In re Marriage of Hinnen

2023 IL App (2d) 220280-UNo. 2-22-0280
Order filed February 21, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
BILLIE JO HINNEN, ) of McHenry County.
)
Petitioner-Appellee, )
)
and ) No. 17-DV-343
)
BRYAN DEAN HINNEN, ) Honorable
) Justin M. Hansen,
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Hutchinson and Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in (1) granting petitioner’s request to relocate with the
parties’ minor child; (2) denying respondent’s petitions for orders of protection;
(3) excluding from evidence several video and audio recordings of the parties’
minor child, which were made by respondent and his sister; and (4) denying
respondent’s motion to reconsider based on newly-discovered evidence. Affirmed.
¶2 In August 2017, the trial court entered a judgment dissolving the marriage of petitioner,
Billie Jo Hinnen, and respondent, Bryan Dean Hinnen. The judgment incorporated the parties’
agreed allocation of parental responsibilities and parenting plan, under which the parties’ minor
child, C.H., resided primarily with Billie.
2023 IL App (2d) 220280-U¶3 In August 2021, Billie petitioned, under section 609.2 of the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/609.2 (West 2020)), to relocate with C.H. to the
Washington, D.C., area. Highly contentious litigation followed, in which both parties filed several
other pleadings and motions. Relevant to this appeal, Bryan moved to modify the judgment, asking
the court to place C.H. with him. He later filed an amended petition for an order holding Billie in
direct and indirect criminal contempt and two petitions for emergency orders of protection.
¶4 The trial court consolidated for hearing the pending pleadings and, after a hearing, granted
Billie’s petition to relocate and denied Bryan’s motion and petitions. It later denied Bryan’s
amended motion to reconsider that was based in part on purportedly newly-discovered evidence.
¶5 Bryan, who has at all times in this case acted pro se, appeals, contending the trial court
erred by (1) granting Billie’s request to relocate, (2) denying his petitions for orders of protection,
(3) denying his motion to reconsider, and (4) excluding from evidence several video and audio
recordings of C.H. that were created by Bryan and/or his sister, Ann Sparks. We affirm.
¶6 I. BACKGROUND
¶7 A. The Parties’ Marriage and Divorce
¶8 Billie and Bryan married in January 2001. They had two children: C.H., who was born on
June 27, 2012, and another who passed away in June 2011, shortly after his birth. C.H. is on the
autism spectrum, which manifests with pervasive developmental delay and apraxia of speech, and
has attention-deficit/hyperactivity disorder (ADHD) and generalized anxiety disorder.
¶9 The parties divorced in August 2017. They came to an agreement on the allocation of
parental responsibilities and a parenting plan and went to trial on other issues. The judgment
dissolving the parties’ marriage incorporated their agreed allocation of parental responsibilities
and parenting plan. The judgment assigned to Billie a majority of the parenting time but granted
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2023 IL App (2d) 220280-Uliberal visitation to Bryan. Specifically, Bryan was permitted three hours of visitation every
Monday through Thursday, as well as overnight visitation from 2:30 p.m. on Friday to 6 p.m. on
Saturday.1 Additionally, the judgment provided that “all decisions regarding the care and
upbringing of [C.H.], including education, medical care, and religious instruction, shall be made
jointly by the parties” and that neither party could unreasonably withhold his or her consent to any
proposed course of action. The judgment also required the parties to promptly communicate to
each other information concerning C.H.’s education and to “notify each other as soon as possible
in cases of emergencies, health care needs, or other significant child-related needed.”
¶ 10 Further, the judgment required Bryan, who earned $300 per week, to pay to Billie $249 per
month in child support.2 Billie was responsible for providing C.H. with health insurance, and the
parties shared equally the costs of school fees and uniforms, uncovered medical expenses, and
childcare necessary for Billie to work. Billie was solely responsible for the costs of any
extracurricular activity in which C.H. was enrolled.
¶ 11 B. Postjudgment Proceedings
¶ 12 Just before the judgment was entered, Billie and C.H. moved to an apartment in Chicago.
For a period of time, Bryan, who lives in Woodstock, exercised his daily parenting time at Billie’s
apartment, visiting with C.H. after school until Billie got home from work. However, at some
point, Bryan stopped exercising his weekday parenting time and instead exercised his weekend
parenting time but would keep C.H. until Sunday at 8 or 9 p.m. (as opposed to returning him, per
1
Weekend visitation began at 5:30 p.m. if Friday was not a school day.
2
The judgment stated that, during his closing argument, Bryan agreed to this amount.
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2023 IL App (2d) 220280-Uthe judgment, on Saturday at 6 p.m.). The parties apparently acquiesced to this modified
arrangement, but neither sought a formal modification of the parenting-time schedule.
¶ 13 Billie lost her job in July 2021, and she sought and obtained employment in the
Washington, D.C., area, where, because of her skills as an intellectual-property law paralegal, her
opportunities were more abundant and better paying than they were in Chicago. Thus, Billie sought
permission to relocate with C.H. to the Washington, D.C., area. The litigation that ensued was
highly contentious, involving numerous, voluminous pleadings. It culminated in a hearing held
over nine days in November and December 2021 and February and March 2022, in which the court
heard testimony from the parties, C.H.’s guardian ad litem (GAL), Cynthia Lamb, 3 and Bryan’s
sister, Ann Sparks, and received numerous exhibits.
¶ 14 1. The Relevant Pleadings
¶ 15 As noted, the parties filed several pleadings and motions in relation to Billie’s request to
relocate. We set forth only those which Bryan challenges on appeal or provide context to the
parties’ dispute.
¶ 16 a. Billie’s Filings
¶ 17 On August 2, 2021, Billie filed a notice of relocation accompanied by a petition. In the
notice, Billie stated she intended to permanently relocate to the Washington, D.C., metropolitan
area, she did not yet have an address for relocation, and relocation was necessary no later than
September 1, 2021. In her petition, Billie asserted relocation was in C.H.’s best interests. She
alleged she had recently found employment as an intellectual-property paralegal (a field in which
she had been specializing for 13 years) in the Washington, D.C., area, where such jobs are more
3
The trial court appointed Lamb as GAL on August 9, 2021.
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2023 IL App (2d) 220280-Uabundant and paid better than in Chicago, because that is where the United States Patent and
Trademark Office is located. Billie alleged that, under the judgment dissolving the marriage, she
was primarily responsible for all costs associated with raising C.H., and Bryan had not paid any
child support since the judgment was entered. She contended that, if relocation was allowed, she
would be better able to provide for C.H.’s needs.
¶ 18 On August 18, 2021, Billie petitioned for an emergency order of protection, seeking an
order protecting her and C.H. The trial court declined to hear the petition on an emergency basis
and instead required notice to Bryan. On August 30, 2021, the court granted the petition, allowing
Bryan to contact Billie (1) by email or text for the purpose of coordinating parenting time pickup
and drop off, (2) by email for the purpose of discussing C.H.’s needs or parenting-related concerns,
and (3) by phone in the event of an emergency. Otherwise, Bryan was prohibited from contacting
Billie. The order of protection was set to expire upon the resolution of the pending petitions and
motions related to Billie’s relocation.
¶ 19 On October 8, 2021, Billie moved for an order allowing her to temporarily relocate to
Washington, D.C. She alleged that she had accepted employment, under a short-term contract, in
Washington, D.C., would earn only half of her expected income until she relocated, risked losing
long-term employment if she did not relocate, and was living month-to-month in her current
residence.
¶ 20 On October 12, 2021, Billie petitioned for an order holding Bryan in civil contempt. She
alleged that Bryan had willfully and contumaciously failed to pay her any child support since the
judgment dissolving their marriage was entered and that his current outstanding balance was
$12,411.36, plus interest.
¶ 21 b. Bryan’s Filings
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2023 IL App (2d) 220280-U¶ 22 In response to Billie’s petition to relocate, on August 10, 2021, Bryan moved to compel
Billie to produce C.H. to testify at the hearing on her petition. Bryan also moved to modify the
judgment, requesting that C.H. be placed with him, that he be allocated primary decisionmaking
authority regarding C.H., and that Billie be ordered to pay to him child support. Bryan did not
squarely allege a substantial change in circumstances had occurred. However, he alleged it was in
C.H.’s best interests to be placed with him and that he believed C.H.’s placement with Billie
seriously endangered C.H.’s mental, moral, and physical health or would significantly impair his
emotional development. He based these contentions on allegations that C.H. had been bullied at
his current school; Billie lived in a small, converted attic on the third floor of a building in a rat-
infested neighborhood; C.H. was rapidly gaining weight; Billie consistently used abusive
language, profanity, and corporal punishment when supervising C.H.; and both Chicago (where
Billie and C.H. currently resided) and Washington, D.C., had been “wracked by civil unrest,” had
high violent-crime rates for nearly a century, and had widespread street gang activity.
