In re Marriage of Whitehead , 2018 IL App (5th) 170380 ( 2018 )

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In re Marriage of Whitehead, 2018 IL App (5th) 170380
Appellate Court In re MARRIAGE OF WILLIAM DANIEL WHITEHEAD,
Caption Petitioner-Appellant, and STEPHANIE NEWCOMB-WHITEHEAD,
Respondent-Appellee.
District & No. Fifth District
Docket No. 5-17-0380
Filed March 8, 2018
Decision Under Appeal from the Circuit Court of Johnson County, No. 15-D-21; the
Review Hon. James R. Williamson, Judge, presiding.
Judgment Affirmed.
Counsel on Winter D. Campanella, of Campanella Law Firm, P.C., of Carterville,
Appeal for appellant.
Gerald S. Reed, of Reed, Heller, Mansfield & Gross, of Murphysboro,
for appellee.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Chapman and Cates concurred in the judgment and opinion.
OPINION
¶1 Petitioner, William Daniel Whitehead, appeals from a portion of a final parenting plan and
judgment entered in the dissolution of his marriage to respondent, Stephanie
Newcomb-Whitehead. The issues raised in this appeal are as follows: (1) did the trial court err
in allocating parenting time by not including an analysis of the factors in section 602.7 of the
Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602.7 (West 2016)),
(2) did the trial court err in entering the parenting time schedule, (3) did the trial court err in
ordering an eight-hour right of first refusal rather than a four-hour right of first refusal when
substitute child care is necessary, and (4) did the trial court err in denying petitioner’s motion
to reconsider regarding child support? We affirm.
¶2 BACKGROUND
¶3 The parties were married on June 17, 2006. Three children were born during the marriage,
D.W. (born Oct. 5, 2007), A.W. (born June 9, 2010), and G.W. (born Mar. 3, 2012).
Respondent also has a daughter from a prior relationship. The parties separated on February 6,
2015. Petitioner filed his petition for dissolution on March 26, 2015.
¶4 During the parties’ marriage, petitioner went to school to become a nurse. Petitioner is
currently an emergency room nurse. As a result, he works shifts. His schedule changed over
the course of these proceedings. In July 2016, petitioner’s schedule changed, requiring him to
work every other weekend. Respondent is an administrative assistant at a counseling center.
Her work schedule is flexible. She normally works Monday through Friday. Petitioner earns
more than twice what respondent earns. Evidence showed respondent’s gross income for 2016
was $35,000, while petitioner’s gross income was $80,044.
¶5 Brian Trambley was appointed guardian ad litem. He interviewed the parties and the
children on two occasions, once at petitioner’s home and once at respondent’s home. He found
both parties to be good parents and the children to be happy and well adjusted. In his report, he
specifically stated, “In addressing the best interest of the children and the allocation of
parenting time pursuant to 750 ILCS 5/602.7, all seventeen factors will be addressed below.”
He then went on to address each of the 17 factors and analyzed each factor with respect to the
instant case. He also noted that “[e]ach parent has given me a proposal for parenting time and
they do not differ in great detail.” The guardian ad litem went on to make his recommendations
about parenting time.
¶6 A second stage hearing was held on December 12, 2016. A judgment of dissolution was
entered the following day. The remaining issues, including parenting time for the three minor
children, maintenance, child support, division of marital debt, petitioner’s student loan debt,
and dissipation of assets, were reserved. An additional second stage hearing was held on
February 7, 2017. The trial court then took the case under advisement.
¶7 On March 15, 2017, the trial court issued its ruling via a letter to the parties’ attorneys. In
the letter, the trial court specifically states: “All evidence, including the guardian ad litem’s
report and addendum to same, statutory and case law applicable, and the written closing
arguments of counsel have been considered.” The trial court then (1) ordered petitioner to pay
respondent $1470 per month in child support; (2) determined the fate of the marital residence;
(3) ordered each party to retain their respective bank accounts, retirement accounts, and cars in
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his or her possession and waive any claim against the other party’s; (4) divided the parties’
debt; (5) awarded each party the personal property in his or her possession; (6) found no
dissipation of assets; and (7) refused to award maintenance to respondent.
