In re MARRIAGE OF ELIZABETH K. ALDEN, Petitioner-Appellee, and DANA A. ALDEN, Respondent-Appellant.
Nos. 2-12-1046, 2-12-1116, 2-12-1172, 2-12-1208 cons.
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
December 19, 2014
2014 IL App (2d) 121046-U
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 08-D-1034. Honorable Robert A. Miller, Judge, Presiding.
Justices Zenoff and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: Because respondent complied with the trial court’s purge order, an appeal concerning the underlying merits of the trial court’s August 29, 2012, finding of contempt is moot. We also hold that the trial court’s award of section 508(b) fees against respondent was not an abuse of its discretion. The evaluator’s report was properly allowed in evidence; the trial court found the evaluator credible; and the trial court made the requisite findings in determining whether to modify the Joint Parenting Agreement. The trial court’s October 10, 2012, ruling on petitioner’s emergency motion to implement the recommendations of the evaluator was not against the manifest weight of the evidence and did not constitute an abuse of discretion. The trial court’s October 23, 2012, judgment awarding sole custody, care, and control of the children to petitioner was not against the manifest weight of the evidence because the opposite conclusion was not clearly apparent based on the record presented to this court. Respondent also complied with the trial court’s
¶ 2 In this postdissolution matter, respondent, Dana A. Alden, appeals from orders of the circuit court of Du Page County finding him in indirect civil contempt for violating provisions of the Joint Parenting Agreement and awarding fees (No. 2-12-1046); restricting his visitation (No. 2-12-1127); and awarding sole custody to petitioner; and finding him in contempt (No. 2-12-1208). In a separate appeal, petitioner, Elizabeth K. Alden, challenges the trial court’s refusal to hold respondent in direct criminal contempt for making false statements to the court (No. 2-12-1116). The four appeals have been consolidated for review.
I. BACKGROUND
¶ 4 Initially, we note that respondent has made numerous statements and arguments throughout his brief, which, upon our review of the common-law record and reports of proceedings, have compelled this court to conclude that he has misrepresented and mischaracterized the proceedings. The misrepresentations, in turn, made our review difficult, since we had to verify all of respondent’s statements presented as facts and his supporting arguments.
¶ 5 A brief, objective, recitation of this litigation is necessary to place the issues raised on appeal in the proper context. The marriage of the parties was dissolved in December 2009. The trial court’s judgment incorporated a Joint Parenting Agreement, which pertained to the parties’ two children, E.A. and J.A. Relevant to the instant appeals are the following provisions:
“11. Neither parent will interfere with the children’s reasonable and proper companionship with the other party.
***
13. Neither party shall obstruct the development and maintenance of love and affection between the children and the other party.
14. Each party shall make all reasonable efforts to foster a close and continuing relationship between the children and the other parent; including, without limitation, encouraging the children to spend time with the other parent, emotionally supporting the children’s love for the other parent, and supporting the activities the other parent plans with the children.
15. Neither parent will do or say everything (sic) that may estrange the children from the other parent.
16. Each party agreed to do everything within his or her power to foster the respect, love, and affection of the children for the other party, so that they may have proper[] physical and emotional growth and retain their respect and affection for both of their parents.”
¶ 7 Petitioner further alleged that she had recently learned that respondent had been taking the children to see a mental health professional without her knowledge or consent. Petitioner alleged that respondent’s conduct was an example of his intent to deceive petitioner and violated paragraph 4 of the Joint Parenting Agreement, which required the parties to jointly discuss any extra-ordinary medical decisions.
¶ 8 On March 12, 2012, respondent filed a motion asking the trial court to appoint a guardian ad litem. Respondent alleged that petitioner had been inflicting physical injuries upon the children. By an agreed order entered the same day, the trial court appointed a guardian ad litem for the children.
¶ 10 On April 24, 2012, petitioner filed a petition to terminate joint custody and award sole custody to petitioner, and to modify the visitation schedule so that respondent’s visitation would be “supervised because of his deliberate and continued effort to alienate the children from their mother.” Petitioner alleged that, since the entry of the dissolution judgment, there had been a substantial change in circumstances of the parties and the children. Petitioner alleged that
¶ 11 Also on April 24, the guardian ad litem filed a petition asking the trial court to appoint an evaluator to conduct an investigation and issue a report concerning an opinion on the residential custody arrangements for the children, appropriate parenting times, and type of parenting contact for the noncustodial parent going forward. On May 15, 2012, the trial court appointed Dr. Mary Gardner as a custody evaluator.
¶ 12 On July 6, 2012, the trial court conducted a hearing and found respondent in contempt for failing to pay ordered child support for December 2011 and January 2012. The purge contemplated by this order was later satisfied and respondent purged the contempt finding as expressed in an agreed order dated October 23, 2012. Respondent presents this contempt finding and purge as part of his appeal No. 12-1208.
¶ 13 On August 28, 2012, the trial court conducted a hearing on petitioner’s rule to show cause (1) for respondent’s alleged visitation violation and (2) for taking the children to see a psychologist without petitioner’s knowledge. The trial court also heard petitioner’s petition for
¶ 14 Respondent testified that the calendar, which reflected a parenting schedule, was confusing, and he had no input on the calendar. With respect to the February 10 weekend, respondent testified that he picked up the children at their school; he was in the back parking lot. He told the children that petitioner would be at the school to pick them up, but if they decided they wanted to go with him, they could. He denied that the children left the school grounds and went to a neighbor’s house. Respondent testified that his car was parked a block away, and he walked to the rear of the school and picked up the children. The trial court questioned respondent regarding his terms relating to “calendar” and “schedule” and sought clarification of their meaning; respondent testified he was referencing different things, and he never followed the calendar that petitioner had sent him.
