In re Marriage of Smithson ( 2011 )

NO. 4-10-0677 Filed 1/31/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
CHRISTINA L. SMITHSON, n/k/a CHRISTINA ) Circuit Court of
CAMPBELL, ) Macon County
Petitioner-Appellee, ) No. 04D534
and )
JAMES T. SMITHSON, ) Honorable
Respondent-Appellant. ) Theodore E. Paine,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE KNECHT delivered the judgment of the
court, with opinion.
Justice Turner concurred in the judgment and opinion.
Justice Pope specially concurred in part and dissented
in part, with opinion.
OPINION
The trial court terminated the joint-custody agreement
of the parties and awarded sole custody of their minor children,
Jacob Smithson and Ryan Smithson, to the mother, petitioner,
Christina Smithson, n/k/a Christina Campbell. The trial court
also found respondent, the father, James Smithson, to be in
indirect civil contempt for failure to pay his half of noncovered
health-care expenses for the children. James appeals both the
custody decision and the finding of indirect civil contempt. We
affirm in part and vacate in part.
I. BACKGROUND
James and Christina were married on March 7, 2000. Two
children were born during the marriage, Jacob, on July 17, 2000,
and Ryan, on May 30, 2003. James was in the United States Marine
Corps and served two tours of duty in Iraq and Kuwait during the
marriage. On November 15, 2004, Christina filed a petition for
dissolution of marriage. On November 23, 2004, the parties filed
a waiver of the time period for grounds. That same day, the
parties entered into a joint parenting agreement which provided
Christina would be the primary custodian of Jacob and Ryan. A
judgment of dissolution of marriage was also entered on November
23, 2004, which included a property-settlement agreement provid-
ing James would be entitled to custody of the children on alter-
nate Christmas vacations and 30 consecutive days during the
summer.
The property agreement also required each party to
maintain medical insurance for the children during their employ-
ment. The parties were then to each pay one-half of medical,
dental, optical, orthodontal, or health-care-related expenses for
the children not otherwise covered by insurance.
On January 25, 2008, James filed a motion to modify
custody, requesting the joint-parenting agreement be terminated
and he be awarded sole custody of Jacob and Ryan. On September
11, 2009, Christina filed a petition for adjudication of civil
contempt, alleging James had failed to pay the one-half of
medical, dental, optical, orthodontal, or health-care-related
expenses for the children not otherwise covered by insurance as
required by the judgment of dissolution.
On March 2 to 4, 2010, and April 30, 2010, the trial
court held a hearing on the motion to modify custody and the
petition for adjudication of contempt. After hearing testimony
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from numerous witnesses, the trial court entered an order on
August 4, 2010. The court concluded joint custody was not
working for James and Christina. The court also found James had
not proved by clear and convincing evidence a change in physical
custody from Christina to him was necessary for the well-being of
Jacob and Ryan. Further, James failed to prove there was an
agreement under which Christina would pay all health-care ex-
penses not covered by James' insurance nor did he request modifi-
cation of the judgment. He did not pay one-half of uncovered
medical expenses nor did he request modification of the judgment.
The court then denied the motion to modify custody, terminated
the joint-parenting agreement, and awarded sole custody of Jacob
and Ryan to Christina. The court also found James in contempt
for failing to pay his share of the boys' medical bills. This
appeal followed.
II. ANALYSIS
A. Custody
The determination of child custody rests largely within
the discretion of the trial court, and its decision will not be
disturbed on appeal unless it is against the manifest weight of
the evidence or the trial court abused its discretion. In re
Marriage of Craig, 326 Ill. App. 3d 1127, 1129, 762 N.E.2d 1201,
1203 (2002).
