NO. 4-01-0546

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Respondent Jodi L. Deem (hereinafter Jodi) appeals thejudgment of the circuit court of Douglas County dissolving hermarriage to petitioner, William Russell Deem (hereinafter William). The parties have one child, Stephanie Ann Deem, born March 4, 1997. The issues on appeal are whether the trial court's awards of childcustody, visitation, and child support amounted to an abuse ofdiscretion. We affirm in part, reverse in part, and remand withdirections.

William did not file an appellee's brief. However, therecord is simple and the claims raised are such that this court candecide them without the aid of an appellee's brief. Therefore, weconsider the merits of the appeal. First Capitol Mortgage Corp. v.Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493,495 (1976).

We initially consider the issues relating to custody andvisitation. A reviewing court will not set aside the trial court'sordered custodial and visitation arrangements unless they areagainst the manifest weight of the evidence, manifestly unjust, orresulted from a clear abuse of discretion. Stockton v. Oldenburg,305 Ill. App. 3d 897, 906, 713 N.E.2d 259, 266 (1999). In thiscase, the trial court found that joint custody was not appropriate,and Jodi does not challenge that finding. The factors fordetermining custody in accordance with the best interests of thechild are set forth in section 602 of the Illinois Marriage andDissolution of Marriage Act (Act) (750 ILCS 5/602 (West 2000)). Section 607(a) of the Act provides that, unless the court findsthat visitation would endanger seriously the child's physical,mental, moral, or emotional health, a parent not granted custody isentitled to reasonable visitation. 750 ILCS 5/607(a) (West 2000).

Stephanie was three years old at the time the judgment ofdissolution was entered on March 1, 2001. After concluding thatjoint custody would not be prudent and would not likely succeed,the trial court awarded custody and control of Stephanie to Jodi. The trial court's judgment kept in place the temporary order as tocustody, which provided joint custody, until the start of kindergarten in the fall of 2001. The trial court did not explain why itkept the order for joint custody for that period of time after itsjudgment found that joint custody was not appropriate. Althoughthe trial court's judgment did not award custody and control of thechild to Jodi until the commencement of prekindergarten in fall of2001, any issue or argument as to the question of joint custody isnow moot. See Wilson v. Jackson, 312 Ill. App. 3d 1156, 1162-63,728 N.E.2d 832, 837 (2000) (an issue is moot when interveningevents render it impossible for a reviewing court to granteffectual relief to the complaining party).

The March 1, 2001, judgment provided that when the child"commences pre-kindergarten in fall, 2001, the care, custody andcontrol" of the child is granted to Jodi. A holiday visitationschedule was set. The trial court also provided for specificcustody and visitation to William, commencing with the summer afterthe 2001-02 school year. William was to "have custody *** from theday after school is out until one week prior to commencement ofschool in the fall" subject to each party's right to "two uninterrupted weeks with the child" and alternate weekend and week nightvisitation. While William had Stephanie for the summer, thejudgment of dissolution provided that Jodi pay child support.

Jodi challenges this award of summertime "custody andvisitation" to William. The judgment provides a form of alternating or rotating custodial arrangement rather than simply givingWilliam expanded visitation during the summer, even though thejudgment of dissolution designated Jodi as the custodial parent.

Generally, the custodial parent has the right to makedecisions about the child's upbringing, education, health care, andreligious training. In re Marriage of Duffy, 307 Ill. App. 3d 257,260, 718 N.E.2d 286, 289 (1999); 750 ILCS 5/608(a) (West 2000). Alternating or rotating custodial arrangements are viewed withdisfavor, particularly with young children, as they tend to appeasethe selfish desires of the parties while denying the child apermanent and stable home environment. Davis v. Davis, 63 Ill.App. 3d 465, 470, 380 N.E.2d 415, 418 (1978). We recognize that inDavis the custodial arrangement was different than that granted inthe case at bar because in Davis there were custodial shifts duringthe school year. We also recognize that in In re Marriage ofDullard, 176 Ill. App. 3d 817, 821-22, 531 N.E.2d 854, 857-58(1988), the court upheld a custodial arrangement for youthfulchildren wherein one parent had custody of the children for theschool year and the other had custody of the children for thesummer. However, alternating custodial arrangements have beenlooked upon with disfavor unless the child is mature enough to copewith the custodial arrangement and visitation is difficult toorganize because of the child's activities. See In re Marriage ofDivelbiss, 308 Ill. App. 3d 198, 209-10, 719 N.E.2d 375, 383(1999).

This court has recognized that the problem with alternatecustodial arrangements is the potential development of insecurityand a sense of transience in social relationships in the childoccasioned by the change of households and environments, playmates,and health-care providers. See In re Marriage of Oros, 256 Ill.App. 3d 167, 170, 627 N.E.2d 1246, 1249 (1994) (disapproving ajoint custodial arrangement that shifted a preschool child betweenthe parties every three months). "The order must give somepermanency to the physical custody of the children and not simplyattempt to equalize the time the children spend with each parent." In re Marriage of Swanson, 275 Ill. App. 3d 519, 524, 656 N.E.2d215, 219 (1995). In Swanson, this court disapproved a twice-a-month shift of custody as not being in the children's bestinterests. Swanson, 275 Ill. App. 3d at 525, 656 N.E.2d at 220. In this case, the trial court specifically found that joint custodywas inappropriate. While the Act contemplates a certain flexibility in the trial court's custody determinations, that flexibilityhas limits. In re Marriage of Ivey, 261 Ill. App. 3d 200, 207-08,632 N.E.2d 1121, 1126 (1994).

