dissenting:
We have reversed and remanded for further proceedings, but I have difficulty (which I fear may be shared by the trial court) in understanding what directions are to govern those proceedings. I, therefore, find it hard to express my dissent, and feel required to do so in relation to alternative constructions of the majority opinion.
It seems that one of the first matters to be heard will deal with a rule on plaintiff to show cause why she should not he held in contempt for having taken her child to California without express order of court. It is said that she “should have been required to answer the rule to show cause and she should defend her actions” in removing the child from the jurisdiction. In using the term “the rule to show cause” I would first assume that reference is made to the rule. to show cause which was actually issued against plaintiff in the trial court on April 12, 1962 by Judge Daly; to which rule plaintiff did file an answer; on which rule and answer thereto a hearing was held; and in regard to which the decision of the chancellor was embodied in the order of May 7, 1962 from which this appeal has been taken.
The chancellor found that plaintiff was not in contempt of court, and ordered that the rule be dismissed and plaintiff discharged. This portion of the. order was included in defendant’s notice of appeal describing the order of May 7, but a careful reading of the notice raises serious doubt as to whether an appeal was taken from that part of the order. The essence of the relief prayed in the notice of appeal related only to transfer of the child’s custody to defendant, and this court was not asked to find that plaintiff had been in contempt. That this was not an oversight on defendant’s part is demonstrated by the fact that the issue was not raised at all in defendant’s briefs filed in this court, nor was it mentioned in oral argument. I would certainly conclude, therefore, that the question of possible contempt on the part of plaintiff is not before this court, having never been raised, or, if raised, then waived or abandoned. Thomas v. Smith, 11 Ill App2d 310, 320, 137 NE2d 117; Green v. Waller, 17 Ill2d 392, 161 NE2d 858.
Assuming, however, that the trial court’s decision on the contempt rule is, somehow, presented for our review, it would appear to be perfectly clear that it should be affirmed, a conclusion which in all probability prompted defendant to avoid the issue in this court.
We start with the custody provisions of the divorce decree. Care, custody and control of the child were awarded to plaintiff, and it was provided further that “in the event the plaintiff elects to remove permanently the minor child of the parties hereto from the jurisdiction of this court,” then defendant would be entitled to have the child with him during the three months of summer vacation, and in alternate years during the Christmas period with “transportation in connection therewith to be borne equally by the parties hereto.” These were the custody arrangements embodied in the decree pursuant to the stipulation of defendant.
Without more, I cannot imagine that a contest would have arisen if plaintiff had exercised her election to take the child to California, and, I think, the correctness of the chancellor’s ruling would not have been questioned when he found that the decree did not require the consent of defendant nor a further order of court to authorize removal of the child from Illinois.
Our next point of inquiry, therefore, is whether the situation was altered by the filing and approval of the Master’s report. I believe it was not.
The majority concede that recommendations of a Master on matters not referred to him would be of no consequence. The abstract does not set forth the two orders of reference except to state that they covered “the question of defendant’s change in income,” “defendant’s petitions relating to visitation and return of personal property and plaintiff’s petitions for rule to show cause.” Plaintiff contends, and the chancellor found, that these orders of reference did not authorize the Master to recommend changing the decree in the matter of plaintiff’s authority to remove the child from Illinois. I am inclined to agree, but consider it unnecessary to do more than mention this point because in any event the Master’s recommendation in this regard was never acted upon by the court. The decree was never modified in this respect.
One gains the impression from the majority opinion that the court specifically approved the recommendation of the Master that a court order be required to remove the child from Illinois. This the court did not do. The pertinent order of June 27,1961 had two main parts: (1) it “ordered that the report of the Master shall be approved” except as to fees and costs, which matters were set for hearing at a later date; and (2) it “ordered that the Decree heretofore entered on June 21, 1956 shall be and is hereby modified” to provide that thenceforward defendant should pay $200 per month for support of the child. Thus the court accepted one of the Master’s recommendations and modified the decree accordingly, but it did not modify the decree’s provision relating to removal of the child from Illinois. I consider the conclusion inescapable that the decree remained unmodified except in the one respect specifically dealt with by the order.
