Grunstad v. Cooper , 978 N.E.2d 727 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Grunstad v. Cooper, 2012 IL App (3d) 120524
Appellate Court NEELY A. GRUNSTAD, Petitioner-Appellee, v. PATRICK W.
Caption COOPER, Respondent-Appellant.
District & No. Third District
Docket No. 3-12-0524
Filed October 17, 2012
Held In a custody dispute, the trial court did not abuse its discretion in denying
(Note: This syllabus the father’s request to have the judge conduct an in camera interview
constitutes no part of with one of the children, since the judge stated that the child’s preference
the opinion of the court was only one factor to be considered and he was concerned about the
but has been prepared impact such an interview would have on the child, and the denial of the
by the Reporter of father’s petition was affirmed.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of La Salle County, No. 05-F-20; the Hon.
Review R.J. Lannon, Jr., Judge, presiding.
Judgment Affirmed.
Counsel on Stephen L. Krentz and Linda M. Salfisberg, both of Krentz & Salfisberg,
Appeal P.C., of Plano, for appellant.
George Mueller, of Mueller Anderson, P.C., of Ottawa, for appellee.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.
OPINION
¶1 The respondent-appellant, Patrick W. Cooper, filed a petition to modify custody as to the
two children he had with the petitioner-appellee, Neely A. Grunstad. At the close of Patrick’s
case-in-chief during the hearing on his petition, the circuit court granted Neely’s motion for
a directed verdict. On appeal, Patrick argues that the court erred when it: (1) denied his
motion to conduct an in camera interview of the parties’ oldest child, Olyvia; and (2) granted
Neely’s motion for a directed finding. We affirm.
¶2 FACTS
¶3 Neely and Patrick had two children together: Olyvia, born September 18, 1998; and
Keegan, born April 7, 2001. In a 2003 Nevada court order, Neely and Patrick were granted
joint custody of the children with Neely as the primary physical custodian. Both parties
moved to Illinois sometime thereafter.
¶4 On April 22, 2005, Neely and Patrick entered into an agreed order for child support. The
agreement, which was approved by the court, also incorporated the parties’ joint parenting
agreement, which provided, inter alia, that Neely would have primary physical custody of
the children.
¶5 On February 19, 2010, Patrick filed a petition to modify custody in which he sought
primary physical custody of the children. In the petition, Patrick listed numerous reasons why
he believed changes in circumstances warranted a change in custody, including that he could
provide a more stable environment for the children and that: (1) Neely intended to remove
the children to Nevada without Patrick’s consent and against his will; (2) Neely failed to
provide an adequate educational environment for the children; (3) Neely failed to provide a
stable living environment; (4) Neely exposed the children to domestic violence; (5) the
children had poor hygiene in Neely’s care; (6) Neely failed to properly provide for the
children’s medical needs; and (7) Neely was financially irresponsible.
¶6 On February 9, 2011, Patrick filed a motion for in camera interview of Olyvia, alleging
that Olyvia wished to share her thoughts about custody and that because she was 10 years
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old, “requiring her to testify in open court would be unnecessarily traumatic to her.”
¶7 Over several days in November 2011, the circuit court held a hearing on Patrick’s
petition to modify custody. Evidence presented at the hearing tended to establish, inter alia,
the following. Neely testified that she was 33 years old and worked as a cosmetologist in
Ottawa. In 2005, she lived in Wedron and was dating Dan Partridge. In 2006, she moved into
an apartment with Partridge. They later lived in Mendota. The relationship ended after a
single episode of domestic violence.
¶8 For the approximately five years (save a period of six to eight months) prior to the
hearing, Neely had been living in Ottawa and was dating Brad Hughes. She and the children
would sometimes stay overnight at Hughes’s house. On one occasion in March 2008, she and
Hughes had an argument at Hughes’s house. Neely woke the children and took them home.