¶8 With regard to parenting time the trial court specifically stated, “Regarding the allocation
of parenting time for the children, the holiday, summer schedule, and special occasion dates, as
this court understands from reviewing both parties’ parenting plans, are stipulated to, and this
court ratifies and approves the same.” The trial court then set a schedule to be followed “during
the school year.” Respondent’s attorney was ordered to prepare a final judgment to include
language supporting grounds, allocation of parenting time, and an order for support.
¶9 The final parenting plan and judgment was entered by the trial court on June 19, 2017. It
specifically provides for parenting time as follows:
“5. During the school year, the parties shall have the following schedule with the
minor children:
a. [Petitioner] shall have every Monday from 8:00 a.m. until Tuesday at 6:00
p.m.
b. [Petitioner] shall have every other weekend from Friday at 6:00 p.m. until
Tuesday at 6:00 p.m., beginning Friday, March 24, 2017, and continuing every
other weekend thereafter.
c. [Respondent] shall have every Tuesday from 6:00 p.m. until Friday at 6:00
p.m.
d. [Respondent] shall have every other weekend from Friday at 6:00 p.m. until
Monday at 8:00 a.m., beginning March 31, 2017, and continuing every other
weekend thereafter.
6. During the summer *** the parties shall have the following schedule with the
minor children:
a. [Petitioner] shall have every Sunday from 7:00 p.m. until Tuesday at 6:00
p.m.
b. [Petitioner] shall have every other weekend from Friday at 6:00 p.m. until
Tuesday at 6:00 p.m. on the same schedule as set forth in Paragraph 5(b) above.
c. [Respondent] shall have every Tuesday from 6:00 p.m. until Friday at 6:00
p.m.
d. [Respondent] shall have every other weekend from Friday at 6:00 p.m. until
Sunday at 7:00 p.m., on the same schedule as set forth in Paragraph 5(d) above.”
The final parenting plan also states that “each [party] shall have the right of first refusal to
parenting time with the children when the other parent is unable to exercise his or her parenting
time for a period in excess of eight (8) hours.”
¶ 10 On July 18, 2017, petitioner filed a motion to reconsider, in which he asked the trial court
to state its analysis of factors set forth in section 602.7 of the Act, reconsider its decision as to
the right of first refusal, reconsider its decision regarding parenting time, and reconsider child
support in light of recent changes to the Act. The trial court denied petitioner’s motion to
reconsider. Petitioner now appeals.
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¶ 11 ISSUES
¶ 12 I. Allocation of Parenting Time
¶ 13 The first issue is whether the trial court erred in allocating parenting time by not including
an analysis of the factors in section 602.7 of the Act. Petitioner contends the trial court failed to
consider the statutory factors listed in section 602.7(b) (750 ILCS 5/602.7(b) (West 2016))
when allocating parenting time between the parties. Petitioner points to the fact that the trial
court did not summarize the evidence, nor did it mention any factor of section 602.7(b), as
evidence of such failure. We are unconvinced.
¶ 14 Section 602.7 of the Act requires a court to allocate parenting time in accordance with the
best interest of the child. Id. § 602.7(a). In allocating parenting time, the court shall consider all
relevant factors, including (1) each parent’s wishes; (2) the child’s wishes; (3) the amount of
time that each parent spent performing caretaking functions with respect to the child in the 24
months preceding the filing of any petition for allocation of parental responsibilities; (4) any
prior agreement or course of conduct between the parents relating to caretaking functions;
(5) the interaction and interrelationship of the child with his parents and siblings and with any
other person who may significantly affect his best interests; (6) the child’s adjustment to his
home, school, and community; (7) the mental and physical health of all individuals involved;
(8) the child’s needs; (9) the distance between the parents’ residences; (10) whether a
restriction on parenting time is appropriate; (11) the physical violence or threat of physical
violence by the child’s parent directed against the child or other member of the child’s
household; (12) each parent’s willingness and ability to place the child’s needs ahead of his or
her own; (13) each parent’s willingness and ability to facilitate and encourage a close and
continuing relationship between the other parent and the child; (14) the occurrence of abuse
against the child or other member of the child’s household; (15) whether one parent is a sex
offender or resides with a sex offender; (16) the terms of the parent’s military family-care plan
if a parent is a member of the United States Armed Forces who is being deployed; and (17) any
other factor that the court expressly finds to be relevant. Id. § 602.7(b).