¶ 23 On August 17, 2021, Bryan moved for temporary relief, asking the court to (1) modify the
parenting schedule to provide him with visitation every Friday to Monday and unlimited telephone
contact with C.H., and (2) abate his child-support obligation. Later, Bryan filed an “emergency
amended motion for temporary relief,” in which he added new factual allegations to support his
requests for relief. Between the two pleadings, Bryan alleged Billie had been binge drinking on
the weekends; on belief, Billie had a nonspecified personality disorder; Billie had recently
capriciously terminated their verbal modification of the judgment (as it related to parenting time)
and instead began enforcing the judgment to the letter; C.H. had become obese and sedentary while
in Billie’s care; C.H. had been missing school; and, on belief, Billie was emotionally abusing C.H.
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2023 IL App (2d) 220280-U¶ 24 On October 25, 2021, Bryan petitioned for an emergency order of protection in favor of
C.H. He reiterated many of the factual allegations set forth in his amended motion for temporary
relief, adding that C.H. had been psychiatrically hospitalized after an outburst at school that was,
in fact, caused by Billie’s emotional abuse and that Billie was alienating Bryan from C.H., by
interfering with Bryan’s parenting time. The court declined to hear the petition on an emergency
basis, and the petition was ultimately heard at the same time as the other pleadings at issue in this
appeal.
¶ 25 On November 12, 2021, Bryan petitioned for an order holding Billie in direct and indirect
criminal contempt. Bryan alleged Billie made numerous false statements in open court and in
certain verified pleadings and had also obstructed Bryan’s visitation with C.H. On November 29,
2021, he amended his petition to include two additional counts of contempt: one based on Billie’s
obstruction of his participation in medical decisions relating to C.H., and one based on Billie’s
removal of C.H. from Illinois to the Washington, D.C., area.
¶ 26 Also on November 29, 2021, Bryan filed a second petition for an emergency order of
protection. Bryan alleged that, after C.H. was discharged from his psychiatric hospitalization on
November 9, 2021, Billie “fled” to Washington, D.C., in violation of C.H.’s “discharge safety
plan.” Bryan alleged that, while he was hospitalized, C.H. had violent outbursts with both Bryan
and hospital staff, told hospital staff he did not feel safe with Billie, and was likely to have
additional violent outbursts because Billie left the Chicago area, alienated Bryan from C.H., and
emotionally abused C.H.
¶ 27 2. The Hearing
¶ 28 As noted, the trial court held a hearing over nine days in November and December 2021
and February and March 2022.
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2023 IL App (2d) 220280-U¶ 29 a. Billie’s Testimony
¶ 30 Billie testified that she is an intellectual property paralegal. After she lost her job in July
2021, her priority was to maintain C.H.’s stability and the relationships she had built in Chicago.
She began looking for work both in the Chicago area and the Washington, D.C., area. Her options
were limited, because of her experience and because she needed flexibility due to C.H.’s needs.
Her skills overqualified her for an entry-level position, and an entry-level salary was not
commensurate with her skills and would not sustain her and C.H.’s needs.
¶ 31 Billie obtained a job as a senior intellectual property paralegal with a firm that has offices
in Washington, D.C., and California. The firm offered her a full-time position but, at the time of
trial, the firm was allowing Billie to work remotely about 25 to 30 hours per week, for an
annualized salary of $52,000. Billie explained that her current earnings could not sustain her and
C.H.’s needs and that she was supplementing her income with her savings.
¶ 32 To be a full-time employee, the firm required that she live in Washington, D.C., or
California. Billie chose Washington, D.C., for several reasons, including that it was closer to
Chicago than is California. Upon relocation, Billie would become a full-time employee, earn
$95,000, plus an annual bonus of at least $10,000, and receive health-insurance contributions from
the firm. (She was paying the full premium as a part-time employee.) She would have flexible
hours and expected to be allowed to work remotely on some days.
¶ 33 As part of her decision, Billie researched schools in Washington, D.C. She found Hearst
Elementary School, which was a special-education school and was one of few that offered cluster
services like C.H. was receiving in Chicago. (Billie explained that a cluster program grouped
children with similar needs together so the school could pool its resources.) The school had a low
teacher-to-student ratio and offered inclusive after-school programs. Billie did not know how
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2023 IL App (2d) 220280-UHearst’s general education program ranked compared to other schools in that area. However, its
cluster-education program was highly rated. Billie focused her search for housing in
neighborhoods that were served by Hearst. She had looked for a residence in three neighborhoods
that were comparable to where she and C.H. lived in Chicago and verified with Hearst’s
administrator that those neighborhoods were served by Hearst.
¶ 34 The presence of a support system also influenced Billie’s decision to choose Washington,
D.C. She had made a significant number of friends in the area, through work, networking, and
socializing, and C.H. knew children his age there. Billie’s mother and stepfather, sisters and
nephews, and grandmother lived in the same region of Pennsylvania, within 3½ hours of
Washington, D.C. Billie’s family, particularly her mother, stepfather, and sister, provided support
to Billie after C.H. was born. Billie’s sister, Penelope, has a son, Nicholas, who is two years older
than C.H. and is also on the autism spectrum. According to Billie, C.H. and Nicholas are
“compatible,” meaning they communicated and played similarly and were able to interactively
play. Before the Covid-19 pandemic, Billie and C.H. saw Billie’s mother and stepfather frequently.
They would travel to Illinois two or three times per year. They also saw Penelope and Nicholas
semifrequently, sometimes taking vacations or spending a week together. During the Covid-19
pandemic, C.H. and Nicholas had regular contact via FaceTime. Billie testified that, if relocation
was allowed, her mother would be able to see them every other week and Penelope and Nicholas
“ha[d] plans to see [them] at least once a month.” Nothing, other than Penelope’s full-time
employment, prevented Nicholas from visiting C.H. in the Chicago area. However, Billie believed
that Penelope would not want to travel to Woodstock to allow Nicholas and C.H. to visit each
other, because Penelope did not want to see Bryan.
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2023 IL App (2d) 220280-U¶ 35 Billie described her relationship with C.H. as “great.” They had a routine and activities
they liked to do together, and they shared meals together. Generally, Billie would allow C.H. to
have input on certain matters, provided they were age appropriate, so that he would feel included.
Billie sought to have an “open” relationship with C.H., so he feels like he is safe and “can talk
about things.” Billie mirrored her disciplinary tactics with those used at C.H.’s school and after-
school program. Billie acknowledged she was not a “perfect parent.” However, she was “caring,
compassionate, [and] sympathetic,” and she accommodated C.H.’s requests “whenever possible.”
She modeled good behavior for C.H. and demonstrated how to be a responsible adult by “go[ing]
above and beyond in [her] career to make sure [she] ha[d] a network and a safety net so that
[C.H.’s] life [could] continue to be provided for.” Billie also acknowledged she had weaknesses
as a mother, which included indulging C.H. “a little bit too much from time to time.” C.H. never
exhibited fear, apprehension, or avoidance while in Billie’s care; however, C.H.’s diagnoses
caused him to express emotions in an atypical manner.
¶ 36 C.H. occasionally asked Billie about the court case, but Billie did not discuss specifics. She
never asked C.H. for help with the case, but believed others (presumably Bryan and Sparks) did
ask for help, because C.H. had told Billie both that he was on her “team” and that he was on
Bryan’s “team.” Billie told C.H. he did not need to be on anyone’s “team,” because the decision
to be made was an “adult decision.” On another occasion, C.H. asked Billie to help him turn on a
camera, so that he could take pictures of her “mess” to help Bryan “win in court.” Billie thus
believed C.H. understood what was going on and felt compelled to help one side or the other. This,
according to Billie, was contributing to C.H.’s anxiety.
