy rain washed out their driveway and flooded their entire home at least ankle deep. Dirt and gravel from the Church parking lot also washed onto Route 84, making it impassable for several hours. Later, plaintiffs discovered that the foundation of their home was cracked so that water seeped through the foundation and flooring. Due to its proximity to the Mississippi River, the house was built on a slab.

Plaintiffs filed their complaint seeking an injunction and damages against defendants in 1991. Count I alleged that the Church’s installation of a parking lot changed the natural flow of water on their premises diverting the storm water runoff to the highway ditch located on the east side of Highway 84. Plaintiffs further alleged that when excessive amounts of rain fell on June 16, 1990, and prior thereto, the rain water was diverted from the ditch across Route 84 onto plaintiffs’ premises. Plaintiffs’ also alleged various acts amounting to negligent construction of the parking lot. They sought recovery for damages to their property in the amount of $13,915 and for loss of value due to the foundation crack, $32,000. In addition, plaintiffs requested an injunction to order the Church to restore the original grading or to install a storm sewer system to provide for the runoff of surface water.

Count II of the complaint alleged that defendant Brinkman installed a fence along its east and south property line to act as a barrier to divert the storm water runoff into the drainage ditch and across Route 84 and that, as a result of the construction, plaintiffs’ property was flooded on June 16, 1990, and prior thereto. Plaintiffs sought money damages and also an injunction to require removal of the fence and restoration of natural drainage.

Count III contained allegations that defendants Olsen purchased a portion of the Church premises on March 1, 1990, and that these defendants have not altered the parking lot or drainage which continue to cause damages as a result of the parking lot installed by the Church. Money damages and an injunction are requested as against the Church in count I. An additional count against other purchasers of a portion of the Church property was dismissed because their purchase occurred after the June 16, 1990, flooding of plaintiffs’ property. The dismissal of count IV is not challenged in this appeal.

Our first concern on appeal is whether the trial court erred in entering summary judgment in favor of the Church and the Olsens. Examination of the memorandum of opinion filed in the circuit court discloses that the trial court held that plaintiffs’ cause of action is not barred by the five-year statute of limitations in section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-205) (now 735 ILCS 5/13-205 (West 1992)). Section 13 — 205 applies, inter alia, to causes of action to recover for damages to real property. The court then ruled that plaintiffs’ alleged cause of action against the Church and the Olsens was based upon an act or omission in the construction of an improvement to real property, the Church parking lot, and, therefore, was barred by the four-year statute of limitations contained in section 13 — 214 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-214) (now 735 ILCS 5/13-214 (West 1992)). The court found that the time of plaintiffs’ discovery of the cause of action against the Church was not later than April 7, 1980, the date these same plaintiffs filed a prior suit against the Church and others for damage to their home and yard as the result of water and mud flowing across Route 84 onto plaintiffs’ property following the construction of the parking lot. The 1980 litigation was ultimately dismissed with prejudice following an undisclosed settlement.

The rules of law applied by the trial court in this case were those set out in Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 688, 456 N.E.2d 904, as follows:

“When a structure is placed on dominant land which unreasonably increases the flow onto the servient land, a cause of action may accrue upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction. [Citation.] If, however, the structure is not apparently injurious, but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury. [Citations.] The fact that flooding may be uncertain in time, duration and extent does not prevent an improvement, which displays obvious potential to cause an unnatural overflow upon completion, from constituting an immediate, permanent injury.”

Plaintiffs argue that, where recurrent and intermittent overflows are caused either by negligent use or operation of the structure or by natural phenomena and not as a necessary or direct result of the construction, then the limitations period runs from the last overflow. (Kurtz v. County of Logan (1987), 158 Ill. App. 3d 715, 511 N.E.2d 252.) Kurtz v. County of Logan involved facts similar to those in the case before us. After defendant county replaced a bridge and straightened the highway adjoining the plaintiffs’ farmland, plaintiffs began to notice flooding of their fields after hard rains, beginning in 1977. The appellate court ruled that there was at least a factual question as to whether a separate harm is done to the plaintiffs each time their fields are flooded so that the statute of limitations begins anew for damages caused each time. Kurtz involved the five-year statute of limitations barring causes of action for damage to realty as set forth in section 13 — 205 of the Code of Civil Procedure.

The trial court here held that plaintiffs’ damages were not caused by the manner in which either the parking lot or the fence was used, but rather by the construction of both without modification of the drainage system. In our view, the distinction between damage caused by use and that caused by construction is not determinative here due to a recent decision of the Illinois Supreme Court clarifying the law relating to causes of action for flooding.

In Meyers v. Kissner (1992), 149 Ill. 2d 1, 594 N.E.2d 336, in 1977, defendants constructed large earthen levees along the banks of the Skillet Fork River on their property, upstream from plaintiff’s land, to prevent flooding on defendants’ property. Almost at once, the river channel became deeper and wider and the water current stronger. The quality of plaintiff’s soil deteriorated as the land suffered erosion, washing and scouring. Plaintiff brought suit in 1986. The trial court ruled that plaintiff’s action was barred by the five-year statute of limitations in section 13 — 205. The appellate court affirmed, but the supreme court reversed, holding that the levees as constructed by defendants constitute a nuisance to plaintiff and will be treated as a continuing wrong, giving rise to repeated causes of action. In a particularly cogent portion of its opinion, the court modified the law previously developed in cases involving sanitary districts and held:

“Since defendants’ levees constituted a nuisance to plaintiff by increasing the washing, erosion, and scouring of his land, the mere passage of five years does not change the levees’ character. ‘[T]he maintenance of a structure which will continue to cause a wrongful diversion of water upon the plaintiff’s land, in quantities varying with the seasons, is a continuing nuisance, and an invasion of the plaintiff’s right from day to day, and he may select his own time for bringing an action therefor,’ and he is not barred by the lapse of five years from the erection of the structure. [Citations.] For continuing violations such as the one at hand, the five-year statute of limitations merely specifies the window in time for which monetary damages may be recovered prior to the filing of the complaint. Thus, we hold that this ease falls within the ordinary rules applicable to continuing nuisances and continuing trespasses and that plaintiff is not barred from recovering monetary damages for the five-year period preceding the filing of the complaint." (Emphasis added.) 149 Ill. 2d at 10-11, 594 N.E.2d at 488.

