In re Marriage of Heldebrandt

301 Ill. App. 3d 265 | Ill. App. Ct. | 1998

NO. 4-98-0225

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In Re: the Marriage of ) Appeal from

DEBI HELDEBRANDT,    ) Cir­cuit Court of

     Petitioner, ) Sangamon County     

and ) No. 92F521

JAMES RICHARD HELDEBRANDT, )

     Respondent-Appellant, )

and ) Hon­orable

THE DEPARTMENT OF PUBLIC AID, ) Robert T. Hall,

Intervenor-Appellee. ) Judge Presid­ing.

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1997, respondent, James Heldebrandt, filed a motion to reduce or terminate his child support obliga­tion be­

cause (1) two of his five children had reached the age of majori­

ty; and (2) his children had so vehemently and per­sistently re­

sisted visi­ta­tion with him that any semblance of his rela­tion­ship with them no longer existed.  In December 1997, the trial court con­ducted a hearing on James' mo­tion and later denied it.  James ap­peals, argu­ing only that the court abused its discretion by deny­ing his mo­tion.  We af­firm.

I.  BACKGROUND

James and Debi Heldebrandt were married in 1976.  Mi­chael Heldebrandt, the oldest of their five children, was born in 1977.  Their youngest child, Cody, was born in 1985.  In 1989, the trial court dissolved the couple's marriage and awarded cus­

to­dy of the chil­dren to Debi.  James was granted visi­ta­tion rights but did not see any of the chil­dren for a year or more after the di­vorce.  Ac­cording to James' testi­mony, a "big blow up" oc­curred be­tween him and all of the chil­dren at the time of the di­vorce.  He told Debi and the chil­dren that he did­ not want to see the chil­dren until he was "ready," but if the chil­dren felt they were "ready" sooner, they could call him.  In 1991, James tried to ini­tiat­e visi­ta­tion, but the children re­sist­ed.  James remarried early in 1992, and Debi remar­ried in the summer of the same year.

In May 1992, James filed a petition to modify visita­

tion.  At the June 1992 hearing on the petition, the chil­dren tes­ti­fied about James' behavior both before and after the di­

vorce.  Sev­eral of the chil­dren re­membered him as having a bad tem­per, and they tes­ti­fied to spe­cif­ic inci­dents in which they experi­enced that tem­per firsthand.  They re­called that James threw things at them, ripped a tele­phone out of the wall in a fit of anger, chased them with a knife and plas­tic base­ball bats, dis­ci­plined Cody with a belt, and at vari­ous times made ver­bal threats of phys­ical harm.  The trial court or­dered a psy­chologi­cal assessment of the chil­dren and James to de­ter­mine an appro­

priate visita­tion ar­range­ment.  In early 1993, the court ordered su­per­vised visi­ta­tion with the two youn­gest children and tele­

phone con­tact with all of them, with in­creased visi­ta­tion depen­

dent on James' suc­cess­ful completion of coun­sel­ing.

James successfully appealed that ruling because the trial court denied him the opportunity to cross-exam­ine the ex­

pert wit­ness who conducted the psychological as­sess­ment.   Heldebrandt v. Heldebrandt , 251 Ill. App. 3d 950, 956, 623 N.E.2d 780, 784 (1993).  In May 1994, on re­mand, the trial court con­

duct­ed an­other hear­ing at which Debi tes­ti­fied that since the previ­ous court date, James had vis­it­ed three times with three of the chil­dren, but he had not visited the other two at all.  In June 1994, the court granted James su­per­vised visits with two chil­dren at a time on alter­nat­ing week­ends and with all of the chil­dren (ex­cept Mi­chael) on the Fourth of July and Labor Day holi­days and al­ter­nat­ing holi­days thereaf­ter.  On the Fourth of July and Labor Day holi­days in 1994, James attempt­ed visi­ta­tion, but the chil­dren re­fused to go with him.  James and his children have not spoken or seen each other since then.  

In May 1995, the trial court modified James' child sup­

port order by reducing his payments to 40% of his in­come be­cause of his fi­nan­cial difficulties.