¶ 15 The trial court declined to find respondent in indirect civil contempt for considering the weekend of February 10, 2012, as his parenting time because the parenting schedule was not clear. The trial court reviewed the Joint Parenting Agreement and noted that petitioner and respondent changed the order “to the point where it’s barely recognizable with regard to the Joint
¶ 16 The trial court did, however, find respondent in civil contempt for his failure to comply with paragraphs 11, 13, 14, 15, and 16 of the Joint Parenting Agreement. The trial court reasoned that respondent knew that petitioner was at school to pick up the children, and respondent put the children in a position in which they had to choose which parent to go home with that day. The trial court also awarded petitioner attorney fees pursuant to section 508(b) of the Act. To purge the contempt, the trial court ordered respondent to write an apology to petitioner by August 29, 2012, for putting the children in a position of having to choose which parent to go home with on that day.
¶ 17 On August 29, 2012, the hearing continued. As an initial matter, the trial court found that respondent issued a written apology that complied with the court’s prior order, and the trial court purged the contempt order. The trial court then conducted a hearing on the second part of the rule, that is, for respondent to defend why he took the children to a therapist and why he would not divulge the therapist’s name to petitioner. Respondent testified that the name of the therapist was Osama El-Shafie; the first time the children saw him was in the fall of 2011, and the last time they saw him was in February 2012. The children saw El-Shafie approximately 10 to 15 times. Respondent testified that he did not tell petitioner “[b]ecause the kids were reporting to me that they were being hit, and being locked in the basement, and they were afraid of their mother, and they did not want her there.” Respondent agreed that he had no photographs that led him to bring the children to the therapist, but only what he observed.
¶ 18 On cross-examination, respondent testified that he was unaware whether El-Shafie ever reported petitioner to the Department of Children and Family Services for the alleged abuse of
¶ 19 The trial court questioned respondent regarding the children’s therapy. The trial court asked respondent why he allowed the proceeding to discuss El-Shafie and his counseling for approximately 20 minutes when El-Shafie had never met with the children, and respondent explained it was because El-Shafie was the head of the practice and because he thought El-Shafie was overseeing the counseling. Following respondent’s testimony, the trial court asked the parties whether the provisions of the Joint Parenting Agreement encompassed mental health care decisions. The court requested case law in which courts have found that the term “medical” also referred to “mental health.”
¶ 20 The proceedings continued, and respondent called Umberto Davi, the children’s guardian ad litem. Davi was appointed by the trial court to investigate the allegations of abuse allegedly
¶ 21 The trial court indicated that it was not ready to issue a decision until it determined whether a medical decision included a mental health counselor. At that time, counsel for petitioner asked the trial court to consider whether respondent committed perjury or direct criminal contempt. The trial court continued the matter.
¶ 22 On September 11, 2012, the parties reconvened before the trial court on petitioner’s petition for indirect civil contempt and petitioner’s oral motion for direct criminal contempt. The trial court heard arguments first, on the oral motion for direct criminal contempt. During the course of the arguments, the trial court inquired of petitioner’s counsel the theory as to the benefit for respondent to state that El-Shafie was the counselor as opposed to Priester; petitioner’s counsel did not know. The trial court seemed concerned with the purpose of respondent’s testimony regarding El-Shafie. Respondent’s counsel directed to the trial court an email that respondent had previously sent to petitioner, wherein he identified the correct name of the counselor as Priester. Respondent’s counsel argued that petitioner and her counsel were not deceived because they both had the correct information from the prior email. Respondent’s counsel argued that respondent had no intent to deceive. Respondent’s counsel further argued that the counselor’s name had no material bearing on the case. Following arguments, the trial
¶ 23 The trial court proceeded to address the issue of indirect contempt for respondent taking the children to see a therapist without petitioner’s knowledge or agreement. Petitioner’s counsel argued that respondent directly violated the provisions in the Joint Parenting Agreement contained in the marital settlement agreement and the dissolution judgment. The trial court asked petitioner’s counsel regarding the recommended purge, and counsel suggested that petitioner could choose the next therapist without objection from respondent. Respondent’s counsel argued that no type of purge existed because respondent stopped taking the children to the therapist when he was threatened with litigation for it. Following the arguments of the parties, the trial court stated that, to support a finding of contempt, “the order must be so specific and clear as to be susceptible with only one interpretation.” The trial court determined that the medical health provisions in the Joint Parenting Agreement of the marital settlement agreement did not specifically mental health counseling, and therefore, declined to hold respondent in indirect contempt. The trial court, however, found that respondent violated provisions 11, 13, 14, 15, and 16 of the Joint Parenting Agreement with regard to “reasonable efforts to foster a close and continuing relationship” with the other parent. The trial court found, specific to this hearing, that respondent lacked credibility. The trial court explained that, if respondent put petitioner in a position where she had to question the children regarding the counselor because
¶ 24 On September 11, 2012, the trial court memorialized its findings and order with respect to the August 29, 2012, hearing on petitioner’s petition for rule to show cause. The trial court noted that, on August 29, respondent was under oath and provided testimony regarding the mental health counseling for the two children. Respondent stated on both direct and cross-examination that the children were seen by and counseled by El-Shafie and that the doctor saw the children approximately 15 times. Respondent’s testimony led the trial court to believe that El-Shafie was the treatment provider for the children. On cross-examination, however, respondent eventually admitted that El-Shafie never counseled the children. Respondent explained that, when he was asked for the name of the person actually providing the treatment, he identified El-Shafie because he was the “contact person” for the office.