In the case before us, plaintiffs have alleged that the parking lot constructed by defendants caused a wrongful diversion of water upon plaintiffs’ land “on June 16, 1990, and prior thereto.” Deposition evidence discloses repeated episodes of flooding on plaintiffs’ property on an annual basis with the quantity of water varying from time to time. Applying the ruling in Meyers v. Kissner, we conclude that defendants have created a continuing nuisance with recurring injuries to plaintiffs’ property and, accordingly, that plaintiffs’ cause of action is not barred by either the four-year or the five-year statute of limitations. Instead, plaintiffs’ cause of action arises each time flooding occurs, and plaintiffs may select their own time for bringing suit. For a continuing violation such as this, plaintiffs may recover only the damages occurring in the five years prior to the filing of the complaint.

By so ruling, we interpret Meyers v. Kissner as applying to all causes of action to recover damages to real estate caused by recurrent flooding whether the cause results from the initial construction of an improvement or from its maintenance and use. Thus, the key factor here is that the cause of harm is in the nature of a continuing nuisance with recurring damages, regardless of which statute of limitations defendants seek to invoke.

Our decision applies to Brinkman’s fence as well as to the parking lot constructed by the Church and owned by the Olsens. Hence, we need not determine whether the fence qualifies as an improvement to real estate within the meaning of section 13 — 214. We hold, in effect, that neither section 13 — 205 nor section 13 — 214 is a bar to plaintiffs’ cause of action.

Defendant Church argues that plaintiffs’ cause of action is barred by the doctrine of res judicata since plaintiffs’ previous cause brought in 1980 was dismissed with prejudice, thereby acting as an adjudication on the merits as to all matters within the original complaint. (See Reynolds Metals Co. v. V.J. Mattson Co. (1984), 125 Ill. App. 3d 554, 466 N.E.2d 357.) As we have previously indicated, recurring damages caused by flooding of plaintiffs’ property give rise to a new cause of action each time flooding occurs. Plaintiffs can, of course, only recover once for each instance of damage, and then only for damages incurred during the previous five years, but their cause of action here is not barred by res judicata.

For the reasons stated, we reverse the order of the trial court entering summary judgment in favor of defendants Church and the Olsens, affirm the denial of Brinkman’s motion for summary judgment and remand this cause for further proceedings against defendants Brinkman, Church, and the Olsens consistent with this opinion.

Reversed and remanded.

McCUSKEY, P.J., and BRESLIN, J., concur.


author: JUSTICE BARRY JUSTICE SLATER,

text:
      In re MARRIAGE OF ROBIN R. JOHNSON, f/k/a Robin R. Sims, Petitioner-Appellant, and WAYNE C. SIMS, Respondent-Appellee.
    Third District
    No. 3 — 91—0908
    Opinion filed June 4, 1993.

      SLATER, J., specially concurring.
    STOUDER, J., dissenting.
    Olivero & Olivero, of Peru (Lisa Olivero, of counsel), for appellant.
    Trimble, Angel, Isaacson & Tracy, of Princeton (Daniel F. Tracy, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Robin Johnson, formerly Robin Sims, appeals from an order of the circuit court of Bureau County terminating joint custody and transferring physical custody to Wayne Sims, the father of the children. On appeal, Robin argues that the trial court’s order was against the manifest weight of the evidence and an abuse of discretion in that the findings of the court did not satisfy the requirements of section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 610).

Robin and Wayne were married on April 16, 1977. Three sons were born of the marriage: Billy on July 25, 1977; Donald (Donnie) on November 19, 1980; and Timothy (Timmy) on October 18, 1982. The parties were granted a divorce on October 30, 1989. The judgment of dissolution incorporated a separation agreement entered into by the parties. The agreement included a provision that the parties would have joint custody of the children with Robin having physical custody and Wayne having liberal visitation. Because Robin had trouble disciplining the oldest child, Billy, the parties in October of 1990 agreed that Billy would live with Wayne.

After the divorce, Robin continued to live in the marital home in Tiskilwa, Illinois, with the children. She was employed as the head teller at a bank in Princeton, Illinois. At first Wayne lived in the basement of his grandfather’s home in Princeton but moved into a house about four miles outside of Tiskilwa prior to the hearing in this cause. Wayne was self-employed in the lawn care business in Princeton.

Both parties testified that they had not been able to get along since the divorce. Many of their fights concerned who would have the children on certain days. Because they often could not agree, they set up a specific schedule for visitation which divided actual custody evenly between the two parents.

The parties also testified regarding an incident on February 6, 1991. The boys helped Wayne in his lawn care business, and he in turn compensated them for their work. On the day in question, Wayne left Timmy’s W-2 form in Robin’s van while she was at work, a customary means of delivering things to Robin. Robin testified that she had already filed her tax return by that date and was concerned that Timmy’s W-2 showing $700 income would cause trouble with the Internal Revenue Service (IRS) because she had taken Timmy as a dependent. That evening Robin called Wayne’s home twice and left extremely angry, threatening and vulgar messages, one relating to her IRS concerns and the other concerning an encounter with someone she described as “your little sleaze.” Because Billy was living with Wayne at that time, he had access to these telephone messages filled with profanity and vulgarities.

