Adam V. v. Victoria W.
2022 IL App (5th) 200187-U
| Ill. App. Ct. | 2022Background
- Parties: Adam V. (petitioner) and Victoria A.V.W. (respondent) divorced; one minor child A.V. born 2008.
- Earlier JPA/MSA: parties agreed to shared parenting; in 2013 the trial court set aside the JPA for fraud after finding respondent misrepresented intent to remain locally; this court affirmed on appeal.
- Serious allegations: respondent later alleged the petitioner sexually abused A.V.; a Will County emergency order of protection briefly issued but was dismissed and DCFS investigation found allegations unfounded.
- Multi-day 2018–2019 custody trial: evidence included medical records, expert opinions (conflicting), teacher and family testimony, GAL report finding respondent attempted alienation; judge conducted an in camera interview of 10‑year‑old A.V. and found her not sufficiently mature to state a binding preference.
- Trial court awarded petitioner sole decision‑making authority and majority parenting time, denied respondent’s motions to substitute/recuse the judge, and later entered sanctions against respondent; the appellate court affirmed the custody and recusal rulings but reversed the sanctions awards.
Issues
| Issue | Petitioner (Adam) Argument | Respondent (Victoria) Argument | Held |
|---|---|---|---|
| 1) Substitution of judge for cause based on alleged ex parte contacts between Saline and Will County judges | Contacts were proper judicial communications under Supreme Court/local rules and did not show bias | Ex parte communications with Will County judge (and counsel arranging them) showed judge Thurston was biased in petitioner’s favor | Denied — no actual prejudice shown; communications authorized by rules (affirmed) |
| 2) Recusal based on judge’s in‑camera interview of A.V. (alleged hostile questioning) | Interview was neutral and aimed at assessing competency to express wishes | Judge’s questioning discredited child, revealed hostility/favoritism → required recusal | Denied — no showing of actual prejudice; judge acted within discretion in conducting interview (affirmed) |
| 3) Allocation of parental decision‑making and parenting time (best‑interests) | Awarding petitioner sole decision‑making necessary because respondent alienated the child and undermined co‑parenting; evidence supported credibility findings | Court ignored child’s stated preference and failed to give weight to evidence of petitioner’s misconduct/substance and medical concerns | Affirmed — trial court’s best‑interest findings were supported by the record and not against manifest weight of the evidence |
| 4) Sanctions and attorney‑fee award (Rule 137 and 750 ILCS 5/508) | Requested Rule 137 sanctions for fraud and frivolous filings; court also awarded fees under §508 | Motion for Rule 137 was untimely; respondent had no notice of §508 request; court improperly awarded fees sua sponte | Reversed in part — Rule 137 relief for the earlier matters was time‑barred; sua sponte §508 fee award reversed for lack of notice and hearing |
Key Cases Cited
- In re Marriage of O’Brien, 393 Ill. App. 3d 364 (Ill. App. 2009) (motion to substitute for cause requires showing of actual prejudice)
- In re Marriage of Petersen, 319 Ill. App. 3d 325 (Ill. App. 2001) (presumption of judicial impartiality; burden on moving party)
- Fohr v. Fohr, 75 Ill. App. 3d 575 (Ill. App. 1979) (trial court discretion in in camera child interviews)
- In re Marriage of Hefer, 282 Ill. App. 3d 73 (Ill. App. 1996) (warning about reliance on child preferences; susceptibility to parental manipulation)
- In re Marriage of Eckert, 119 Ill. 2d 316 (Ill. 1988) (standard for reversing custody decisions: manifest weight of the evidence)
- In re Marriage of Matchen, 372 Ill. App. 3d 937 (Ill. App. 2007) (custody findings must be supported by evidence)
- In re Marriage of Wolff, 355 Ill. App. 3d 403 (Ill. App. 2005) (standards for relief on newly discovered evidence in post‑judgment motions)
- In re Marriage of Sheber, 121 Ill. App. 3d 328 (Ill. App. 1984) (trial court’s discretion in denying motion to set aside judgment)
- Shoff v. Shoff, 179 Ill. App. 3d 178 (Ill. App. 1989) (treatment of mature child’s custody preference)