¶ 37 Billie believed relocation to Washington, D.C., would be “good” for and have a positive
impact on C.H., because they would be closer to Billie’s family, would be financially stable, and
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2023 IL App (2d) 220280-Uwould have better opportunities. C.H. would have fewer transitions, since he would no longer be
“shuffled back and forth” between Billie and Bryan. According to Billie, C.H. needed consistency
because of his conditions. After relocation, Bryan could have contact with C.H. via
videoconferencing, but she preferred it to be on a set schedule. Billie understood, however, there
should be exceptions, i.e., when C.H. was excited about something and wanted to tell Bryan.
¶ 38 Billie also recounted the events leading up to C.H.’s psychiatric hospitalization, which
included two outbursts that occurred at school. On September 22, 2021, C.H. threw a pencil at an
aid, drawing blood. On October 18, 2021, C.H. was in a fist fight with another student at his school.
During the fight, C.H. told the other student he “would kill him” and “would kill his soul.” C.H.
later “eloped” from a multipurpose room, entered a supply closet, and swung a snow shovel at an
aid’s head. Another aid was able to stop C.H. C.H. then hid under a desk and flipped over a table.
¶ 39 The school’s social worker told Billie the school “would be required to facilitate” a
psychiatric evaluation if Billie did not seek one voluntarily. Billie thus called Lurie Children’s
Hospital and, on October 20, 2021, participated in a parent screening over the telephone. While
she was on the call, C.H. physically attacked Billie. The screener told Billie that if C.H. had one
more outburst, he would need to be brought to the emergency room for an “urgent evaluation for
inpatient treatment.” After another outburst later that day, Billie brought C.H. to the emergency
room at Lurie, and he was referred for inpatient psychiatric services. However, he was on
psychiatric hold in a regular hospital room for several days while he waited for a bed in the
inpatient psychiatric unit.
¶ 40 While in the hospital, staff asked C.H. what he liked to do for fun, and he responded that
he “t[ook] pictures of [Billie’s] mess so that [Bryan] wins in court.” He also told Billie, in front of
hospital staff, that he was on Bryan’s “team” and not Billie’s. He also told hospital staff that Billie
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2023 IL App (2d) 220280-Uwas “mad” at Bryan but Bryan was “very nice.” He also stated that he felt unsafe when he was
with Billie, because he missed Bryan, but felt safe when he was with Bryan, because he did not
miss Billie. C.H. continued to have violent outbursts during his hospitalization.
¶ 41 Billie acknowledged that, while C.H. was in the hospital, there was “an incident in which
[Billie was] concerned about [Bryan] getting 20 minutes extra of visiting time with C.H.”
According to Bryan’s pleadings, during those 20 minutes, he was speaking with hospital staff on
a phone in C.H.’s room, discussing a care plan. Billie testified that she complained about Bryan
having the additional 20 minutes of visitation and asked hospital staff what phone Bryan was using
and requested telephone records. Billie did not believe her response was “over the top.” Rather,
she explained that she had been at the hospital nearly 24 hours a day and, per the plan put in place
by hospital staff, she left at the agreed upon time so that Bryan could have time with C.H. Billie
called the hospital several times and learned Bryan did not appear until “something like less than
an hour before [he] was expected to leave.” Billie was upset that, as a result of Bryan’s tardiness,
C.H. was “forced to be in the hospital alone during a medical crisis.”
¶ 42 Eventually, on November 9, 2021, C.H. was discharged into Billie’s care, with instructions
to begin a partial hospitalization program. The discharge instructions also stated that C.H. was to
have “no transitions” and “no stressors” until he was evaluated for that program. This meant C.H.
was not to go from Billie’s to Bryan’s house or attend school. The doctors also recommended that
C.H. take medication and undergo therapy for his generalized anxiety disorder. However, Bryan
refused to consent to C.H. receiving that medication.
¶ 43 Billie took C.H. to Compass for evaluation on November 17, 2021. C.H. was not able to
participate in the evaluation and instead hid behind Billie, climbed on furniture, rearranged the
room, and picked up pieces of dust or lint from the floor. Given C.H.’s level of functioning,
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2023 IL App (2d) 220280-UCompass was unable to provide care for C.H. Instead, the doctor provided Billie with a list of
providers that could assist C.H. However, none of those providers were in Billie’s insurance
network (as her employer-provided health insurance was centered in Washington, D.C.). Thus,
Billie made an appointment with an in-network psychiatrist in Maryland, and she and C.H. traveled
there on November 22, 2021, for that appointment. C.H. followed up with the psychiatrist on
November 29, 2021, and again on December 6, 2021. The purpose of these three visits was to
evaluate C.H. and determine the appropriate care going forward. The psychiatrist also prescribed
medication for C.H.’s ADHD and an antianxiety medication for his generalized anxiety disorder.
Billie unilaterally made the decision to put C.H. on the antianxiety medication, even though she
knew Bryan had previously refused to consent to its use. And Billie did not consult with Bryan
after C.H. was discharged, even though he had joint decisionmaking authority under the judgment.
Billie explained that she went forward with the antianxiety medication because C.H. was
nonfunctional and could not participate in a partial hospitalization program without it. At the time
of the hearing, C.H. had not been treated in a partial hospitalization program. Billie, however, did
not intend to treat C.H. only with medication; she intended to enroll C.H. in therapy when it was
available.
¶ 44 C.H. continued to have violent outbursts after his discharge from Lurie. Billie testified,
however, that the incidents were more isolated as a result of his treatment with the psychiatrist in
Maryland. Additionally, C.H.’s speech had improved after he began taking medication. Billie
explained that, previously, few people could understand what C.H. was trying to communicate,
but, now, C.H. can better communicate to others his wants and needs.
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2023 IL App (2d) 220280-U¶ 45 Billie also testified that Bryan had attended only one of C.H.’s medical appointments since
she and Bryan divorced. He had not attended any meetings relating to C.H.’s individualized
education plan or parent-teacher conferences.
¶ 46 Billie communicated with Bryan “as little as humanly possible,” because Bryan either
harassed Billie or asked for money every time they talked. Billie did not tell Bryan about C.H.’s
outbursts that led to his hospitalization. She explained, “I am not your wife. It’s your responsibility
to find out things you want to know about your child.” According to Billie, coparenting meant that
that she “need[ed] to do the things that are in the court order that [she] was legally required to do
*** unless [she was] going to be unsafe, like allowing [Bryan] in [her] residence.” Further,
“[c]oparenting is when two people can actually communicate with each other without getting into
a huge argument that leads to court filings every single time they speak.” In the past, when Billie
tried to share information with Bryan concerning C.H., Bryan criticized her and “it just
snowball[ed] into everything that ever happened between the two of us.” After the divorce, Billie
attempted to amicably coparent with Bryan, but Bryan “used that opportunity to go through [her]
things and to allow [C.H.] to make messes and then *** take pictures of them so that [he] c[ould]
try to get custody of C.H. *** for the purpose of obtaining child support.”
¶ 47 Billie frequently provided money to Bryan for transportation and/or meals so that Bryan
could exercise his parenting time. Bryan had not paid any child support other than the first
installment, which he paid on the date of the judgment. Bryan had not contributed to any of C.H.’s
school or medical expenses (other than providing one ride to a clinic) and had not bought any
clothing for C.H. Additionally, Billie provided C.H. with money to buy Bryan gifts, but Bryan, to
Billie’s knowledge, had not reciprocated. Billie was willing to waive child support so that Bryan
could use that money to travel to Washington, D.C., to exercise parenting time.
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2023 IL App (2d) 220280-U¶ 48 At the time of the hearing, Billie and C.H. lived with Billie’s sister in Pennsylvania. She
moved because her lease in Chicago had expired, and she was waiting for the court to approve or
disapprove her relocation to Washington, D.C., before obtaining permanent housing. C.H.
continued to be enrolled at the school he attended in Chicago, but it “ha[d] no means to provide
him instruction” given his condition. Billie had sent in paperwork to Chicago Public Schools to
enroll C.H. in virtual instruction, but they had not yet enrolled him. The last time he had attended
school was in October 2021. Billie had looked into the procedure for enrolling C.H. in school in
Pennsylvania but had not formally initiated that process.
¶ 49 Billie considered alternatives before moving with C.H. to Pennsylvania. C.H. was in the
middle of an emergent health crisis, however, and Billie’s primary concern was C.H.’s best
interests. Thus, she also spoke with the GAL, seeking advice as to whether the relocation to
Pennsylvania was a viable option, given the limitations on care available to C.H. in the Chicago
area.