The most serious incident occurred on February 12, 1991. According to Wayne, Robin left a message on Wayne’s answering machine on February 10 asking if he could watch the boys on February 12 when they had no school but she had to work. Wayne called her and suggested that she drop the boys at his shop in Princeton where he would be working that day and that she pick them up there after work. When she had not arrived to pick them up by shortly after 6 p.m., Donnie called her home in Tiskilwa and left a message on her answering machine. She called back and demanded that Wayne bring the boys to her home. Wayne said he had work to do and would not be able to bring the boys home until later; if she wanted them right away, she would have to come for them. She began to swear and argue and call him names until he hung up on her. He prepared some food for the boys’ supper and then received another call from Robin demanding that he bring the boys to her at once. Again he said that he would do so “in a couple of hours” when he had finished the work he was doing, and he again hung up.

According to Robin, she then changed her clothes, got her gun (a small caliber pistol) and the clip for the gun from their separate storage places, and with the gun and clip under the seat of her van, she drove from Tiskilwa to Princeton, a trip of 15 to 20 minutes. When she arrived, she parked a little more than 10 feet from the garage door type entrance to the shop. At that time she put the clip in the gun, put the gun in her right-hand coat pocket, and went into the shop. Her account reveals a carefully premeditated plan of action to approach Wayne with a loaded gun in order to make him listen to her.

She went into the shop through the nine-foot-wide garage door and told Donnie and Timmy to go out and get in the van. She told Billy “to just get the fuck out.” The boys left, and Robin began to swear and argue about her understanding that Wayne would bring the boys to Tiskilwa after she had finished work at 6 p.m. Wayne said he had told her to pick them up at his shop, where she had dropped them off. After Robin told him he was going to listen to her, he asked her to take the boys and go home because he had work to do and didn’t want to listen to her. She then tried to slap him, and he opened the garage door and pushed her a couple steps outside. Although it was dark outdoors, she was standing in the area lit by the light shining out through the door.

According to Wayne’s testimony at trial, Robin took the pistol from her coat pocket, pointed it at him and pulled the trigger. She kept trying to fire the gun and moved the action back and forth to put a shell in the chamber. The gun still did not fire because the safety was on. When she looked down at the gun, Wayne jumped her and pushed her to the ground. While on the ground, she attempted to point the gun at him over her shoulder. He managed to get the gun and pushed it away from her while he sat on her back.

Robin had her back to the van when she first pointed the gun at Wayne. Wayne testified that the boys were screaming and crying inside the van. Wayne called to them to go into his mother’s house, which was next door to the shop, and to call the police. The boys’ crying and screaming indicated that they were frightened by the fight taking place a few feet from them.

Robin continued to yell, swear, bite, and kick. She managed to reach the gun a second time, and Wayne was able to kick it away. He finally quieted her down by putting a handkerchief in her mouth for a couple of minutes. At that point, Billy called from inside the house asking whether everything was all right. Because Robin had gone for the gun a second time, Wayne thought it necessary to tie her hands, and so he asked Billy to bring some tie straps. However, the police arrived and handcuffed Robin before Wayne had a chance to tie her. Thus, a potentially tragic situation ended without injury to anyone.

According to Robin, she brought the gun with her because she felt this was the only way she could get Wayne to listen to her. She stated that she was still upset about the W-2 incident and that whenever she tried to talk to Wayne, he refused to listen to her. She testified that she never attempted to pull the trigger but only wanted to frighten him.

As pointed out in the dissenting opinion, Wayne’s statement to the police on the night of the gun incident did not mention that Robin had tried to pull the trigger, and the trial court made no finding as to whether Robin attempted to shoot the gun. However, at the time the trial court denied Robin’s motion to reconsider, the trial court made the following comments: “[TJhere was an attempt murder because there was evidence that she was actually working the slide on the gun and he [Wayne] saw that the safety was on and got it away from her and the children, of course, had to see what transpired following that on the ground. They did get to see that and they heard the sounds.” Obviously, the trial court considered Wayne’s trial testimony to be credible.

On February 20, 1991, Wayne filed a petition to change custody, and a hearing was held in September of 1991. At the conclusion of the hearing, Wayne was granted sole custody of the three boys and Robin received visitation every other weekend. Robin has appealed.

Because the petition to change custody was filed within two years after the judgment for dissolution of marriage, the court was required to find that the requirements of section 610 of the Act had been satisfied. Section 610 provides in part:

“Modification, (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of the entry of the prior judgment, that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. *** The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” Ill. Rev. Stat. 1989, ch. 40, pars. 610(a), (b).

Since Wayne’s petition to modify custody was filed less than two years after the original custody judgment, he had to comply with the requirements of section 610(a). The policy of section 610(b) has been held to favor the finality of custody judgments and to make modifications more difficult. (In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 541 N.E.2d 245.) The effect of this section is to create a legislative presumption in favor of the present custodian, thus promoting the continuity and stability of the child’s custodial and environmental relationship which is not to be overturned lightly. In re Marriage of Kramer (1991), 211 Ill. App. 3d 401, 507 N.E.2d 422.

The standard of review in a case where the trial court orders a change in custody was held by the Illinois Supreme Court to be as follows:

“Once the court concludes that a change in custody is necessary, great deference must be accorded that decision, since the trial court is in the best position to judge the credibility of the witnesses and determine the needs of the child.” In re Custody of Sussenbaeh (1985), 108 Ill. 2d 489, 499, 485 N.E.2d 367.

In re Marriage of Spangler (1984), 124 Ill. App. 3d 1023, 1028, 464 N.E.2d 1120.

As we consider whether the judgment of the trial court is against the manifest weight of the evidence, we are required to view the evidence in the light most favorable to the appellee (Wayne). (Treadwell v. Downey (1991), 209 Ill. App. 3d 999.) Thus, we cannot disregard Wayne’s version of the shooting incident and other events, as the dissent would have us do, but instead must consider that his testimony supported the findings of the trial court. Those findings were as follows:

(1) Wayne Sims “has proven by clear and convincing evidence, based on facts that have arisen since the prior judgment, that a change has occurred in the circumstances of the minor children of the parties and their parents.”