That the Master himself believed he was doing nothing more than suggesting modification of the divorce decree, is to be noted in the language prefacing his recommendation, where he said, “in accordance with any modification of the Decree entered as a result of this report . . . .” There was a “modification of the Decree entered as a result of this report,” but the recommendation now in question was simply not included.
It has long been the law in this state (I can find no contrary decisions) that an order confirming a Master’s report is not the equivalent of, and does not have the effect of, an order or decree entered by the court in conformity with the findings and recommendations of the report. Chicago Bill Posting Co. v. Schuster, 88 Ill App 513; * ILP Chancery § 424. The majority do uot adhere to this proposition, hut, rather, attribute to the order approving the report a character (sufficient in itself to sustain contempt proceedings) unjustified in principle and unsupported by an over-all view of the record in this case. They also misconceive, I believe, the nature of the order as to its finality, when inferentially they ascribe to plaintiff some sort of laxness in not contesting the matter further at the time. They say, “No appeal was taken from that order.” Yet, we have only recently stated that such an order is not appealable. Gribben v. Interstate Motor Freight System Co., 38 Ill App2d 123, 126, 186 NE2d 100.
As mentioned above, the rule to show cause was issued, answered and ruled upon by the chancellor on the basis of alleged failure to comply with the order approving the Master’s report. The majority, however, in considering the question of contempt, go beyond that record to emphasize an oral decision ** of Judge Daly to the effect that the child should not be removed from school in Chicago for the remainder of the school year. The opinion states, in that regard, that “[i]t would be a travesty on justice to say that a litigant could disobey an order of the court of which the litigant was well aware.”
By these references in the majority opinion to the oral comments by Judge Daly I would assume that the trial court is directed to conduct a contempt hearing which will encompass these matters even though they unquestionably lie outside the scope of the contempt pleadings presently on file. It was Judge Daly, himself, who issued the rule to show cause, and he did so at a time subsequent to his remarks which are relied upon in the majority opinion, yet he did not see fit to base the rule on his oral “decision.” Do we now direct the trial court to issue a new rule to show cause on this basis, and to proceed to hearing thereon when no party has suggested it, and the trial court, in the exercise of its own discretion, had not seen fit to do so? Apparently we do, but I don’t think that it is a proper direction.
One reason the trial court may not have conducted such a contempt hearing could have been that Judge Daly might have believed, as I do, that in equity proceedings “ [t] he oral announcement or remarks of the court expressing its opinion on the question at issue do not constitute the decree of the court, and are of no binding force unless embodied in a written decree which is approved by the court and filed with the clerk to be entered in the records of the court.” ILP Chancery § 443; Anastaplo v. Radford, 14 Ill2d 526, 530, 153 NE2d 37; Miller v. Miller, 376 Ill 628, 632, 35 NE2d 62; see also People ex rel. Schwartz v. Pagerholm, 17 Ill2d 131, 135, 161 NE2d 20; Jackman v. North, 398 Ill 90, 105, 75 NE2d 324.
The central point of all the matters presented for the chancellor’s decision was, and will be again on remand, the petition of defendant for change of the child’s custody from her mother to him. Aside from directing the chancellor to reopen the question of contempt, the majority find, without specification, that there was reversible error in the trial court’s declining to hear testimony “bearing on the described actions of the plaintiff.” These are apparently the actions of plaintiff in taking the child with her to plaintiff’s mother’s home in California. I fail to see how the excluded proof would have any bearing upon the ultimate decision as to custody in this case.
I have examined some 36 points raised by defendant concerning the exclusion of proof offered by him. About half related to showing that defendant would be a fit person to have custody of the child if she were taken from her mother. Since the chancellor did not find the mother unfit, this testimony was concerned only with a secondary issue which was never reached.* Furthermore, plaintiff has never contended that defendant was not a fit father to the child. The opposite was conceded throughout the proceedings, and I believe it would be proper for us to take notice that defendant, a member of the bar, is a person of good reputation, and one who has repeatedly been honored by the citizens in his community. All this was also true, however, at the time of the divorce decree when defendant stipulated that plaintiff Should have custody of their child.