¶ 50 Billie acknowledged that C.H. had gained weight since the start of the pandemic and had
spoken with his pediatrician about it. C.H.’s pediatrician told Billie that this was a general trend
with all her patients, which the pediatrician expected to subside when children were back in school
full time. The pediatrician discussed with Billie strategies to avoid weight gain.
¶ 51 Billie occasionally socialized outside of work and sometimes drank alcohol. However, she
never drank in front of C.H. and, maybe twice, had one drink after C.H. went to bed. She
acknowledged, however, that she made several alcohol-related posts on her Facebook page.
¶ 52 Billie also acknowledged that she was currently blocking C.H. from visiting with Bryan
and Sparks. She explained,
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2023 IL App (2d) 220280-U“[C.H.] just got out of an inpatient psychiatric unit at the age of nine where he spent
21 days ***.
The reason for his generalized anxiety disorder is psychosocial, meaning the
relationship between me and you and you and him. He is, by your own admission in an
email during visitation, being taken to [Sparks’s] house and videotaped, interviewed, and
otherwise interrogated *** so that you can, in your own words, I believe, paraphrasing
slightly, collect evidence against me to use not only in this court case but in a criminal case
of perjury against me. I don’t think that that [sic] is an appropriate use of parenting time.”
Billie was not blocking communication between C.H., Bryan, and Sparks, or between Bryan and
C.H.’s physicians to conceal information. She explained that there was an order of protection that
prohibited Bryan from calling Billie, except in the case of emergency, and that is why Bryan had
not spoken with C.H. on the phone in the weeks leading up to the hearing.
¶ 53 Billie also testified that Bryan was exercising parenting time via videoconference during
the proceedings. C.H. refused to turn on his camera, however. Billie encouraged C.H. to engage
with Bryan but, if she left the room, he would follow her. When he did, Billie directed C.H. back
into the room to continue his time with Bryan.
¶ 54 b. Bryan’s Testimony
¶ 55 Bryan testified that he opposed Billie’s relocation because it would dramatically decrease
his parenting time with C.H. Under the judgment, he was entitled to daily face-to-face parenting
time and, under the parties’ unapproved modification of the judgment, he was exercising weekend
parenting time each week, from Friday through Sunday afternoon. He was also concerned that
Billie’s relocation would prevent him from teaching C.H. certain skills that only he could teach
him, such as how to “turn a wrench,” throw a football, and ask a girl on a date.
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2023 IL App (2d) 220280-U¶ 56 At the time of hearing, Bryan was employed by a legal placement service called Special
Counsel, which was based in New York. His net earnings were $150 per week. He also freelanced
through upwork.com. He earned approximately $5000 in 2020 but earned much less in 2021. He
had no other sources of income, but he received food stamps, rental assistance, utility assistance,
and assistance from the local food banks and churches, who had provided secondhand clothing,
blankets, shoes, and jackets for C.H. Bryan received health insurance from Medicaid and could
have C.H. enrolled “within 24 hours.” If Bryan were to obtain custody of C.H., he would rely on
an increase in benefits from the Department of Human Services and child support from Billie and,
if all else failed, he could rely on Sparks for support.
¶ 57 Bryan testified that he rented a house in a safe neighborhood in Woodstock that was close
to the town square and several parks. C.H. had been to those parks and met new friends each time
he did. Bryan felt comfortable allowing C.H. to walk to the square or park by himself and did not
think that was inappropriate, because both police and security cameras were present in the area.
C.H. loved to run for exercise, and there were plenty of nearby areas where he could do so.
¶ 58 According to Bryan, Billie preferred an urban environment, which did not compare
favorably with Woodstock in this regard. Bryan testified that urban environments had gang activity
and that C.H. was rapidly approaching an age where he would be susceptible to gang recruitment.
C.H. would eventually need to learn how to be independent, and he could do so safely in
Woodstock but not Chicago or Washington, D.C.
¶ 59 Bryan lived with two adult men, Mark Kobylinski and Chris Jacobs, both of whom had a
nonviolent criminal history. Kobylinski had convictions for burglary, driving under the influence,
and driving on a revoked license but none of his convictions were recent. Jacobs had a “[s]imilar,
but shorter,” criminal history. Kobylinski was a former member of the Hells Angels biker gang
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2023 IL App (2d) 220280-Ubut “was kind of a hanger” (which Bryan did not define). Kobylinski was a recovering alcoholic.
Kobylinski attacked Bryan in April 2019, which was the last time Kobylinski drank. C.H. was not
present at the time. Kobylinski only had “pleasant and appropriate” interactions with C.H. He
taught C.H. some minor mechanical tasks. Jacobs occasionally drank alcohol, but never in C.H.’s
presence or to the point of intoxication in the house. Another man, Christopher D’Asta, lived with
Bryan in the past, but he moved out about two and a half years prior, after he attempted to stab
Bryan. C.H. had been in D’Asta’s presence at some point in the past.
¶ 60 Bryan explained that, in the past, he had tried “to fix people” who were struggling with
issues like alcoholism and drug abuse. He was giving that up, however, as his sole focus now was
to “fix” C.H.
¶ 61 According to Bryan, C.H.’s mental state had steadily deteriorated over the past four years
that he was under Billie’s care. He had become more anxious and apprehensive to the point he had
been diagnosed with generalized anxiety disorder and had to be hospitalized. However, since the
divorce, C.H. did not have violent outbursts or act aggressively when he was with Bryan. He did
not show any signs of apprehension or anxiety. Bryan noted that Billie told hospital staff that she
did not feel safe in C.H.’s presence, but Bryan never once felt unsafe with C.H.
¶ 62 Bryan treated C.H. with love, respect, and compassion. He had never raised his voice to
C.H. or used corporal punishment, but instead used appropriate disciplinary tactics, such as giving
C.H. a “time out” or denying him screen-time privileges. Bryan intended to teach C.H. how to play
sports, to think independently, and to feel loved and respected, none of which he was receiving
while under Billie’s care. Bryan believed that Billie was binge drinking, as evidenced by several
posts on her Facebook page.
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2023 IL App (2d) 220280-U¶ 63 Bryan provided C.H. with a healthy diet, and C.H. exercised when he was with Bryan.
Billie, on the other hand, did not feed C.H. a healthy diet, and C.H. was becoming increasingly
obese while in Billie’s care. Bryan was diabetic and in the past had severe ulcerations on his legs,
to the point where physicians had told him he was at risk of amputation. Bryan had recently lost
weight and, through medication and exercise, had gotten his diabetes under control. He did not
want C.H. to have a similar experience, which did not seem possible if C.H. were to continue to
live with Billie.
¶ 64 Bryan further testified that, when he picked up C.H. for parenting time, C.H. “would jump
for joy.” On the ride back to Bryan’s, C.H. “would bear hug [Bryan’s] right arm for 30 to 45
minutes as we were driving away with his eyes tightly closed. [C.H.] *** appeared to be exhausted
and extremely anxious.” After they left Chicago’s city limits, Bryan would tell C.H. that they are
going to Woodstock and that C.H. would not be going back to Billie’s apartment, and C.H. would
open his eyes, begin to smile, and loosen his grip on Bryan’s arm.
¶ 65 Before the end of Bryan’s weekend parenting time, C.H. would call Billie and beg to stay
with Bryan “just one more day,” but Billie always said no. As they approached Billie’s apartment
at the end of Bryan’s parenting time, C.H. became increasingly anxious and apprehensive, and,
several times, he hid under the dashboard to avoid getting out of the car.
¶ 66 After Billie moved to Pennsylvania, Bryan began visiting with C.H. via Zoom and had
repeatedly heard Billie telling C.H. to stop hitting her. According to Bryan, as C.H. continued to
grow, it was “just going to get worse.”
¶ 67 Bryan understood these as “consistent indications that [C.H.] did not want to go [back to
Billie’s].” Bryan had witnessed Billie using “a very harsh tone of voice” with C.H., and, in June
2021, he heard Billie tell C.H., “what [you] want[ ] means nothing.” Bryan believed C.H.’s anxiety
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2023 IL App (2d) 220280-Uand apprehension at the end of his parenting time was the result of Billie’s verbal and emotional
abuse of C.H.