¶ 25 The trial court was “convinced beyond a reasonable doubt” that respondent’s assertions regarding the identity of the mental health counselor were false and untrue when made, and respondent knew the statements were false when he made then. The trial court, however, was not convinced beyond a reasonable doubt that respondent made the statements with a willful and malevolent intention of assailing the dignity of the court, or of interfering with its procedure and the due administration of justice. The trial court indicated that it could not understand why respondent would misstate the name of the provider other than to continue to perpetuate a past
¶ 26 Also on September 11, the trial court memorialized its order declining to find respondent in contempt for taking the children to the therapist and vacated the rule. The trial court also found respondent not in direct criminal contempt regarding the identity of the therapist. The trial court found, however, that respondent had not fostered the mother/child relationship. The trial court awarded a judgment for $7,500 against respondent and in favor of petitioner’s counsel in relation to the matter.
¶ 27 On September 20, 2012, respondent filed a verified motion to modify custody, alleging that he had desired primary custody for years, the children have a strong custodial preference for him, and petitioner has abused the children. Respondent also alleged that petitioner had a history of psychological problems and a history of substance abuse. Respondent alleged that the children have a good, healthy, and loving relationship with him, and it would be in the children’s best interest to modify custody.
¶ 28 On September 24, 2012, respondent filed a notice of appeal. The notice reflects an appeal from the trial court’s order of August 29, 2012, holding him in contempt of court, and an appeal from the trial court’s order assessing attorney fees pursuant to section 508(b) of the Act. (Appeal No. 12-1046).
¶ 30 Following Gardner’s report, petitioner filed an emergency motion on September 28, 2012, to implement the recommendations of Gardner. On October 5, 2012, respondent filed his memorandum in opposition to petitioner’s motion to implement Gardner’s recommendations.
¶ 31 On October 4, 2012, the parties appeared before the trial court, wherein it reflected on some issues about which it was concerned, including discovery. The hearing continued on petitioner’s emergency motion, and petitioner called Gardner as a witness. Gardner testified that the targeted parent was petitioner, and the primary individual doing the alienation was respondent. Gardner described it as severe alienation with tactics being used. Gardner testified
¶ 32 The parties reconvened, and they engaged in pretrial discussions off the record. Thereafter, petitioner called Gardner to testify. Gardner testified that she found severe alienation in the present case and it increased as her evaluation went forward. The children seemed to present many more symptoms of distress and alienation when they were brought in by respondent, and there was “pretty rapid change.” As the evaluation continued, she gathered information and updates from both parties. Gardner noted that respondent provided her a “lengthy list of doctors that [J.A.] had seen when he was young,” and as she was getting ready to release her report, she received a “letter from a physician in Michigan indicating that he thought, based on the information he was provided with, that this was a Munchausen’s by proxy case.”
¶ 33 Gardner further testified and described her interviews with the children and with the parents. Gardner learned that it was not possible for E.A. to have been locked in petitioner’s basement because there was no lock on the door. Gardner also learned that it was not possible for E.A. to have seen petitioner’s boyfriend “naked” because the boyfriend had never met the children. When Gardner asked respondent about E.A.’s reports, respondent indicated that he thought the door had a lock to it and he believed the children had met petitioner’s boyfriend. Gardner testified that she did not see any evidence of petitioner alienating the children from
¶ 34 Petitioner testified on her own behalf to implement the recommendations of Gardner. She testified that her present residence has no lock on the basement door, and her previous residence had no lock on the basement door. She also testified that the children had never been in the presence of her boyfriend. On cross-examination, petitioner admitted that they were all “under the same roof at the same time,” but they were not in the same room. Petitioner was also shown a picture of a door from a rental home, and she identified the doorknob as having a lock.
¶ 35 Respondent testified next. He testified that the children said that they had met petitioner’s boyfriend. E.A. was “goofing around on the internet,” and they had a conversation about petitioner’s boyfriend. Respondent testified that E.A. was “troubled, basically because she saw him without any clothes on.” E.A. told respondent that she did not like it and it made her uncomfortable. Respondent also testified that J.A. had told him that petitioner locked him in the basement with the lights off.
¶ 36 Kimberly Baird, respondent’s girlfriend, testified that she had never heard respondent make any disparaging remarks in front of his children about petitioner. Baird also testified that the children have a loving and warm relationship with respondent.
¶ 37 Following arguments of the parties, the trial court discussed Gardner and noted that she had a great deal of expertise in alienation and was aware of the signs of alienation. The trial court found Gardner credible; found that alienation had occurred; and was alienation of the children by respondent from petitioner. The trial court noted Gardner’s report that the children were at risk of irrevocable harm if the contact continued without the alienating behavior being
¶ 38 On October 10, 2012, the trial court conducted a hearing on petitioner’s emergency motion to implement Gardner’s recommendations. Following a hearing, the trial court ordered respondent to have supervised visitation with the children with conditions. The trial court also ordered respondent to undergo a course of psychotherapy with a forensic mental health professional trained and having experience with the concept of parental alienation and to follow all treatment recommendations of the therapist.