¶ 15 Because the trial court is in the best position to assess the credibility of witnesses and
determine the child’s best interests, its decision regarding the allocation of parenting time must
be accorded great deference. In re Marriage of Debra N., 2013 IL App (1st) 122145, ¶ 45. We
will not overturn the trial court’s decision unless the court abused its considerable discretion or
its decision is against the manifest weight of the evidence. Id. Petitioner cites In re Custody of
G.L., 2017 IL App (1st) 163171, in support of his contention that the trial court failed to
properly consider and weigh the factors in section 602.7(b).
¶ 16 In that case, the trial court failed to specifically mention the factors of section 602.7 but did
summarize evidence. Id. ¶ 44. However, that court specifically stated as follows:
“Although a trial court must consider all relevant factors when determining the best
interests of a child, it is not required to make an explicit finding or [specific] reference
to each factor. [Citations.] Generally, we presume that a trial court knows the law and
follows it accordingly. [Citation.]” Id. ¶ 43.
A petitioner’s mere assertion that the trial court did not consider the statutory factors is
insufficient to overcome the presumption that the trial court knew and followed the law. Id.
¶ 44.
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¶ 17 In the instant case, Brian Trambley, the guardian ad litem, specifically utilized the 17
factors of section 602.7(b) in addressing the best interest of the children and the allocation of
parenting time. In his report to the court, Trambley went into great detail and analyzed each of
the 17 factors. With regard to the first factor, he noted that each parent gave him a proposal for
parenting time and they did not differ in great detail. After addressing all the factors, Trambley
concluded that both parties love their children and have the children’s best interests in mind.
He noted that the children want to see both of their parents as much as they can but equal time
is not a reality.
¶ 18 In its March 15, 2017, letter to the parties’ attorneys, the trial court stated it considered all
the evidence, including the guardian ad litem’s report. As a result, the record shows the trial
court was aware of the 17 factors to be considered pursuant to section 602.7(b). Petitioner fails
to point to anything in the record that shows the trial court did not consider the section 602.7
factors; he merely points to the lack of any explicit mention of the factors by the trial court and
a summary of the evidence. But given the fact that the trial court specifically stated it
considered “all evidence” including the guardian ad litem’s report, which analyzes all of the
factors in depth, we presume the trial court properly considered all statutory factors.
¶ 19 II. Best Interest
¶ 20 The second issue we are asked to address is whether the trial court entered a parenting time
order that is in the best interest of the children. Petitioner contends when the facts of this case
are analyzed in light of the factors of section 602.7(b) it is clearly apparent the trial court’s
order as to the parenting time schedule is not in the best interest of the children. We disagree.
¶ 21 A trial court’s findings as to a child’s best interest are entitled to great deference because
the trial judge is in a better position than we are to observe the personalities and temperaments
of the parties and assess the credibility of the witnesses. In re Marriage of Stopher, 328 Ill.
App. 3d 1037, 1041 (2002). “It is a well-established rule that the credibility of witnesses
should be left to the trier of fact because it alone is in the position to see the witnesses, observe
their demeanor, and assess the relative credibility of witnesses where there is conflicting
testimony on issues of fact.” In re Marriage of Kaplan, 149 Ill. App. 3d 23, 28 (1986). We will
overturn such a determination only if it is against the manifest weight of the evidence, is
manifestly unjust, or is the result of an abuse of discretion. In re B.B., 2011 IL App (4th)
110521, ¶ 32. A judgment is against the manifest weight of the evidence only if an opposite
conclusion is apparent or if the findings appear unreasonable, arbitrary, or not based on the
evidence. In re Custody of K.P.L., 304 Ill. App. 3d 481, 488 (1999).
¶ 22 Contrary to petitioner’s assertions, when the facts of this case are analyzed in light of the
factors set forth in section 602.7(b) of the Act, it is not clearly apparent that the trial court’s
order as to the parenting time schedule is not in the best interest of the children. Here, the first
factor, the wishes of each parent, does not favor either parent. Both parties sought equal
parenting time, and the proposals they submitted were fairly similar. The only real difference
boils down to who would have the children every other Sunday night during the school year.