¶ 68 c. Sparks’s Testimony
¶ 69 Sparks testified that she is Bryan’s younger sister and is a nurse who specializes in child
psychiatry. She lives in Normal, Illinois, about a 2 hour and 45 minute drive from Woodstock.
Neither Sparks nor Bryan wanted to present her as an expert, because there had been a complaint
filed (presumably by Billie) against her with the Department of Professional and Financial
Regulation, which alleged that she “assessed somebody out of the context of being a professional.”
¶ 70 Sparks had observed Bryan and C.H. interact on multiple occasions. Bryan’s home was
appropriate for a child. Bryan provided three meals a day and had a yard in which C.H. could play.
Sparks observed Bryan provide to C.H. love, encouragement, fun, safety, teaching, and
socialization. Bryan was patient with C.H., kind, and inclusive. He also provided emotional
support to C.H. and appropriately balanced the need to be “a buddy” to C.H. with the need to
discipline him. Sparks never observed any abuse or neglect, and C.H. obeyed Bryan.
¶ 71 Sparks also observed Billie telling Bryan and C.H. what to say and how to say it during a
videoconference. According to Sparks, Billie was “being abrasive.”
¶ 72 Sparks testified that C.H. had gained significant weight in the year leading up to the
hearing. He always “had rings under his eyes.” On one occasion, Bryan took C.H. to visit Sparks.
Bryan picked up C.H. at Billie’s house and drove straight to Sparks’s. When C.H. unpacked his
bag, Sparks noticed that it contained mostly junk food. Sparks did not see clothing or a toothbrush.
On one occasion, in 2021, Sparks drove Bryan to pick up C.H. from Billie’s house. As they drove
away, C.H. embraced Bryan, “kind of in a strange way.” C.H. held the embrace for several minutes,
“like he wasn’t ready to let go.”
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2023 IL App (2d) 220280-U¶ 73 Sparks had previously heard C.H. state he felt unsafe at Billie’s house. In September 2021,
after learning that Bryan had to physically carry C.H. into Billie’s house at a parenting-time
exchange, Sparks asked C.H. why he did not want to go into Billie’s house. C.H. responded that
“it was scary and that he was afraid.”
¶ 74 Sparks also testified that she gave up a week’s work and thousands of dollars in earnings
to appear to testify, because she believed C.H.’s life was in danger, if not physically, then
emotionally and spiritually. She did not understand why he had been taken out of state against a
court order and “also against physician order that he’s supposed to be in intensive outpatient
hospitalization.” She believed that Billie was acting contrary to C.H.’s best interests. She also
believed that C.H.’s voice needed to be heard and that her testimony as to what she had observed
needed to be heard.
¶ 75 Before this case, Bryan and Sparks had been estranged for about six years. Asked why they
were estranged, Sparks testified that “there were issues of not being allowed to communicate,
being told [Bryan] could not visit [Sparks],” and that, when she would call, she could hear Billie
screaming in the background. They recently reconnected, however, and had become close.
¶ 76 During Sparks’s testimony, Bryan introduced exhibits J and J1, which contained numerous
recordings of C.H. created by Sparks. The recordings in exhibit J1 were made during Bryan’s
videoconference visitation that took place while the hearing was in progress and were made
without Billie’s and C.H.’s consent. Billie objected, arguing the recordings were hearsay. Bryan
responded that the recordings were admissible under (1) the hearsay exception for a declarant’s
statement of his or her then-existing mental state or emotions (Ill. R. Evid. 803(3) (eff. Sept. 24,
2018)); or (2) section 606.5 of the Act (750 ILCS 5/606.5 (West 2020)), which provides that
previous statements made by a minor relating to allegations of abuse and neglect are admissible as
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2023 IL App (2d) 220280-Uevidence in hearings concerning the allocation of parental responsibilities. According to Bryan,
while C.H. did not make specific allegations of abuse or neglect in the recordings, C.H.’s
statements “indicate[d] neglect.” Bryan ultimately submitted the exhibits to the court as an offer
of proof. The court later determined that all of the recordings in exhibit J were inadmissible under
the hearsay rule, finding C.H.’s statements, contained therein, did not meet the exception set forth
in section 606.5 of the Act. As to exhibit J1, the court determined the recordings had been obtained
in violation of the eavesdropping statute, rendering them inadmissible (720 ILCS 5/14-5 (West
2020)).
¶ 77 d. Lamb’s Report and Testimony
¶ 78 Before the hearing, Lamb investigated the issues presented by the parties’ pleadings and
prepared a 29-page report of her findings and her recommendations. The report was admitted into
evidence and stood as Lamb’s direct testimony. After inquiry by the court, both parties were
permitted to cross-examine Lamb.
¶ 79 In her report, details of which we address in our analysis, Lamb addressed each of the
factors set forth in section 609.2 of the Act (750 ILCS 5/609.2 (West 2020)), which governs
relocation petitions, and sections 602.5 and 602.7 of the Act (id. § 602.5, 602.7 (West 2020)),
which govern the modification of a allocation judgments, and she recounted her findings in regard
to each of those factors.
¶ 80 Ultimately, Lamb recommended that Billie be permitted to relocate with C.H. to
Washington, D.C. She noted that, in addition to the applicable statutory factors, Billie’s
employment in Washington, D.C., would afford C.H. a better lifestyle and would allow Billie to
maintain C.H.’s needs. Billie had always been C.H.’s sole source of financial support, and C.H.’s
lifestyle could be negatively impacted if she was not able to relocate. Bryan, on the other hand,
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2023 IL App (2d) 220280-Uhad not shown any ability to provide financially for C.H. and did not “have the resources to provide
for [C.H.’s] financial needs.” Further, though Bryan claimed that he would enroll C.H. in a private
school for children with autism, one-on-one therapy, and extra-curricular activities, his claim was
disproved by the fact that he had done no such thing since the parties’ divorce and had no financial
ability to provide those things. Further, Lamb noted that Bryan had the ability to have reasonable
parenting time “at approximately the same amount he now exercises on a monthly basis” and could
do so in Washington, D.C., because he was minimally employed. Bryan could also have frequent,
scheduled contact with C.H. via electronic means. Billie had indicated her willingness to forego
child support so that Bryan could use that money for travel to and lodging in Washington, D.C.
¶ 81 Lamb also determined that, regardless of whether Billie was allowed to relocate, Billie
should be granted sole decisionmaking authority for all major decisions involving C.H., including
medical, school, extra-curricular, and religious decisions. Lamb noted that any regular contact
between the parties had led to periods of harassment and cross-petitions for orders of protection
and would not serve C.H.’s best interests. She also noted that the parties were often unable to make
any decisions concerning C.H. because they could not discuss or come to an agreement. Lamb also
noted that she never received any indication “that Billie has acted in any way other than [C.H.’s]
best interest when making decisions for him.” In her report, Lamb noted that Bryan and Sparks
had recorded C.H. state that he loved Bryan and wanted to live with him but also noted that, when
he came into the room during a phone call, Lamb had heard C.H. state make similar comments
about Billie, specifically, that he would help her, not Bryan. Lamb noted that she did not give
much weight to either statement, because C.H. loved both his parents, would like to live with each
of them, and does not understand the ramifications of what relocation entails for him.
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2023 IL App (2d) 220280-U¶ 82 As to parenting time, Lamb recommended that Billie be allocated a majority of the
parenting time, regardless of whether she was allowed to relocate. If Billie were allowed to
relocate, Bryan should be allocated “extended weekends” in Washington, D.C., each month, along
with regular contact via videoconference, so that he could maintain his connection with C.H. Lamb
explained that “extended weekends” meant weekends that have an extra day off of school, which
would allow Bryan to have three consecutive overnights per month as opposed to the four
individual overnights per month that he was allocated in the original judgment. Lamb also noted
that Bryan could have extended periods of time with C.H. over summer vacation, provided he
could meet C.H.’s needs during those times.
¶ 83 If Billie was not allowed to relocate, Lamb recommended that the judgment be modified
to remove Bryan’s daily parenting time in favor of weekend parenting time, which he could
exercise Friday through Sunday on alternating weekends. Lamb explained that the parties lived
too remotely for weekday parenting exchanges and “that many transitions [did] not appear to be
in [C.H.’s] best interest.” She also determined that “it [was] not a workable solution, as proposed
by Bryan, for Billie to vacate her own residence so he can visit with the minor child.”
