*1 However, case, statement. in this this plaintiff rely legisla- did on nothing language tion and there is plain legislation imposes liability civil Park District under the circumstances presented. sum, not err plaintiff's circuit did in dismissing
complaint, plaintiff this was unable in case establish individual, Park District owed a duty opposed any particular general all of public. applies This rationale the dismissed counts, as plaintiff required to establish the element duty maintain a cause action alleging simple either willful wanton negligence. Young, See 779. reasons,
For all of the aforementioned we affirm the judgment the circuit court of Cook County.
Affirmed.
MANNING,P.J., O’CONNOR,J., concur. PRYWELLER, EILEEN Petitioner-Appellant, PRYWELLER, DALE
Respondent-Appellee. (2nd Division) First District No. 1 - 89-2154 Opinion July filed rehearing September 1991. Modified on denial of pro July 30, 1991. nunc tunc *2 Fox, Chicago, R for appellant. Charles Rubin, Rubin, Ltd., Chicago (Ira counsel), appel-
Pauker & E. lee. opinion
JUSTICE DiVITO delivered the court: Petitioner Eileen the circuit Pryweller appeals from court’s order her in produce direct civil for failure to her 14V2- year-old daughter and son for 17-year-old therapy visitation father, their respondent Pryweller, Dale an earlier court pursuant *3 order. Petitioner was sentenced to until such time as imprisonment children, the two both in a re- inpatients psychiatric hospital, were leased from the hospital and delivered to their father for and therapy two weeks visitation.
On appeal, petitioner contends that the circuit court’s against evidence; is weight manifest of the that the or- der contains insufficient findings; judge and that the should have sua sponte recused herself due from to her proceedings prejudice against petitioner. post-divorce
The in this has been Re- litigation complex. case spondent, an attorney, has filed numerous motions visita- tion, 1989, and therapy, related issues. In the circuit January noted that the computer printout history of the case indicated there were 217 court entries.
Petitioner and in in respondent were married separated 1977, and divorced in in given custody 1978 California. Petitioner was Arielle, of the Nathan, two children: born bom October June 1972. Petitioner later moved to Illinois with the children. California, remained in Throughout proceedings, respondent has practices where he Respondent’s law. visits with children between Bend, Indiana, 1977 and 1989 in place took South at the home of his parents. in parties began litigating visitation issues Illinois. 29, 1985,
On March filed his first respondent contempt petition con- visitation. cerning 28, 1987, order,
On December into an parties agreed entered states, among things, other that the “parents agree engage regular with therapy competent therapist person’s a of each choice. *** [Respondent] agrees therapist to choose a in California. The par- agree upon ties will a for the children. Such ther- competent therapist shall a apist specialist repair parent-children relationships, in adverse hostile especially relationships between children purpose therapy improvement one The parent. *** with The children’s their father. children will see the relationship same The order addition- therapist, though necessarily together.” ally parents agree participate conjoint therapy states “Both children, sessions the children’s requested by therapist ***. The that in 1988 will parties anticipate [respondent] participate in conjoint children, with the to the recommendations therapy subject of the children’s or each visitation.” therapist, preceding following provides agree respondent order also that the shall parties have two weeks of visitation near the end of each year. 27, 1988, April respondent contempt petition regarding On filed a 31, 1988, visitation and he therapy; May filed another 18, 1988, visitation; on June he filed a petition regarding petition a mental examination of and on he filed a petitioner; July 28, 1987, agreed motion to the December and revive modify certain withdrawn petitions. stating
On June the court entered an order Au- Crivolio, exam- gust parties, would psychologist agreed upon by of the chil- July ine the children and 1988. One both several times each month in dren saw Dr. Crivolio ultimately March, time, After that the chil- February, May, and June 1989. April, therapy. dren refused to attend these hearings began pe- on some of July evidentiary
On August 1989 hearings titions. These still in when the progress *4 re- of the and motions Many petitions order was entered. contempt main in the circuit court. pending for 1, 1989, “Emergency filed an Petition respondent
On August Ther- for Failure to Attend Ordered Previously Rule to Show Cause wrote to the day, For Other Relief.” On the same Dr. Crivolio apy and 28, chil- July court with him on and the petitioner meeting had a August 9,1989. one dren had scheduled for 3, 1989, from both August testimony
