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.