{ "id": 3080534, "name": "In re MARRIAGE OF JOHN H. CARLSON, Petitioner-Appellant, and JANIS L. CARLSON, Respondent-Appellee", "name_abbreviation": "In re Marriage of Carlson", "decision_date": "1981-11-09", "docket_number": "No. 80-1506", "first_page": "924", "last_page": "933", "citations": [ { "type": "official", "cite": "101 Ill. App. 3d 924" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "409 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188234 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0644-01" ] }, { "cite": "395 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 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App.", "case_ids": [ 3156331 ], "opinion_index": 0, "case_paths": [ "/ill-app/290/0487-01" ] }, { "cite": "334 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 137", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2706975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0137-01" ] }, { "cite": "365 N.E.2d 1285", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5634353 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0213-01" ] }, { "cite": "350 F.2d 445", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 466729, 3651171 ], "year": 1977, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/f2d/350/0445-01" ] }, { "cite": "132 U.S. 406", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5699541 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "410" }, { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/us/132/0406-01" ] }, { "cite": "386 N.E.2d 620", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 518", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3308161 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0518-01" ] }, { "cite": "368 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 501", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390531 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0501-01" ] }, { "cite": "414 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3147121 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0607-01" ] }, { "cite": "424 N.E.2d 1343", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 1084", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500685 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/1084-01" ] }, { "cite": "313 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2699830 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0973-01" ] }, { "cite": "165 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "18 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328089 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0502-01" ] }, { "cite": "228 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 2d 318", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2554620 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/84/0318-01" ] }, { "cite": "381 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3333460 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0054-01" ] }, { "cite": "360 N.E.2d 1355", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2971859 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0667-01" ] }, { "cite": "403 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 987", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225649 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0987-01" ] }, { "cite": "190 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "27 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358431 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0609-01" ] }, { "cite": "151 N.E.2d 813", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770333 ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0178-01" ] }, { "cite": "342 N.E.2d 41", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "62 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2970630 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-2d/62/0357-01" ] }, { "cite": "402 N.E.2d 613", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "79 Ill. 2d 228", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069537 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/79/0228-01" ] } ], "analysis": { "cardinality": 898, "char_count": 20777, "ocr_confidence": 0.899, "pagerank": { "raw": 5.19066941956131e-07, "percentile": 0.9401625345724789 }, "sha256": "cb8b3c78ad7e227aeed3dcbc70ea668fc5994e5a5fd5478375bff6386c6030e1", "simhash": "1:282f205e6a8e9d37", "word_count": 3377 }, "last_updated": "2023-07-14T15:21:39.102418+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JOHN H. CARLSON, Petitioner-Appellant, and JANIS L. CARLSON, Respondent-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nPetitioner John H. Carlson appeals from a judgment partially vacating a judgment of dissolution of marriage pursuant to section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) The judgment of dissolution incorporated a written separation agreement which provided for division of the parties\u2019 property and award of custody of the parties\u2019 two minor children to petitioner. The court modified the prior judgment by declaring null and void the marital settlement and entering a temporary order allowing for joint custody of the minor children and transferring physical custody of the children to respondent Janis L. Carlson.\nOn appeal, petitioner contends that (1) respondent was estopped to attack the validity of the separation agreement; (2) the trial court erred in determining that petitioner coerced, compelled and induced respondent to enter into the separation agreement because (a) the trial court\u2019s finding of inducement and coercion was not supported by clear and convincing evidence, and (b) the separation agreement was not unconscionable; (3) petitioner\u2019s counsel was improperly examined as a witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60); and (4) the trial court erred in ordering the transfer of the physical custody of the parties\u2019 two minor children to respondent.