On and court heard chil- bring to the failure to petition relating sides dren therapy. to 4, 1989, August petitioner generally
On the court found that agreed failed “demonstrate her commitment to the order of 12/28/ 87.” the court stated that “has not Specifically, petitioner produced Arielle 6/15/89 for summer visits with Dr. Crivo- weekly therapy since lio has not since for produced weekly and Nathan 6/2/89 summer [sic] cause was found justification.” visits without or Petitioner therefore 28,1987, regarding therapy. December order 1989, The court also to a June order which directed referred petitioner bring Arielle and found that “there no therapy, was justification cause or on de- [petitioner’s] part failing bring for liver Arielle to therapy.” Petitioner was also ordered to all costs pay 3,1989, for the August August hearing. and stated that could herself of con- petitioner purge tempt by taking therapy the children for “intensive directed Crivolio” and order by complying agreed with of December provided August. which two weeks’ visitation The visita- tion to run from 10 to 1989. The August August court found “the above-mentioned terms are ability [petitioner].” within the The court stated that if did not herself petitioner purge “of fashion, in this she will be committed to the Cook House of County Corrections on August there until” respondent remain had weeks’ visitation, two and the children therapy “receive intensive with Dr. Crivolio.” concluded, The court “There will on be recall this at 9:00 on August parties case a.m. present all determine whether or not has purged.” been August
On for a emergency petition filed an order, August 4, 1989, of execution of the into stay was to go 25,1989. effect 1989, that, August 10,
Petitioner testified on the court following proceeding Friday, she informed children of the sub- stance the court con- They extremely upset order. were about the their visitation, tinued forced therapy possibility and about weekend, being imprisoned. During mother continued order, to encourage with reacted comply they children but rage depression. very increased hostile They confused. deeply
Petitioner further testified on August that she tele- Sunday, phoned Dr. Crivolio. She his asked for advice on how to the chil- get dren to see him. She testified:
“I told him I I that didn’t think would it be able do without force, said, using and he ‘Do not use force. Do not call the po- lice. Do not threaten any harm to them.’ He he said believed— assessment, it was his based on his limited knowledge of the I therapy, that had it within my power to them persuade come, and I that was to use my powers persuasion only.” Dr. Crivolio also that he petitioner going told would be out of town following week could see August the children after 16. suggested Ostrand,
Petitioner to Dr. that perhaps Crivolio Dr. Jan a who had Arielle psychologist previously treated intermittently 1986 through could meet with the August children Monday, and Tuesday, August them to see help prepare Dr. Crivolio on father, 9 with their them to prepare begin two-week visitation with their father on August 10. Dr. Crivolio did not object to this plan.
Petitioner Dr. “that going told Crivolio this was not easy, be last, here, that this is final If I I my glad effort. can’t succeed will be I go give will I jail. up custody, whatever. don’t know what else to do.”
Petitioner concerning testified some of the children’s behavior Arielle, that weekend. had thrown herself at her mother crying, threatened suicide if her to jail. mother was taken Nathan at one point was on the kitchen I pounding counter “and reached forward to down, back, calm him and I put my hand on his and he turned around me, blows, and started on pounding several and one to the center of out, the gut, which kind of knocked wind and I was my pretty stunned, off,” he backed apologizing.
Petitioner further testified that on she tel- Sunday, August also ephoned Ostrand, Dr. who her that “coping told children’s re- low, sources were this is a extremely dangerous situation.” Dr. Os- petitioner trand the name of a she felt a team gave psychiatrist; evaluation in a hospital setting would be best.
On the same with the staff at Good Samari- day, petitioner spoke Vinolus, tan Hospital psychiatrist Downers Grove. Dr. a Good Samaritan, conducted a telephone interview with exhibiting. behavior the children were Dr. Vinolus recommended that the children be taken to the for further interviews. hospital brought Sunday night,
Petitioner the children to the hospital interviews, willingly. 6. The children went After extensive admission; however, staff recommended it p.m. because was 11:30 time, petitioner wished to return home the children and dis- cuss the hospitalization with Dr. Yinolus when she could reached in be morning. Yinolus, August 7,
On Dr. after Monday morning, speaking with the staff at the concurred with the staff’s hospital, recommendation the children be the children hospitalized. Vinolus believed should definitely brought right away, and said that two beds were now for them in the ready hospital.
