In re TATE OLIVER B., a Minor (Evan M. W., Petitioner-Appellee, v. Emily B., Respondent-Appellant).
No. 2-15-1136
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Opinion filed March 16, 2016
2016 IL App (2d) 151136
Honorable Kathleen O. Kauffmann, Judge, Presiding.
Justices Zenoff and Birkett concurred in the judgment and opinion.
OPINION
¶ 1 The respondent, Emily B., appeals from the judgment of the circuit court of Ogle County finding that the petitioner, Evan W., is the father of her child, Tate Oliver B., and making various provisions involving legal custody, visitation, Tate’s surname, child support, and the repayment of medical expenses. We affirm in part, reverse in part, and remand.
¶ 2 I. BACKGROUND
¶ 3 Tate was born on August 19, 2014, when Emily and Evan were both 18 years old. The parties, who never married or lived together, continued to reside with their own parents.
¶ 4 By the time of Tate’s birth, Emily and Evan were no longer in a dating relationship. Evan was listed on the birth certificate as Tate’s father. Emily gave Tate her own last name.
¶ 6 Shortly after filing his petition to establish parentage, Evan moved for the entry of a temporary visitation schedule that would include upcoming holidays. On November 26, 2014, the trial court entered an agreed order setting a temporary visitation schedule, allowing Evan visits of about two hours at his home on various days. Another agreed temporary visitation schedule was entered on December 10, 2014, under which Evan had visits at his home of two hours or less, three times per week, and a four-hour visit on alternate Saturday mornings when Emily worked. Evan was to “make an effort” to have his mother or another agreed-upon adult present during visits. Emily was to provide all of the transportation for the visits.
¶ 7 On January 14, 2015, the trial court held a further hearing on the issue of visitation. During the hearing, Evan testified that he worked three nights per week for Vince’s Pizzeria, delivering pizzas. Emily testified that she was still nursing Tate and that breast milk was his only sustenance, as he had reflux and had not been able to eat solid food yet. Tate needed to feed about every two hours, which limited the amount of time he could be away from her. When Evan had his four-hour visit, Emily provided him with a bottle of breast milk to feed Tate and then fed Tate again as soon as she picked him up. Emily worked at a bank and the visitation schedule was designed to accommodate both parties’ work hours. Both parties testified that,
¶ 8 On March 12, 2015, the parties appeared before the trial court on a motion to substitute Emily’s attorney. While before the court, Emily drew the court’s attention to her motion for temporary child support, which had been served upon opposing counsel but had not been filed with the court. Evan objected to the motion being heard and asked for time to file a response. After some discussion, during which the court admonished Emily’s counsel that it required all motions to be properly filed and noticed up, the parties agreed to the entry of an order requiring Evan to pay Emily $40 per week in child support. This amount was based on the amount that Evan had paid Emily in the past voluntarily.
¶ 9 On March 31, Emily filed motions to: modify visitation; require Evan to search for full-time work and report his progress to the court; set permanent child support and require Evan to contribute toward Emily’s pregnancy-related medical expenses; and award her interim attorney fees. On April 22, Evan filed responses to Emily’s motions along with a motion of his own, in which he sought to have Tate’s surname changed from Emily’s surname to Evan’s. Emily filed a response objecting to this motion. On May 13, the trial court entered an order modifying visitation to allow Evan three-hour afternoon visits on Tuesdays, Thursdays, Saturdays, and alternate Sundays.