Section 610(b) of the Illinois Marriage and Dissolution
of Marriage Act (Act) (750 ILCS 5/610(b) (West 2008)) provides:
"(b) The court shall not modify a prior
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custody judgment unless it finds by clear and
convincing evidence, upon the basis of facts
that have arisen since the prior judgment or
that were unknown to the court at the time of
entry of the prior judgment, that a change
has occurred in the circumstances of the
child or his custodian, or in the case of a
joint custody arrangement that a change has
occurred in the circumstances of the child or
either or both parties having custody, and
that the modification is necessary to serve
the best interest of the child. *** In the
case of joint custody, if the parties agree
to a termination of a joint custody arrange-
ment, the court shall so terminate the joint
custody and make any modification which is in
the child's best interest. The court shall
state in its decision specific findings of
fact in support of its modification or termi-
nation of joint custody if either parent
opposes the modification or termination."
To modify a custody order, a petitioner must demon-
strate by clear and convincing evidence (1) a change of circum-
stances of the child or his custodian has occurred and (2) a
modification is necessary to serve the best interests of the
child. See In re Marriage of Burke, 185 Ill. App. 3d 253, 256,
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541 N.E.2d 245, 247 (1989). However, in the case of a joint-
parenting agreement, where both parties agree to a termination of
the agreement, a trial court may proceed directly to a determina-
tion of the child's best interests.
James argues the trial court applied the wrong burden
of proof in denying his motion to modify custody. He contends he
did not need to prove a change of circumstances had occurred as
Christina agreed the joint-parenting agreement was not working
and the court needed only to determine what custody arrangement
was in the best interests of Jacob and Ryan. James notes with
regard to joint custody, the supreme court has found stipulations
by both parents they no longer wish to be joint custodians
constitutes a change in circumstances and a custody modification
should be made in accordance with the child's best interests. In
re Marriage of Lasky, 176 Ill. 2d 75, 81, 678 N.E.2d 1035, 1038
(1997). Following Lasky, this court found in In re Marriage of
Ricketts, 329 Ill. App. 3d 173, 768 N.E.2d 834 (2002), where both
parents file petitions to modify a joint-custody agreement, each
seeking sole custody, both parents are, in essence, agreeing
joint custody should be terminated and there was no need to show
serious endangerment to the child's physical, mental, moral, or
emotional health in order to modify the custody agreement.
Ricketts, 329 Ill. App. 3d at 178, 768 N.E.2d at 838.
James contends although he alone filed a motion to
modify custody by terminating the joint-custody agreement and
awarding sole custody to him, testimony by Christina at the
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hearing on his motion amounted to an admission joint custody is
not working and, therefore, should be considered to be a stipula-
tion she no longer desires to have joint custody. He contends
the trial court should have gone right to a best-interest analy-
sis as the change in circumstances noted by both Lasky and
Ricketts had occurred.
The circumstances of this case are different from those
found in Lasky and Ricketts. Although Christina did testify as
an adverse witness she found joint parenting not working, during
her attorney's opportunity to elicit testimony to clarify her
testimony, Christina testified the reason she did not believe
joint custody was working was she believed she was parenting with
Julia, James' new wife, and not James. She based her belief on
the fact the communication between the two families was conducted
mostly by e-mail and James was at work when most of the e-mail
exchanges were made. Julia operated an in-home day-care facility
and was home during the day. Christina further stated she could
continue to joint parent with James and this was in the best
interests of the children.
Section 610(b) requires both parties agree to a termi-
nation of joint custody before the court can terminate a joint-
custody order and make any modification of custody in the best
interests of the children. However, these parties did not agree
to terminate joint custody. Both parties did not file petitions
to modify custody nor was there a stipulation to that effect.
Christina's testimony, equivocal at best, was not an agreement to
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terminate joint custody. We will not extend the reasoning of
either Lasky or Ricketts to include the facts of this case.
James argues even if Christina's testimony is not
sufficient to eliminate a finding of change of circumstances or
be considered the change of circumstances itself, he has proved
by clear and convincing evidence there has been a substantial
change in circumstances.
The trial court essentially made a finding of change of
circumstances by finding joint custody was not working for James
and Christina as "[b]oth have not communicated as necessary in
the past" and, when they did communicate, James has dictated
rather than discussed issues and has belittled Christina's
parenting choices. Thus, James got part of the remedy he sought,
the termination of the joint-parenting agreement, as the trial
court found it was not working. The court went on to find James
had not proved by clear and convincing evidence a change in
physical custody from Christina to him was "necessary" for the
"well-being" of Jacob and Ryan.