When was asked to as to testify preliminary diag- what nosis Dr. Vinolus gave, court sustained hearsay objection. stated, “If Dr. here Vinolus was testify, might be reason- able today, further, but she is not here.” The court stated *6 “This is es- If sential. there is a diagnosis, there should be a professional here to testify diagnosis as to and treatment. That is very, very important in this motion.”
Petitioner testified further that Dr. Vinolus said the entire hospi- talization might last long weeks, as or two three “but that if her assessment on seeing them herself the next morning was such that they could go Crivolio, be released to to Dr. that she would do so.”
Petitioner testified that Dr. Vinolus was told before admission of the children to the that hospital order, there was a court and that the children should be released to see Dr. Crivolio on Thursday. Dr. Vino- lus responded, “Absolutely not. The children must” remain hospital- ized. Petitioner stated that on the very of her day testimony, August 10, she had asked Dr. Vinolus to release the children for visitation that The day. court sustained a hearsay objection regarding the doc- tor’s response. that on
Additionally, testified she Monday, informed re- spondent of the by telephone children’s condition and hospitalization. On Tuesday morning, petitioner Dr. Crivolio telephoned and informed him of. the hospitalization of the gave children and him Dr. Vinolus’ name. Petitioner testified that Dr. Crivolio was reluctant to talk with Dr. Vinolus. Petitioner tried to tell Dr. Crivolio what the children had been doing insisted, but he “Don’t tell me. I don’t want to know.” He however, was surprised, that “something would happened have would have hospitalization.” warranted
Following this testimony, petitioner’s asked the attorney court to continue the proceeding for the purpose of having hospital staff make a or diagnosis an complete evaluation. The stated that attorney they were waiting for the children sign a release so that Dr. Vino- lus could disclose information on their condition to the court. Dr.
Vinolus had stated she hoped they sign would a release within the next days. few The court responded motions, in other emergency the “primary has physician always been in court to make known to the court what the condition of the children is. There is no primary physician professional here in court The today.” court declined to continue the proceeding, “The children have saying, been there three days, three full an days. There was evaluation Sunday night, August 6th. This is presented as an emergency.” August
On after hearing her the court found testimony, peti- tioner in “direct civil [August order of Friday 4].” court based its on several facts: children would not be visiting with their father for the two-week period August; the chil- dren missed the therapy appointment Crivolio; with Dr. “both children testified didn’t [previously] they any want addi- tional therapy they also testified that didn’t want they visita- tion”; 1988 there was a April visitation scheduled which did occur, and the children called the Department Children and Family (DCFS) reported alleged Services misconduct their fa- ther.
The court concluded there presented was “insufficient evidence today stay the execution of judgment [August entered Friday The court continued: 1989].” may herself of purge contempt by delivering
“[Petitioner] their children to father for two weeks’ visitation as stated in order, and the children will remain with their father for two weeks.
The Court finds that there a therapy session with Dr. Crivolio 9th. He was in as the place therapist deal *7 with the children. She testified that she called Dr. Ostrand to prepare the children for asked her to it on the therapy and do 7th and 8th. That didn’t take place.
