*1 under salary qualify [did] to the “subject Adams the mon- concluded apparently The Board Code].” Administrative [the employment and final months of during her paid ies to Adams after scheme were illegal in the kickback her participation she terminated salary. qualify as and did “subject agreement” to the III. CONCLUSION affirmance of stated, the circuit court’s we affirm For the reasons the Board’s determination.
Affirmed. SMITHSON, Campbell, L. In re MARRIAGEOF CHRISTINA n/k/a SMITHSON, Respondent-Appellant. Petitioner-Appellee, and JAMES T. 4 — 10—0677 Fourth District No. January 31,
Argued January Opinion filed 2011. 2011. *2 (argued), Feldman, Wasser, Cox, Draper Kelli E. Gordon & Springfield, appellant. for Decatur, Hopp (argued), appellee.
Richard W. for judgment PRESIDING JUSTICE KNECHT delivered the court, opinion.
Justice Turner judgment opinion. concurred Pope specially part part, Justice concurred in and dissented in opinion.
OPINION par- agreement of joint-custody terminated the The trial court children, Smithson minor custody of their sole ties and awarded Smithson, mother, petitioner, Christina Smithson, to the respondent, also found The trial court Campbell. n/k/a failure to contempt for Smithson, be in indirect civil father, children. James for the health-care half of noncovered pay his indirect civil finding custody decision and both the appeals in part. and vacate part affirm contempt. We
I. BACKGROUND children 2000. Two on March and Christina were married 17, 2000, Ryan, on Jacob, July during marriage, were born Corps Marine in the United States May 30, 2003. James was On marriage. Kuwait duty Iraq served two tours mar- for dissolution of 15, 2004, petition filed a November the time 23, 2004, filed a waiver of parties riage. On November joint pa- entered into day, That same period grounds. primary be the Christina would renting agreement provided which marriage of dissolution of judgment A custodian of Jacob property- which included entered on was also November entitled to providing James would be settlement *3 days and 30 consecutive the children on alternate Christmas vacations during the summer. maintain party each agreement required
The also property par- The employment. medical insurance for the children medical, dental, ortho- optical, pay ties were then to each one-half of not otherwise dontal, for the children expenses or health-care-related by covered insurance. modify custody, 25, 2008, filed a motion to January
On terminated and be agreement be requesting joint-parenting 2009, 11, September On custody of Jacob and awarded sole contempt, alleging adjudication of civil petition Christina filed a for medical, dental, ortho- optical, pay had failed to the one-half of children not otherwise dontal, for the expenses or health-care-related of dissolution. required by judgment by covered insurance as 2010, held a 4, 2010, the trial court April On 2 to March adjudica- for modify custody petition and the hearing on the motion to witnesses, testimony from numerous hearing tion of After contempt. The court August 2010. the trial court entered an order and Christina. working for James joint concluded convincing by clear and proved had not court also found James evidence a change physical custody from Christina to him was neces- sary well-being for the Ryan. Further, of Jacob and James failed to prove there was an under which pay Christina would all health-care expenses by not covered James’s insurance nor did he request modification of judgment. He did not one-half of uncovered medical request nor did he modification of the judgment. The court then denied the modify custody, motion to terminated the joint-parenting agreement, and awarded sole custody of Jacob and Ryan to Christina. The court also found James in contempt failing to pay his share of the boys’ medical bills. This appeal followed.
II. ANALYSIS A. Custody The determination of child custody largely rests within the discre court, tion of the trial and its decision will not be disturbed on appeal against unless it is weight the manifest of the evidence or the trial court abused its In Marriage discretion. re Craig, App. 326 Ill. 3d (2002). 1127, 1129, 762 N.E.2d 610(b)
Section Marriage the Illinois Marriage Dissolution of (Act) (750 5/610(b) (West 2008)) Act ILCS provides:
“(b) The modify prior custodyjudgment court shall not unless it convincing evidence, finds clear and upon the basis of facts that have arisen prior judgment since the or that were unknown to entry court at the time prior judgment, a change that custodian, has occurred in the circumstances of the child or his or joint custody arrangement the case of a change that a has oc- curred in the circumstances of the child or either or both having custody, necessary and that the modification is to serve the *** best interest of the joint custody, par- child. In the case of if the agree joint custody arrangement, ties to a termination of a joint custody court shall so terminate the and make modifica- tion which is the child’sbest interest. The court shall state its specific findings support decision of fact in of its modification or joint custody termination parent opposes if either the modifica- tion or termination.”