Both parties presented 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 of a dissolution
which also included a custody fight for the two-year-old half
sister of Jacob and Ryan, Lillian Campbell. Christina had a 17-
year-old son from her second marriage, Andrew Cook, who lived
with her. Christina and her four children lived in a modest home
in Argenta. Jacob and Ryan have lived there since Ryan was born
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and had always lived with their two half siblings, to whom they
were very close.
Christina's fifth and sixth marriages, which occurred
in the span of time from her divorce from James in November 2004
to 2010, were brief and included domestic violence to which Jacob
and Ryan were exposed. Christina engaged in questionable prac-
tices regarding the sleeping arrangements for the boys in letting
them sleep in her bedroom with her and each of her last two
husbands. During her last marriage, to Jonathon Campbell, Jacob
and Ryan had slept on the floor in Christina and Jonathon's
bedroom while they were intimate. Christina admitted this was
not in the best interests of the children. Christina took the
boys with her to her parents' home over 20 times during the night
when she and Campbell were fighting. This included school
nights. Jacob expressed worry about his mother's safety.
Christina, Jacob, and Ryan were present when her older
son, Andrew, built and set off an explosive device made from
toilet cleaner and did not think he needed discipline for this
act. Andrew also lit a pinata on fire inside the house to see if
it was really flame resistant.
Jacob had problems with dental health, and Ryan had
difficulties in school with reading and speech. Christina was
not always on top of Jacob's dental-health issues and Ryan's
speech issues, sometimes letting months go by without any treat-
ment. She did not inform James of Ryan's speech and hearing
difficulties until months after his diagnosis and he had been
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given an individual educational plan (IEP) by the local school
district. Once James was informed of the boys' health or educa-
tional difficulties in 2007, he and his wife, Julia, were very
involved in the decisions about their care. James complained of
poor eating habits Christina was fostering in the boys as evi-
denced by their poor dental health and the fact they would not
eat well-balanced and healthy food when visiting him in Califor-
nia.
As for James, once he returned from his second tour of
duty in Iraq in 2004, he did not come home to Christina and his
sons. He did not notify them where he was living and most of
Christina's contact with him was through James's father. Despite
the provisions of the judgment of dissolution allowing James
visitation with Jacob and Ryan for 30 days in the summer and
every other Christmas vacation, he did not exercise this visita-
tion and appeared to have seen the boys once in 2005 and once in
2006. One of the visits was facilitated by James's father and
not James himself. He made no requests of Christina for informa-
tion about the boys' medical, dental, or other care.
James apparently moved to California, then Florida, and
finally settled down in Murietta, California, and married Julia.
Julia ran a day care in their home and did a lot of research on
child care and child rearing. It was then, in 2007, when he
started to insist on all of his visitation and to be involved in
the decision-making for the boys' care. Julia, herself, had been
married several times and had two children, Jillian, age 15, and
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Jett, age 13, living with James and Julia at the time of the
hearing.
Dr. Helen Appleton was appointed by the trial court to
do a custody evaluation. Dr. Appleton actually did two evalua-
tions. The evaluations favor James, and Dr. Appleton ultimately
recommended custody be given to James. Dr. Appleton interviewed
both James and Christina as well as Julia, Jacob, Ryan, and
Andrew. She reviewed extensive documents including many e-mails
between the parties and dental and doctor reports of treatment of
the boys as well as reports by school teachers. She did not
interview any other relatives of the boys, school officials, or
teachers.
Dr. Appleton found Christina had not demonstrated the
ability to provide a stable home environment and has poor judg-
ment in her selection of men. Although there was no physical
abuse during her marriage to James, her history indicated she
gravitated toward abusive men. Exposure to domestic abuse was
not in the best interest of the children. While she noted
witnessing abuse must have a detrimental effect on the boys, she
could not pinpoint any specific effect she had observed. Dr.