(2) This change in circumstances “constitutes a serious endangerment to the physical, mental, moral and emotional health of the children.”

(3) These changes are as follows: (a) Robin Johnson “experiences immediate and uncontrollable anger when things go wrong”; (b) Robin “demonstrated her immediate and uncontrollable anger” in a telephone message which was recorded with her knowledge; (c) Another example of Robin’s immediate and uncontrollable anger occurred when she threatened Wayne “with a gun that had bullets in the clip while the children were present in the general area”; and (d) Robin has a violent temper which she has displayed on several occasions in the presence of both Wayne and her minor children.

(4) Wayne is a fit person to be granted custody of the minor children.

Further, upon denial of Robin’s motion for reconsideration, the trial court said, “[Robin] almost responds with a child like hysteria, anger, and lashes out with violence on occasions.”

In5 the case before us, the demeanor and attitude of the parties were critical to determining the credibility and character of the two parents. The court heard testimony from both parties describing Robin’s strong animosity and her hostile reaction to Wayne which made plain that the joint custody order was not working and needed to be changed. It was for the trial court to determine which parent should be the custodial parent, and the choice was in favor of the father, who had exercised his visitation rights and had the boys at least six months of each year. Furthermore, at Robin’s request, Billy, the oldest son, was living with Wayne all the time.

The circuit court’s determination removed the Simses’ children from a joint custody arrangement the court found had exposed them to a risk of physical and psychological harm resulting from Robin’s explosive and violent encounters with Wayne. The court cogently expressed its genuine concern for the welfare of these boys when the trial judge analyzed the evidence at the close of the hearing: “[I]f that gun had gone off, those children would be in a foster home because he [Wayne] would be in a coffin and she [Robin] would be in the penitentiary.” The best interest of these children is well served by the change in custody.

The findings of the trial court are supported by ample evidence. In addition to the dispute on February 12, 1991, the testimony of both parties related other hostile encounters and other difficulties involving the children. A brief summary of that evidence is necessary here.

Robin and Wayne agreed that there were numerous times after the divorce when Robin called Wayne because she was having problems with the boys and could not control the oldest son, Billy. Wayne would come to Robin’s home, settle the boys down, and take whoever caused the dispute back home with him. Ultimately Robin decided she could not handle Billy, and in October of 1990, she sent him to live with Wayne.

During her testimony, Robin admitted that she loses her temper on occasion and uses swear words and that she often gets upset with Wayne. She also testified that she struck and bruised Billy with a yardstick one time and that she has slapped him in the face a couple of times with her hand to the point of hurting her hand. She stated that she has “probably” used the yardstick on Donnie as well, and that Wayne has warned her not to strike the boys again.

One night shortly after the divorce, Robin left the three boys alone about 1:30 a.m. and went from Tiskilwa to the home of Greta Pease in Princeton, where Wayne was helping move furniture. Robin began yelling and cursing and finally pushed Greta to the ground.

On another occasion during the spring of 1990, Robin came to Wayne’s house on a day when he had the boys with him. She started to argue about how the boys’ savings accounts were to be held, and when Wayne refused to allow her in his house, she proceeded to curse and pound on the windows demanding to be allowed to enter. Wayne testified that he sent the boys to the basement so that they would not be involved and then he called the Tiskilwa police.

These several incidents are more than sufficient to support the trial court’s findings that the children were seriously endangered by Robin’s uncontrollable anger and violent temper. It was not necessary to have evidence of poor school work or manifestations of specific psychological problems in order to find a serious endangerment to the physical, mental, moral and emotional health of the children. Repeated incidents of Robin’s foul-mouthed shouting, swearing, and striking at the father in anger would likely affect the moral and emotional health of the children, even if not immediately evident. Although Robin contends that the children have suffered no adverse effect from her escalating hostility toward Wayne, the court need not wait until the harm is done before taking steps to reduce the parental conflict in the boys’ lives by terminating the joint custody arrangement, which the trial court obviously found to be unworkable. Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421; In re Marriage of Padiak (1981), 101 Ill. App. 3d 306, 427 N.E.2d 1372; In re Custody of Nodot (1980), 81 Ill. App. 3d 883, 401 N.E.2d 1189.

Furthermore, the record contains significant testimony of Robin’s tendency to resort to physical violence with Billy and to a lesser extent with Donnie. Beating and bruising a child have been held sufficient to warrant a change in custody within two years of the previous custody award. (In re Marriage of Eleopoulos (1989), 186 Ill. App. 3d 374, 542 N.E.2d 505.) Robin has voluntarily given custody of Billy to Wayne, but the evidence that she struck both Billy and Donnie until warned by Wayne was supportive of the trial court’s findings.

In addition, Robin argues that the finding of the trial court that there had been a change in circumstances was against the manifest weight of the evidence because the parties had been hostile before the divorce as well as afterward and, thus, their hostility was not a change. This position ignores the oral statement of the trial judge in announcing his decision:

“The change that has occurred here is the children are now endangered. It’s obvious that they are, maybe they weren’t before, maybe they were and we just didn’t know it. But I’m finding they are endangered and that’s a change.” (Emphasis added.)

In other words, at the time the agreed order for joint custody was entered, the court had no knowledge that Robin’s hostility toward Wayne endangered the well-being of her children, but now the court does have knowledge of numerous incidents occurring since the divorce. That justified a finding of a change in circumstances. Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)) permits a custody modification upon clear and convincing evidence “of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child, or his custodian.” (Emphasis added.)