The only other manner in which she can herself of purge Crivolio, is to report obtain a from Dr. and it is only Crivolio this Court will for a that the rely upon children should be hospitalized.” argued August
Petitioner’s counsel that the was ruling premature, since the court had ruled that had until previously petitioner August 25 to purge any contempt: taking
“PETITIONER’S COUNSEL: advan- [The is] tage of our faith in here. If had not good coming simply we come, there start requirement was no visitation it requirement today, court. The is that visitation start are inform the Court we know, to to let the Court only 25th to deter- here, August wait until you said would you modifying You are now contempt. if had purged mine she motion. filing contempt by There is no direct that. here are today. They The children are not
THE COURT: for not here visitation. to be. required were They
PETITIONER’S COUNSEL: visitation, and over for not turned They THE COURT: now, going so she is I her in of the order find make may She taken to the Cook House Corrections. County call beforehand.” phone court, stat- a letter to Dr. Crivolio wrote August On ing: of the current knowledge to inform that I have no you
“This is Arielle I have status of Nathan and Pryweller. psychological I time in June. Therefore am in no not seen them since some are in of inpa- to evaluate whether or not need position they hospitalization.” tient psychiatric 11, 1989, Samaritan
On wrote a letter to Good August order, to court Hospital, stating custody pursuant she was released having could herself of the children purge contempt only by wrote, to their “I Nathan you father. She instruct deliver hereby to Dale for two weeks of Pryweller Pryweller Pryweller and Arielle visitation.” continuous on
According August to a for filed in this court petition stay 1989, the 11 letter insufficient petitioner’s August circuit court found her of and the court refused to release her from purge contempt, entered a until jail. stay August August This court and ordered to file a to the On respondent response petition stay. 14, 1989, he stated that August filed a in which respondent response, sign as of had still refused to releases. ad- August children dition, the children based releasing resisted hospital apparently August On jail. on the letter which wrote from only stay. this court vacated the revealed in the disputed The record contains numerous other facts The petitions. only two held on various years hearings respondent’s However, for a more finding. matter at issue here is the contempt led to background some of the complete we summarize picture, and, ultimately, finding. of hostility that there a tremendous amount agree parties tending to testimony and their father. There was
between children *8 show both sides of relevant questions. factual Visits and therapy, par- ticularly in the first six of months were viewed as unsuc- highly cessful the children. They reported various incidents visitation, June 1989 minor, some of which were and some of which were admitted by respondent, though characterized Arielle differently. refused to or go any therapy visit with her father after the June visit; visit, Nathan went on one more then refused to con- tinue or therapy visits.
The record also shows that children extremely bright both attended, and did well in the various schools they although there were addition, occasional problems in school. In Nathan apparently exhib- disturbances, seizures, ited sleep growth problems throughout his teenage years. 10, 1989,
Petitioner
challenges
4 and
con
tempt orders. Whether a
is
party
guilty
contempt
question
of
is
of
court,
fact for the circuit
and its decision will not
ap
be disturbed on
peal unless it is against
weight
the manifest
of the evidence or the
discretion. In re Marriage
record reflects an
of
Logston
abuse
Janov v.
(1984),
266, 286-87,
103 Ill. 2d
Janov
167;
469 N.E.2d
(1965),
60 Ill.
2d
App.
It was
necessary
petitioner’s
here
show that
alleged contemptu
ous conduct
was willful. See Ill.
Stat.
ch.
par. 607.1(a)
Rev.
(Illinois Marriage
Marriage
and Dissolution of
Act
provides
use its
may
contempt powers as a
for visitation
remedy
abuse
willfully
where “a party
justification”
has
and without
denied another
see also In re
Marriage
Logston,
party
added));
visitation
(emphasis
Wick v. Wick
285;
103 Ill.
(1960),
2d
19 Ill. 2d
167 N.E.2d
207;
99 Ill.
2d
v. Lauff (1968),
App.
N.E.2d 205.
Lauff
County
Lloyd
Fry
Cook v.
A.
Roofing
Respondent’s
reliance on
Co.
(1974),
59 Ill. 2d
319 N.E.2d
for the proposition
that intent is
in a
contempt proceeding misplaced.
not relevant
civil
That case does not
the Illinois
Marriage
involve
Dissolution
Act,
Marriage
rather a violation of a
order.
pollution-abatement
but
The court here stated that
was in “direct civil con-
(In
tempt.”
Civil
is coercive in nature rather than punitive.
re
Marriage
Logston,
2d
167.)
from
something
results
failure
do
court has
ordered for the
advantage
party
proceed-
benefit
of another
the court
ing,
obey
acts
contemnor to
compel
(See, e.g., Blankenship Blankenship
of that
benefit
other party.
(1978),
63 Ill. (contempt proceeding
The
significant
The distinction is
be-
contempt.