(cid:127)1 modify custody order, To a petitioner must demonstrate (1) clear and convincing change evidence of circumstances of the (2) child or his necessary custodian has occurred and a modification is *4 Burke, to serve the best In Marriage interests the child. See re (1989). 253, 256, However, 185 Ill. 3d in App. 541 N.E.2d 247 joint-parenting agreement, agree case of a to a parties where both agreement, may proceed directly termination of the a trial court to a determination of the child’s best interests.
601
wrong
proof
burden
applied
trial court
argues to
he did not need
modify custody. He contends
to
denying his motion
agreed
as Christina
had occurred
change of circumstances
prove a
only
needed
working and the court
agreement was
joint-parenting
in the best interests
was
custody arrangement
what
to determine
custody that
joint
to
regard
James notes
Jacob and
longer
no
parents they
by both
stipulations
found
court has
supreme
in circumstances
change
a
constitutes
joint
to be
custodians
wish
the child’s
in accordance with
be made
custody modification should
a
75, 81, 678 N.E.2d
Ill. 2d
Marriage
Lasky, 176
In re
best interests.
(1997).
Marriage
in In re
Lasky,
court found
Following
this
1038
(2002),
both
834
where
Ricketts,
App.
Ill.
3d
768 N.E.2d
each seek
modify joint-custody agreement,
a
file
to
parents
petitions
essence,
joint custody
are,
agreeing
custody,
parents
ing sole
both
endanger
no need to show serious
and there was
should be terminated
mental, moral,
emotional health
or
physical,
to the child’s
ment
Ricketts,
Ill.
3d at
custody
App.
modify
agreement.
to
order
178,
James contends custody awarding sole joint-custody agreement and by terminating the motion amounted him, hearing at the on his testimony to therefore, and, should be joint custody working is not to an admission joint to have longer be a she no desires stipulation considered to gone right have to best- custody. He contends the trial court should Lasky noted both analysis change as the in circumstances interest and Ricketts had occurred. from those found of this case are different circumstances an adverse wit- testify Christina did
Lasky and Ricketts. working, during attorney’s op- her joint parenting found ness she testimony, Christina testi- testimony clarify elicit her portunity to custody working was she joint did not believe was fied the reason she wife, and not Julia, new James’s parenting believed she was between the fact the communication James. She based her belief on at and James was mostly by conducted e-mail the two families was an operated made. Julia exchanges the e-mail work when most of day. facility home day-care in-home was and this joint with James parent further she could continue to stated interests of the children. the best 610(b) joint a termination of agree to requires parties Section both make order and joint-custody can terminate a custody before the children. in the interests of custody modification of best custody. Both joint However, agree did not to terminate parties these stipula- nor was there modify file petitions did not *5 tion to that effect. testimony, equivocal best, Christina’s at an joint to terminate custody. We will not extend the reason- ing of Lasky either or Ricketts to include the facts of this case. argues even if testimony Christina’s is not sufficient eliminate a finding change of circumstances or be considered the change of itself, circumstances proved by he has clear convincing evidence there has been a substantial change in circumstances.
The trial court essentially made a finding change of circum- by finding joint stances custody was not working for James and “[b]oth Christina as have not communicated as in necessary past” and, communicate, they when did James has dictated rather than discussed issues and has belittled parenting Thus, choices. got part of the remedy sought, he joint- termination of the parenting agreement, as the trial court working. found it was not court went on to find James proved by had not clear and convincing change evidence a in physical custody from Christina to him was “necessary” for the “well-being” of Jacob and parties presented
Both evidence of the other’s flaws. Christina’s marriage to James was her fourth and she was now married for the sixth time but in the process a dissolution which also included a custody fight for two-year-old half sister of Ryan, Jacob and Lillian Campbell. 17-year-old Christina had a son marriage, from her second Cook, Andrew who lived with her. Christina and her four children lived in a modest in Argenta. Ryan home Jacob and have lived there Ryan since always was born and had lived siblings, with their two half they very to whom were close. marriages,