\nPetitioner and respondent were married on August 3, 1974. The parties\u2019 first child was born on December 30,1975; the second, on June 21, 1977. For some time prior to May of 1979, the parties began experiencing a considerable amount of difficulty with their marriage. They ceased sleeping together as husband and wife on March 1,1979. In May of 1979, petitioner sought marriage counseling, in which respondent refused to take part.\nShortly thereafter petitioner employed a private detective firm. During the Memorial Day weekend, respondent left the marital residence located in South Holland, Illinois, and went to Bureau, Illinois. During that weekend, respondent engaged in sexual relations with the man she later married.\nUpon respondent\u2019s return to the marital home, she consulted an attorney. On June 12,1979, respondent executed a petition for dissolution of marriage. On or about June 15,1979, respondent informed petitioner of her meeting with the attorney. After being so informed, petitioner asked respondent not to file for marital dissolution.\nOn June 18, 1979, petitioner received a telephone call from respondent\u2019s foster father, Reverend Ronald Brown. The Reverend Brown had been informed by Debbie Brown, his daughter, that respondent was having an affair with another man. During the telephone conversation petitioner revealed that he had employed detectives and had been advised that respondent was involved with another man.\nOn July 3,1979, respondent\u2019s attorney filed on behalf of respondent an action for marital dissolution. Petitioner was served with summons on July 10, 1979. Respondent had discharged her attorney sometime in the early part of July, unaware that a case had been filed on her behalf. The case was subsequently dismissed on July 24, 1979.\nOn July 14, 1979, the parties met at the marital home with the Reverend and Mrs. Brown, and with petitioner\u2019s father and brother. Reverend Brown testified that during that meeting both petitioner and petitioner\u2019s father stated that, based upon the evidence they had against respondent, they could take the children from her and leave her with nothing. Respondent testified that at the meeting on July 14, 1979, petitioner told her that she did not deserve the children, that she was a tramp, that she had sinned against him, that she was a \u201clousy\u201d mother, that he would take the children away from her no matter what he had to do, leave her with nothing and put her in the streets where she belonged. She testified that petitioner made continuous threats that he would take the children away from her and either put them in a foster home or take them to Sweden. She was told by her husband that his father\u2019s relatives would be more than happy to raise the children in Sweden.\nThe following day, July 15, 1979, respondent stated that she was leaving to be with the man she subsequently married. Shortly thereafter petitioner retained attorney Jerome DePalma. On July 27,1979, petitioner and respondent went to DePalma\u2019s office. Petitioner testified that he introduced respondent to DePalma and stated that the parties had come to an agreement and that they wanted to dissolve their marriage. He testified that respondent did not say very much and that she said nothing specific. Petitioner testified that DePalma inquired as to the nature of the property settlement they agreed upon. Petitioner testified that respondent had nothing to say relative to the agreement. Petitioner explained to DePalma that the parties had reached an agreement as to specifics with regard to their marital property. Respondent testified that prior to going to DePalma\u2019s office the first time she did not have any settlement discussions with petitioner. She also stated that when she went to De-Palma\u2019s office for the first time she had no recollection of any discussions which occurred in that office.\nThe parties returned to DePalma\u2019s office on August 2,1979. DePalma presented to the parties a property settlement, a petition for dissolution, an answer and a quit-claim deed transferring respondent\u2019s interest in the marital home to petitioner. As respondent read these documents, DePalma read aloud. After stating that she understood the terms of the pro se appearance, answer, property settlement and quit-claim deed, respondent signed each document. Respondent also executed a letter stating that DePalma was not her attorney, that she understood the importance of having counsel to protect her interest, but that she did not desire to retain her own attorney. Respondent was requested to and did read this letter, stating that she understood its contents. DePalma testified that he did not advise respondent that the division of marital property was not related to marital misconduct. Under the terms of the agreement, petitioner was to be awarded custody of the parties\u2019 two children, the marital home and the parties\u2019 1975 Ford Torino automobile. Respondent was to be awarded certain household items and $55 per week for 16 weeks.\nRespondent testified that while she was in DePalma\u2019s office papers were handed to her and she was asked to read them. She stated that she was given only two minutes to look them over and handed them back. She was not aware that she was being charged with adultery. She testified that she had no recollection of signing a deed to the property at the time of the meeting. She stated that the total length of time in the office was not more than 20 minutes. She was not given nor did she take any documents with her when she left. She never received any mail from DePalma thereafter. Respondent also testified that in the summer of 1979 petitioner stated that the custody of the children would be returned to her after she set up housekeeping and obtained a job.\nDePalma testified that he mailed a copy of the judgment of dissolution of marriage to respondent at the address in South Holland, Illinois. Respondent testified that she first saw a copy of the judgment of dissolution of marriage when it was given to her by petitioner in November of 1979.