Appleton noted a close bond between Christina and Jacob and Ryan
but, on her second interview of the boys, found they had been
"coached" and the bond was not a healthy one as Jacob in particu-
lar was overly concerned about what his mother would think of the
answers he gave to Dr. Appleton. Although she acknowledged there
would be an adjustment period if the boys were separated from
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their mother, Dr. Appleton's opinion was it was in the best
interest of the boys for James to have physical custody.
A guardian ad litem, James Zachry, was also appointed
for Jacob and Ryan. Zachry interviewed the boys and their
teachers and read the depositions of each parent. Although he
described Christina's personal life as a "train wreck," Zachry
recommended it was in the children's best interest to remain with
Christina. Zachry found both boys were healthy, well-fed, and
personable. They lived virtually their entire lives in Argenta
and went to school there. Zachry believed the boys had been
coached in their answers by Christina and her mother, who lived
nearby. Despite the coaching, he found the boys' wishes to live
with their mother to be sincere.
Zachry found the boys enjoyed their time spent with
James and Julia, and Julia's children had a good relationship
with the boys. He found James raised legitimate concerns regard-
ing Christina's personal life and inadequacies in her care of the
boys. Zachry found James and Julia both had the boys' best
interests at heart.
Zachry found James had a distinct disadvantage by
living in California since he could not see the boys very often.
Christina had a distinct advantage because she always had physi-
cal custody of the boys. She has taken an active role in their
schooling and been a parent active in their lives. She sincerely
wishes the best for the boys and tried to be her best for them
despite some problems.
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Zachry acknowledged Dr. Appleton's report and findings
and stated those recommendations could be supported by the facts.
However, in Zachry's opinion, uprooting Jacob and Ryan from the
only home they had ever known, the school system with which they
were familiar, and the social community in which they have lived
would not be in their best interest.
Zachry noted while Christina has not led a stable life,
she has a support system. Her parents live near her as well as
her brother and other relatives. James absented himself from the
boys' life by choosing to live in California and, thus, was
unable to be involved in their daily life since 2004. He has not
been a model of stability. He has had several different jobs
from the time he and Christina were married to the present, has
been in the military, and has gone back to school. While Zachry
thinks Christina's lifestyle choices must have had some effect on
Jacob and Ryan, they appear to be happy, healthy, and well-
adjusted.
Zachry recommended custody remain with Christina but
James should have as much visitation as feasible given the
distance between his home and Christina's home.
The trial court interviewed both Jacob and Ryan in
camera. They both professed a desire to live with their mother.
Section 602(a) of the Act (750 ILCS 5/602(a) (West
2008)) provides a trial court shall consider all relevant factors
when determining the best interests of a child, including the
factors specifically set forth by the Act. These factors are:
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"(1) the wishes of the child's parent or
parents as to his custody;
(2) the wishes of the child as to his
custodian;
(3) the interaction and interrelation-
ship of the child with his parent or parents,
his sibling and any other person who may
significantly affect the child's best inter-
est;
(4) the child's adjustment to his home,
school and community;
(5) the mental and physical health of
all individuals involved;
(6) the physical violence or threat of
physical violence by the child's potential
custodian, whether directed against the child
or directed against another person;
(7) the occurrence of ongoing or re-
peated abuse *** whether directed against the
child or directed against another person;
(8) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child; and
(9) whether one of the parents is a sex
offender." 750 ILCS 5/602(a) (West 2008).
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Both parents desire custody of Jacob and Ryan. The
boys are young but both expressed a desire to live with their
mother. The boys get along with both parents as well as James'
wife, Julia, and her children and Christina's other children, the
boys' half siblings, Andrew and Lillian. Although Dr. Appleton
found the boys' relationship with Christina to be an insecure
attachment and not healthy, all of the other evidence showed
Christina has raised two happy, healthy, well-adjusted boys, with
help from her family support system. James absented himself from
their lives for several years and has not been involved in the
day-to-day care of feeding, bathing, and school activities.
James' most recent involvement has been to have visitation with
the boys for summer and Christmas vacations when daily life with
them is just that, a vacation.