¶ 84 3. The Trial Court’s Decision
¶ 85 On May 2, 2022, the trial court entered a written order disposing of the pleadings at issue
in this appeal, except that the court (1) did not rule on Bryan’s motion to compel Billie to produce
C.H.; and (2) appointed the State’s Attorney to prosecute his amended criminal contempt petition.
Relevant to this appeal, the court granted Billie’s petition to relocate and denied Bryan’s motion
to modify the judgment. As part of that decision, the court modified the judgment to give Billie
sole decisionmaking authority concerning C.H.’s health and modified the parenting-time schedule
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2023 IL App (2d) 220280-Uto provide Bryan with visitation (1) one weekend per month, 4 to be exercised in Washington, D.C.;
(2) in the summer (June, July, and August), one week per month, to be exercised in Woodstock;
and (3) by videoconference for 30 minutes, three days per week. Additionally, the court abated
Bryan’s child support obligation, retroactive to the date Billie filed her relocation petition, so that
Bryan could feasibly travel to and from Washington, D.C., to exercise his parenting time.
¶ 86 The trial court also denied Bryan’s petitions for an order of protection in C.H.’s favor.
¶ 87 The trial court prepared a 38-page memorandum of its decision, in which it extensively
recounted the evidence presented and set forth the bases for its decision. In relation to Billie’s
relocation petition and Bryan’s motion to modify, the court set forth each of the factors in sections
602.5, 602.7, and 609.2 of the Act (750 ILCS 5/602.5, 602.7, 609.2 (West 2020)), explained how
the evidence presented applied to those factors, and, ultimately, determined it was in C.H.’s best
interests to grant Billie’s petition to relocate.
¶ 88 The trial court emphasized that C.H.’s health was “a foremost concern” and that Billie’s
employment provided the means to provide for C.H.’s mental and physical health care. It noted
Billie’s job change was not the result of her leaving a current, existing job so that she could pursue
a better opportunity. Nothing showed Billie could have stayed with her most-recent employer or
turned down or failed to pursue opportunities that would have avoided relocation, and the court
declined to assume Billie could have found employment that was commensurate with her
experience and her and C.H.’s needs without relocating. The court thus found that requiring Billie
4
The court ordered that, if possible, visitation should take place on a three-day weekend,
and, in such cases, Bryan would be allowed to extend the weekend vacation to encompass the third
day.
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2023 IL App (2d) 220280-Uto stay in the Chicago area without employment and health insurance was contrary to C.H.’s best
interests.
¶ 89 Further, the court noted that Billie had been C.H.’s primary caretaker for his entire life and
“[i]t was not in [C.H.’s] best interest to upend that now.” The court noted, regardless of its cause,
treatment of C.H.’s aggression and anxiety was imperative. However, the parties had demonstrated
they were unable to agree on the treatment of C.H.’s health needs, thus making necessary the
modification of the healthcare decisionmaking authority.
¶ 90 The trial court also found that relocation would provide C.H. with better educational
opportunities. Hearst, where Billie intended to send C.H., was highly rated and provided
appropriate curriculum and structure for children with autism. Further, the court credited the
GAL’s opinion that Hearst could better meet C.H.’s needs over the options available in Bryan’s
area.
¶ 91 4. Posttrial Litigation
¶ 92 In May 2022, Bryan moved to reconsider, which he later amended. In part, the motion
asked for a new trial, arguing the trial court’s refusal to hear testimony from C.H. was a “fatal
flaw” that required a new trial. Additionally, Bryan partially based his motion on newly-discovered
evidence. Specifically, Bryan asserted that, after the trial in this matter concluded, he discovered
new evidence that established C.H. had not attended school or received therapy since November
2021, when Billie moved with C.H. to Pennsylvania. He alleged that Billie had “stonewalled” his
attempts to gather information about C.H.’s education and healthcare. He also asserted that, since
the trial court’s order, C.H. had used aggressive and violent language toward him during his
parenting time and that Billie was causing C.H. to act in that manner, which was an obstruction of
his visitation.
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2023 IL App (2d) 220280-U¶ 93 Bryan also filed an “expert witness list” and later an “amended expert witness list,” which
stated that two witnesses would testify in support of his motion to reconsider: (1) Ryan Clancy, an
investigator with Children and Youth Services in Pennsylvania, as an expert in child abuse and
neglect cases, and (2) Sparks, as an expert in psychiatry and mental health.
¶ 94 At the hearing on the motion, both Clancy and Sparks were present. Bryan made an offer
of proof as to each witness. According to Bryan, Clancy would testify that (1) C.H. had not
attended school or therapy and had only one visit with a psychiatrist (to obtain prescriptions) since
November 2021, when Billie moved with C.H. to Pennsylvania; and (2) Billie was uncooperative
with his investigation, which signaled she “ha[d] something to hide.” Sparks would testify that
Billie continued to interfere with and obstruct Bryan’s parenting time and continued to emotionally
abuse C.H. while the matter was pending.
¶ 95 On July 7, 2022, the trial court denied the motion. With respect to Bryan’s request for a
new trial, based on the refusal to permit C.H. to testify, the court determined that Bryan abandoned
his motion to compel Billie to produce C.H. by failing to present it and resting his case without
bringing it to the court’s attention. As to the newly-discovered evidence, the court noted that, to
the extent the new evidence related to events that occurred after the proofs had closed and a
decision had been issued, such evidence was not properly considered in a motion to reconsider.
The court also noted that Bryan’s offer of proof did not make clear whether Clancy and Sparks
would testify as to events that predated the close of proofs and decision. However, to the extent
the witnesses would testify as to events that predated the order, the court determined that Bryan
had not established that he could not have discovered the evidence sooner. Bryan appeals.
¶ 96 II. ANALYSIS
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2023 IL App (2d) 220280-U¶ 97 On appeal, Bryan contends the trial court erred in (1) granting Billie’s request to relocate,
(2) denying his petitions for orders of protection, (3) excluding from evidence the video and audio
recordings of C.H. that were created by Bryan and Sparks, and (4) denying his motion to
reconsider. We must first address two preliminary matters.
¶ 98 A. Illinois Supreme Court Rule 311
¶ 99 We have issued our decision outside the 150-day timeframe specified in Illinois Supreme
Court Rule 311(a)(5) (eff. July 1, 2018), which states, “[e]xcept for good cause shown, the
appellate court shall issue its decision within 150 days after the filing of the notice of appeal.”
Respondent filed his notice of appeal on August 5, 2022. Thus, the record on appeal was due in
this court on September 9, 2022, Bryan’s opening brief was due on September 30, 2022, and our
disposition was due on January 3, 2023. See Ill. S. Ct. R. 311(a)(4), (5) (eff. July 1, 2018).
¶ 100 Bryan failed to timely file his opening brief, and, on October 5, 2022, on our own motion,
we ordered him to file his brief no later than October 12, 2022, or else the appeal would be
dismissed. The next day, Bryan moved for an extension of time to file his brief. His motion noted
the trial transcript had not yet been prepared, that he had been in contact with the court reporter,
and the court reporter informed him that two or three more weeks were needed to complete the
transcripts. 5 He also asserted that, once the transcript was complete, he would need an additional
5
Bryan’s docketing statement (which was not timely filed) and his motion for extension of
time both stated that he asked the circuit clerk to prepare the record on appeal on September 1,
2022, which was 12 days late. See Ill. S. Ct. Rs. 312(a), 323(b) (eff. July 1, 2017) (written request
for transcript must be made within the time for filing the docketing statement, which must be filed
within 14 days of the notice of appeal).
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2023 IL App (2d) 220280-Utwo weeks to review the transcript and file his brief. Thus, he sought an extension of time to
November 10, 2022, to file his brief. Billie did not object to Bryan’s motion, and, on October 12,
2022, we granted him the requested extension.
¶ 101 Bryan filed his brief on November 7, 2022. Although his brief referenced the trial transcript
and several exhibits that were not included in the original record—and despite the fact it was his
burden to ensure we had a complete record—Bryan never took any steps to supplement the record
with a report of proceedings that included the trial proceedings and the exhibits. Thus, on
November 17, 2022, on our own motion, we ordered the circuit clerk to certify the transcripts and
exhibits as a supplemental record and file the supplemental record on or before November 22,
2022. The supplemental record was certified and filed on November 23, 2022. However, the
exhibits, which include the video and audio recordings that, according to Bryan, were improperly
excluded from evidence, were not transmitted to this court. Even after this court entered an order
on January 11, 2023, instructing Bryan to submit, by January 19, 2023, the exhibits to the circuit
clerk for submission to this court, he did not do so until January 25, 2023.