¶ 11 On July 22, 2015, the trial court issued a nine-page order. The order recorded the court’s previous verbal rulings regarding custody and Tate’s surname. The order further placed conditions on Emily and Evan, which the court described as similar to those found in “a standard joint parenting order,” requiring each of them to preserve Tate’s relationship with the other parent and to share all information about Tate’s health and education. In the event of conflicts, the parties were to attend mediation before returning to court. The order also set a visitation schedule that divided the holidays evenly between the parties and provided Evan with parenting time from morning to late afternoon on every Monday and Wednesday, and Saturdays and Sundays of alternate weekends. Overnight visitation would commence when Tate was 15 months old, with the addition of Saturday nights on Evan’s weekends. Overnight visits on Friday nights on Evan’s weekends would be added six months later. As to child support, the trial court continued Evan’s previously agreed obligation of $40 per week, stating that this amount
¶ 12 Emily moved for reconsideration. When her motion was denied, she filed this appeal.
¶ 13 II. ANALYSIS
¶ 14 On appeal, Emily challenges five aspects of the trial court’s order of July 22, 2015: the imposition of joint legal custody; certain portions of the visitation schedule; the imposition of Evan’s surname as Tate’s surname; the amount of child support; and the rate at which Evan was required to reimburse Emily for her medical expenses.
¶ 15 A. Joint Legal Custody
¶ 16 We begin with the issue of joint legal custody. Under
¶ 18 Emily notes that Evan testified in a contradictory manner about whether he sought joint custody of Tate. At one point he did not appear to understand what joint custody was, stating that he simply wanted equal parenting time. Similarly, he first testified that he did not seek to have input into decisions regarding Tate’s medical care, education, and religious upbringing as long as Emily kept him informed on these issues, but he then testified that he would like to have such input. However, the relevant legal question is not whether Evan could adequately describe joint custody. (Emily also appeared unaware of the legal standard for custody determinations,
¶ 19 Emily also argues that the trial court should not have found that the parties could cooperate well enough to permit joint custody, as they had no history of any agreements. However, both parties repeatedly testified, in hearings over the course of the case, that they often worked together to resolve problems that arose with visitation, child care, and other issues. Thus, the trial court’s determination that they could cooperate sufficiently to permit joint parenting was not against the manifest weight of the evidence.3
¶ 20 B. Visitation Schedule
¶ 21 Emily’s arguments regarding the visitation schedule entered by the trial court are not clearly laid out and are somewhat confusing. Emily begins by arguing that, in a parentage case, the burden is on the noncustodial parent to show that visitation is in the child’s best interest. J.W., 2013 IL 114817, ¶ 53. While she correctly states the law, she never argued before the trial
¶ 22 Instead, we view Emily as arguing that Evan has not carried his burden of proving that the amount of visitation ordered by the trial court (in particular, overnight visitation beginning when Tate is 15 months old) is in Tate’s best interest. At the July 2015 hearing, Emily testified that, although Tate had begun eating solid food, she still nursed him periodically during the day and nursed him to sleep every night, which was working well for Tate. Tate did take naps while he was in Evan’s care. However, Tate was still waking once or twice during the night, and she would nurse him back to sleep then. Accordingly, she was opposed to Tate having overnight visits with Evan until Tate was no longer being nursed to sleep at night. She believed that this would occur by the time Tate was two years old. On cross-examination, Emily conceded that Tate had taken a bottle. (At an earlier hearing, as noted, Emily had testified that she prepared a bottle of breast milk for Tate’s longer visits with Evan.) Evan testified that he would like the opportunity to care for Tate when Tate woke up in the middle of the night.
¶ 24 Emily argues that the trial court’s selection of 15 months as the appropriate age for Tate to begin overnight visits with Evan was arbitrary. However, the parties’ positions created a conflict: Evan argued for the immediate commencement of overnight visits, while Emily testified that overnight visits could begin when Tate was two, when she would no longer be nursing him. The trial court was required to resolve this conflict (People v. Collins, 106 Ill. 2d 237, 261-62 (1985)), and its selection of a date between the two parties’ positions was not against the manifest weight of the evidence. Accordingly, we find no error in the trial court’s resolution of the issue of overnight visitation.