¶ 23 The second factor, the wishes of the children, showed that the children did express a desire
to see petitioner on Sunday evenings. However, the wishes of the children should not be given
too much emphasis due to the children’s young ages. The oldest child was only eight at the
time the guardian ad litem interviewed the children.
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¶ 24 The third factor, the amount of time each spent with performing caretaking functions with
respect to the children in the 24 months preceding the filing of the petition for allocation of
parental responsibilities, is split. Both parties gave varying accounts as to which party
performed the majority of caretaking functions. It is clear to us, however, that both parties
participated in caretaking functions, and the record shows both are capable of carrying out such
functions in the future.
¶ 25 The fourth factor, any prior agreement or course of conduct between the parents relating to
caretaking functions with respect to the children, is inapplicable because the parties failed to
reach an agreement.
¶ 26 With regard to the fifth factor, the interaction and interrelationship of the child with his or
her parents and siblings and with any other person who may significantly affect the child’s best
interests, it does not support one parent over the other. The children love each other and their
parents.
¶ 27 As to the sixth factor, the child’s adjustment to his or her home, school, and community, it
appears that all the children are adjusting well. The children were originally homeschooled by
respondent’s mother but are now attending public school and have adapted. The parties live
relatively close to each other, and both have adequate space for the children. For the most part,
it appears the children have adjusted as well as can be expected to the parties’ separation and
dissolution of marriage.
¶ 28 As to the seventh factor, the mental and physical health of all individuals, there are not any
issues that are relevant to parenting time.
¶ 29 As to the eighth issue, the child’s needs, the record does not reflect any special needs on the
part of any of the children. It appears all children’s needs are being met.
¶ 30 With regard to the ninth issue, the distance between the parents’ residences, the cost and
difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability
of the parents to cooperate in the arrangement, it does not appear that this factor favors one
party over the other. As previously discussed, the parties’ residences are within relatively close
proximity. Respondent retained the marital residence, and petitioner lives in an apartment
approximately 20 miles away. The record shows some discord about sports schedules but
nothing that would be overly worrisome.
¶ 31 With regard to the tenth factor, whether a restriction on parenting time is appropriate, the
record fails to show any restriction is necessary.
¶ 32 With regard to the eleventh factor, the physical violence or threat of physical violence by
the child’s parent directed against the child or other member of the child’s household, we
disagree with petitioner that this factor favors him. Petitioner points to an incident early in the
parties’ separation when respondent allegedly threw a picture frame against a wall and
“grabbed” G.W. Given the fact that respondent just learned petitioner was seeing another
woman, it is clear to us that it was a moment of passion. No further incident has been reported.
¶ 33 As to the twelfth factor, the willingness and ability of each parent to place the needs of the
child ahead of his or her own needs, petitioner admits that this factor favors respondent due to
her more flexible work schedule.
¶ 34 With regard to the thirteenth factor, the willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the other parent and the child,
petitioner insists this factor favors him. Petitioner alleges respondent tried to limit his contact
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with the children in the following four ways: (1) texting him on short notice of D.W.’s first
soccer game, (2) not facilitating to his satisfaction his daily phone calls to the children,
(3) refusing to give petitioner Sunday nights with the children, and (4) not changing the
parenting schedule to accommodate his work schedule. The guardian ad litem was aware of
most, if not all, of these concerns when he concluded “these parents can foster a continuing
relationship between each other and the children.” The trial court agreed with this conclusion.
Based upon the record before us, we cannot say the opposite conclusion is clearly apparent.
Both parties appear able to facilitate and encourage a close and continuing relationship
between the other parent and child, especially after the initial shock of the dissolution wore off
and the reality of their new situation set in.
¶ 35 The final four factors do not apply: (1) there is no evidence to support any physical
violence or threat of physical violence by either parent, except for the minor incident
previously discussed; (2) neither parent is a sex offender; (3) neither parent is a member of the
armed forces; (4) there are no other factors relevant to the decision making process.
¶ 36 The biggest advantage probably goes to respondent due to her flexible work schedule. But
the reality here is that the factors amount to basically a tie, with none of the factors greatly
favoring one party over the other. The trial court’s order reflects this balance by allowing both
parties a substantial amount of parenting time. Under these circumstances, we cannot say the
trial court entered a parenting time order that is not in the best interests of the children.