¶9 Over the course of the hearing, testimony was elicited to indicate that the parties had
significant problems communicating and cooperating. Patrick’s attorney elicited testimony
from Neely that she blocked Patrick’s number on the cell phones that she provided for the
children, and that she and Patrick communicated poorly with regard to Keegan being
screened for attention-deficit disorder and his subsequent Ritalin prescription.
¶ 10 Patrick presented several witnesses who testified that Olyvia experienced difficulty
during the 2008-09 school year when she was in fourth grade. Olyvia’s teacher from that year
testified that Olyvia’s performance was average, that she did not work up to her potential,
that she performed poorly on her reading program, and that she failed to complete her
homework on numerous occasions. However, the teacher also acknowledged that Olyvia
passed and that she said in a report card that Olyvia had a great year, worked hard, and had
a positive attitude. The teacher never contacted Neely that year to express any concerns with
Olyvia. The teacher also stated that many of the children at the school had problems with lice
that year.
¶ 11 Patrick also presented the testimony of a school social worker from Central School, who
provided “mental health support” to Olyvia during her sixth-grade year. On one occasion, she
spoke to Olyvia in her office for 30 minutes. Olyvia was “overwhelmed and stressed about
things that were happening at home.” Olyvia said she wanted to live with her dad and
stepmom, that she was happier with them, and that her mom and boyfriend drank a lot and
made her feel unsafe. The school social worker also testified that Patrick, Abby, and
Patrick’s father came to the school in April 2011 after a court date in this case to talk to
Olyvia about what happened in court. The school social worker observed that Olyvia was
upset by this visit, that she wanted the case to be over, and that she wanted to tell the judge
why she wanted to live with Patrick.
¶ 12 Abby Cooper (née Kolotka) testified that she married Patrick in March 2010 and that they
lived in a house in Ottawa. They had dated since approximately November of 2005. She
worked as an exercise specialist and aquatic therapy specialist at a hospital. She and Patrick
had one child together, Connor, who was approximately a year-and-a-half old at the time of
the hearing. Olyvia and Keegan have bonded with Connor. Abby testified, inter alia, that
Olyvia arrived with lice but never left with lice during visits that occurred while the lice
problem persisted; that Neely confronted her after a children’s concert in September 2010
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and called her derogatory names; that Neely was responsible for the children missing two
dentist appointments in May and December 2010; that she and Patrick called the police in
December 2010 to do a wellness check on the children at Neely’s residence because the
children were allegedly home alone; and that she took Keegan to the hospital for ringworm
in October 2011.
¶ 13 Patrick’s father testified that in February 2011, Olyvia called him and said she was not
getting fed at Neely’s, that she was eating toast for dinner, that Neely was drinking, and that
Neely was not allowing her to have snacks. Patrick’s father stated that Olyvia did not look
malnourished the next time he saw her. Patrick’s father also alleged that after his wife died
in May 2009, Olyvia told him that she had been crying about the loss and Neely told her to
stop crying and slapped Olyvia alongside the head.
¶ 14 Both attorneys attempted to elicit testimony regarding the parties’ history of drinking and
“partying.” Both parties denied that they abused alcohol, and Patrick presented testimony that
he drank and went to bars much less frequently. He had become more involved with his
family, especially the children’s daily lives.
¶ 15 Patrick testified, inter alia, that he worked as a plant mechanic for Sabic, formerly G.E.
Plastics. Both he and Abby testified that prior to the petition to modify custody, they saw the
children frequently, including many times that were not scheduled visits. After the petition,
Neely cut this extra time and they saw the children far less frequently. Patrick also testified
extensively with regard to the family activities they engaged in with the children. Patrick
admitted that the children were involved in many activities and had been doing well in
school.
¶ 16 At the close of Patrick’s case-in-chief, Neely’s attorney made a motion for a directed
verdict. The court heard the parties’ arguments on the motion and took the matter under
advisement.