¶ 39 On October 15, 2012, respondent filed a notice of interlocutory appeal from the trial court’s October 10, 2012, order (Appeal No. 12-1127), which order restricted respondent’s visitation with his children.
¶ 40 On October 23, 2012, the parties appeared before the trial court. The record reflects that the trial court and counsel had a discussion outside the courtroom, which was not recorded. When the parties and the trial court were back on the record, the trial court memorialized its decision. The trial court noted its belief that there was a joint parenting agreement in place, which should be changed if there’s an agreement that could be worked out to a sole custody agreement, which would vacate the Joint Parenting Agreement. The trial court noted that it would need to be rewritten into the sole custody agreement. With respect to visitation, the trial court anticipated that it would need to become a different parenting agreement and supplemental
“UNIDENTIFIED MALE SPEAKER (context indicates respondent): Judge, if I may be heard briefly.
THE COURT: Yes, sir.
UNIDENTIFIED MALE SPEAKER (respondent): Can I put the – in there that I’m really not agreeing that the joint parenting agreement is being vacated. I’m agreeing that she has sole custody, right? Isn’t that the essence of my agreement?
THE COURT: But it’s my opinion and people –
MR. LEVY [petitioner’s counsel]: That’s your order.
UNIDENTIFIED MALE SPEAKER [respondent]: Okay.
THE COURT: But my opinion is once there’s sole custody, there is no joint parenting agreement because you’re not joint parenting; it’s a sole custody.
UNIDENTIFIED MALE SPEAKER [respondent]: I see what you’re saying.”
¶ 41 The trial court thereafter entered an order vacating the parties’ Joint Parenting Agreement; awarding the sole care, custody, control, and education of the minor children to petitioner; and modifying respondent’s visitation schedule. Respondent filed a timely notice of appeal from this order (Appeal No. 12-1208). Also on October 23, 2012, the trial court entered an agreed order modifying the terms and conditions of child support and purging a prior finding of contempt. Respondent appeals portions of this order as well (Appeal No. 12-1208).
¶ 42 During the pendency of the appeals, respondent filed a motion to supplement the record on appeal. On April 8, 2013, the parties appeared before the trial court on various matters. Petitioner had filed a motion to supplement the trial court record with Gardner’s report; the trial
¶ 43 Since this litigation began, the parties have presented various appeals to this court. See In re Marriage of Alden, No. 2-12-1046 (current appeal); In re Marriage of Alden, No. 2-12-1116 (current appeal); In re Marriage of Alden, No. 2-12-1127 (current appeal); In re Marriage of Alden, No. 2-12-1208 (current appeal); In re Marriage of Alden, No. 2-13-1138 (appeal of trial court order denying respondent’s motion to dissolve the imposition of supervised visitation entirely; appellate court denied November 18, 2013); In re Marriage of Alden, No. 2-13-1151 (appeal of trial court’s order of October 15, 2013, refusing to modify an injunction; appellate court dismissed on December 31, 2013, except petitioner’s motion for sanctions is reserved pending the completion of all other appeals); In re Marriage of Alden, No. 2-13-1195 (appeal of trial court order enjoining respondent from filing exhibits to a motion, appellate court dismissed May 1, 2014); In re Marriage of Alden, No. 2-14-0346 (appeal of trial court order finding respondent had waived confidentiality; pending in appellate court).
¶ 45 In this consolidated appeal, respondent enumerates eight issues and petitioner presents one issue for our review. We note that, rather than address each appeal separately and according to the judgment being challenged, respondent has essentially set out issues and arguments, leaving this court with the task of determining which argument applies to which judgment and appeal. Therefore, we have determined that, in appeal No. 12-1046, respondent challenges the trial court’s order finding him indirect contempt for violating provisions of the Joint Parenting Agreement. Respondent presents the following issues: (1) “The provisions of the Joint Parenting Agreement that the trial court concluded had been violated were not specific or clear so as to be susceptible of only one interpretation, and, as a result, the trial court erred when it sua sponte decided to hold [him] in contempt”; and (2) “The trial court’s conclusion that [he] had violated the Joint Parenting Agreement by placing the children in a position of choosing with whom they were going to go after school was clearly erroneous and against the manifest weight of the evidence.” Respondent also challenges the trial court’s award of attorney fees to petitioner pursuant to
¶ 46 With respect to appeal No. 12-1046, respondent filed his Notice of Appeal under
¶ 48 In the present case, respondent attached the August 29, 2012, order, which addressed a rule to show cause pertaining to the circumstances of the February 10, 2012, incident in which respondent told the children to meet him after school, despite it being petitioner‘s weekend as per the parenting schedule. The trial court found respondent not in indirect civil contempt for considering the weekend of February 10 as his parenting time because the schedule was not clear; however, it found respondent in indirect civil contempt for violating provisions of the Joint Parenting Agreement. The trial court allowed respondent to purge the contempt finding by writing an apology to petitioner. The transcript of the report of proceedings from the hearing on August 29 reflect the trial court‘s later finding that respondent had issued a written apology that complied with its prior order, and the trial court purged the contempt order. Because respondent complied with the trial court‘s order, an appeal concerning the merits of the trial court‘s finding of contempt is indeed moot. See J.S.A., 384 Ill. App. 3d at 692. The apology letter has been written and delivered. There is nothing to be accomplished by reversing the trial court‘s purging order to review the underlying decision. See Betts, 155 Ill. App. 3d at 104. Accordingly, we
¶ 49 This appeal also concerns the trial court‘s award of attorney fees to petitioner pursuant to
¶ 50 The foregoing is one of the instances of respondent‘s factual and procedural misrepresentations to which we alluded earlier in this disposition. The trial court did not sua sponte hold respondent in contempt of court or sua sponte order fees. Petitioner brought a petition for indirect civil contempt on February 21, 2012, following the circumstances of the disputed February parenting weekend; the trial court began conducting hearings on August 28, 2012; and the trial court issued its ruling at the conclusion of the hearing.