  In September 1997, James filed the instant motion to re­duce or terminate his child support obligation.  At that time, he had not seen or contacted his children in over three years.  In Janu­ary 1998, the trial court denied his motion.  In February 1998, in response to James' motion to reconsider, the court re­

duced his child sup­port obli­ga­tion to 28% of his in­come in con­

sid­eration of both parties' incomes and ex­pens­es.  Later in Feb­

ruary, the court modi­fied the order again to re­flect an addi­tion­

al re­duction to 25% of James' income upon the emanci­pa­tion of the parties' sec­ond child.  This appeal fol­lowed.

    II.  ANALYSIS

A.  Effect of Custodial Parent's Actions

with Respect to Visita­tion

1. Standard of Review

When reviewing a ruling on a motion to modify child support, this court will allow the trial court's factual findings to stand unless they are against the manifest weight of the evi­

dence.   In re Marriage of Charles , 284 Ill. App. 3d 339, 342, 672 N.E.2d 57, 60 (1996).  Further, modi­fi­ca­tion of a child sup­port order lies with­in the trial court's discre­tion, and we will not  dis­turb its decision absent an abuse of dis­cre­tion.   Peo­ple ex rel. Hines v. Hines , 236 Ill. App. 3d 739, 744, 602 N.E.2d 902, 906 (1992).      

Under section 510 of the Illi­nois Mar­riage and Dis­so­lu­

tion of Mar­riage Act (Act), a substantial change of circumstances is required to change an order for child sup­port.  750 ILCS 5/510 (West 1996); In re Marriage of Singleteary , 293 Ill. App. 3d 25, 34, 687 N.E.2d 1080, 1087 (1997).   Be­cause the judg­ment "is res judi­ca­ta as to the facts which ex­isted at the time it was entered but not as to facts arising thereaf­ter, only new condi­tions war­

rant modi­fica­tion of a divorce de­cree."   Waggoner v. Waggoner , 78 Ill. 2d 50, 55, 398 N.E.2d 5, 8 (1979).  

2.   Respondent's Proposed Standard:

No Visitation, No Support

The thrust of James' argument is that he should be re­

lieved of his obli­ga­tion to sup­port his children because (1) they have re­peat­edly re­fused to see him and have "aban­doned" him; (2) Debi has not sufficiently encouraged the children to spend time with him; and (3) the children and Debi have estab­lished a new family unit that excludes him.  In effect, James pro­pos­es a three-part "test," which would warrant the reduc­tion or ter­mi­na­

tion of child sup­port when the following circumstances exist:  (1) a con­tin­uous re­fus­al by the chil­dren to visit and com­mu­ni­cate with the noncus­todi­al parent de­spite his reason­able ef­forts at visita­tion; (2) continu­ous and re­peated expres­sions of hos­til­i­ty and re­sent­ment by the chil­dren to­ward the non­cus­to­di­al par­ent; and (3) a lack of any mean­ing­ful ef­fort on the part of the cus­to­

dial parent to foster and encour­age visi­ta­tion after being in­

structed to do so by the trial court.  James fur­ther sug­gests that trial courts should be re­quired to make express find­ings of fact on these ele­ments and provide a factual basis for rulings on such mo­tions.  We reject James' proposal.  

Under Illinois law, both parents have an obligation to financially support their minor children.   Department of Public Aid ex rel. Jones v. Jones , 295 Ill. App. 3d 383, 389, 692 N.E.2d 1313, 1317 (1998); see also In re Marriage of Betts , 155 Ill. App. 3d 85, 100, 507 N.E.2d 912, 922 (1987) (the duty of a par­

ent, even a noncustodial one, to support his or her child aris­es out of the parent-child relationship).      

Even though James acknowledges the duty of a noncusto­

dial parent to support his children, he nonethe­less con­tends that Coo­per v. Coo­per , 59 Ill. App. 3d 457, 375 N.E.2d 925 (1978), and Weinert v. Weinert , 105 Ill. App. 3d 56, 433 N.E.2d 1158 (1982), have paved the way for Illi­nois courts to re­duce child support pay­ments on the basis of a noncus­todial parent's being de­pri­ved of his visi­ta­tion rights.  We are not per­suad­ed.  