\nMildred Dugan testified that she had known respondent since birth. She had an opportunity to observe respondent in relation to the parties\u2019 two children for a period of two years prior to the separation of the parties and stated she observed that the children always seemed to be well taken care of and were always well-dressed. They looked as though they were well nourished. When respondent came to visit her, she always brought well-prepared food for the children. When the children were small, she would bring juice and baby food and prepare the food in Dugan\u2019s home. Dugan stated that in her opinion respondent was a good mother who was always thoughtful of her children, over-protective of them, and never neglected them. The Reverend Brown testified that respondent was not neglectful of the children. However, petitioner testified that respondent was not a fit and proper mother.\nThe trial court found that petitioner had coerced and induced respondent to enter into the separation agreement. The court also found that the agreement was unconscionable. The court modified the prior judgment by declaring null and void the marital settlement and entering a temporary order allowing for joint custody of the minor children and transferred physical custody of the children to respondent. Petitioner appeals.\nPetitioner in his brief raises, for the first time in this cause, the contention that respondent is estopped by her subsequent remarriage to attack the validity of the separation agreement. However, estoppel is an affirmative defense which must be affirmatively pleaded (Ill. Rev. Stat. 1979, ch. 110, par. 43(4)) and is considered to be waived when not alleged. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; County of Cook v. Priester (1976), 62 Ill. 2d 357, 342 N.E.2d 41; Collins v. Collins (1958), 14 Ill. 2d 178, 151 N.E.2d 813.) We find that because the issue of estoppel was not presented to the lower court, it is waived.\nPetitioner\u2019s second contention is that the trial court erred in setting aside the parties\u2019 separation agreement because (1) the trial court\u2019s finding that petitioner induced and coerced respondent to enter into the agreement was not supported by clear and convincing evidence, and (2) the trial court erred in finding that the separation agreement was unconscionable.\nA motion for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) is addressed to the equitable powers of the court. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 403 N.E.2d 615; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 360 N.E.2d 1355.) Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. (Davis; Chase v. Cummingham (1978), 64 Ill. App. 3d 54, 381 N.E.2d 27; Lammert; Goldman v. Checker Taxi Co. (1967), 84 Ill. App. 2d 318, 228 N.E.2d 177.) However, a section 72 petition is not intended to relieve a party from the consequences of his own mistake or negligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) Furthermore, this court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused. Davis; Chase; Lammert; George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973, 313 N.E.2d 684.\nSection 502(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 502(b)) has changed Illinois law with respect to determining the validity of separation agreements. (In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 424 N.E.2d 1343.) Pursuant to section 502(b) the terms of a separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable. However, this section does not eliminate many of the traditional grounds for setting aside settlement agreements, including fraud, coercion and violation of any rule of law, public policy or morals. (Ill. Ann. Stat., ch. .40, par. 502, Historical and Practice Notes (Smith-Hurd 1980).) Evidence that the agreement was entered into because of coercion, fraud or duress must be clear and convincing in order for courts to set aside the agreement. (In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 414 N.E.2d 1188; Beattie v. Beattie (1977), 53 Ill. App. 3d 501, 368 N.E.2d 178.) Furthermore, the propriety of a separation agreement must be determined in the light of the positions and needs of the individuals concerned, and not upon the circumstances presented and conclusions reached in another case. Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 386 N.E.2d 620.\nWe find that the judgment incorporating the separation agreement was properly vacated because the agreement is unconscionable.\nThe Historical and Practice Notes to section 502(b) (Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 401 (Smith-Hurd 1980)) state:\n9 9 The standard [of unconscionability] as it relates to separation agreements includes \u2018protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.\u2019 Uniform Marriage and Divorce Act (9A U.L.A.) \u00a7306, Commissioners\u2019 Note at 137. The Commissioners\u2019 Note further provides:\nIn order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party. If the court finds the agreement not unconscionable, its terms respecting property division and maintenance may not be altered by the court. . . .\nUniform Marriage and Divorce Act (9A U.L.A.) \u00a7306, Commissioners\u2019 Note at 137.\u201d\nAn unconscionable bargain has been defined as one \u201cwhich no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.\u201d (Hume v. United States (1889), 132 U.S. 406, 410, 33 L. Ed. 393, 395.) The term \u201cunconscionability\u201d includes \u201can absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.\u201d (Williams v. Walker-Thomas Furniture Co. (D.C. Cir. 1965), 350 F.2d 445, 449.) A contract is unconscionable when it is improvident, totally one-sided or oppressive. Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285; Neal v. Lacob (1975), 31 Ill. App. 3d 137, 334 N.E.2d 435.\nUnder the terms of the agreement, petitioner was to be awarded custody of the parties\u2019 two children, the marital home and the parties\u2019 1975 Ford Torino automobile. Respondent was to be awarded certain household items and $55 per week for 16 weeks. We find that the terms of the agreement were unreasonably favorable to petitioner and the circumstances surrounding the agreement\u2019s execution indicate that respondent did not make a meaningful choice. Therefore, we conclude that the trial court correctly found the agreement to be unconscionable and properly set aside that portion of the judgment for dissolution which incorporated the separation agreement.