¶ 51 A trial court‘s decision to grant or deny fees under
“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney‘s fees of the prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.”
750 ILCS 5/508(b) (West 2012).
¶ 52 A finding of contempt is sufficient to require an award of fees under
“Although in its written order the court did not state that the failure to comply with the court orders was ‘without compelling cause or justification,’ such findings are implied by the contempt findings. Preliminarily (and as to both contempt findings), ‘finding a party in contempt for failing to comply with a court order implies a finding the failure to comply was
without cause or justification,’ rendering mandatory the imposition of attorney fees per section 508(b) . In re Marriage of Deike, 381 Ill. App. 3d 620, 634 (2008). Specifically, ‘[b]ecause the primary prerequisite to any contempt finding is willful, contumacious conduct, it follows that a finding that a party is in contempt of court for failing to comply with a court‘s orders carries with it an implicit finding that the failure to comply was without cause or justification.’ (Emphases added.) In re Marriage of Cierny, 187 Ill. App. 3d 334, 348 (1989).” Putzler, 2013 IL App (2d) 120551, ¶ 38.
¶ 53 Respondent‘s argument on this issue is not directed at the trial court‘s discretion or ruling. Rather, respondent focuses on the factual allegations pertaining to the trial court‘s underlying order finding him in contempt. We have already determined the contempt issue was moot and will not revisit the issue. With respect to the
¶ 54 Although respondent does not mention this point, it does not matter the trial court found respondent had purged himself of contempt by issuing a written apology to petitioner at the next hearing. See In re Marriage of Wassom, 165 Ill. App. 3d 1076, 1081 (1988). The policy behind
¶ 55 To summarize, because respondent complied with the trial court‘s purge order, an appeal concerning the merits of the trial court‘s finding of contempt is moot. We also hold that the trial court‘s award of
¶ 56 The next order respondent appeals from is the trial court‘s October 10, 2012, ruling on petitioner‘s emergency motion to implement the recommendations of Dr. Gardner. This is appeal No. 12-1127, and it appears that respondent presents the following issues with respect to this order: (1) “Without any evidence linking [his] visitation to the serious endangerment standard of section 607 [of the Act], the trial court failed to make the requisite finding that [his] visitation would seriously endanger the children‘s physical, mental, moral or emotional health and therefore it had no authority to restrict [his] visitation to being supervised“; and alternatively, (2) “To the extent the trial court found that [his] visitation would seriously endanger the children‘s mental or emotional health, that finding was based upon speculation and contrary to the manifest weight of the evidence.”
¶ 57 We note that, at this stage of the proceedings, the Joint Parenting Agreement was still in place. Therefore, petitioner‘s emergency motion to implement Gardner‘s recommendations would be akin to a request for a hearing in furtherance of her April 24, 2012, motion to modify the Joint Parenting Agreement. See In re Marriage of Smithson, 407 Ill. App. 3d 597, 600-06 (2011).
¶ 59 Respondent‘s first contention addresses the findings the trial court was required to make. Respondent argues that “the trial court failed to make any finding that [respondent‘s] visitation would seriously endanger the children‘s physical, mental, moral, or emotional health.” In a footnote, however, respondent admits that the trial court concluded that “the children are seriously endangered with regard to their mental and emotional health,” and essentially modifies the argument that the trial court failed to link the finding to his visitation as required by
¶ 60 In this regard, respondent has misstated the evidence and true findings of the trial court. The record clearly reflects Gardner‘s testimony concerning alienation: that the targeted parent was petitioner, and the primary individual doing the alienation was respondent. Gardner described it as severe alienation with tactics being used. As detailed above, the trial court discussed Gardner and noted that she had a great deal of expertise in alienation and aware of the signs of alienation. The trial court found Gardner credible; found that alienation had occurred; and was alienation of the children by respondent from petitioner. The trial court noted Gardner‘s report that the children were at risk of irrevocable harm if the contact continued without the alienating behavior being arrested. The trial court found that “the children are seriously endangered with regard to their mental and emotional health, that they are in a fragile situation, that the situation is only getting worse, that if it isn‘t immediately given attention, that it may in fact be irrevocable, and it doesn‘t have to be irrevocable for it to seriously endanger them now.” To the extent that the trial court found Gardner credible and relied on her testimony over that of respondent‘s evidence, it was the trial court‘s discretion to do so. See In re Marriage of Debra N. & Michael S., 2013 IL App (1st) 122145, ¶ 45 (stating that a trial court‘s custody determination is afforded great deference because the trial court is in the best position to judge the witnesses’ credibility and assess the best interests of the child) (citing Bates, 212 Ill. 2d at 516). Accordingly, we reject respondent‘s contention that the trial court failed to make the requisite findings.