In Coo­per , a noncustodial father peti­tioned for a re­

duc­tion in child sup­port pay­ments on several grounds.  His peti­

tion con­tained exam­ples of the custodial parent's use of the child in "psy­cho­logi­cal war­fare" with the petitioner and further alleged that the custodial par­ent had poi­soned the child's mind against him.   Cooper , 59 Ill. App. 3d at 459, 375 N.E.2d at 928.  The trial court dis­missed the peti­tion for failure to state a claim upon which re­lief could be granted.   Cooper , 59 Ill. App. 3d at 460-61, 375 N.E.2d at 929.  The appellate court held that the peti­tion­er was enti­tled to a hear­ing but declined to comment on petitioner's like­li­hood of suc­cess.   Coo­per , 59 Ill. App. 3d at 464, 375 N.E.2d at 931.  The court explained that "[w]e sim­ply ac­knowl­edge the novel pos­si­bility that defendant's obliga­tion for child sup­port could be terminated or suspended should he prove the extreme and unusu­al allegations of his peti­tion."   Cooper , 59 Ill. App. 3d at 464, 375 N.E.2d at 931.  Nonetheless, in the next sen­tence, the court restated the well-settled law in Illi­nois that "a mere vio­la­tion of visi­ta­tion terms will not ex­cuse the father's obli­ga­tion to sup­port his children."   Cooper , 59 Ill. App. 3d at 464, 375 N.E.2d at 1160.  

In Weinert , the appellate court reversed the trial court's dis­missal of a noncustodial parent's petition to modify his sup­port obligation.  The appellate court held that the children's re­fus­al to visit with their father, coupled with the pos­si­bili­ty that the custo­dial parent actively interfered with the petitioner's visi­tation rights, may establish a substantial change in circumstance war­rant­ing modifi­cation of petitioner's obliga­tion.   Weinert , 105 Ill. App. 3d at 59, 433 N.E.2d at 1160. In both Coo­per and Weinert , the peti­tion­er al­leged ac­

tive and ex­treme inter­fer­ence by the custo­dial par­ent.  In con­

trast, James' mo­tion did not allege that Debi had engaged in such egregious behavior.  Instead, James simply al­leged that, ab­sent any fault on his part, "none of [his] minor chil­dren have exer­

cised visi­ta­tion with [him]," and, al­though he had sought and at­

tempted visi­ta­tion, he was un­able to do so and the courts were inef­fec­tive in obtaining rea­son­able visi­ta­tion.  

Another difference between the present case and both Coo­per and Weinert is that in those cases the trial court dis­

missed the peti­tion to modify child support with­out conducting a hearing on the mer­its.  In contrast, the trial court here con­

ducted a hear­ing on James' mo­tion at which the court heard tes­ti­

mo­ny from each of James' chil­dren, his cur­rent wife, his sis­ter-

in-law (who had su­per­vi­sed vis­its be­tween James and his chil­dren), Debi, a psy­cholo­gist, and James him­self.  

Moreover, we view James' contention that interference on Debi's part can relieve him of his obligation to support his children as a stale argu­ment.  One of our sis­ter dis­tricts re­

cently faced a similar argu­ment and wrote the follow­ing:

"As trial judges and attorneys who handle divorces can attest, the most popularly held belief and excuse of litigants concerning their obligation of child support is that it is not owed because visitation has not oc­

curred or has been denied.  We will reiterate once more that visitation and child support are not dependent and both are for the bene­

fit of the chil­dren.  Section 509 of the Act spe­cifically provides that visitation and child support are independent and `[i]f a party fails to comply with a provision of a judgment, order or injunction, the obligation of the other party to make payments for sup­

port or maintenance or to permit visitation is not suspended.' [750 ILCS 5/509 (West 1996).]"   In re Marriage of Avery , 251 Ill. App. 3d 648, 654, 622 N.E.2d 1231, 1235 (1993).

We agree with the Avery court and reject James' contention that misconduct on Debi's part can relieve him of his support obliga­

tion.  See In re Marriage of Tatham , 293 Ill. App. 3d 471, 482, 688 N.E.2d 864, 873 (1997) (it is well set­tled that a cus­todi­al parent's violation of visitation terms does not excuse a non­cus­

todial parent from supporting his chil­dren).

To grant James' motion would have the effect of punish­

ing his chil­dren for their apparent in­ability to for­give and for­

get his out­bursts and absences during their child­hoods.  Au­tho­

rizing a reduction in child support payments by noncustodial parents in James' position would put a premium on parental misbe­

havior toward--or neglect of--their children.  Such a decision might be viewed by noncustodial parents who consider themselves burdened by child support payments as containing the following message:  behave badly enough toward the children and maybe the courts will reduce or eliminate those payments.  This is a mes­

sage the courts must never send.