“indirect” or “direct” civil
according
vary
cause the
must
followed
procedures which
be
Marriage
In re
Betts
200 Ill.
(1990),
type
contempt
of
involved.
of
26,
3d
Direct takes contempt knowl- judge’s personal the elements of the offense are within during proceed- a makes edge, party such as where outbursts a deed in by executing or refuses to with a court order ings, comply Betts, 26, N.E.2d (In Marriage re 200 Ill. 3d 558 open App. court. of case, must act on facts it 404.) contempt In a direct the court knows, rather than on or conclusions the court personally beliefs Hogan ex rel. Kunce v. (People hearing reached after the evidence. 55, (1977), summarily punish 67 Ill. 2d 364 N.E.2d The court 50.) may contemnor, a is contempt proceeding summary direct v. Kenwick Kenwick 108, nature. 41 Ill. 2d 190 N.E.2d (1963), App. Provenzale v. Provenzale 486; (1950), App. 339 Ill. 90 N.E.2d 115. contrast,
In
pres-
indirect
is not committed in the actual
(In
Shlensky (1977),
re Estate
49
ence of the court.
Ill.
3d
App.
of
885, 892,
430.)
personal
364 N.E.2d
The
does not have full
judge
elements,
of
the court can-
knowledge
of facts of which
proof
not take
notice must
in order for the court to
judicial
presented
be
Betts,
Marriage
In re
Ill.
App.
make a
of
200
3d
contempt.
of
at
support
(1981), 6.) process 99 3d 426 N.E.2d Due App. charged that certain afforded to a procedural safeguards person be with ade contempt, including evidentiary indirect an hearing. (In re Estate notice of the time and of such quate place of Shlensky, 892.) required 49 Ill. 3d at The basic App. components meet the are notice and process requirements opportunity due (In Betts, Marriage re 404.) heard. Ill. 3d 558 N.E.2d App. 200 630
The contemnor punished summarily. Kenwick, cannot be Kenwick v. 41 App. Ill. 2d N.E.2d 486. 190
The
proper designation
here
indirect
charge
is
contempt.
parent
civil
Where a
failure
found
for
turn
child
other parent
over to the
for
visitation
con-
custody,
duct occurs outside of the court’s
and must
presence
be construed as
indirect contempt.
Marriage
In re
(1991),
App.
Ruchala
208 Ill.
3d
725;
N.E.2d
In re J.L.D.
178 Ill.
(1989),
App. 3d
190;
N.E.2d
3d
Shephard (1989),
Sanders
Ill. App.
contemptuous conduct is in itself a for vacating basis the sanction Travel, (Sunset Inc. imposed (1983), v. Lovecchio 113 Ill. 3d App. 891), but, because conduct issue here only could have constituted contempt, indirect to the re entitled quirements law, of due a full process hearing. (In and fair including re Estate St. was im George, 6.) N.E.2d It proper powers the circuit court here to use summary contempt *10 the where court without presumptions allowing relied sufficient supporting Summary power evidence. should exercised contempt with utmost caution to strictly by restricted facts known the court, and opinions, conclusions, not rest or upon presumptions, infer (People 258, 310; ences. v. 2 Loughran (1954), Ill. 2d 118 N.E.2d Peo ple 428, v. White Ill. (1956), App. 8 2d 131 N.E.2d The court 803.) should take care to arbitrary (Bloom avoid or conclusions. oppressive (1968), 194, 522, v. Illinois 391 20 2d 1477.) U.S. L. Ed. 88 S. Ct. A contempt order for of may be reversed denial due process where party punished obtaining considering without extrin summarily sic evidence to determine whether the of in necessary party guilty is- 220, direct v. 51 Ill. contempt. People Jashunsky (1972), 2d 282 1; 525, (1978), App. N.E.2d Panvino v. Panvino 60 Ill. 3d 377 N.E.2d 199. significantly, contempt may only by
Most
indirect
be proved
evidence,
extrinsic
thus the accused must be allowed to offer evi
in her
(People
(1970),
App.
dence
own
v.
118 Ill.
2d
behalf.