¶ 61 Respondent‘s next contention pertaining to the trial court‘s October 10, 2012, ruling is that, “[t]o the extent the trial court found that [his] visitation would seriously endanger the
¶ 62 With respect to respondent‘s challenge to the admission of Gardner‘s report, his challenge is meritless. Under
¶ 63 With respect to respondent‘s claim regarding the speculative nature of Gardner‘s testimony and opinions, we reject his claim as conclusory with little support in the record. A
¶ 64 Again, the trial court discussed Gardner and noted that she had a great deal of expertise in alienation and awareness of the signs of alienation. Respondent was provided ample opportunity to cross-examine Gardner regarding her report and recommendations. The trial court found Gardner credible; found that alienation had occurred; and was alienation of the children by respondent from petitioner. “A custody determination inevitably rests on the parties’ temperaments, personalities, and capabilities, and the witnesses’ demeanor.” In re Marriage of Spent, 342 Ill. App. 3d 643, 652 (2003). A reviewing court accords great deference to the trial court‘s custody decision since it is in the best position to observe the temperaments and personalities of the parties and assess the credibility of the witnesses. Id. The trial court reviewed the evidence presented and assessed the credibility of the witnesses. Accordingly, we decline now to second guess the trial court‘s findings. Further, we conclude that respondent has failed to persuade this court that the trial court‘s decision was against the manifest weight of the evidence and constituted an abuse of discretion. See Bates, 212 Ill. 2d at 515.
¶ 65 To summarize, Gardner‘s report was properly allowed in evidence; the trial court found Gardner credible; and the trial court made the requisite findings in determining whether to modify the Joint Parenting Agreement. We conclude that the trial court‘s October 10, 2012,
¶ 66 The next order respondent appeals from is the trial court‘s October 10 and 23, 2012, rulings regarding custody and visitation, as well as the trial court‘s July 6, 2012, order holding him in contempt and awarding section 508(b) attorney fees. This is appeal No. 12-1208, and it appears that respondent presents the following issues with respect to this order: “Without providing [him] any notice and without conducting a hearing, the trial court erred in terminating joint custody and vacating the Joint Parenting Agreement“; and “The trial court‘s hearing did not comport with the requirements of section 610 [of the Act] when it modified custody without considering the best interests of the minor children.”
¶ 67 For this appeal, respondent makes a number of claims: the only matter set for hearing on October 23, 2012, was his petition to decrease child support; petitioner‘s petition to terminate joint custody, modify the visitation schedule, and award sole custody was never set for hearing on October 23; the trial court sua sponte vacated the parties’ Joint Parenting Agreement, granted petitioner sole custody, and terminated his visitation indefinitely; the trial court lacked jurisdiction to hear petitioner‘s faxed pleading (the emergency motion to implement Gardner‘s recommendations) on October 4, 2012; the Act does not provide for an emergency hearing “permanently terminating a party‘s custody and visitation“; the trial court‘s order dissolving joint custody and terminating his visitation was void as a matter of law; scheduling a hearing on only three days’ notice rendered it impossible for respondent to serve a valid subpoena upon Gardner for the October 4 hearing. Respondent further argues that the trial court did not conduct a hearing on the best interests of the children under section 602(a) of the Act and made no
¶ 68 Again, we are compelled to correct respondent‘s misrepresentation of the proceedings. The record clearly reflects that trial court took no actions “sua sponte.” See In re Marriage of Greenburg, 102 Ill. App. 3d 938, 949 (1981) (rejecting unsupported allegations of judicial misconduct following a review of the record). On April 24, 2012, petitioner filed a petition to terminate joint custody and award sole custody to petitioner, and to modify the visitation schedule so that respondent‘s visitation would be “supervised because of his deliberate and continued effort to alienate the children from their mother.” On September 20, 2012, respondent filed his verified motion to modify custody, alleging that he had desired primary custody for years, the children had a strong custodial preference for him, and petitioner had abused the children. Because each party filed a petition seeking sole custody, they effectively stipulated to terminate the joint-custody arrangement and agreed that a change in circumstances warranted awarding custody to only one of the parents. See Spent, 342 Ill. App. 3d at 651 (citing In re Marriage of Lasky, 176 Ill. 2d 75, 81 (1997)). Therefore, once both parties filed motions seeking custody (indicating a change of circumstances had occurred), they were effectively seeking to vacate the Joint Parenting Agreement, and the trial court, pursuant to
“Nothing in the transcript of proceedings on October 23, 2012 indicates that [respondent] objected to the court‘s entering a custody judgment that day. The entire transcript (which was added to the record on appeal on [respondent‘s] motion) consists of the parties and their counsel discussing other terms and conditions to be included in the order granting [petitioner] sole custody, not challenges as to whether the sole custody order should be entered. In fact, [respondent] stated, on the record in open court, that he understood he was agreeing to [petitioner] receiving sole custody. All of his arguments regarding the trial judge‘s findings, the evidence, the timing of the hearing—none of that matters, because [respondent] agreed. That agreement bars [respondent] from challenging the trial court‘s custody judgment to this court.”
