In re Marriage of Wendy L. D.
72 N.E.3d 809
| Ill. App. Ct. | 2017Background
- Wendy (mother) and George (father) divorced after a 2010 custody judgment awarding Wendy sole custody and granting George specified parenting time; an October 2011 agreed order adjusted summer parenting time but left other terms intact.
- The parties have three children, two of whom (R.D. and B.D.) developed significant emotional/behavioral issues and required special-education and mental-health services after the 2010 custody order.
- George filed to modify custody in October 2012 alleging changed circumstances: Wendy repeatedly made unsubstantiated abuse allegations, interfered with his parenting time, excluded him from medical/educational matters, and resisted family therapy.
- A court-appointed evaluator (Dr. Kraus) issued a May 2014 report critical of Wendy’s conduct and recommended shared residential time with father decision-making for major issues; an October 2014 update noted Wendy’s improved cooperation and, with caveats, recommended she retain sole custody.
- After a multi-day trial with live testimony and expert evidence, the trial court found Wendy’s credibility suspect, concluded there was a substantial change in circumstances (including harm from Wendy’s efforts to minimize George’s role), and awarded George sole custody with decision-making authority; Wendy appealed.
Issues
| Issue | Wendy's Argument | George's Argument | Held |
|---|---|---|---|
| Whether the 2-year threshold in former 750 ILCS 5/610(a) required George to plead "serious endangerment" because his petition was filed within two years of the Oct. 2011 agreed order | The Oct. 2011 agreed order was a new custody judgment, so the petition (Oct. 2012) fell within two years and thus required the serious-endangerment affidavit | The Oct. 2011 order merely adjusted summer parenting time and did not create a new custody judgment; the relevant judgment is Sept. 2010, so the petition was filed after two years | Court held the 2011 order was not a new custody judgment; George was not required to plead serious endangerment under §610(a) |
| Whether George proved changed circumstances by clear and convincing evidence under former §610(b) to justify modifying custody | Wendy argued there was no material change warranting modification, cited experts and children’s rep who favored her continued primary custody and said her post-2014 improvements made change inappropriate | George argued long-standing interference and fabricated allegations harmed the children and their relationship with him; children's worsening needs and Wendy’s conduct justified modification | Court held the evidence (credibility findings, pattern of alienation, delay/resistance on therapy, and children’s developmental/behavioral changes) supported modification; award to George was not against manifest weight of evidence |
| Whether the trial court was required to follow or give dispositive weight to court-appointed expert recommendations | Wendy argued the court-appointed expert’s updated recommendation to keep her as custodial parent supported reversal | George argued credibility and trial evidence could justify a different outcome despite the expert’s recommendations | Court held the court is not bound by its expert; it may accept or reject expert views and did not err in declining to follow the expert’s ultimate recommendation |
| Whether Wendy’s appeal was frivolous meriting Rule 375 sanctions | George moved for sanctions, calling the appeal baseless and mischaracterizing the record | Wendy contended appeal had good-faith arguments supported by expert recommendations opposing the trial outcome | Court denied sanctions, finding the appeal not frivolous given expert and children’s representative opinions favoring Wendy |
Key Cases Cited
- Department of Public Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540 (Ill. 1998) (standard of review and deference to trial court on custody determinations)
- In re Marriage of Bates, 212 Ill. 2d 489 (Ill. 2004) (custody modification reviewed under manifest-weight standard; trial court best positioned to judge credibility)