¶ 17 On November 23, 2011, the circuit court announced its decision on the motion for a
directed verdict. The court found that both Patrick’s and Neely’s circumstances had changed
for the better. The court noted that Patrick presented almost no evidence with regard to
Keegan and that the evidence centered around Olyvia. While Olyvia did struggle at times
during the 2008-09 school year, her teacher did state that Olyvia had a great year. Also, the
court minimized the impact of Olyvia’s attendance problems that year, as 30 other students
in her school also had problems with lice. In addition, the court noted that Patrick presented
some evidence that Olyvia wanted to live with him and stressed that while that preference
was significant, “the law is clear a child’s preference standing alone is not sufficient to
modify custody.” In assessing the evidence Patrick presented, the court emphasized that the
law favored the finality of custody decisions and created a presumption in favor of the child’s
current custodian “which is not to be lightly overturned.” The court noted that the parents had
serious communication and cooperation issues, but could not find that Neely’s shortcomings
were sufficient to necessitate a change in custody. Because it found that the changes in
circumstances did not adversely affect the welfare of the children, the court granted Neely’s
motion for a directed finding.
¶ 18 After the circuit court announced its ruling, Patrick’s attorney again requested the court
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to conduct an in camera interview of Olyvia. The court denied that request, stating:
“There are a lot of reasons why I would be reluctant to have an in-camera conference
with the child. From what I have heard the cases are clear that it is not enough and so
she’s just going to come out of that meeting and for the purpose of this discussion I’m
assuming that she’s going to express a strong preference for living with her father, but
that’s not enough and then she’s going to be frustrated because she doesn’t get her way
and so I’m not going to have an in-camera conference with her.”
¶ 19 After various visitation and monetary issues were resolved, Patrick appealed.
¶ 20 ANALYSIS
¶ 21 On appeal, Patrick argues first that the circuit court erred when it denied his motion to
conduct an in camera interview of Olyvia. Specifically, Patrick argues that the court denied
him his right to present evidence in support of his case by refusing to conduct the interview,
which would have included Olyvia’s custodial preference for Patrick. Patrick also speculates
that the interview could have revealed other unspecified, potentially relevant evidence, and
asserts that the court “had the authority, if not the obligation to expand the interview to hear
additional and relevant information from the child as to ascertain her best interests.”1
¶ 22 Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) gives the
court the discretion to conduct an in camera interview of a child “to ascertain the child’s
wishes as to his custodian and as to visitation.” 750 ILCS 5/604(a) (West 2010). “A court
does not need to interview a child in order to consider and weigh what it considers to be the
wishes of the child.” In re Marriage of Wanstreet, 364 Ill. App. 3d 729, 733 (2006).
¶ 23 In this case, the circuit court decided to wait to rule on Patrick’s motion for an in camera
interview of Olyvia until after the evidence was presented. Such decisions have been found
to be a proper exercise of the court’s discretion. See Marriage of Wanstreet, 364 Ill. App. 3d
at 733 (noting that the patience involved with waiting to rule on a motion for an in camera
interview until after the evidence had been presented “underscore[d] the sound discretion
exercised by the court” in that case). Moreover, the court in this case was already aware of
Olyvia’s preference, as Patrick presented other evidence in that regard. In ruling on Patrick’s
motion, the court stated that it was reluctant to conduct the interview not only because the
child’s preference is just one factor to consider in reaching a custody decision, but also
because the court was concerned about the emotional impact the interview would have on
Olyvia. We find no error in the court’s reasoning. Under these circumstances, we hold that
1
In support of this argument, Patrick relies chiefly on Crownover v. Crownover, 33 Ill. App.
3d 327 (1975), which we note was issued two years before the legislature enacted the Illinois
Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2010) (enacted by Public
Act 80-923, effective October 1, 1977)). Further, the other case relied on by Patrick, In re Marriage
of Gustafson, 187 Ill. App. 3d 551 (1989), addressed only an alleged error in admitting hearsay
testimony of a child’s preference (Marriage of Gustafson, 187 Ill. App. 3d at 555), and is therefore
readily distinguishable from the instant case (see In re Marriage of Doty, 255 Ill. App. 3d 1087, 1094
(1994)).