¶ 25 C. Name Change
¶ 27 A century ago, a child of unmarried parents was considered filius nullius, the “child of no one,” a child without legal parents, who could inherit from no one. People v. Moczek, 407 Ill. 373, 380 (1950). In Smith v. Garber, the Illinois Supreme Court noted the passage of state laws ameliorating this harsh rule and held that, in keeping with the intent of those statutes, a child of unmarried parents was, legally speaking, the child of his or her mother. Smith v. Garber, 286 Ill. 67, 71 (1918); see also Moczek, 407 Ill. at 380 (“The common-law rule has been abrogated in Illinois so as to make him the lawful child and heir of his mother.“). At some point, paternity laws changed further to provide that, once a man is legally determined to be the father of a child, he can seek visitation and custody of the child, and the determination of those issues will be made solely on the basis of the best interest of the child. Nevertheless, the circumstances under which an unmarried parent may petition to change the name of his or her child are limited, and the statutory provisions permitting such a change place a heavy burden on such a petitioner.
¶ 28 At the time the trial court entered its order here, the name of a child of unmarried parents could be changed pursuant to one of two statutes. The first was
¶ 30 Because a change in the name of a child is a serious matter with far-reaching effects,
¶ 31 In Stockton, a father whose surname was Oldenburg sought to change his child’s name from Lauren Joanne Stockton (Stockton was the mother’s surname) to Lauren Stockton Oldenburg. Id. At the hearing on the father’s petition, the father submitted two items of evidence in support of the name change: his own belief that the change would allow the child to identify more closely with him, and the testimony of a clinical psychologist that “‘it could be nice’ ” for the child to have both parties’ names. Id. at 900. The trial court denied the petition, and the reviewing court affirmed. Although the reviewing court recognized that “a noncustodial parent is at a disadvantage in maintaining a strong relationship with the child and the child carrying that parent‘s name may demonstrate a noncustodial parent‘s continuing interest in and identity with the child” (id. (citing In re Marriage of Presson, 102 Ill. 2d 303, 312 (1984))), it
¶ 32 We find the reasoning of Stockton applicable here. Evan presented even less evidence to support his request to change Tate’s surname than did the father in Stockton: the only such evidence was his own opinion that “there was no reason for my name not to be up there” (i.e., used as Tate’s surname). Emily contradicted this assertion, testifying that she gave Tate her last name because Evan was present only sporadically during her pregnancy but she knew that she would always be there for Tate. As in Stockton, Evan’s evidence is simply insufficient to meet the statutory standard of clear and convincing evidence demonstrating that a name change is necessary to serve the child’s best interests. Accordingly, we hold that the trial court’s determination that Tate’s surname should be changed to Evan’s surname was against the manifest weight of the evidence.
¶ 33 We note that, in ruling on Evan’s name-change request, the trial court made no reference to the statutory factors, nor did it identify the evidence upon which it was basing its decision. While a trial court is under no obligation to explicitly address each applicable statutory factor or the evidence that it found compelling, the record must “reflect that the court considered evidence of the statutory factors” in making its decision. Sullivan v. McGaw, 134 Ill. App. 3d 455, 465 (1985). The failure to do so is error. Id.
¶ 34 Here, the trial court stated only that it was changing Tate’s surname to Evan’s surname and making Emily’s surname one of Tate’s middle names because Tate’s name “should include
¶ 35 Although the modern law of parentage grants an unmarried father substantial rights to his child’s upbringing and company, it does not reflect any preference that a child of unmarried parents should bear the father’s name. To the contrary, where the parents of a child do not agree on a name change, the law requires the parent seeking the change to demonstrate by clear and convincing evidence that the change is necessary for the best interest of the child.