Stafford
453,
(abstract
opinion);
court error for court to refuse the defendant-fa- held it was the trial and to ther’s cross-examine attorney's request plaintiff-mother, attempt purge refuse evidence in an request present defendant’s child charge support. for failure to pay defendant should, be thor- opinion, “The to the in our contempt charge defense Cole, Ill. 2d at oughly (Cole App. 113.) heard and considered.” v. decree complied The mere fact that a has not divorce party not a indi- holding person court order is sufficient basis Cole, rect of court. Cole 2d at 113. trial court Panvino, Panvino v. this court reversed a not permitting mother in court for plaintiff
her to a child the defendant father di 41/2-year-old pursuant visit vorce trial testimony psychiatrist decree. The court heard disturbed; had who the child was moderately severely pro stated phobic nounced and had a reaction word separation anxiety; the child to the “father.” The testified she had sent plaintiff the father ap defendant child when hysterical because became door. to offer peared at the When the counsel asked addi plaintiff’s tional trial problems, as to the child’s emotional testimony stated, hearing.” had The court then ordered the plenty “You’ve not more plaintiff prison. to serve than six months *11 On denied plaintiff argued the she was due appeal, Panvino process alleged at the on the This court contempt. of law hearing the agreed, plaintiff “As is the facts in this case stating: clear from judge. was not afforded a fair the trial hearing by and reasonable (Eden 382[, 141].) Eden 34 3d 340 trial (1976), v. Ill. N.E.2d App. judge opinion in error when his in a medical situa he substituted tion expert for one of an the qualifications opposing attorney whose Panvino, stipulated App. excellent.” v. 60 Ill. 3d at (Panvino 526.) to The court reversed the the sentence judgment
632 ordered the trial court to hold another as to the visitation rights Panvino, the v. Ill. father. Panvino 60 3d App. at 526-27.
Similarly, present case, in the circuit court erroneously refused to hear medical evidence condition of the hospi talized children finding petitioner before in contempt for not produc court, ing the children in and thereby petitioner denied a fair and rea hearing. sonable
Dr. Vinolus informed could she confi divulge dential information court release, without the children’s written she to 5 of hoped shortly. obtain Section the Elinois Mental Health and Developmental Disabilities Act Confidentiality provides that, where a patient or health “recipient” mental care is between 12 ages years, 18 both the and the parent recipient must consent to any disclosure confidential records and communications. (El. 91V2, Thus, Rev. Stat. ch. par. 805(a)(2).) both lN^-year-old Arielle and Nathan would to 17-year-old sign have a release pursuant to this statute. If “there parent consents, shall disclo only be no sure unless the finds therapist that such disclosure is in the inter best of such recipient.” (111. 911/2, ests Rev. ch. 805(a)(2).) Stat. par. did not in the Apparently, Vinolus find such disclosure would be best interests of Arielle and Nathan. the court should Regardless, permitted petitioner have an opportunity present Dr. Vinolus of her verification professional opinion. addition, give the court must a accused reasonable opportu order. v.
nity
comply
(Robinson People
a
(1906),
(it
Ill.
is
App.
usually customary to
least a few
time
give
days’
in which to
failure to
comply
subjects
where
do so
to drastic
person
process depriving him of
First
Bank
Co. v.
liberty);
National
& Trust
(1963),
Desaro
43 Ill.
2d
App.
113.) Though
N.E.2d
it
dis
cretionary with the
in a
pro
court
allow a continuance
ceeding
(People
(1964),
97;
v. Stollar
31 Ill.
Jones
2d
33;
2d
(1963),
Jones
189 N.E.2d Minnec v. Minnec
App.
(1957),
(abstract
Ill.