Section 610(b) also provides that a joint custody arrangement may be modified when “necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 610(b).) Section 602(a)(6) of the Act lists the factors to be considered in determining the best interest of the child in custody disputes, including “(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person.” (Ill. Rev. Stat. 1989, ch. 40, par. 602(a)(6).) The trial court properly weighed the evidence of Robin’s proclivity towards physical violence in deciding to end the joint custody arrangement.

The record contains clear and convincing evidence to support the findings of the trial court that the joint custody arrangement seriously endangered the physical, mental, moral and emotional health of the children and that such endangerment was a change in circumstances occurring after the custody order was entered in 1989. Therefore, the requirements of section 610(a) are met in this case. The decision to end the joint custody arrangement and to award custody to one parent with clearly prescribed visitation for the other, in order to eliminate as many of the occasions for interaction between Wayne and Robin as possible, was shown by ample evidence to be in the best interest of the children. Further, the decision to award custody to Wayne was not an abuse of the great discretion entrusted to the trial court and will be affirmed.

The dissenting opinion appears to weigh the evidence, rather than to consider whether there is evidence to support the trial court’s findings and judgment, and then reaches a conclusion that would result in the continuance of the joint custody that has provided so much fuel for the fire of Robin’s anger and hostility. Obviously the prior arrangement that the parents had custody every other day should not be resumed.

We note that the dissent only accepts the testimony of Robin and emphasizes that Donnie and Timmy are bullied by Billy when they are with their father. Robin makes no such argument in this court. The evidence in the record indicates that the only time there were problems between the boys was when they were with their mother, who could not control Billy. Wayne testified that he had no trouble making the boys mind when they were with him. A reviewing court is not free to ignore evidence which supports the judgment of the trial court and to rely instead upon speculation in order to reverse.

Robin has also asserted additional trial errors as grounds for reversal. First, she argues that the trial judge’s refusal to interview the minor children in camera as to their wishes was an abuse of discretion. Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 604(a)) provides in part:

“The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation.”

Illinois courts have repeatedly held that the matter of in camera interviews is within the discretion of the trial court. When the trial court determines that good reason exists not to conduct such an interview, a reviewing court will not substitute its judgment for that of the trial judge. (In re Marriage of Stuckert (1985), 138 Ill. App. 3d 788, 486 N.E.2d 395; In re Marriage of Padiak (1981), 101 Ill. App. 3d 306, 427 N.E.2d 1372.) Here the trial court stated that the probative value of what the boys might say would be far outweighed by the possible damage of requiring them to testify as to a choice between their parents. This determination was not an abuse of discretion.

The dissenting opinion emphasizes the mandatory nature of the section 602(a) requirement that the trial court consider the wishes of the child and concludes that the court erred in refusing to interview the boys. That argument was found unpersuasive in People ex rel. Bukovic v. Smith (1981), 98 Ill. App. 3d 144, 153, 423 N.E.2d 1302, where the court said:

“It should be noted that the court’s failure to interview the boys was not *** fatal to its determination of the boys’ best interests. Although section 602 states that ‘the wishes of the child as to his custodian’ is a factor to be considered in determining the best interests of the child, there was sufficient doubt raised by the evidence as to the influence exerted on the boys by their grandfather for the court to conclude that an interview of the children would not be fruitful ***.”

We also note that the reasoning of the dissent would render meaningless the language of section 604(a) which plainly vests discretion as to interviews of children with the trial court. In re Marriage of Stuckert, 138 Ill. App. 3d 788, 486 N.E.2d 395.

Robin also challenges trial court rulings which allowed Wayne to use certain evidence for impeachment purposes. Robin objects to the introduction of a letter received by Wayne from one of Billy’s teachers saying that his school work had improved during the last two weeks. This letter was used during cross-examination of Robin after she stated that she had called the school and learned that Billy’s grades were not improving after he began to live with his father. Robin now argues that the issue of Billy’s grades was strictly a collateral matter since Billy’s custody was not at issue, and therefore, the letter should not have been admissible.

Any error in allowing the teacher’s letter to be used for cross-examination would not require reversal since it could not have affected the outcome of the case. (See Bullard v. Barnes (1983), 112 Ill. App. 3d 384.) As Robin admits, Wayne's custody of Billy is not in dispute; thus, any error as to testimony relating to him would be harmless.

Robin further contends that the court erred in allowing Wayne’s counsel to cross-examine her on the basis of a police report concerning the events of February 12, 1991. She argues that counsel did not lay a proper foundation for using the report for impeachment and that the report constituted inadmissible hearsay evidence. The record indicates that Robin testified that the report was an accurate account of her statement to the police. In view of the other testimony before the trial court recounting the events of February 12, any error as to use of the report for impeachment was harmless.

The judgment of the circuit court of Bureau County is affirmed.

Affirmed.

JUSTICE SLATER,

specially concurring:

As this case illustrates, custody determinations are often extraordinarily difficult to make. While the primary concern of the courts must always be the best interests of the children, those interests are ill-served when parents are unwilling or unable to resolve their differences without anger and threats of violence. Sadly, the “best” interests of the children too often means “the best we can do” under the circumstances.

I do not know whether Donnie and Timmy will ultimately be happier and healthier because their father has custody rather than their mother. I do not know, if I had been the trial judge, which version of the facts presented I would have believed. It is not, however, this court’s function to conduct de novo review. “[T]he question for the reviewing court is whether the trial court’s decision is contrary to the manifest weight of the evidence.” (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 499, 485 N.E.2d 367, 371.) Under the facts presented here, I am compelled to conclude that the court’s findings are sufficiently supported by the evidence.

JUSTICE STOUDER,

dissenting:

I do not agree with the majority that the findings of the circuit court were supported by the evidence. In my opinion, those findings were against the manifest weight of the evidence and the judgment of the circuit court should be reversed.