Jacob and Ryan are adjusted to their school, home, and
community in Argenta. They have lived nowhere else. The evi-
dence was overwhelming they are happy, overall healthy, and well-
adjusted. James has been concerned Ryan's speech and hearing
needs were not being adequately addressed, but he has an IEP and
is receiving services. By the end of the custody hearing, it was
noted Ryan was going to be held back in first grade as he was
immature and not quite meeting educational goals. Jacob was a
high-achieving student in the fourth grade. His dental issues
had been addressed. The issues needing to be addressed for both
boys were not completely addressed until James became involved,
but Christina has now addressed them.
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No evidence showed either parent or Jacob or Ryan had
mental- or physical-health issues which would prevent the parents
from parenting or the children from thriving. Christina has a
history of being in abusive relationships, some of which predate
the birth of Jacob and Ryan. However, they were present for some
incidents of physical domestic violence as well as heated argu-
ments. This factor weighs against Christina. There is no
ongoing abuse and neither parent is a sex offender.
As for each party's willingness to foster a relation-
ship between Jacob and Ryan and the other parent, the evidence in
this case showed a deteriorating relationship between the par-
ents. Christina tried to coach the boys against James, and James
went out of his way to discover as much negative information as
he could on Christina to present in court. These facts do not
bode well for either parent continuing to foster a good relation-
ship between the boys and the noncustodial parent.
Although "train wreck" may describe Christina's past
life in relation to the men in her life, the evidence indicated
she has been a good mother to Jacob and Ryan overall and they
were currently thriving in her care. No evidence showed she was
currently in any relationship, let alone an abusive one. If
James' interest in the boys' well-being remains at its current
level, he will keep Christina focused should she be tempted to
falter in her care of the boys.
The trial court concluded James did not prove it was
necessary to change physical custody from Christina to him. The
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court also concluded the joint-custody arrangement should be
terminated, and it was in Jacob and Ryan's best interests to be
in Christina's custody. These conclusions and ensuing orders by
the court are not against the manifest weight of the evidence or
an abuse of discretion.
B. Contempt
James also appeals from the order of the trial court
finding him in direct civil contempt for failure to pay his share
of health-care expenses for Jacob and Ryan not covered by insur-
ance.
Whether a party is guilty of contempt is a question of
fact for the trial court, and its ruling will not be disturbed
unless it is against the manifest weigh of the evidence or an
abuse of discretion. In re Marriage of Spent, 342 Ill. App. 3d
643, 653-54, 796 N.E.2d 191, 200 (2003). The existence of an
order of the court and proof of willful disobedience of that
order must be shown for a finding of indirect contempt. The
burden in resisting a finding of contempt rests on the alleged
contemnor to show noncompliance was not willful and he has a
valid excuse for failure to follow the court order. Spent, 342
Ill. App. 3d at 653, 796 N.E.2d at 200.
The property-settlement agreement executed by the
parties and incorporated into the judgment of dissolution of
their marriage stated as follows:
"[III.] 5. Each of the parties shall
maintain medical insurance available to them
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through their employment for the benefit of
the minor children of the parties, and each
of the parties shall pay one-half of any
medical, dental, optical, orthodontal or
other health care related expense for the
children not covered by any insurance."
James admits this agreement exists but contends the
parties later agreed Christina would pay all uncovered medical
expenses for Jacob and Ryan in exchange for not being obligated
to provide medical insurance for them; while James would continue
to provide primary medical-insurance coverage for the boys.
Christina emphatically denied there was any such agreement.
James admits there was no written agreement between the
parties modifying the court order. He introduced at trial
several e-mails between himself and Christina which he claimed
proved Christina had agreed to this modification. One e-mail
from James asked Christina to confirm the agreement and she
replied "Thank you." The other e-mail from James admitted there
was no written modification agreement but he claimed Christina
responded to this e-mail acquiescing to it. James did not have a
copy of her response. Christina denied responding to this e-mail
and denied entering into any agreement to modify the original
court order.
The trial court found James did not prove an agreement
to modify the original order as to payment of uncovered medical
expenses. The court noted James never requested modification of
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the judgment by the court.
