{ "id": 2821709, "name": "Frances Elble, Now Frances Heuer, Plaintiff-Appellee, v. James Elble, Defendant-Appellant", "name_abbreviation": "Elble v. Elble", "decision_date": "1968-10-12", "docket_number": "Gen. No. 67-109", "first_page": "221", "last_page": "227", "citations": [ { "type": "official", "cite": "100 Ill. App. 2d 221" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "47 Ill 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5267817 ], "opinion_index": 0, "case_paths": [ "/ill/47/0290-01" ] }, { "cite": "147 NE 659", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "317 Ill 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5148623 ], "opinion_index": 0, "case_paths": [ "/ill/317/0104-01" ] }, { "cite": "128 NE 289", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "294 Ill 106", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5077018 ], "opinion_index": 0, "case_paths": [ "/ill/294/0106-01" ] }, { "cite": "225 NE2d 698", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "81 Ill App2d 67", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2543613 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0067-01" ] }, { "cite": "232 NE2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill App2d 330", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 8499354 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/88/0330-01" ] }, { "cite": "196 NE 27", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "45 Ill App2d 316", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5240706 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/45/0316-01" ] }, { "cite": "183 NE2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill App2d 163", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5261159 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/36/0163-01" ] }, { "cite": "163 NE2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "24 Ill App2d 32", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5207979 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/24/0032-01" ] }, { "cite": "142 NE2d 172", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill App2d 354", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5169980 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/13/0354-01" ] }, { "cite": "220 NE2d 485", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill App2d 362", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579013 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0362-01" ] }, { "cite": "206 NE2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill App2d 286", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2598362 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/57/0286-01" ] }, { "cite": "373 Ill 626", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2529446 ], "opinion_index": 0, "case_paths": [ "/ill/373/0626-01" ] }, { "cite": "411 Ill 408", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313382 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/411/0408-01" ] }, { "cite": "129 NE2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill2d 469", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2709582 ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0469-01" ] } ], "analysis": { "cardinality": 534, "char_count": 8886, "ocr_confidence": 0.614, "pagerank": { "raw": 4.156393402504098e-07, "percentile": 0.9117099105005736 }, "sha256": "63788039f0a2f2d98157c5909d945f3e201057e9e325a5ca214d41251e1df880", "simhash": "1:0f2dba22250a9dd0", "word_count": 1518 }, "last_updated": "2023-07-14T20:54:23.825564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Frances Elble, Now Frances Heuer, Plaintiff-Appellee, v. James Elble, Defendant-Appellant." ], "opinions": [ { "text": "GOLDENHERSH, J.\nDefendant, James Elble, appeals, and plaintiff, Frances Heuer, formerly Frances Elble, cross-appeals from the order of the Circuit Court of Madison County entered upon plaintiff\u2019s petition to modify the decree of divorce previously rendered and entered in this cause.\nThe record shows that on March 18, 1955, the circuit court granted defendant a divorce on his counterclaim and awarded him custody of Gail Lynn, the 5-year-old daughter of the parties, hereafter called Gail.\nIn December 1966, plaintiff filed a petition to modify the decree and alleged therein that \u201cduring the past few years\u201d Gail has resided with plaintiff, and plaintiff has provided for her \u201cspecial needs and attention, education and religious training and guidance.\u201d Plaintiff also alleged that she is a fit person to have custody, Gail desires to live with her, defendant has paid very little child support during the time Gail lived with her mother, and defendant is unfit to have custody of Gail \u201cby reason of his ignoring\u201d her welfare. The petition prays that plaintiff be awarded custody, that defendant be ordered to pay reasonable support money and provide for her college education.\nDefendant answered the petition, denying the material allegations and stating further that plaintiff had \u201cdefied orders of this court respecting custody of the child,\u201d that it has become impractical, if not impossible, physically to coerce Gail to remain with him, that to \u201cmaintain peace\u201d he has allowed her a wider latitude in association with plaintiff but because of \u201cplaintiff\u2019s habits, manner of life and associations\u201d it would be hazardous to Gail\u2019s welfare to vest absolute control of her in the plaintiff and \u201cto deprive him of legal custody and the consequent right to exercise some degree of restraint in connection with her upbringing.\u201d\nThe trial court heard testimony and filed a comprehensive memorandum and order.\nIn the memorandum the court stated that although Gail had chosen to leave her father and live with her mother, the evidence failed to show a change of circumstances which would warrant a modification of the provision of the decree awarding her custody to the defendant. It denied plaintiff\u2019s petition for a change of Gail\u2019s custody but stated that it could not, and would not, \u201cforce a 17-year-old girl to live with her father if she does not desire.\u201d The defendant was ordered to pay plaintiff $100 per month for Gail\u2019s support during her minority, and an attorney\u2019s fee in the amount of $150. In the order the court stated that although it was in its discretion so to do, it would not, under the circumstances shown by the evidence, order defendant to provide for Gail\u2019s college education.