We conclude that the court abused Thus, princi- present evidence. under opportunity
633 her due above, petitioner process the denied trial court pies discussed August 10,1989. of in to the rights regard the contemnor must Moreover, contempt proceedings, in civil i.e., with the to be contempt, provided the opportunity purge have (In Marriage re cell,” imprisoned. to even after he has been “keys his must also 167.) Ill. 2d N.E.2d The offender Logston, 103 469 of have the lie will not when Contempt the order. comply with power contemnor, own, position of is in a alleged no fault his through re Estate (In he with the order of the court. comply where cannot The contem- Shlensky, 430.) alleged 49 3d 364 N.E.2d App. Ill. nor must to show his in present evidence given opportunity be ability Shapiro (1969), and the reasons therefor. v. comply Shapiro 374, 252 113 Ill. 2d N.E.2d 93. App. from jail
The statement could released if petitioner court’s be Dr. an was neces- provided opinion hospitalization Crivolio sary puzzling. adamantly throughout Dr. Crivolio refused fact, 1989 to In Dr. litigation. have involvement with Crivolio any that he did not speak informed want Good apparently condition; that he did not Hospital Samaritan about the children’s staff; Good and that diagnosis want know the made Samaritan by he leading hospitalization. did not to know the up want events addition, leaving days, Dr. Crivolio was vacation in several could do treat visit during little to children the two-week which father, had been with the up any way. set or assist court Dr. also wrote to the court on that he Crivolio to provide was unable the court with the information it re- completely quested petitioner’s contempt, a means of because he purging nothing had not the children in months and knew seen several about their The court its in including condition. therefore abused discretion It this alternative as a means for purge contempt. was, fact, alternative at no all. that, involv emphasize contempt proceedings
We also even issues, best inter ing the children’s importance visitation abuse lost, pawns. used as ests must not and the children should not be (In re Fox 191 Ill. 3d N.E.2d Marriage (1989), 609.) Ill. 2d 546 N.E.2d Evi citing (1989), Simcox v. Simcox facts dence of arisen unknown to the should be newly previously child’s interests. (Boggs considered on the bests question Here, the Boggs 9.) practical (1978), App. effect of to have the children released from jailing petitioner psychiatric procedures circuit court should have followed hospital. that hospital- allowed whether or not would have it to ascertain ization was for the necessary safety the children and for the safety of others.
Certainly in the setting tumultuous family, this suicide threats a nearly 15-year-old and a 17-year-old’s his can- punching mother not be taken lightly. This is particularly light true in of the extensive testimony by respondent’s offered expert imprisonment peti- tioner would severely increase the emotional from problems which the children suffered. already Greenberg When Nahman testified *13 him in the respondent July court asked how of the incarceration mother would to relate the best interests of the He children. re- sponded: well,
“Not I in think it my opinion. would be a demonstration to them about how have to things be with I would consequence. think it would certainly be worthwhile for children to know that option. incarceration, it is an The threat of seems me in instance, this particular incarceration, opposed as to the actual would message enough be a But strong hold. actual incarcer- ation, which would mean loss of the children their of particular mother at this time when have such a in- they very close, grained, intimate excessively so I it relationship, think crisis, would cause anguish, cause severe especially Arielle.” In (one late year jailing petitioner), before re- court ferred back to testimony: Greenberg mother opined placing jail would
“[Dr. that] children, be he detrimental said it would be detri- very *** [T]hey dependent mental. are so with interdependent her, of jailing [petitioner] that removal would seriously be detrimental So the children. court discarded that notion *** believe, given time. court does not the facts [T]he that these children have run when has actually away visitation been particular set on not it up days, court does believe can children to their these see father when don’t want they *** to see their father. court opinion is of the that noth- [T]he ing by ordering would come visitation which will not com- be plied complied which for almost again, has been with months, six who years behaving with 13 and 16 olds are they are.” chil-
Against hardly this it can that it was in the background, said dren’s best for the their while interests incarcerate mother diagnosis to determine the medical they hospitalized; refuse in the and to placed hospital; why them refuse discover their release against had recommended strongly treating psychiatrist for visitation. because contempt finding the circuit court’s we reverse
Though possibility this reveals the case violations, process history due the circuit disregard of contumacious petitioner’s substantial hearing, an without reaching adequate its conclusion court’s order. objec- itself of an orderly court deprived circuit Be- contempt. to the order leading the events development tive and be- hearing of the inadequacy cause of the conduct, the cause charged we remand cause of the seriousness both in development for a to allow the evidence hearing proper sanction. support appropriate of and an opposition the circuit court biased Finally, petitioner contends made against her of certain statements prejudgment because those the record discloses no court. Our review of statements and merit allegation. to that and the of the circuit court reversed
Accordingly, judgment cause consistent with is remanded to the circuit court this opinion. remanded,
Reversed with directions.