Although the evidence as to the agreement was in
dispute, the trial court is in a superior position to judge the
credibility of the witnesses. In re Marriage of Bates, 212 Ill.
2d 489, 515, 819 N.E.2d 714, 728 (2004). We will not substitute
our judgment for the trial court's finding of fact there was no
modification of the court order. This decision of the court was
not against the manifest weight of the evidence or an abuse of
discretion.
James argues even if the court finds there to have been
no agreement to modify his obligations to pay his share of
uncovered medical expenses, he had a good-faith belief there was
such an agreement and, therefore, his actions did not amount to
willful disobedience of a court order. The evidence did not
persuade the trial court there was an agreement, but it did
explain why he did not pay. Thus, he contends he was not will-
fully disobeying a court order and should not be held in contempt
of court.
The trial court found Christina did not send documents
or demand payment for one-half of uncovered medical expenses for
several years, but James was aware of those expenses because he
received explanations of benefits because he carried the health
insurance. He had notice Christina was seeking payment for these
expenses at least since she filed the petition for adjudication
of indirect civil contempt on September 11, 2009. James did not
pay any of those expenses and he had the ability to do so.
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James has an arguable point, but we find because he did
nothing to reduce the alleged modified agreement to writing or
bring it before the court despite the equivocal "agreement" he
received from Christina, it was unreasonable for him to rely on
the alleged modifications and not pay his share of uncovered
medical expenses prior to Christina filing a petition for an
adjudication of indirect civil contempt. He was fully aware of
the existence of the original agreement as to uncovered medical
expenses. We do not believe his conduct supports a finding of
civil contempt.
Instead, we conclude his conduct was not justified and
he remains responsible for his share of uncovered medical ex-
penses and the attorney fees Christina incurred seeking to
enforce the original agreement.
III. CONCLUSION
We find the trial court's judgment terminating the
joint-parenting agreement and placing full custody with Christina
is not against the manifest weight of the evidence and not an
abuse of discretion. We conclude the finding of indirect con-
tempt is against the manifest weight of the evidence, and we
vacate it.
We affirm the judgment in part and vacate in part (the
finding of contempt).
Affirmed in part and vacated in part.
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JUSTICE POPE, concurring in part and dissenting in
part:
I concur with the majority opinion regarding the
custody issue. However, I respectfully dissent from the major-
ity's decision concerning the contempt issue. As noted by the
majority, the trial court is required to make factual findings
when determining whether a person is guilty of contempt. These
factual findings are entitled to deference by the appellate court
and should not be disturbed unless against the manifest weight of
the evidence. Certainly, in determining whether the alleged
contemnor's disobedience of a court order is willful, the trial
court is called upon to make credibility determinations.
Here, the evidence is undisputed on the following
issues. James was required to pay one-half of the uncovered
medical expenses, he received explanation-of-benefits statements
showing any unpaid balance, and he had the ability to pay and
failed to pay his share. The only disputed issue was willful-
ness. James's contention Christina agreed to this arrangement is
not supported by the record. The agreement of the parties
provided for both parents to carry insurance through their
employment. Christina later became unemployed and did not have
an employer through whom she could carry insurance. This did not
relieve James of his obligation to maintain insurance or to cover
one-half of the unpaid medical bills.
James never sought modification of the agreement in
court nor could he produce any written documentation showing
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Christina's agreement to any modification. He failed to pay any
out-of-pocket expenses from 2005 on, despite demands for payment
by Christina when she had a known address for him and a written
demand by Christina's attorney in August 2009. Following the
filing of the contempt petition, James sent an e-mail to Chris-
tina stating he would pay 50% of the uncovered medical expenses.
According to counsel during oral argument before this court,
these expenses still have not been paid.
The trial court found, after hearing extensive testi-
mony, James failed to pay his obligations, he had the ability to
pay, and he failed to prove any agreement between the parties
that would mitigate his conduct. I believe the trial court's
findings are not against the manifest weight of the evidence, and
therefore I would have affirmed the trial court in toto.
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