\nPlaintiff appeals from those portions of the order which continue custody in defendant, deny the prayer for provision of a college education, and from the support money order, arguing that in view of defendant\u2019s wealth and income the sum ordered is inadequate.\nDefendant appeals from the portions of the order which provide for payment of support money and an attorney\u2019s fee, and from the court\u2019s holding that it was vested with discretion to require a divorced parent to provide for the college education of his child beyond attainment of the child\u2019s majority.\nDefendant\u2019s principal argument for reversal is that in view of the trial court\u2019s denial of the prayer for a change in the custody order he should not be required to pay support money, and in ordering him to do so, the court, in effect, confirmed the unlawful custody and control being exercised by plaintiff.\nIn reviewing an award of custody of a minor child we are governed by the rule stated in Miezio v. Miezio, 6 Ill2d 469, at page 472, 129 NE2d 20: \u201cIn awarding custody of minor children to one parent or the other, the paramount consideration must necessarily be the welfare and best interest of the children. (Nye v. Nye, 411 Ill 408; Buehler v. Buehler, 373 Ill 626.) Although the discretion of the trial court in matters relating to the custody and support of minor children is a judicial one \"and subject to review. (Nye v. Nye, 411 Ill 408,) the determination should not be disturbed upon appeal unless manifest injustice has been done.\u201d\nFrom our review of the record we find no change of circumstances since the entry of the decree which would require a reversal of the court\u2019s denial of a change in Gail\u2019s custody. The fact that Gail now prefers to live with her mother is not sufficient to warrant a transfer of custody. Stickler v. Stickler, 57 Ill App2d 286, 206 NE2d 720; Strouse v. Strouse, 75 Ill App2d 362, 220 NE2d 485.\nThe Appellate Court has previously considered the question of whether a court may include in a divorce decree, an order directing a parent to pay the expenses of a child\u2019s college education. (See Strom v. Strom, 13 Ill App2d 354, 142 NE2d 172; Maitzen v. Maitzen, 24 Ill App2d 32, 163 NE2d 840; O\u2019Berry v. O\u2019Berry, 36 Ill App2d 163, 183 NE2d 539; Crane v. Crane, 45 Ill App2d 316, 196 NE 27; 1962 Law Forum 612.)\nSince the amendment to section 19 of the Divorce Act (c 40, \u00a7 19, Ill Rev Stats) effective August 31, 1967, there appears to be no question that such order may be entered with respect to both minor children and children who have attained majority.\nThe rule stated in Miezio applies to the review of both the trial court\u2019s refusal to order defendant to provide for Gail\u2019s college education, and the order fixing the amount of support money. From our examination of the testimony with respect to the wealth and earnings of the defendant, we cannot say that manifest injustice has been done.\nDefendant\u2019s contention that the trial court erred in ordering him to pay support money while Gail continues to reside with her mother presents a difficult question. In the first reported decision involving custody of a child, (see First Kings 3:16), Solomon, vested with plenary powers and unhampered by precedent, rendered a judgment which has been cited through the ages as incontrovertible evidence of his great wisdom. Today, a trial judge is almost daily presented with custody problems which are far more complex. (See Dokos v. Dokos, 88 Ill App2d 330, 232 NE2d 508; Jenkins v. Jenkins, 81 Ill App2d 67, 225 NE2d 698.)\nIn Jenkins v. Jenkins, 81 Ill App2d 67, at page 71, 225 NE2d 698, the Court said: \u201cIt must be emphasized that custody cases present among the most vexing and difficult situations facing a trial judge in the discharge of his duties. Generally, no decision a court makes in such cases can be considered either \u201cright\u201d or \u201cwrong.\u201d The responsibility of a judge is, instead, to exercise his own best judgment in attempting to find the most satisfactory solution under all the circumstances in each case.\u201d\nWe have considered defendant\u2019s contention based on Iroquois Iron Co. v. Industrial Commission, 294 Ill 106, 128 NE 289, and are of the opinion that the holding in that case is not pertinent to the facts here presented.\nWe are sympathetic to defendant\u2019s argument that he has the burden of support without the concomitant benefits of having Gail reside with him in his home, but this does not affect his duty to support her. As stated in Kelley v. Kelley, 317 Ill 104, at page 110, 147 NE 659: \u201cThe obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. (Plaster v. Plaster, supra, 47 Ill 290.) His children are of his blood.\n\u201cIt is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves.\u201d\nSection 19 of the Divorce Act provides that the court may make such order for the care, custody and support of the children as from the circumstances of the parties and nature of the case shall be fit, reasonable and just. The language of the statute is broad enough to permit the entry of the order of the trial court.\nFrom our review of the record and the authorities we are of the opinion that the trial court found the most satisfactory solution available under the circumstances of this case.\nDefendant has not briefed or argued the question of the order for payment of an attorney\u2019s fee, and therefore, it will not be further considered.\nFor the reasons set forth the order of the Circuit Court of Madison County is affirmed.\nOrder affirmed.\nMORAN and EBERSPACHER, JJ., concur.", "type": "majority", "author": "GOLDENHERSH, J." } ], "attorneys": [ "Emerson Baetz, of Alton, for appellant.", "Irving M. Wiseman, Wiseman, Hallet, Mosele, Shaikewitz & Struif, of Alton, for appellee." ], "corrections": "", "head_matter": "Frances Elble, Now Frances Heuer, Plaintiff-Appellee, v. James Elble, Defendant-Appellant.\nGen. No. 67-109.\nFifth District.\nOctober 12, 1968.\nEmerson Baetz, of Alton, for appellant.\nIrving M. Wiseman, Wiseman, Hallet, Mosele, Shaikewitz & Struif, of Alton, for appellee." }, "file_name": "0221-01", "first_page_order": 227, "last_page_order": 233 }