3. Sufficiency of the Evidence

James also contends that the trial court's findings were against the manifest weight of the evidence.  Specifi­cally, James claims that the trial court ig­nored those facts that sup­

port his conten­tion that Debi's in­ter­fer­ence fueled the children's re­sis­tance to him.  We disagree.  

By James' own testi­mony, he aban­doned his chil­dren for over a year immedi­ately after the divorce.  One could expect that to rebuild a relation­ship with one's chil­dren after an emo­tional "blow up" and pro­longed separa­tion would be a grad­u­al and dif­fi­

cult un­der­tak­ing.  The evidence suggests that James' past be­hav­

ior left one or more of the chil­dren dis­trust­ful and re­sis­tant.  Perhaps, unfor­tu­nately for all con­cerned, James' response to their re­sis­tance was impa­tience fol­lowed by withdraw­al.  The trial court specifically found "con­sis­tent tes­timo­ny elic­ited that [Debi] told the chil­dren to give [James] a chance to es­tab­

lish a rela­tion­ship" but that the chil­dren re­fused to do so.  The court further stat­ed: "Wheth­er this re­fus­al was due to [James'] past ac­tions, the sib­lings' nega­tive re­marks about [James], the children's expe­ri­ences dur­ing vis­its, or some per­sonality clash­

es, the [c]ourt did not hear evi­dence show­ing that [Debi] was the cause."  We have reviewed the record and we conclude that the evi­dence sup­ports the trial court's finding that the breakdown in this rela­tion­ship was due to James' own con­duct and his children's re­sponses to it, rather than any in­ter­fer­ence by Debi.  Accordingly, we hold that the court's findings were not against the manifest weight of the evidence.   

We also reject James' contention that the trial court im­prop­er­ly placed the bur­den upon him to prove Debi's con­duct amounted to bad-faith inter­ference with his rela­tion­ship with the children.  Lim­it­ing child sup­port is a "dras­tic sanc­tion" and the mov­ant appro­priate­ly bears a "heavy bur­den of proof."   Department of Public Aid ex rel. Nale v. Nale , 294 Ill. App. 3d 747, 752, 690 N.E.2d 1052, 1056 (1998).  James sim­ply failed to meet it.  

B.  Effect of Children's Opposition to or

Disinterest in Visita­tion

James next contends that he should be re­lieved of his child support obli­ga­tion because the children "aban­doned" him.  We disagree.  

As noted by the interve­nor, the De­part­ment of Pub­lic Aid, courts from other jurisdictions have re­ject­ed respondent's "aban­don­ment-negates-duty-to-support" argument.  See Jaffee v. Jaffee , 608 N.Y.S.2d 649, 202 A.D.2d 264 (1994) (ado­les­cent son's refusal to see his fa­ther would not result in the termina­tion of sup­port obli­ga­tions when the fa­ther made minimal ef­fort to es­tab­

lish and maintain a rela­tionship with the son); Carroll v. Carroll , 593 So. 2d 1131 (Fla. Dist. Ct. App. 1992) (sup­port is not de­pen­dent on visi­ta­tion rights); Henshaw v. Henshaw , 83 Mich. App. 68, 268 N.W.2d 289 (1978) (tri­al court correctly denied father's action to ter­minate sup­port based on his 13-year-old daughter's refusal to visit him).  See general­ly Anno­ta­tion, What Vol­un­tary Acts of Child, Other Than Marriage or Entry into Mili­

tary Service, Termi­nate Parent's Obli­ga­tion to Support , 55 A.L.R.5th 557, §10(b), at 622-27 (1998).  We agree with this line of au­thority.  

C.  Effect of New Family Unit

Last, James argu­es that the estab­lish­ment of a new family unit by the chil­dren and Debi should be grounds for re­duc­

tion or termina­tion of James' child sup­port payments.  He cites no cases to sup­port this propos­ition and "[b]are conten­tions in the absence of argument or cita­tion of au­thority do not merit consid­eration on appeal."   Obert v. Saville , 253 Ill. App. 3d 677, 682, 624 N.E.2d 928, 931 (1993).  Moreover, this contention appears to be nothing other than a reiteration of arguments we have already rejected.     

III. CONCLUSION

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

KNECHT, P.J., and GARMAN, J., concur.