¶ 102 Billie’s brief was due on December 1, 2022, and, after this court sent her a warning that it
was overdue, Billie elected not to file a brief. Thus, the case was submitted for decision, on Bryan’s
brief alone, on December 15, 2022, which was 10 business days before the decision was due.
¶ 103 In light of the foregoing, we find we have good cause to excuse our failure to issue our
decision within the timeframe set forth in Rule 311(a)(5). See In re B’Yata I., 2013 IL App (2d)
130558, ¶ 26.
¶ 104 B. Lack of Appellee’s Brief
¶ 105 We also note, that because Billie has not filed an appellee brief, our review is guided by
the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d
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2023 IL App (2d) 220280-U128 (1976). Under Talandis, when the appellee does not file a brief, the appellant is not entitled to
a pro forma reversal, because “[a] considered judgment of the [circuit] court should not be set
aside without some consideration of the merits of the appeal.” Id. at 131. Rather, we have three
distinct, discretionary options: we may (1) serve as an advocate for the appellee and decide the
case if we determine justice so requires, (2) decide the merits of the case if the record is simple
and the issues can be easily decided, or (3) reverse the circuit court when the appellant’s brief
demonstrates prima facie reversible error that is supported by the record. Id. at 133.
¶ 106 We conclude the record is simple and the issues presented can easily be decided without
the aid of appellee’s brief. Admittedly, the record in this case is quite voluminous. But volume
alone does not render the record complex. And the issues presented in this appeal are neither novel
nor complex. Accordingly, we choose to address the merits of Bryan’s appeal notwithstanding the
lack of an appellee’s brief.
¶ 107 C. Billie’s Relocation Petition and Bryan’s Motion to Modify
¶ 108 Bryan first contends the trial court erred by granting Billie’s relocation petition and denying
his motion to modify the judgment. Specifically, he argues the trial court’s best-interests
determination was against the manifest weight of the evidence. Additionally, Bryan argues that he
proved his allegations of criminal contempt by clear and convincing evidence and that the proper
remedy for Billie’s contempt is to grant primary residential custody to him.
¶ 109 1. The Evidence Supported the Trial Court’s Best-Interests Determination
¶ 110 The trial court’s chief concern when determining whether to allow a parent’s relocation is
the child’s best interests. 750 ILCS 5/609.2(g) (West 2020). When determining whether relocation
is in a child’s best interests, the court must consider the following factors:
“(1) the circumstances and reasons for the intended relocation;
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2023 IL App (2d) 220280-U(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) the history and quality of each parent’s relationship with the child and
specifically whether a parent has substantially failed or refused to exercise the parental
responsibilities allocated to him or her under the parenting plan or allocation judgment;
(4) the educational opportunities for the child at the existing location and at the
proposed new location;
(5) the presence or absence of extended family at the existing location and at the
proposed new location;
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental
responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child’s maturity and ability to
express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities appropriate
to the parents’ resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a
parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.” Id.¶ 111 “[A] trial court’s determination of the child’s best interests should not be disturbed unless
it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has
occurred.” (Internal quotation marks omitted.) In re Marriage of Levites, 2021 IL App (2d)
200552, ¶ 69. This deferential standard of review is appropriate because the trial court has a
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2023 IL App (2d) 220280-Usuperior opportunity to observe the parents and children, giving it the ability to assess and evaluate
their temperaments, personalities, and capabilities. Id.¶ 112 Further, “a best-interests determination cannot be reduced to a simple bright-line test and
instead must be made on a case-by-case basis,” and, thus, other relocation cases have limited
comparative value because each case depends on its own unique facts and circumstances. Id. ¶ 71.
Moreover, the result in a relocation case “cannot be reduced to a simply tally of which party ‘won’
a majority of the enumerated factors; instead, because some factors in a particular case may weigh
more heavily than others, the trial court must consider all factors and evidence touching on the
issue and must arrive at a reasonable result.” Id.¶ 113 We conclude the trial court’s best-interests determination was not against the manifest
weight of the evidence. The record demonstrates the trial court carefully considered all of the
evidence presented and, in a detailed written order, explained how each of the relevant statutory
factors applied to that evidence.
¶ 114 As to the first factor—the circumstances and reasons for the proposed relocation—the
trial’s findings were not erroneous. The court reasonably found that Billie’s reason for relocation
was the need to secure employment so that she could provide for her own and C.H.’s needs,
particularly where Billie had always provided a majority of C.H.’s financial support. It also found
that Billie had been unable to find comparable employment in the Chicago area. Specifically,
Billie’s reason for relocation was that she “was jobless and needed to secure new employment, for
both her own sake and for [C.H.’s].” This factor favored relocation, the court determined. It noted
that the GAL’s finding that Billie did not find comparable employment in the Chicago area was
consistent with Billie’s testimony, which favored Billie. She lost her job and needed to secure new
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2023 IL App (2d) 220280-Uemployment, and Bryan failed to financially support C.H., “in spite of court orders providing for
exactly that.”
¶ 115 Turning to the second factor—the reasons, if any, why a parent is objecting to the intended
relocation—we conclude that the trial court’s findings were not erroneous. The court reasonably
deterined that that Bryan’s weekly parenting time would be diminished if Billie and C.H. relocated
and that this was the strongest argument against relocation. The court noted that it could not credit
Bryan’s claims that Billie emotionally abused C.H., finding that lay testimony about C.H.’s
emotional reactions did not constitute proof of emotional abuse, especially considering C.H.’s
difficulty with transitions and communication. Likewise, a single statement that “what you want
doesn’t matter,” without context, did not constitute emotional abuse. Finally, the court reasonably
found that Bryan’s argument that Woodstock was safer than Washington, D.C., or that a suburban
setting was safter than an urban one was without foundation.
¶ 116 Next, addressing the history and quality of each parent’s relationship with the child and
whether a parent had substantially failed or refused to exercise the parental responsibilities
allocated to them under the parenting plan or allocation judgment, the court found that both Billie
and Bryan had a history of a good relationship with C.H. The court further found that Bryan’s
assertion that C.H.’s aggression toward Billie reflected the poor quality of their relationship was
contradicted by other evidence concerning Bryan’s own history with C.H. (the GAL reported that
Bryan had testified at the hearing on Billie’s first order of protection that C.H. was prone to
violence and attacked his parents) and evidence that C.H. had been aggressive toward people
besides Billie (such as students and staff at his school and staff at Lurie). Finally, the court found
that Bryan had exercised less parenting time than allotted to him under the allocation judgment.
The court’s findings were not erroneous. The GAL noted in her report that Bryan had not paid
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2023 IL App (2d) 220280-Ucourt-ordered child support or contributed to C.H.’s financial needs in any way except for when
C.H. was with him. Billie reported that she often had supplied food and funds to Bryan so that
C.H. would have things when he was with his father. The GAL concluded that Bryan was unable
to financially care for his son, which affected his ability to exercise parenting time and other
responsibilities for C.H.’s benefit.
¶ 117 Next, addressing the education opportunities for the child at the existing location and at the
proposed new location, the trial court found that C.H.’s education would improve if he attended
Hearst in Washington, D.C. This finding was not erroneous. The evidence, including the GAL’s
findings, showed that the Hearst autism program was highly rated, where it had therapists and
special education staff on site, a low teacher-to-student ratio, and highly-rated cluster
programming.
¶ 118 The court determined that the fifth factor—the presence or absence of extended family at
the existing location and at the proposed new location—slightly favored Billie. The court noted
that Billie did not have relatives near Chicago or Woodstock. Bryan’s only nearby relative was
Sparks, who lived in Normal, about three hours away. As the court noted, while Sparks and Bryan
had seen each other more frequently during the litigation in this case, their relationship prior to
this time was estranged and they did not have meaningful contact for several years. Billie’s mother
and sisters live near Washington, D.C., and Billie’s mother had visited Chicago several times per
year. Billie believed that the visits would increase if she and C.H. moved closer to her relatives.
Further, one of Billie’s sisters has an autistic son, and Billie noted he was C.H.’s most similar
biological peer. The court reasonably determined that, based on this evidence, because contact
with Billie’s extended family will increase, the factor weighed slightly in favor of relocation.