¶ 71 In response, respondent points to the order itself, which was not an “agreed” order, and “[a]s a factual matter, [he] never agreed that [petitioner] should have sole custody or that the joint parenting agreement should be vacated.” Respondent claims that he was “trying to preserve his appellate rights and was not agreeing to the joint parenting agreement being vacated; at best, the transcript shows [him] questioning the essence of the ‘sole custody agreement’ that the trial court had asked him to ‘put together.’ ” Respondent also asserts that neither party “ever signed
¶ 72 The transcript of the proceedings from October 23, 2012, reflects that the trial court and counsel had a discussion outside the courtroom, which was not recorded. When the parties and the trial court were back on the record, the trial court memorialized its decision. The trial court noted its belief that there was a joint parenting agreement in place, which should be changed if there‘s an agreement that could be worked out to a sole custody agreement, which would vacate the Joint Parenting Agreement. The trial court noted that it would need to be rewritten into the sole custody agreement. With respect to visitation, the trial court anticipated that it would need to become a different parenting agreement and supplemental court order, but for now it ordered a restricted, supervised, visitation. Respondent, by all accounts speaking for himself, inquired of the trial court whether he could “put *** in there that I‘m really not agreeing that the joint parenting agreement is being vacated. I‘m agreeing that she has sole custody, right? Isn‘t that the essence of my agreement?” The trial court explained, “my opinion is once there‘s sole custody, there is no joint parenting agreement because you‘re not joint parenting; it‘s a sole custody.” Respondent indicated that he understood.
¶ 73 Neither party disputes that the foregoing were respondent‘s own words addressed to the trial court. Respondent essentially argues that he was not provided with proper notice of the hearing and he was not provided due process when the trial court modified custody. “The fundamental requirements of due process are notice of the proceeding and an opportunity to present any objections.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009). It would be “unjust, unfair, and inequitable” to allow an order modifying custody and visitation to stand where it is clear that a party had no notice that such an order was contemplated. See In re Custody of Ayala, 344 Ill. App. 3d 574, 587 (2003) (quoting Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731, 735 (1997)).
¶ 74 Both sides claim that the phrase, “I‘m agreeing that she has sole custody, right?” and the rest of the colloquy have different meanings and legal effect. Petitioner asserts that respondent‘s on-the-record agreement should preclude him from challenging the trial court‘s custody judgment. Respondent asserts that that he was “trying to preserve his appellate rights.” We decline to allow this issue to devolve into some sort of discussion of semantics and interpretation of a brief colloquy between a party who was represented by counsel but speaking on his own; that is not the function of an appellate court. See Board of Education of the City of Chicago v. Chicago Teachers Union, Local 1, American Federation of Teachers, 26 Ill. App. 3d 806, 813 (1975) (stating that the appellate court‘s function is to review the rulings, order, or judgments of the court below). Rather, we will exercise our review of the issue based on the record preserved on appeal. See Love v. Levisey, 11 Ill. App. 2d 531, 536 (1956) (stating that the jurisdiction that the appellate court exercises is appellate, and the review by the appellate court is of the record made in the trial court).
¶ 75 In the present case, the record on appeal reflects that, on October 4 and 23, 2012, the parties appeared before the trial court; the October 4 hearing has already been reviewed. The record from October 23, 2012, reflects that the trial court and counsel had a discussion outside the courtroom, which was not recorded. When the parties and the trial court were back on the record, the trial court memorialized its decision. The transcript contains a discussion of terms and conditions to be included in the trial court‘s order granting petitioner sole custody. The trial court entered an order vacating the parties’ Joint Parenting Agreement; awarding the sole care, custody, control, and education of the minor children to petitioner; and modifying respondent‘s
¶ 76 In In re Marriage of Gulla & Kanaval, 234 Ill. 2d 414, 422 (2009), our supreme court provided the following familiar guidance, which applies to this case: “This court has long recognized that to support a claim of error, the appellant has the burden to present a sufficiently complete record.” The sufficiency of the record to address a claim of error turns on the question presented on appeal. In the seminal case of Foutch v. O‘Bryant, 99 Ill. 2d 389 (1984), the question was whether the trial court abused its discretion in denying a motion to vacate an ex parte judgment. Id. at 391-92. Absent a transcript of the hearing where evidence was heard and absent specific grounds for the denial, review for an abuse of discretion of the trial court‘s ruling
¶ 77 We will not reverse a trial court‘s modification of custody unless the decision is against the manifest weight of the evidence and an abuse of discretion. Debra N. & Michael S., 2013 IL App (1st) 122145, ¶ 45 (citing Bates, 212 Ill. 2d at 515). The trial court‘s decision is against the manifest weight of the evidence only where an opposite conclusion is clearly apparent. In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 100. Where, as here, the record supports the trial court‘s finding that respondent had attempted to alienate petitioner‘s efforts to foster a close and continuing relationship with the children, the court‘s decision to modify the custody arrangement and transfer custody of the child to petitioner is not against the manifest weight of the evidence and will be upheld on appeal. See also, e.g., Mullins v. Mullins, 142 Ill. App. 3d 57, 74-78 (1986) (affirming trial court‘s order transferring custody of children where there was sufficient evidence to support a finding that the other parent had engaged in a “scheme” to destroy the children‘s relationship with their father).
¶ 78 Respondent‘s final challenge with respect to this appeal No. 12-1208 concerns the trial court‘s order “on July 6, 2012, holding him in contempt of court with the purge for said contempt being resolved via an agreed order entered on October 23, 2012.” For the reasons previously mentioned, this challenge is moot. See Betts, 155 Ill. App. 3d at 104 (stating that a contempt order that is purged by complying with the court‘s order renders an appeal of such contempt moot); see also J.S.A. v. M.H., 384 Ill. App. 3d at 692 (2008). The trial court‘s
¶ 79 To summarize, the trial court‘s October 23, 2012, ruling, which awarded petitioner the sole custody, care, and control of the children, was not against the manifest weight of the evidence and did not constitute an abuse of discretion. Further, because respondent complied with the trial court‘s purge order, an appeal concerning the merits of the trial court‘s July 6, 2012, finding of contempt is moot. Accordingly, we affirm the trial court‘s judgment in appeal No. 12-1208.