Initially, I find it necessary to discuss a factual question that is not made clear in the majority opinion. The record contains three versions of the gun incident of February 12, 1991. Robin testified that she never intended to shoot Wayne and that she only took the gun along because she believed that it was the only way that she could make Wayne listen to her. She testified that she never attempted to discharge the pistol. The second version of the incident is contained in a detailed, written, three-page statement that Wayne gave to the police on the night of this incident. In this statement Wayne stated that Robin pointed the gun at him and he knocked it out of her hand. Nowhere did he state that she attempted to shoot the gun. The third version of the incident is Wayne’s testimony at the custody hearing, wherein he stated that Robin repeatedly tried to discharge the weapon. The record clearly shows that Wayne did not claim that Robin tried to shoot him until he decided that he wanted custody. The trial court apparently accepted Robin’s version, because the final order contained a finding that Robin threatened Wayne with a gun but no finding that she tried to shoot him. Unlike the majority, I see no relevance in the fact that the trial judge later improperly characterized the incident as attempted murder. I prefer to rely on the findings the trial court made after hearing all of the evidence, not on an offhand remark the trial judge made two weeks later in deciding a motion for reconsideration.

On the merits of the case, the petition to change custody was filed within two years after the judgment for dissolution of marriage, so the court had to find that the requirements of section 610 of the Act had been satisfied. Wayne complied with the affidavit requirement of section 610(a) of the Act and therefore was required to prove by clear and convincing evidence that a change had occurred in the circumstances of the children or either or both parties and that the modification was necessary to serve the best interests of the children. Although the statute does not expressly state so, the court is also required to make a finding that the children’s present environment actually may place them in serious danger. (See In re Marriage of Noble (1989), 192 Ill. App. 3d 501, 548 N.E.2d 518.) The paramount concern in a hearing to modify custody is the best interests of the children. Kjellesvik v. Shannon (1976), 41 Ill. App. 3d 674, 355 N.E.2d 120.

The policy of section 610(b) of the Act is to favor the finality of custody judgments and to make modifications more difficult. (In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 541 N.E.2d 245.) The effect of this section is to create a legislative presumption in favor of the present custodian, thus promoting the continuity and stability of the child’s custodial and environmental relationship which is not to be overturned lightly. (In re Marriage of Kramer (1991), 211 Ill. App. 3d 401, 570 N.E.2d 422.) The discretion of the trial court with respect to a change of custody is not unlimited (Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 399 N.E.2d 330), but rather is tempered by the desire for finality in custody judgments and the presumption in favor of the current custodian. (Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 425 N.E.2d 1251.) Once the lower court has determined that the presumption in favor of the present custodian has been overcome by proving the requirements of section 610 by clear and- convincing evidence, a reviewing court will not disturb that finding unless it was contrary to the manifest weight of the evidence or amounted to an abuse of discretion. In re Custody of Sussenbach(1985), 108 Ill. 2d 489, 485 N.E.2d 367.

Unfortunately, I am compelled to believe that the trial judge and the majority were more concerned with punishing the mother for one misguided act than with considering what was in the best interests of the children. The trial judge’s findings in the instant case were that the children’s environment placed them in serious danger and that there had been a change in circumstances. The judge listed the changes in circumstances as follows:

“That. [Robin] experiences immediate and uncontrollable anger when things go wrong; that [Robin] demonstrated her immediate, and uncontrollable anger in a telephone conversation that was recorded with her knowledge; that [Robin] threatened [Wayne] -with a gun that had bullets in the clip while the children were present in the general area; and that Robin has a violent temper, which she has displayed on several of the aforementioned occasions, both in the presence of her ex-husband and the minor children.”

After a careful review of the record, I have not found support for the findings of the trial court. I disagree with the majority’s assertion that I weighed the evidence and sought to try the case de novo. Rather, I sought ,to find out if there was evidence in the record to support the trial court’s findings. I could find no evidence that the children were endangered by living with their mother or that they had suffered any adverse effects from the present custodial situation.

The judge’s finding that the children’s present environment seriously endangered their physical, mental, moral and emotional health was contrary to the manifest weight of the .evidence. There is simply nothing in the record that would indicate that the children are now, or ever have been, endangered by living with their mother. To the contrary, the record shows that Robin is a caring and loving mother who spends as much time as possible with her children, is concerned with their education, and has provided them with a stable home life. There is unquestionably much hostility between Robin and Wayne, but this has not had a noticeable adverse effect on the children. The record in this case reflects several specific incidents of hostility between the parties. Such isolated incidents of animosity between the parties, when it has not been shown that they have had any adverse effects on the children, are insufficient to warrant a change in custody. (See In re Marriage of Gargus (1981), 97 Ill. App. 3d 598, 423 N.E.2d 193.) In fact, by statute, the court is not to consider conduct of a present or proposed custodian that does not affect his relationship to the child. (See 750 ILCS 5/602(b) (West 1992).) The majority cites three cases dealing with cohabitation and fornication for the proposition that no evidence of adverse effects is required before custody can be changed. The majority cites no cases for the proposition that isolated incidents of hostility, absent a showing of present or future adverse effects, are sufficient to warrant a change in custody. It would add nothing to this dissent for me to explain the difference between fornication and hostility, so, suffice it to say that the cases cited by the majority are not applicable to the facts of this case.

The majority tries to compensate for a complete lack of evidence by examining certain behavior of Robin’s that the majority finds offensive, and then stating that such behavior is “likely” to affect the moral and emotional health of the children. However, Wayne produced no expert testimony that any behavior of Robin’s would affect the moral and emotional health of the children, so the majority is forced to speculate. The majority later in the opinion contends that reviewing courts are not free to rely on speculation.