Christina’s fifth and sixth which in span occurred of time from her divorce from James in November 2004 to were brief and included Ryan domestic violence to which Jacob and were exposed. engaged questionable practices in regarding the sleeping arrangements boys letting for the them in her sleep bedroom with her and each of her last two During husbands. her last marriage, Campbell, Ryan Jonathon Jacob and had slept on floor in Christina and they Jonathon’s bedroom while were intimate. Christina admitted this was not in the best interests of the children. boys Christina took the parents’ with her to her home over 20 times night Campbell fighting. when she and were This included nights. expressed worry safety. school Jacob about his mother’s Christina, Jacob, son, Ryan present when her older were Andrew, explosive built and set off an device made from toilet cleaner discipline and did not think he needed for this act. also lit a Andrew piñata on if really fire inside the house to see it was flame resistant. health, had difficulties dental problems had always top was not reading speech. school issues, let- sometimes Ryan’s speech issues and Jacob’s dental-health inform James She did not any treatment. go by months without ting until months after difficulties Ryan’s hearing speech (IEP) plan educational given an individual and he been diagnosis boys’ was informed district. Once James by the local school Julia, wife, and his educational difficulties health or complained their care. James decisions about very involved as evidenced fostering boys in the Christina was poor eating habits eat well-balanced they would not dental health and the fact poor him in California. healthy visiting food when duty in tour of James, he returned from his second once As He did and his sons. not come home to Christina he did Iraq *6 contact and most of Christina’s notify living them he was where of the Despite provisions father. the through him James’s was Jacob and allowing visitation with judgment of dissolution James vacation, every and other Christmas Ryan days for 30 the summer boys appeared to have seen he did not exercise this visitation by facilitated once in 2006. One of the visits was once 2005 and requests He made no James’s father and not James himself. medical, dental, or other hoys’ information about the for care. California, Florida, finally then apparently moved a Murietta, California, married Julia. Julia ran
settled down in child a lot of research on child care and day care in their home did all of his then, It he started to insist on rearing. was when boys’ care. decision-making in the for visitation and to be involved children, Julia, herself, been married several times and had two had Jillian, Jett, and Julia at the age age living with James hearing. time of the trial court to do a Appleton appointed by
Dr. Helen was actually did evaluations. The evaluations Appleton evaluation. Dr. two James, custody be Appleton ultimately favor and Dr. recommended both James and Christina given Appleton to James. Dr. interviewed Julia, Jacob, extensive docu- Ryan, and Andrew. She reviewed well as and doc- many and dental including ments e-mails between teach- boys reports of treatment of the as well as school reports tor boys, school ers. She did not interview other relatives officials, or teachers. ability to had not demonstrated the Appleton
Dr. found Christina in her poor judgment and has provide a stable home environment her Although physical there was no abuse selection of men. marriage James, history her gravitated indicated she toward abusive Exposure men. to domestic abuse not in was the best interest of the children. While she noted witnessing abuse must have detrimental boys, effect on the pinpoint any she could not specific effect she had observed. Dr. Appleton noted a close bond between Christina and Ja- but, cob and her second interview of the boys, they found been “coached” and the healthy bond was not a one as Jacob in particular overly concerned about what his mother would think of gave the answers he Appleton. to Dr. acknowledged there adjustment period would be an if the boys were separated from mother, their Appleton’s opinion Dr. itwas was in the best interest of boys physical custody. James to have A guardian litem, ad Zachry, was also appointed for Jacob and Ryan. Zachry boys interviewed the and their teachers and read depositions parent. Although each he described Christina’s personal wreck,” life Zachry as a “train recommended it was in the children’s best interest to remain Zachry with Christina. found both boys healthy, well-fed, personable. They virtually lived entire in Argenta lives and went to school there. Zachry believed the boys had been coached in their mother, answers Christina and her nearby. Despite who lived coaching, boys’ found the wishes to live with their mother to be sincere.
Zachry found boys enjoyed their time spent with James and Julia, good and Julia’s children had a relationship boys. with the He found James legitimate regarding raised concerns personal life and inadequacies boys. Zachry her care of the found James and boys’ Julia both had the best interests at heart.
