{
  "id": 3585834,
  "name": "In re MARRIAGE OF GAYLE M. MILLER, Petitioner-Appellant, and DAVID A. MILLER, Respondent-Appellee",
  "name_abbreviation": "Marriage of Miller v. Miller",
  "decision_date": "1988-05-18",
  "docket_number": "No. 85\u20142440",
  "first_page": "1044",
  "last_page": "1047",
  "citations": [
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      "cite": "170 Ill. App. 3d 1044"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
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    {
      "cite": "77 Ill. 2d 414",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
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  "last_updated": "2023-07-14T14:52:57.912624+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In re MARRIAGE OF GAYLE M. MILLER, Petitioner-Appellant, and DAVID A. MILLER, Respondent-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE WHITE\ndelivered the opinion of the court:\nDavid and Gayle Miller, in their 1982 divorce action, contested the custody of their two daughters. The trial court awarded custody to David on December 12, 1982, and Gayle appealed. On December 29, 1984, this court, in an unpublished order, reversed the trial court\u2019s custody judgment, awarded the children to Gayle, and ordered that they be returned to her prior to the start of the January 1985 school semester. David kept the children while petitioning this court for rehearing of the appeal; that petition was denied on February 19, 1985. On March 13, 1985, while still holding the children, David petitioned the trial court for change of custody. On June 11, 1985, the court ordered David to return the children to Gayle, and she took actual custody one week later.\nGayle filed a. motion to strike David\u2019s petition for change of custody, citing section 610(a) of the Illinois Marriage and Dissolution of Marriage Act, which provides that \u201cno 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\u2019s present environment may endanger seriously his physical, mental, moral, or emotional health.\u201d (Ill. Rev. Stat. 1985, ch. 40, par. 610(a).) David\u2019s petition did not allege that there was reason to believe that the children\u2019s environment endangered their health, and no affidavits to that effect were, filed. The trial court nevertheless denied Gayle\u2019s motion to strike, and we allowed her interlocutory appeal. The proceeding in the trial court continued, and the court granted David\u2019s petition and awarded .custody to him, effective September 11, 1985.\nGayle contends that the trial court erred in allowing David\u2019s petition because two years had not elapsed since the December 1984 order of this court which granted her custody. David contends that the two-year ban on custody modification began to run in December 1982, when the trial court\u2019s initial custody judgment was entered, and that his petition, filed more than two years from that point, was therefore in compliance with the statute.\nSection 610 expresses the legislature\u2019s desire to promote stability and continuity in a child\u2019s custodial and environmental relationships by granting some finality to custody judgments. (In re Custody of Harne (1979), 77 Ill. 2d 414, 421, 396 N.E.2d 499.) The trial court\u2019s failure to strike a petition filed so soon after this court\u2019s order resulted in the very instability and lack of finality that the statute seeks to prevent: David sought to modify a custody judgment even before he had complied with it, and the children stayed with Gayle for only two months before being returned to their father by the trial court. In addition, David\u2019s r\u00e9ading of section 610 is contrary to the express words of the statute. David sought to modify the December 28, 1984, order of this court which gave Gayle custody of the children. The statute provides that no motion to modify a custody judgment may be made earlier than, two years after its date. We cannot justify an interpretation of the statute which allows a result so clearly contrary to its purpose and language.\nWe hold that the custody judgment which is entitled to the statute\u2019s two-year protection from modification is the judgment which finally establishes custody with the parent opposing modification. When David\u2019s petition was filed, that custody judgment was this court\u2019s 1984 order. The petition was therefore premature and should have been dismissed by the trial court. For clarity and to prevent further frustration of the results directed by this court\u2019s order, we hold that with this judgment, which again grants custody to Gayle, the running of section 610\u2019s two-year period begins anew. We reverse the order of the circuit court of Cook County and order that custody of the children be granted to Gayle forthwith.\nReversed.\nMcNAMARA and FREEMAN, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE WHITE"
      }
    ],
    "attorneys": [
      "Stanley F. Kaplan, P.C., of Chicago (Stanley F. Kaplan and Claire Adair, of counsel), for appellant.",
      "Kirsh, Berman & Hoffenberg and Jerome Marvin Kaplin, both of Chicago (Alan David Hoffenberg, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re MARRIAGE OF GAYLE M. MILLER, Petitioner-Appellant, and DAVID A. MILLER, Respondent-Appellee.\nFirst District (3rd Division)\nNo. 85\u20142440\nOpinion filed May 18, 1988.\nStanley F. Kaplan, P.C., of Chicago (Stanley F. Kaplan and Claire Adair, of counsel), for appellant.\nKirsh, Berman & Hoffenberg and Jerome Marvin Kaplin, both of Chicago (Alan David Hoffenberg, of counsel), for appellee."
  },
  "file_name": "1044-01",
  "first_page_order": 1066,
  "last_page_order": 1069
}