Numerous other points on exclusion of testimony related to plaintiff’s having taken the child from Illinois without specific order of court. There was no question of fact in this matter, the pleadings having been in agreement on the issue. Plaintiff did, however, justify her action on the basis of the decree, and thus raised a question of law which the chancellor decided in her favor, and properly so, in my opinion. But even a contrary ruling on this question would .not render admissible further testimony which would simply reiterate facts already before the court.
The balance of the points on exclusion of evidence involved testimony or offers of proof properly denied for various reasons: immateriality, incompetency of the witness to testify to the facts in question, improper opinion evidence, and the like, with much of the proffered material actually demonstrating the good care the child had received from plaintiff and the progress she had made in school. If there was some testimony excluded which should have been admitted, its total weight would have been inconsequential, in my opinion.
The majority concede that unfitness for child custody is not to be determined from failure to comply with a court' order, citing Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585. Particularly pertinent to the facts here, is the following language from the Bulandr opinion: “Nor can the child be used as a basis for punishing the contumacy of a party in a contempt proceeding, as appears to have been the case here. Nothing short of a hearing relating to unfitness and the interests of the child, and a finding thereon is adequate support for an order changing custody. (The trial qourt’s order changing custody was reversed.) A child’s welfare is at stake, and nothing is more injurious to that welfare than to have the child shuttled between contesting parents.” (Page 303.) See also Doyle v. Doyle, 309 Ill App 454, 457, 33 NE2d 507; Thomas v. Thomas, 233 Ill App 488, 492; and Smith v. Smith, 155 Ill App 14, 17.
Even more recently this court affirmed an award of child custody to a mother who had removed her children from the jurisdiction of the divorce court without the court’s permission, and in defiance of a recent order of that court under which the father, and not she, had been awarded custody. People ex rel. Brown v. Walls, 38 Ill App2d 385, 187 NE2d 288.
■The discretion of the trial court in child custody cases is, and should be, extremely broad, and should not lightly be disturbed upon review. And it is appropriate that such discretion be exercised under most circumstances in favor of awarding custody to the mother. As stated in Nye v. Nye, 411 Ill 408, 414, 105 NE2d 300:
Under our divorce statute the court is clothed with a large discretion in determining to which parent a child will be given. It is usual in such cases, due to the tender years of the child and in consideration of its best interests, to entrust its care and custody to the mother, she being a fit and proper person to rear the child. (Citing cases.) The maternal affection is more active and better adapted to the care of the child. Especially is this true in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important. This principle has become so well fixed and followed in this State that this court has not in recent years been called to rule upon it. Therefore, compelling evidence must be presented, proving the mother to be aw uwfit person, to cause the custody of her minor daughter to be denied her, or there must be a positive showing that to deny custody to the mother would be for the best interests of the child.” (Emphasis supplied.)
Considering the standards of proof which have been established by this and numerous other decisions as necessary to authorize withdrawing the custody of a little girl from her mother, it is my opinion that there is nothing in this record—either in evidence, or offered and excluded—which justifies reversing the chancellor’s exercise of his discretion in denying defendant’s petition for change of custody. I see nothing to be gained by a further hearing. I would, therefore, affirm the orders of the trial court.
In the cited case the Master’s report had recommended dissolution of a previously entered injunction. An order was entered approving and confirming the report, but no further order of decree was entered dissolving the injunction. It was held that the injunction had not been dissolved, and remained in full force and effect.
The decision quoted in the majority opinion was never reduced to the form of a written order or decree.
The divorce decree, of course, found plaintiff to be a fit person for custody of the child. Ironically, the only other finding on that subject is that contained in the Master’s report which is so strongly relied upon by defendant and by the majority here. The Master found that “[b]oth parties are fit and proper parents.”