¶ 80 We turn now to appeal No. 12-1116, in which petitioner challenges the trial court‘s September 11, 2012, order wherein it declined to hold respondent in direct criminal contempt for making false statements to the court. Petitioner contends, inter alia, that the trial court erred because it could not ascertain respondent‘s intent or determine why he lied. Petitioner requests that we employ a de novo standard of review because the trial court‘s exercise of discretion was based on an erroneous conclusion of law.
¶ 81 “Criminal contempt of court has been generally defined as conduct which is calculated to embarrass, hinder or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute.” People v. Javaras, 51 Ill. 2d 296, 299 (1972). Two forms of criminal contempt have been recognized: direct and indirect.
¶ 82 However, the alleged contemnor in an indirect criminal contempt proceeding is entitled to “due process safeguards, including notice, opportunity to answer, and a hearing.” Id. at 543-44. Direct criminal contempt that allegedly occurs in the constructive presence of the court is subject to the same procedural requirements as indirect-criminal-contempt proceedings. In re Marriage of Betts, 200 Ill. App. 3d 26, 59-60 (1990). Accordingly, respondent in the present case was entitled to the following procedural safeguards, including: (1) notice of the nature of the contempt charges; (2) an opportunity to answer the alleged charges; (3) right to a hearing; (4) the privilege against self-incrimination; (5) the presumption of innocence; (6) the right to be proved guilty beyond a reasonable doubt; (7) right to counsel (and to appointed counsel if indigent); (8) right to confront and cross-examine witnesses; (9) right to be personally present at trial; (10) right to testify or to remain silent; (11) right to compulsory process for obtaining witnesses; and (12) right to present the testimony of witnesses favorable to his or her defense. See id. at 58-59 (setting forth the procedural requirements for indirect-criminal-contempt proceedings and constructive-direct-criminal-contempt proceedings).
¶ 84 In the present case, respondent counters that principles of double jeopardy preclude this court from ordering a retrial, since he was already acquitted of the offense. Petitioner responds that, although respondent cited numerous cases in support of his claim, none of the cases dealt with either indirect or direct criminal contempt. Respondent is correct.
¶ 85 The constitutional bar against double jeopardy provides three basic protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. People v. Milka, 211 Ill. 2d 150, 170 (2004). Here, merely because respondent failed to cite any cases in which double jeopardy principles applies to those found in direct or indirect criminal contempt does not mean that no cases exist.
¶ 86 Contrary to petitioner‘s assertion, reviewing courts have previously considered similar circumstances and have determined that double jeopardy principles do apply in this context. See,
¶ 87 In Alltop v. Alltop, 203 Ill. App. 3d 606 (1990), the petitioner petitioned the trial court for a rule to show cause for the respondent‘s failure to pay education expenses of their child and for failure to distribute a worker‘s compensation settlement according to the court‘s order. Id. at 616. The trial court imposed a sanction of imprisonment, which constituted a criminal contempt finding. On appeal, the respondent argued that the trial court failed to follow the proper procedural safeguards before finding him in criminal contempt. Id. at 614. The reviewing court agreed. The reviewing court held that the pleading must be entitled a “petition for adjudication of criminal contempt” and that a “petition for rule to show cause” was not adequate to give notice to the respondent of the criminal nature of the proceedings. Id. at 616. Before ordering a remand, however, the reviewing court considered whether doing so would subject the respondent to double jeopardy. Id. at 616 (citing People v. Taylor, 76 Ill. 2d 289, 309 (1979)); see also Falcon, Ltd. v. Corr‘s Natural Beverages, Inc., 173 Ill. App. 3d 291 (1988) (upon determining that the defendants were entitled to a jury trial, and thus, a new trial, on an appeal of a trial court‘s finding of indirect criminal contempt, the reviewing court applied the requirements of Taylor to avoid the risk of subjecting the defendants to double jeopardy).
¶ 88 Pursuant to the foregoing authorities, principles of double jeopardy undoubtedly apply when a party is found in criminal contempt, either direct or indirect. We do recognize that, in
¶ 89 As a final matter, we must address the timeliness of our disposition. Illinois Supreme Court Rule 311(a)(5) (eff. Feb. 26, 2010) provides that, in appeals from orders concerning child custody, “[e]xcept for good cause shown, the appellate court shall issue its decision within 150 days after the filing of the notice of appeal.” The four notices of appeal in these cases were filed between August 2012 and November 2012, and the 150-day period for filing our disposition expired in April 2013. Under the circumstances of the present case, including its procedural history, we believe good cause existed to excuse the delay in filing our decision. Over a period of years, the parties have vigorously pursued and defended their actions through litigation; the instant appeals are the first four of at least eight presented to date for this court to review. Because both petitioner and respondent presented appeals, each attorney needed to review the record, research the issues, and write an appellate brief, all of which took a measure of time. The parties were entitled to a fair and full opportunity to develop and present their positions.
III. CONCLUSION
¶ 91 III. CONCLUSION
¶ 92 For the reasons stated, we affirm the judgment of the circuit court of Du Page County in the consolidated appeals of Nos. 12-1046, 12-1116, 12-1172, 12-1208.
¶ 93 Appeal No. 2-12-1046, affirmed.
¶ 94 Appeal No. 2-12-1127, affirmed.
¶ 95 Appeal No. 2-12-1208, affirmed.
¶ 96 Appeal No. 2-12-1116, affirmed.