It seems clear (at least to me) from the record that the trial judge’s findings were based primarily on the gun incident. Although I believe that this course of action by Robin demonstrated a serious error in judgment, and while I certainly do not condone such behavior, I do not believe that it was sufficient to show that the children were endangered by living with their mother. The children were in the van at the time of the incident and would have remained blissfully unaware of the fact that there was a gun present if their father had not chosen to involve them in the matter. Wayne admitted on cross-examination that the children were unaware of the presence of a gun until he yelled to them. Wayne yelled to the two younger children that their mother had a gun, when in fact he had already disarmed her and the gun was lying several feet away. Wayne also called for Billy to get tie straps to tie up his own mother. Therefore, if not for Wayne’s actions, the children would have thought this was merely another argument between their parents. Further, Wayne felt it necessary to call the children together for a family meeting at which he told them he thought their mother was going to kill him. No testimony was introduced to show that the children suffered any adverse effects from the gun incident or were having any difficulties at home.

I also believe that the finding of the trial court that there had been a change in circumstances was manifestly against the weight of the evidence. The parties had exhibited hostility towards each other before and after their divorce. They both testified that they had not been able to get along for some time. The judge stated that the change in circumstances was that the children are now endangered, but the record was devoid of evidence that the children were endangered by living with their mother.

The finding that Robin experiences immediate and uncontrollable anger when things go wrong is not supported by the record. The record only shows that Robin experiences extreme anger when arguing with her ex-husband. There was nothing to indicate that this was a general reaction to when things went wrong. Further, the telephone message did not demonstrate “immediate and uncontrollable anger.” Robin was angry that Wayne gave her a W-2 for Timmy past the deadline for issuing W-2s, and left a message displaying her anger in which she used several profanities. To say this showed that her anger was “uncontrollable” was not supported by the record.

I also take issue with the majority’s reliance on evidence regarding Robin’s relationship with Billy in support of its decision. Custody of Billy was not an issue in this case; the sole issue was the custody of Donnie and Timmy. Both parties admitted to using physical discipline on Billy, and I fail to understand how that testimony can be relied on to justify the change in custody.

I further believe that the trial judge abused his discretion in denying Robin’s motion to interview Donnie and Timmy in camera. The majority is correct that section 604(a) gives the trial judge discretion whether to conduct such an interview, but section 602 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602) is mandatory in requiring the court to consider the wishes of the child as to custody. In the instant case, there was no evidence introduced as to the wishes of the children. The majority does not explain how the court could have considered the wishes of the children if there was no evidence of those wishes and there was no in camera interview. There was testimony in this case that Donnie and Timmy did not get along with Billy and that Billy was always picking on them. Robin testified that the younger boys often cried when they had to go to their father’s house because Billy was always hitting them when they went there, a fact ignored by the majority when it states that the evidence showed that problems only occurred when the boys were with their mother. It seems to me if there is evidence in a case that the children at issue are afraid of going to one of the houses, their wishes as to custody should be heard. The circuit court and the majority, under the guise of the “best interests of the children,” have placed the children in a home they feared, where they are picked on and hit by an older sibling. Contrary to the majority’s assertion, this interpretation does not render section 604(a) meaningless. Obviously discretion is necessary because in some cases there will be other evidence of the wishes of the children. In this case there was no such evidence. My interpretation represents a logical way to read the mandatory language of section 602 with the discretionary language of section 604.

In support of its position, the majority relies on the case People ex rel. Bukovic v. Smith (1981), 98 Ill. App. 3d 144, 423 N.E.2d 1302, a case involving a custody dispute between a natural parent and grandparents. The majority knows that these types of cases have always been analyzed differently from those involving two natural parents. As the Bukovic court stated, “custody may be awarded in derogation of the right of the natural parent only where compelling reasons for such a disposition are demonstrated.” (Bukovic, 98 Ill. App. 3d at 153, 423 N.E.2d at 1309.) Also, as the passage quoted by the majority indicates, the Bukovic court believed that an interview would not be fruitful because there was evidence that the boys’ grandfather was exerting too much influence over them. In the case at bar, there was no evidence that Robin was exerting any improper influence over the boys, and I hope the majority does not mean to imply that she was. Such an implication would be completely unwarranted speculation.

Wayne Sims has not produced sufficient evidence in this case to satisfy the requirements of section 610 and thereby overcome the strong presumption in favor of the present custodial arrangement. Because I believe that the findings of the trial court were against the manifest weight of the evidence, I would reverse the judgment of the circuit court.

Accordingly, I dissent.


author: JUSTICE MURRAY

text:
    JOHN E. MAHONEY, Plaintiff-Appellant, v. 223 ASSOCIATES et al., Defendants (Aumiller Youngquist, Defendant-Appellee).
    First District (5th Division)
    No. 1 — 92—0761
    Opinion filed March 26, 1993.

      A. Denison Weaver, of Chicago, for appellant.
    John J. Blasi and Harry N. Arger, both of Rooks, Pitts & Poust, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff John E. Mahoney (Mahoney) appeals from an order granting defendant Aumiller Youngquist, P.C. (Aumiller), summary judgment in an action brought pursuant to the Illinois Structural Work Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.). Mahoney, a painter who was injured while working on a construction project, contends that summary judgment was erroneously granted because a question of fact exists as to whether Aumiller, the architect for the project, was “in charge” of the work site within the meaning of the Act. For the following reasons, we affirm the judgment of the trial court.

On November 7, 1988, Mahoney was seriously injured when a bosun’s chair he was sitting on collapsed and he fell to the ground from a height of several stories. At the time of this incident Mahoney was an employee of J.B. Noelle, a painting subcontractor hired by James McHugh Construction for a remodeling project at a building located at 223 West Jackson Boulevard in Chicago. The building was owned by 223 Associates, and the project was contracted for by Inter-Track Partners. Inter-Track Partners contracted with Aumiller, an architectural firm, for its services, which included providing drawings, specifications and designs for the remodeling project.