\nIn view of this conclusion, we find it unnecessary and accordingly abstain from consideration of respondent\u2019s contention that the agreement should be set aside because of clear and convincing evidence that respondent was induced and coerced to enter into the separation agreement.\nPetitioner\u2019s third contention is that the trial court erred when it permitted respondent to examine petitioner\u2019s counsel as an adverse party under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60.) The trial court found that petitioner\u2019s attorney was properly called as a witness pursuant to section 60 because under the facts here, in which he is charged with fraud, he would be regarded as defending the action. We find no error in the allowance of examination of petitioner\u2019s counsel pursuant to section 60. Petitioner\u2019s counsel testified as to the circumstances surrounding the execution of the agreement. We do not find it improper to call opposing counsel for examination as an adverse witness under section 60 where the examination does not extend to matters of privileged communication between attorney and client. See Club Aluminum Co. v. American Indemnity Co. (1936), 290 Ill. App. 487, 8 N.E.2d 526.\nPetitioner\u2019s final contention is that the trial court improperly ordered the custody of the parties\u2019 two minor children transferred to respondent because at the hearing on the section 72 petition no evidence was presented as to whether petitioner\u2019s or respondent\u2019s custodial care would be in the best interest of the children. We note, however, that it is more accurate to state that the trial court\u2019s order (1) vacated that portion of the prior judgment of dissolution incorporating the parties\u2019 separation agreement which awarded custody of the parties\u2019 children to petitioner, and (2) awarded temporary custody to the parties jointly and physical custody to respondent.\nRespondent, relying on In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036, contends that the portion of the trial court\u2019s order awarding temporary custody to the parties jointly and physical custody to respondent is not appealable.\nSupreme Court Rule 304(b)(3) makes a judgment granting any of the relief prayed for in a petition under section 72 final and therefore appeal-able without any specific finding. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(b)(3).) We find that the award of temporary custody was part of the relief prayed for in the section 72 petition and is therefore a final and appealable order without any specific finding.\nTurning now to the merits of the issue, we find that the trial court improperly awarded temporary custody to the parties jointly and physical custody to respondent. Pursuant to section 603(a) (Ill. Rev. Stat. 1979, ch. 40, par. 603(a)), a court may award temporary custody on the basis of affidavits or, after a hearing, under the best interest of the child standard set forth in section 602. Section 602 (Ill. Rev. Stat. 1979, ch. 40, par. 602) does not require the trial court to make findings; rather, the court is directed to consider \u201call relevant factors\u201d including certain specified ones. (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831.) Section 602 does, however, require that the record contain sufficient evidence concerning the specified factors, which include: (1) the wishes of the child\u2019s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child\u2019s best interest; (4) the child\u2019s adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; and (6) the physical violence or threat of physical violence by the child\u2019s potential custodian, whether directed against the child or directed against another person but witnessed by the child. All six factors must be considered by the court, although written findings of fact or other recital of these factors are not required by this section to sustain a custody judgment. In re Marriage of Atkinson; In re Custody of Melear (1979), 76 Ill. App. 3d 706, 395 N.E.2d 208.\nIn In re Custody of Mayes (1980), 86 Ill. App. 3d 644, 409 N.E.2d 12, the court found that the trial court there properly applied the \u201cbest interest\u201d factors of section 602(a) (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)) where, after vacating a judgment agreed to by the parties as to the custody of the children, the court was faced with a de novo custody decision.\nHere, after vacating that portion of the judgment of dissolution awarding custody of the parties\u2019 two minor children to petitioner, the trial court was faced with making a de novo determination regarding custody of the children. We find that the evidence presented at the hearing relating to the section 602 factors was insufficient. The testimony did not include facts and information concerning each of the factors listed in section 602. Accordingly, we affirm that portion of the trial court\u2019s order vacating that portion of the judgment for dissolution which incorporated the separation agreement and reverse that portion which awarded custody to the parties jointly and physical custody to respondent and remand the cause for further proceedings.\nAffirmed in part; reversed in part and remanded.\nCAMPBELL, P. J., and GOLDBERG, J., concur.", "type": "majority", "author": "Mr. JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Jerome A. DePalma, Richard J. Belmonte, and Scott B. Zolke, all of Chicago, for appellant.", "Jacobs, Camodeca & Timpone, of Chicago (William R. Jacobs, II, and Jerome Marvin Kaplan, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF JOHN H. CARLSON, Petitioner-Appellant, and JANIS L. CARLSON, Respondent-Appellee.\nFirst District (1st Division)\nNo. 80-1506\nOpinion filed November 9, 1981.\nJerome A. DePalma, Richard J. Belmonte, and Scott B. Zolke, all of Chicago, for appellant.\nJacobs, Camodeca & Timpone, of Chicago (William R. Jacobs, II, and Jerome Marvin Kaplan, of counsel), for appellee." }, "file_name": "0924-01", "first_page_order": 946, "last_page_order": 955 }