HARTMAN, J., concurs. *14 COCCIA, in in concurring part dissenting part:
JUSTICE I the on all holdings analysis majority concur with the is- I hearing. sues its to reverse except decision remand for new would ordering the to be con- finding contempt hearing without another ducted. contempt hearing necessary,
In whether a is the deciding new court look the and character of the sanction im- purpose should to “ accomplish does court seek to posed asking primarily ‘what by ” v. (People Doherty (1988), App. 165 Ill. 3d by sentence?’ imposing v. United States Shillitani (1966), quoting 518 N.E.2d 1531, 1535.) 364, 370, 622, 627, 384 L. Ed. 86 S. Ct. A U.S. 16 2d is nature and in- contempt primarily sanction for civil in prospective to court’s or- tended to with the compel party comply a contumacious Doherty, (People v. der 165 Ill. App. for the benefit of another party. in Thus, 3d is coercive nature 1303.) 518 N.E.2d civil In re 103 2d 469 Marriage Logston, rather than Ill. punitive. Blankenship (1978), v. 63 Ill. 3d Blankenship 167; App. N.E.2d 636
380 1165 (contempt N.E.2d proceeding against failing father to re- turn child to 16-year-old mother after visitation is civil nature).
Here, the contempt hearing ago. time, was held two At years that the court wished to compel produce children for ther- apy visitation with Nathan respondent. is now old and years can no longer be see legally forced to his father. Arielle nearly years Notably, old. at oral this was arguments court informed that Arielle went one visit, additional with her father. During visit that she ran from South away Chicago. Bend and returned to In practical terms, it is doubtful Arielle can be forced her father. to see at this late my opinion, attempts date court’s compel pe- titioner force the see children to their father has become moot. Holding hearing another in time point this would be meaningless. It does than nothing impose more further burdens on strained already financial and emotional resources of the parties children, and their and on the resources of the trial court any case in hearing the subsequent appeals. Moreover, the purpose hearing would be to permit peti- tioner to introduce medical evidence psychiatrists stated, children’s As condition 1989. majority ac- cused must allowed to offer evidence in her own v. (People behalf. (1970), 17; 118 Ill. 2d App. 255 N.E.2d Stafford Allendorf If, Daily (1958), App. 665.) however, 2d peti- already tioner has shown through presented evidence she that no occurred, willful contempt has little meaning. additional on the I would find following, Predicated record does not reveal willful disobedience of the court order by petitioner requiring the children go with Crivolio. therapy trial judge failed to include in the order a
Notably, finding “willful” See Ill. (1989), violation. In re J.L.D. 3d App. 1033, 534 (indirect N.E.2d 190 criminal reversed where order fails find willful and record did not substanti- violation Janov, ate Ill. violation); of willful Janov v.
Furthermore, in support my finding any contempt here willful, I trial point to the erroneous bases of the court’s deci- sion. For when it the court re- example, contempt, found lied on alleged relating April certain visitation abuse back 1988. *15 This error, regarding was where evidence visitation abuse related to at in petitions petition other than the which was issue therapy-related charge. Moreover, relating the to the to visita- contempt petitions the abuse, opportunity present any tion had not had petitioner yet hearing completed in her defense. The was only evidence contempt charge therapy- time was related petition. contempt also found in that children a basis However, in the children therapy.”
were to be “intensive supposed the most intensive psychiatric hospital setting, in a inpatients Dr. Crivolio’s this was not with therapeutic setting possible. Although likely much more to be beneficial participation, therapy the psychiat- children chose to be committed to they voluntarily where to partic- ric had invited hospital. (Interestingly, petitioner respondent in setting, respondent refused.) but ipate hospital in on chil- the court found based Finally, petitioner out of” visitation. testimony they “get dren’s wanted prior This is contempt. not a sufficient basis to find willful
Thus, reveal that the finding the bases court’s weight support manifest evidence does not willful evidence, In view of this I see no to remand contempt. reason cause rehearing contempt petition question for a order to permit supply more evidence in her behalf. even reasons, I
For the finding these would reverse and I would remand for a new hearing. al., et
MILDRED and All Others Simi- DENNIS on Behalf Themselves Situated, larly Plaintiffs-Appellees, v. OLD REPUBLIC INSURANCE View, COMPANY, Defendant-Appellant (La Bank f/k/a Salle Lake Lake Bank, Defendant). Savings Trust View Division) (2nd First District No. 1 - 90-2107 26, 1991. Opinion August 6, 1991. Rehearing September denied filed