Zachry found disadvantage by living James had distinct California since boys very he could not see the often. Christina had advantage always distinct because she had physical custody of the *7 boys. She has taken an schooling active role and been a parent sincerely active their lives. She the boys wishes best for the and tried to her despite problems. be best for them some
Zachry acknowledged Appleton’s report findings Dr. and and stated However, supported by those recommendations could be the facts. Zachry’s opinion, uprooting Ryan only they Jacob and from the home known, system they familiar, had ever the school with which and community they the social in which have lived would not be in their best interest. life,
Zachry noted while Christina has not led a stable has support system. parents Her live near her as well as her brother and boys’ by choosing other relatives. James absented himself from the life and, thus, daily unable to be in their live California involved stability. life since 2004. He has not been a model of He has had several to the were married time he and Christina from the jobs different While back to school. military, gone has present, been in the and has effect on had some lifestyle choices must have Zachry thinks Christina’s well-adjusted. healthy, and happy, to be Ryan, they appear and Jacob but James custody remain with Christina Zachry recommended given the distance between as feasible should have as much visitation home. his and Christina’s home They Ryan and in camera. both Jacob
The trial interviewed mother. to live with their (750 professed both desire 2008)) 5/602(a) (West 602(a) the Act ILCS (cid:127)2 Section when determin- trial consider all relevant factors provides a court shall child, specifically the factors set including of a ing the best interests by the Act. These factors are: forth “(1) parents custody; his parent the or as to the wishes of child’s (2) custodian; the child his the wishes of as to (3) interrelationship par- his the and the child with interaction may siblings person other who parents, or his and
ent interest; child’s significantly affect the best (4) home, community; adjustment the schooland child’s (5) involved; physical all the mental and health of individuals (6) physical the physical the violence or threat of violence custodian, potential against directed the child or child’s whether against person; directed another *** (7) repeated whether ongoing the occurrence of or abuse against against person; or directed the child directed another (8) willingness ability parent and each to facilitate and encourage a continuing relationship close and between other child; parent
(9) parents is a sex offender.” 750 ILCS whether one 5/602(a) (West2008). boys parents The are
(cid:127)3 Both desire of Jacob boys young but both a desire to live with their mother. expressed wife, Julia, and get James’s her along parents with both well as children, boys’ siblings, other half Andrew children boys’ relationship with Appleton and Lillian. Dr. found healthy, and not all to be an insecure attachment healthy, two happy, other Christina has raised well- evidence showed family support system. James ab- adjusted boys, help from her years lives and has been sented himself from their for several feeding, bathing, care of and school activi- day-to-day involved in most has been to have visitation with ties. James’s recent involvement daily life boys for summer and vacations when Christmas that, just them is a vacation. school, home, community adjusted to their are *8 Argenta.
in They have lived nowhere else. The was evidence over- whelming they are happy, overall and healthy, well-adjusted. James has been Ryan’s speech hearing concerned being needs were not addressed, adequately he has an but IEP and is receiving By services. custody hearing, the end of the Ryan it was to going noted was be held grade back in first as he was immature and quite meeting not goals. high-achieving educational Jacob was student in fourth grade. His dental issues been needing addressed. The issues to be boys addressed for both until completely were addressed James involved, became but Christina has now addressed them.
No evidence showed either parent Ryan or Jacob or had mental- or physical-health issues which would from prevent parents par- enting thriving. or the children from history being Christina has a in abusive of which relationships, predate some the birth of Jacob and Ryan. However, they present of physical were for some incidents domestic arguments. weighs violence as well as heated This factor against parent Christina. There no ongoing is abuse neither is a sex offender. party’s willingness
As for each a relationship to foster between Ja- cob Ryan parent, and the other the evidence this case showed a deteriorating relationship between the parents. Christina tried to boys James, against coach the went way out of his to much negative discover as information he could on Christina to present in court. parent These facts do not bode well for either boys to foster continuing good relationship between the and the parent. noncustodial “train may wreck” describe Christina’s life in rela- past
tion to life, the men her the evidence been a good indicated she has Ryan mother to Jacob and overall they currently thriving her currently care. evidence she in any relationship, No showed let boys’ well-being alone an abusive one. If James’s interest level, its should keep remains at current will Christina focused tempted boys. be falter in her care of the prove necessary court
The trial concluded James did not it was court change physical custody from Christina to him. The also terminated, arrangement be and it joint-custody concluded the should Ryan’s custody. was in be in best interests to ensuing against These conclusions and orders are not weight manifest of the evidence or an abuse discretion.
B. Contempt him appeals finding (cid:127)4 also from the order of trial court health-care contempt direct for failure to his share of civil for Jacob and covered insurance. of fact for the contempt question is party guilty Whether a is against it unless is not be disturbed court, ruling trial and its will In re Mar abuse of discretion. or an weight manifest evidence (2003). 191, 200 643, 653-54, 796 N.E.2d riage 342 Ill. 3d Spent, App. *9 disobedience proof court and of willful The existence an of the of order The contempt. of finding for a indirect of that order be must shown alleged on the contempt of rests resisting finding burden in he a valid willful and has not noncompliance contemnor to show was Ill. 3d at Spent, App. 342 the court order. excuse for failure to follow 653, 796 at N.E.2d 200. parties the agreement
The executed property-settlement marriage of stated into the their incorporated judgment dissolution as follows: maintain medical insurance parties 5. Each of the shall
“[III.] the the benefit of through employment to for available them shall one- parties pay of the parties, minor children of the and each dental, health medical, or other any optical, half orthodontal by any insur- expense for the not covered care related children ance.” parties later this but contends agreement
James admits exists agreed expenses all medical for pay Christina would uncovered insur- exchange being obligated not to medical provide for them, provide primary ance for continue to while James would emphatically for the Christina denied coverage boys. medical-insurance there any agreement. was such no between the agreement
James admits there was written He at trial several e-mails modifying court order. introduced between had he Christina proved himself and Christina which claimed agreed to to this One e-mail from James asked Christina modification. agreement you.” confirm the “Thank The e-mail replied and she other from agreement James admitted there was modification no written but he to it. responded acquiescing claimed to this e-mail Christina James did not denied copy response. respond- have of her ing modify to this e-mail and into entering agreement denied to original court order.