¶ 37 III. Right of First Refusal
¶ 38 The third issue raised on appeal is whether the trial court erred in entering a right of first
refusal provision that takes effect only if either parent cannot exercise their parenting time for a
period of eight hours. Petitioner contends it is not in the best interest of the children to have an
8-hour requirement because respondent, who has a flexible work schedule, can adjust her work
schedule to work for 7 hours and 55 minutes just to interfere with petitioner’s ability to see the
children while she is at work. Petitioner asks for a right of first refusal that would take effect
when either parent cannot exercise his or her parenting time for a period of four hours or more.
¶ 39 Section 602.3(a) of the Act provides:
“(a) If the court awards parenting time to both parents under Section 602.7 or 602.8,
the court may consider, consistent with the best interests of the child as defined in
Section 602.7, whether to award to one or both of the parties the right of first refusal to
provide child care for the minor child or children during the other parent’s normal
parenting time, unless the need for child care is attributable to an emergency.” 750
ILCS 5/602.3(a) (West 2016).
Section 602.3(b) of the Act provides “ ‘right of first refusal’ means that if a party intends to
leave the minor child or children with a substitute child-care provider for a significant period of
time, that party must first offer the other party an opportunity to personally care for the minor
child or children.” Id. § 602.3(b).
¶ 40 A trial court’s determination as to best interests of the child will only be reversed if it is
clearly against the manifest weight of the evidence and it appears a manifest injustice has
occurred. In re Parentage of J.W., 2013 IL 114817, ¶ 55. A judgment is against the manifest
weight of the evidence only if the opposite conclusion is clearly apparent. Id. Here, we cannot
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say the trial court’s decision to grant a right of first refusal provision of eight hours is against
the manifest weight of the evidence.
¶ 41 An eight-hour right of first refusal as opposed to a four-hour right of first refusal appears
reasonable under the facts and circumstances of this case. Petitioner’s argument is based on
nothing more than conjecture and speculation. What is clear is that both parties work full-time
outside the home. While there were some incidents early after the parties’ separation that
indicate some problems working in the children’s best interest, both have since shown the
ability to resolve issues more amicably. However, a four-hour right of first refusal could
require the parties to contact each other more than necessary and potentially lead to greater
conflict. After careful consideration, we cannot say the trial court’s decision to grant an
eight-hour, rather than a four-hour, right of first refusal when substitute care is required is
against the manifest weight of the evidence.
¶ 42 IV. Motion to Reconsider
¶ 43 The final issue is whether the trial court erred in denying petitioner’s motion to reconsider
regarding child support. Petitioner asserts that there has been a substantial change in the law
since the original hearings in this matter by virtue of an amendment to section 505 of the Act
(750 ILCS 5/505 (West 2016)), which makes Illinois an “income shares” model state with
regard to child support. Petitioner argues the trial court should have allowed his motion to
reconsider and followed this new model. We disagree.
¶ 44 A motion to reconsider draws a trial court’s attention to newly discovered evidence that
was unavailable at the time of the first hearing, changes in the law, or errors in the previous
application of existing law to the facts of the case. In re Marriage of Lasota, 2014 IL App (1st)
132009, ¶ 28. Whether a motion to reconsider should be granted is left to the sound discretion
of the trial court and its decision will not be overturned absent an abuse of discretion. Weidner
v. Midcon Corp., 328 Ill. App. 3d 1056, 1061 (2002).
¶ 45 Public Act 99-764 (eff. July 1, 2017) changed section 505 of the Act (750 ILCS 5/505) to
make Illinois an “income shares” model. The trial court’s initial ruling made via letter was
entered on March 15, 2017, and the judgment order for final disposition was entered on June
19, 2017. Thus, the trial court’s rulings with regard to child support were made under the law
applicable at the time. Because the trial court applied the law that was in effect at the time of its
ruling, the trial court did not abuse its discretion in denying petitioner’s motion to reconsider.
¶ 46 CONCLUSION
¶ 47 For the foregoing reasons, we affirm the final parenting plan and the judgment of
dissolution entered in the circuit court of Johnson County.
¶ 48 Affirmed.
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