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the court did not abuse its discretion when it denied Patrick’s motion for an in camera
interview of Olyvia. Marriage of Wanstreet, 364 Ill. App. 3d at 733 (“[w]hen a trial court
finds good reason not to conduct an in camera interview, a reviewing court will not
substitute its judgment”).
¶ 24 Patrick’s second argument on appeal is that the circuit court erred when it granted
Neely’s motion for a directed verdict. Specifically, Patrick argues that he presented a prima
facie case sufficient to defeat the motion for directed finding.
¶ 25 A two-prong analysis applies when a court rules on a motion for a directed verdict.
People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 275 (2003).
“First, the court must determine, as a matter of law, whether the plaintiff has presented
a prima facie case. A plaintiff establishes a prima facie case by proffering at least ‘some
evidence on every element essential to [the plaintiff’s underlying] cause of action.’
[Citation.] If the plaintiff has failed to meet this burden, the court should grant the motion
and enter judgment in the defendant’s favor. [Citation.] Because a determination that a
plaintiff has failed to present a prima facie case is a question of law, the circuit court’s
ruling is reviewed de novo on appeal. [Citations.]
If, however, the circuit court determines that the plaintiff has presented a prima facie
case, the court then moves to the second prong of the inquiry. In its role as the finder of
fact, the court must consider the totality of the evidence presented, including any
evidence which is favorable to the defendant. Contrary to the Pedrick standard, which
governs a motion for a directed verdict during a jury trial (Pedrick v. Peoria & Eastern
R.R. Co., 37 Ill. 2d 494 (1967)), under section 2-1110 [of the Code of Civil Procedure
(735 ILCS 5/2-1110 (West 2000))] the court is not to view the evidence in the light most
favorable to the plaintiff. [Citation.] Rather, the circuit court must weigh all the evidence,
determine the credibility of the witnesses, and draw reasonable inferences therefrom.
[Citations.] This weighing process may result in the negation of some of the evidence
presented by the plaintiff. After weighing the quality of all of the evidence, both that
presented by the plaintiff and that presented by the defendant, the court should determine,
applying the standard of proof required for the underlying cause, whether sufficient
evidence remains to establish the plaintiff’s prima facie case. If the circuit court finds
that sufficient evidence has been presented to establish the plaintiff’s prima facie case,
the court should deny the defendant’s motion and proceed with the trial. [Citation.] If,
however, the court determines that the evidence warrants a finding in favor of the
defendant, it should grant the defendant’s motion and enter a judgment dismissing the
action. [Citation.] A reviewing court will not reverse the circuit court’s ruling on appeal
unless it is contrary to the manifest weight of the evidence. [Citation.]” Cryns, 203 Ill.
2d at 275-76.
¶ 26 In this case, while the circuit court did not specifically state that it found that Patrick had
presented a prima facie case, the court’s comments indicate that it in fact did so. The court
specifically found that Patrick had established that a change in circumstances had occurred.
Next, the court discussed the totality of the evidence that Patrick presented, indicating that
it had moved to the second prong of the directed finding analysis. The court noted that
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Patrick’s case centered around Olyvia. The court pointed out the discrepancy between the in-
court testimony of Olyvia’s teacher and her assessment of Olyvia on her report card, and
otherwise minimized the impact of Olyvia’s high number of absences due to the lice
outbreak that year. The court considered that Olyvia had expressed a preference for living
with Patrick, but also recognized that a custody decision involves much more than just a
consideration of the children’s preference. Importantly, the court mentioned that the law
favors finality in custody decisions and the fact that such decisions are not easily overturned.
The court weighed the evidence and considered it under the applicable standard of proof of
clear and convincing evidence (750 ILCS 5/610(b) (West 2010)), and determined that Patrick
failed to present sufficient evidence to establish his prima facie case. The court’s decision
reflects a thorough consideration of the evidence under the applicable law, and we find no
error in the court’s analysis or factual findings. Accordingly, we hold that the court did not
err when it granted Neely’s motion for a directed verdict.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.
¶ 29 Affirmed.
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