Subsequently, Mahoney filed suit to recover for injuries suffered, naming 223 Associates, Inter-Track Partners, James McHugh Construction and Aumiller as defendants. Mahoney alleged that these defendants violated provisions of the Illinois Structural Work Act and that such violations proximately caused his injury. Aumiller moved for summary judgment, contending that it was not in charge of the work site within the meaning of the Act. On February 10, 1992, the trial court granted Aumiller’s motion, finding that, as a matter of law, the architect was not “in charge” of the work site as that term is interpreted under the Act. Mahoney appealed.

Although the matter still pends in the lower court as to the other defendants, jurisdiction is vested with this court as a result of the trial court’s express finding that “there is no just reason for delaying enforcement or appeal.” 134 Ill. 2d R. 304(a).

The sole issue presented to this court is whether the trial court erred in finding that, as a matter of law, Aumiller was not in charge of the work being performed at the remodeling project. Mahoney contends that an issue of fact exists as to the architect’s status, which should have precluded the grant of summary judgment to Aumiller. Thus, Mahoney asks this court to reverse the judgment of the lower court and remand for further proceedings.

To determine the propriety of the trial court’s ruling, we must interpret the pertinent provision of the Structural Work Act, which is section 9 of the Act. Section 9 provides:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof ***.
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 69.

Few phrases have generated as much litigation as the phrase “having charge of” within this Act. Our Illinois Supreme Court, referring to its decision in Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247, stated in Emberton v. State Farm Mutual Auto Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348:

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision or control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323[, 178 N.E. 133, 148]: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” Emberton, 71 Ill. 2d at 117.

Several courts, in determining the meaning of “in charge” have listed factors to be considered when determining whether a party is in charge of the work pursuant to the Act. These are: (1) whether the party supervised or controlled the work; (2) whether the party retained the right to supervise or control the work; (3) whether the party participated in ongoing activities at the construction site; (4) whether the party supervised the subcontractors; (5) whether the party was responsible for safety onsite; (6) whether the party had authority to issue orders; and (7) whether the party had the right to stop work. The court may also consider whether the party owned the equipment used on the jobsite, was familiar with construction customs or practice and whether the party was in a position to alleviate equipment deficiencies or improper work habits. (Koniarski v. Kvetko (1992), 234 Ill. App. 3d 308, 313, 599 N.E.2d 1298; Cutuk v. Hayes/ Gallardo, Inc. (1991), 223 Ill. App. 3d 1097, 1100-01, 586 N.E.2d 357.) It is also well recognized that more than one entity may be deemed “in charge” within the meaning of the Act. (Cutuk, 223 Ill. App. 3d at 1100-01.) Nevertheless, a differentiating factor is whether the party to be held liable had a “direct connection” with the construction operation involved in the violation. See Larson, 33 Ill. 2d at 322-23, Emberton, 71 Ill. 2d at 119.

Generally, the question of whether one is in charge of the work requires an evaluation of the totality of the circumstances, thus making it a question of fact for the jury to resolve. However, summary judgment may be properly granted where the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; Stonitsch v. Laredo Construction Co. (1991), 221 Ill. App. 3d 902, 583 N.E.2d 49.

In the present case Mahoney argues that the trial court improperly granted summary judgment to Aumiller. Mahoney points out that the deposition testimony of Kasprak, an employee of Aumiller, established that the architect made regular (two to three times per week) visits to the jobsite, participated in weekly meetings, coordinated subcontractors and, through its contract, reserved the right to reject and stop work that did not conform to specifications. Mahoney concludes that, under these circumstances, a fact issue was created as to Aumiller’s being “in charge” under the meaning of the Act.

Aumiller, on the other hand, relying on McGovern v. Standish (1976), 65 Ill. 2d 54, 357 N.E.2d 1134, contends that no genuine issue of fact exists and summary judgment was properly granted because Kasparak’s deposition testimony did not indicate that Aumiller had a direct connection with the operation which forms the basis for finding a violation under the Act.

We observe that the McGovern case was all but overruled by the Emberton case. Nevertheless, after considering the language of the statute, all of the case law interpreting the provisions of the Act and the evidence presented in this case, we must still conclude that the trial court did not err in granting Aumiller, the architect, summary judgment.

Although all of the cited case law falls short of defining what “having charge of” means, we do not believe that it should be interpreted to mean that liability must attach to every person or entity on a construction work site with some authority over the project. Rather, we believe that, in keeping with the statutory intent of protecting those involved in ultrahazardous work, liability may attach to any and all persons or entities who, because of their ownership of the faulty equipment, their knowledge of work practices or their duty to ensure the safety of the construction site, knew or should have known of the violation which gave rise to the cause of action. If the violation of the Act is something that might be deemed an open and obvious hazard so that even a lay person might be able to realize the unsafe condition, a party’s regular access to the workplace may be sufficient to give rise to liability.

This interpretation of the statute seems only fair, since to hold otherwise would make nearly everyone connected to the construction project strictly liable for any and all injuries occurring during the course of the project. We do not feel that this was the intent of the legislature.

Applying the above-stated standard to the present set of circumstances, we find nothing in the briefs or the record which suggests that Aumiller had any knowledge of, or with reasonable care could have discovered, the hazardous condition that led to Mahoney’s injury. Mahoney’s injuries were related to his use of a bosun’s chair. There is absolutely no indication that Aumiller had any control over anyone’s use of the bosun’s chair, that Aumiller had a duty to inspect the equipment, that Aumiller was able to direct the manner in which Mahoney’s work was to be performed or, for that matter, even select the color of the paint Mahoney was to use.

We realize that a trial court’s function in cases of this nature is not to resolve a disputed factual question, but to determine whether one exists. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 514 N.E.2d 188.) However, from the record before this court we find that the trial court did not err in holding that Aumiller was entitled to judgment as a matter of law. Accordingly, we affirm.

Affirmed.

GORDON, P.J., and COUSINS, J., concur.