The modify trial court found James an to prove agreement did not original expenses. order as payment to of uncovered medical court requested judgment noted James never modification the court. agreement the evidence as to in dispute,
trial in a superior position judge credibility court is of the wit Marriage Bates, 489, 515, nesses. In re 212 Ill. 2d 819 N.E.2d (2004). We will not judgment substitute our the trial for court’s finding of fact there was no modification of deci- the court order. This sion of the court was not against weight manifest the evidence or an abuse of discretion. even argues if the agree- court finds been no there to have
ment to modify obligations his uncovered share of medical expenses, good-faith and, he belief there an was such therefore, his actions did not amount to willful of a disobedience court order. The evidence did persuade the trial court there was an agreement, it did explain Thus, but he why pay. did not he contends willfully was not disobeying a order and should be held contempt of court.
The trial court found did not send documents or demand payment for one-half expenses years, uncovered medical for several but James was aware of those received expenses explana- because he tions of benefits because he carried the insurance. He had health notice seeking Christina was at payment for these since least filed the petition adjudication civil contempt indirect *10 September 11, pay expenses 2009. James did he any not of those had the ability do so. to arguable
James point, nothing has an find he did but we because to alleged reduce bring the modified or it agreement writing to before the court equivocal “agreement” the despite he received from Christina, it rely alleged was unreasonable for him to on modifica- the tions and not to pay expenses prior share of uncovered medical filing petition contempt. Christina a adjudication for an of indirect civil He was of as to fully agreement aware the existence of the original uncovered a expenses. supports medical We do not believe his conduct finding contempt. of civil
Instead, and he remains justified we conclude his conduct was not responsible for his share of medical and the at- expenses uncovered torney original seeking agree- fees Christina incurred to enforce the ment.
III. CONCLUSION judgment terminating joint-parenting We find the trial court’s the agreement placing against full is not the Christina manifest of the not an of discretion. We weight evidence and abuse finding conclude the of the manifest contempt against indirect is evidence, weight it. the we vacate (the finding in part in and vacate part judgment the We affirm contempt). in part. in vacated part
Affirmed part: dissenting POPE, concurring part JUSTICE custody issue. regarding the opinion majority the I concur concern- majority’s from the decision dissent However, respectfully I is the trial court by majority, noted the contempt issue. As ing the a determining person whether findings when to make factual required entitled to deference findings factual are contempt. These guilty is against the be disturbed unless court and should not appellate the by Certainly, determining whether the weight of evidence. manifest willful, order the is alleged contemnor’s disobedience credibility upon to make determinations. trial court is called Here, undisputed following is issues. James evidence he expenses, to one-half of uncovered medical required pay showing bal- explanation-of-benefits any unpaid received statements ance, pay to The ability and he had the to and failed his share. only contention Christina disputed issue was willfulness. James’s agreed arrangement by agree- this the record. supported to is parties provided parents carry ment for both insurance through employment. unemployed Christina later became employer through did have an carry whom could insurance. she obligation This did not relieve of his to maintain or insurance bills. unpaid medical to cover one-half of agreement sought never modification court nor any showing written documentation produce could he Christina’s pay any out-of-pocket modification. He failed to on, despite payment from demands for him known address for and written demand when Following filing attorney August 2009. stating an e-mail to James sent would contempt petition, According medical to counsel dur- expenses. of the uncovered pay 50% *11 court, still have these not been argument before this ing oral paid. testimony, found, hearing extensive trial after pay, and he failed obligations, ability his had the
failed to mitigate would any agreement between the that prove against the findings are not manifest I believe the trial court’s conduct. evidence, trial and therefore I would have affirmed the weight of the court in toto.