The opinion
Mr. Justice Bristow, dissenting.
I am disposed to dissent to the majority opinion in this case because it disregards one of the cardinal rules in judicial review, namely, that the findings of a trial court on issues of fact will not be disturbed unless they appear to be against the manifest weight of the evidence.
It appears without contradiction that the Nye home was broken up because of the wrongful intervention of Herbert Bruckner, the present third husband of Constance Nye; that the latter obtained a divorce from Herbert Nye in December, 1948, on the ground of desertion, and in that proceeding there was an agreed order on the custody of their daughter, Penny. Implicit in the foregoing solution of their marital difficulties was the understanding that the mother of Penny should forego a continuation of her adulterous relationship with her present husband, Herbert Bruckner. The record clearly indicates that she was not faithful to this undertaking.
On February 24, Constance and Bruckner were entertaining guests in her home in Wayne, Illinois. The visitors left at 11:30 P.M., but Herbert Bruckner remained. Herbert Nye and two detectives watched the home from without, and at 2:30 A.M. they entered and found the two engaged in sexual intercourse. Constance fully cognizant of her guilt said, “You outsmarted me in this one, why don’t you shake on it?” Then Herbert Nye, without any protest from the mother, removed their daughter, who was lying- asleep in the adjoining room, and took her to his home. The present proceedings ensued.
To minimize the gravity of her sins and obliquity, Constance testified that she and Bruckner had planned on being married on the very day her home was invaded. She also denied having sexual intercourse on that occasion but acknowledged that she was engaged in “necking” in one of its early stages. When asked if she would take a lie-detection test on this issue, she declined, saying that she was not “too familiar with its operation.” Let us examine the facts regarding the reasonableness of her story that she was to be married on February 25. The trial court, after a study of the behavior and appearance of Constance on the witness stand and an analysis of her testimony in that regard, determined that her story was a synthetic design for exculpation. It has been heretofore noted that on the evening of February 24 Constance had in her home several guests; they remained until 11:30 in the evening. It is significant to note that not one of those persons appeared in this hearing to state that they had been told of the plans of their host and hostess to be married the following day. When they were confronted with their intruders on the following morning their attitude was one more of defenselessness rather than resentfulness. They entered no protest against the rude intrusion and they failed to remonstrate, stating that they were going to be married that afternoon. Bewildered and supinely they surrendered the child to its father.
Mrs. Nye and Bruckner were married in Glenview, Illinois, a village with which neither of them had been previously identified. All the arrangements for the ceremony were made by a Mr. and Mrs. Sweeney, who are related to Bruckner. They arranged for a protestant minister to perform the ceremony, whom Bruckner and Constance had never seen or heard of before. It cannot be overlooked that this pastor did not appear as a witness to testify that the plans for his appearance at the church had been made previous to the day of the marriage. The vows were exchanged in a church in Glenview, the denomination of which is different from that of either of the contracting parties. It is also interesting to observe that neither Mr. nor Mrs. Sweeney appeared and testified in this case. The absence of the pastor and Mr. and Mrs. Sweeney is not explained. When asked about their medical examination, which is a prerequisite to obtaining the marriage license, they were extremely vague and uncertain. They were not sure whether it was St. Francis Hospital or St. Joe Hospital. A witness from such an institution with the records would have been extremely helpful. It is very apparent that the fantastic story told by Constance and Bruckner that they had planned their marriage on February 25 was sadly in need of support. Her resourceful lawyer would be the first to recognize this desperate need, but there was not a particle of evidence adduced on this hearing to support them on this important issue.
The chancellor in this cause is a renowned jurist of thirty years’ experience in this particular field of law. Constance presented a defense on this hearing that no doubt levied a great strain upon his credulity.
The prevailing opinion rejects the determination of the trial court that the divorce decree pertaining to the custody question should be modified because of changed conditions. This language was employed in connection therewith: “Assuming defendant’s allegations are true, there is no showing here of a change in conditions warranting a modification of the custody decree.” In other words, Bruckner and Constance were recognized adulterers at the time of the divorce decree. Therefore, the court adopts the unique position that since they simply continued their clandestine relationship there was no change in conditions.
The chancellor in this cause, after a long hearing, reached the conclusion and made the finding that Constance was an unfit mother. It has for a long time been the law in this State that such a finding should not be disturbed unless it is obviously wrong. Many factors must be taken into consideration by the trial judge in determining the fitness or unfitness of a parent. He must have in mind the character, moral stability, temperament, personality and honesty of the persons under consideration. Personal observation of the parties plays a tremendously important part in making a correct determination. Such intangibles cannot be transcribed into a record on appeal. For these reasons, there must be an obvious abuse of discretion before the chancellor’s conclusions are disturbed on review. In my opinion the record alone is sufficient justification for the trial court’s determination that Constance is an unfit mother. Appropriate is the language of Justice Mulkey in Calvert v. Carpenter, 96 Ill. 63 : “It can scarcely be repeated too often, that the judge and the jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things cannot be transcribed, upon the record, and hence they can never be considered by this court. For this reason the rule is firmly established, that where, as in this case, there is an irreconcilable conflict in the testimony, this court will not reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.”
Justice Gunn, in passing upon a similar issue in Buehler v. Buehler, 373 Ill. 626, at 630 , said: “Apparently the trial court went to great lengths to ascertain how the welfare of each child might be best served in making his award of their custody. * * * All the parties were before that court and from observation and consultation, as well as from the testimony, it was in a better position to determine that matter than could an appellate tribunal.”