¶ 36 Given that the evidence did not support a finding that a name change was necessary to serve Tate’s best interest, the trial court potentially could have advanced the goal of including both parents’ surnames by adding Evan’s surname as an additional middle name. See Dattilo v. Groth, 222 Ill. App. 3d 467, 469 (1991) (the change of a middle name is not as disruptive as changing a child’s last name). We do not mean to express the opinion that this result should have been the trial court’s choice; we simply find that the desire to include both parents’
¶ 37 Evan argues on appeal that we should not apply the “necessary” standard set out in
¶ 38 We reject Evan’s argument for two reasons. First, he brought his motion pursuant to
¶ 39 Second, we disagree that Wright should be applied to mandate a different result. In Wright, the parties had joint legal custody of the child and disagreed over the issue of the child’s surname. The father filed a petition to change the child’s surname to his own, pursuant to
¶ 40 Wright is not applicable here, where the name-change request was correctly filed within the parentage case. Further, to the extent that Evan is suggesting that the “necessary” standard of
¶ 41 D. Child Support
¶ 42 A trial court must exercise its discretion in determining the appropriate amount of child support, and we will not overturn its decision unless it has abused that discretion. In re Marriage
¶ 43 Under
¶ 44
¶ 45 Here, Evan did not submit any financial affidavit. (We are somewhat surprised that the trial court apparently never ordered the parties to do so.) However, at the July 2015 hearing, he testified as to his income. At that time, he was delivering pizzas five nights per week. He was paid $25 to $30 per night by his employer (in cash) and also received tips from customers. At one point, he testified that he could make $500 per week; at another point, he testified that he could make $75 per night (including tips), which would equate to $375 per week. Although he had also worked in construction for a few weeks, he left that job and returned to pizza delivery because he could make better money in fewer hours. Evan testified that he had never filed an income tax return. (At a prior hearing, he testified that he was working at the pizza delivery job in 2014 as well.) However, he expressed a willingness to do so in the future. A pay stub from the construction company showed that in May 2015 he had been paid $708.13 (net of withholding for taxes) for two weeks’ work. During closing arguments, Evan’s counsel argued that it should not be presumed that Evan would not pay taxes on his pizza delivery income, and that, based upon the construction job, Evan should pay $71 per week in child support. Emily’s counsel argued that, based on Evan’s $500-per-week estimate of his pizza delivery income and the fact that he had never paid taxes on that income, he should pay $100 per week.
¶ 46 In its judgment order, the trial court set Evan’s child support obligation at the same $40 per week that Evan had been paying voluntarily in the past, describing that amount as “20% of his net income.” However, this ruling—which equates to a finding that Evan’s net weekly income was $200—is unsupported by any evidence in the record. Rather, the evidence suggests that Evan’s net weekly income was about twice that amount, between $354.06 and $500. The
¶ 47 E. Medical Expenses
¶ 48 The final issue raised on appeal concerns the manner in which the trial court ordered Evan to reimburse Emily for her medical expenses related to her pregnancy and Tate’s birth. The trial court found that those expenses totaled $1,865.71 and that Evan should pay half, or $932.85. Emily does not take issue with this finding. However, she challenges as unreasonable the trial court’s determination that Evan should pay only $5 per week toward the retirement of this debt.
¶ 49 Emily argues that this slow rate of repayment is unreasonable because it unfairly places on her much of the burden to make immediate payment of Evan’s share of the expenses: at this rate, it will take Evan over three and a half years to fully reimburse Emily, but it is unlikely that Emily’s creditors will be willing to wait that long for payment. We agree that the evidence suggests that Evan could reimburse Emily more quickly. Further, the trial court has not provided us with any clue as to its reasoning in setting such a slow rate of repayment. Accordingly, we reverse the portion of the trial court’s judgment setting the $5-per-week repayment rate. On remand, the court shall reconsider the issue, setting a repayment rate that balances the burden on both parties.
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Ogle County as to the award of joint custody and the visitation schedule, and we reverse as to Tate’s surname, the amount of child support, and the rate at which Evan must reimburse Emily for medical expenses. We remand for further proceedings consistent with this opinion.
¶ 52 Affirmed in part and reversed in part; cause remanded.