In the case at bar, the trial court's judgment providesWilliam liberal visitation, including half of the Christmasvacation period; half of the spring vacation period; alternateweekends from 5 p.m. Friday to 8 a.m. Monday, unless Monday is aschool holiday, then the weekend shall be continued until Tuesdaymorning at 8 a.m.; every other Wednesday from 5 p.m. until 8 p.m.;Father's Day; alternate visitation on the child's birthday; andreasonable telephone access. Jodi does not challenge the visitation provisions in the judgment of dissolution with the exceptionof giving William de facto custody for the entire summer. Jodiresides in Newman, Illinois, and Stephanie will be attending schoolin the Newman school district, while William lives in Tuscola,Illinois. The home and background study report admitted intoevidence recommended that Jodi "be named as primary custodialparent." The study found both parents fit. The report did referto a 1989 driving under the influence (DUI) and William's loss oflicense for one year, a May 2000 arrest for DUI and a subsequentplea to reckless driving, and an evaluation of high-risk problemdrinking. It was recommended that William be ordered to undergocounseling with a certified alcohol-treatment counselor and to fileprogress reports with the court on a quarterly basis. The studyfurther found that the liberal visitation schedule should continue.

Custody orders deal with the best interests of the childand not the best or selfish interests of the parents. Davis, 63Ill. App. 3d at 470, 380 N.E.2d at 418. The trial court's award of"custody" to William from the day the child is out of school forthe summer was an abuse of discretion, and we reverse it. Thedetermination of William's summer visitation and the extent thereofshall be left to the discretion of the trial court upon remand.

We next consider the issues relating to child support. Child support is a matter within the sound discretion of the trialcourt, and this court will not disturb the trial court's determination absent an abuse of discretion. In re Marriage of Tietz, 238Ill. App. 3d 965, 978, 605 N.E.2d 670, 680 (1992). Section 505 ofthe Act provides for the imposition of child-support obligationsand sets forth a statutory basis for determining the amount ofchild support; in the case of one child, the minimum amount is 20%of the supporting parent's net income. 750 ILCS 5/505(a)(1) (West2000). The trial court may deviate from the statutory guidelinesonly if it expressly states the reason or reasons for the variancefrom the guideline. 750 ILCS 5/505(a)(2) (West 2000).

The trial court determined that William's net weeklyincome was $540.67 and Jodi's net weekly income was $243.75. Jodidoes not challenge these findings. Commencing the fourth Friday inAugust 2001, William was directed to pay $108 per week childsupport from the fourth Friday in August to and including the lastFriday in May each year. The dissolution judgment directed thatJodi pay $49 per week from the first Friday in June to andincluding the third Friday in August each year.

Having reversed the award of custody to William for thesummer, we need not discuss whether the trial court erred inordering Jodi to pay $49 per week as child support during thesummer. Because the provision requiring Jodi to pay child supportduring the summer was related to the award of custody to William,we reverse the provision in the judgment directing Jodi to pay $49per week during the summer. We also reverse that portion of theorder that directs William not to pay child support during thesummer and remand for reconsideration by the trial court.

We next address Jodi's contention that the trial court'sfailure to order child support from the date of judgment, March 1,2001, to the "fourth Friday in August, 2001" was an abuse ofdiscretion. The trial court's judgment does not explain why nochild support was ordered to be paid until the fourth Friday inAugust 2001. Child support is an obligation the parents owe forthe benefit of the child, and the parents may not by agreementdeprive the child of that support. In re Marriage of Florence, 260Ill. App. 3d 116, 121, 632 N.E.2d 681, 685 (1994). Even in casesinvolving joint custody, when a primary physical custodian has beendesignated, the trial court has an obligation to award childsupport or explain its downward deviation from the statutoryguidelines. See In re Marriage of Demattia, 302 Ill. App. 3d 390,393-96, 706 N.E.2d 67, 69-71 (1999). The temporary order which wasextended to the start of fall kindergarten 2001, provided foralternate seven-day periods of custody. William was responsiblefor child-care expenses and neither party was required to paysupport to the other. The child-care expense, according to Jodi'sattorney, is the responsibility of William at the rate of $75 aweek and "[t]here would be no other moneys between the partiesbeing exchanged." The record fails to show that the trial courtaddressed the reasons for not setting child support. However,because the trial court's order provided for alternate weeks ofcustody, and placing the responsibility for the $75 weekly day-careexpenses upon William, the trial court did not commit an abuse ofdiscretion in failing to further address child support.

We reverse the provisions in the judgment of dissolution(1) granting William custody of Stephanie during her school'ssummer break, and (2) directing Jodi to pay $49 per week for childsupport during those periods of the summer while authorizingWilliam to discontinue paying child support during those periods ofthe summer. In all other respects, we affirm the dissolutionjudgment. The cause is remanded for further proceedings on theissues of child support and summer visitation consistent with thisdecision.

Affirmed in part and reversed in part; cause remandedwith directions.

KNECHT, J., concurs.

APPLETON, J., specially concurs.

JUSTICE APPLETON, specially concurring:

I concur in the result reached by the majority but wouldmake it clear that the division of time spent with the child duringthe summer months is well within the trial court's discretion. Iagree that such a division of time should not be called legalcustody as opposed to physical custody. However, by reversing thetrial court's verbiage, we should not give the impression that wereverse the schedule imposed.