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2023 IL App (2d) 220280-U¶ 119 Next, addressing the anticipated impact of the relocation on the child, the court found that
the evidence did not establish what impact relocation either to Washington, D.C., or Woodstock
would have on C.H. and that the factor did not weigh heavily in favor of either party. This finding
was not erroneous. The GAL noted C.H.’s autism and concluded that it was unclear what impact
relocation would have on him, but determined that, with proper planning and help, C.H. will
probably be able to adjust to a new location and school. She also noted that the parties appeared to
believe the same. The court noted C.H.’s need for ongoing treatment for autism and anxiety and
that Billie’s job in Washington, D.C., provided insurance there, where she was able to secure
psychiatric help for her son after his hospitalization.
¶ 120 Next, addressing whether the court will be able to fashion a reasonable allocation of
parental responsibilities between all parents if relocation occurs, the court correctly determined
that a reasonable allocation of parenting responsibilities was possible if relocation occurs. It noted
the parties’ contentious history, but also the fact that they were able for several years to manage
parenting time and decisionmaking for C.H.’s best interests with a schedule of their own making.
The court acknowledged Billie’s move to Pennsylvania without court approval and her giving C.H.
medications without Bryan’s consent or against his wishes. However, the court reasonably noted
that her actions occurred in the midst of prolonged litigation, a change of job and benefits, and
following an emergency hospitalization for C.H. Finally, the court reasonably found that Bryan’s
arguments concerning the ineffectiveness of C.H.’s medication, which, we note, he also raises on
appeal, were not supported by any evidence at trial.
¶ 121 The court next addressed the wishes of the child, taking into account the child’s maturity
and ability to express reasoned and independent preferences to relocation. It noted that it did not
take into account C.H.’s wishes, because he has autism and anxiety disorder and limited verbal
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2023 IL App (2d) 220280-Ucommunication. Also, at different times, as the GAL noted, C.H. expressed a preference for both
parents. We cannot conclude that the trial court erred in assessing this factor, as the record amply
supported it findings.
¶ 122 The court found that the ninth factor—possible arrangements for the exercise of parental
responsibilities appropriate to the parents’ resources and circumstances and the developmental
level of the child—weighed in favor of relocation. Its finding was not erroneous. The court
reasonably found, based on the GAL’s recommendation, that long parenting time each month was
a reasonable allocation of parenting time, especially if combined with ongoing video
communication during weekdays and extended time during the summer. Also, the GAL noted that
there is a daily Amtrak train between Chicago and Washington, D.C., and the fare is $75 one-way.
Given the long weekend parenting time and video communication, the evidence reasonably
reflected that Bryan’s relationship with C.H. could remain strong.
¶ 123 Addressing the tenth factor—minimization of the impairment to the parent-child
relationship caused by a parent’s relocation—the court found that it was not possible to avoid all
impairment to Bryan and C.H.’s relationship as a result of relocation, but that it could be reduced
in significant respects. This finding was not unreasonable. As the court noted, Billie offered to
contribute to Bryan’s travel expenses to Washington, D.C. by foregoing child support and
contribution to child-related expenses. Further, the GAL noted that technology could help Bryan
and C.H. maintain their relationship. She determined that Bryan would do whatever was necessary
to maintain a relationship with C.H. and that they were both familiar with Zoom conferences.
¶ 124 In addition to the relocation factors, the court also assessed the factors relevant to the
allocation of parenting responsibilities under section 602.5(c) (750 ILCS 5/602.5(c) (West 2020)
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2023 IL App (2d) 220280-U(decisionmaking)) and section 602.7 (750 ILCS 5/602.7 (West 2020) (parenting time)) of the Act
that did not overlap with those addressed above.
¶ 125 Section 602.5(c) provides that, in determining the child’s best interests for purposes of
allocating significant decisionmaking responsibilities, the court shall consider all relevant factors,
including:
“(1) the wishes of the child, taking into account the child’s maturity and ability to express
reasoned and independent preferences as to decision-making;
(2) the child’s adjustment to his or her home, school, and community;
(3) the mental and physical health of all individuals involved;
(4) the ability of the parents to cooperate to make decisions, or the level of conflict between
the parties that may affect their ability to share decision-making;
(5) the level of each parent’s participation in past significant decision-making with respect
to the child;
(6) any prior agreement or course of conduct between the parents relating to decision-
making with respect to the child;
(7) the wishes of the parents;
(8) the child’s needs;
(9) 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;
(10) whether a restriction on decision-making is appropriate under Section 603.10;
(11) the willingness and ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child;
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2023 IL App (2d) 220280-U(12) the physical violence or threat of physical violence by the child’s parent directed
against the child;
(13) the occurrence of abuse against the child or other member of the child’s household;
(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense
and what, if any, treatment in which the parent has successfully participated; and
(15) any other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.5(c)
(West 2020).
¶ 126 Section 602.7(b) of the Act provides that, in determining the child’s best interests for
purposes of allocating parenting time, the court shall consider all relevant factors, including:
“(1) the wishes of each parent seeking parenting time;
(2) the wishes of the child, taking into account the child’s maturity and ability to
express reasoned and independent preferences as to parenting time;
(3) the amount of time 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 or, if the child is under 2 years of age, since the child’s birth;
(4) any prior agreement or course of conduct between the parents relating to
caretaking functions with respect to the child;
(5) 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;
(6) the child’s adjustment to his or her home, school, and community;
(7) the mental and physical health of all individuals involved;
(8) the child’s needs;
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2023 IL App (2d) 220280-U(9) 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;
(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) the willingness and ability of each parent to place the needs of the child ahead
of his or her own needs;
(13) the willingness and ability of each parent 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 of the parents is a convicted sex offender or lives with a convicted
sex offender and, if so, the exact nature of the offense and what if any treatment the
offender has successfully participated in; the parties are entitled to a hearing on the issues
raised in this paragraph (15);
(16) the terms of a parent’s military family-care plan that a parent must complete
before deployment 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.” 750 ILCS
5/602.7(b) (West 2020).
¶ 127 As to the wishes of each parent, the court found that Billie wanted to relocate to
Washington, D.C., and wanted sole decisionmaking authority. She argued for a parenting time
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2023 IL App (2d) 220280-Uschedule that gave Bryan extended weekends one time per month. Bryan wanted C.H. to live with
him and Billie to have parenting time on extended weeks one time per month. Addressing the
child’s adjustment to his home, school, and community, the court found that C.H.’s lack of
adjustment to Pennsylvania or Washington, D.C., weighed against relocation, especially given his
autism and difficulty with transitions, but the court agreed with the GAL’s concerns about the
amount of freedom that Bryan gave C.H., such as walking alone to the Woodstock square and
playing at the park. As to the amount of time 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, the court determined that Billie had spent considerably more time
performing caretaking functions. She cared for C.H. during the week and on any weekends in
which Bryan’s work schedule or transportation difficulties kept him from exercising parenting
time. Billie also arranged for school and medical care. The court reasonably found this weighed
strongly in her favor to remain the parent with the majority of parenting time.
¶ 128 Addressing the mental and physical health of all individuals involved, the court noted that
it had already addressed C.H.’s mental and physical health. Addressing Bryan’s issue with C.H.’s
weight, the court reasonably found that there was insufficient evidence to find that his weight gain
was a significant factor in this case (and this was supported by Billie’s testimony), and it noted
that the parents’ health was not addressed at trial.
¶ 129 Next, addressing the ability of the parents to cooperate to make decisions, or the level of
conflict between the parties that may affect their ability to share decisionmaking, the court noted
that the evidence showed that Billie made nearly all of the decisions and there was no indication
that the parties’ ability to cooperate will improve after the litigation ends. This finding was amply
supported by the record. As the GAL noted, the parties cannot cooperate in decisionmaking for
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2023 IL App (2d) 220280-UC.H. and have filed orders of protection against each other. Also, their combativeness contributed
to the need for C.H.’s hospitalization at Lurie, and even Bryan had stated in his testimony for
Billie’s first petition for an order of protection that C.H. was prone to violent behavior and attacked
his parents.
¶ 130 As to the willingness and ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child, the court reasonably determined
that neither party wanted to eliminate the other from C.H.’s life and that they were able to
cooperate for parenting time after the dissolution.
¶ 131 Addressing the willingness and ability of each parent to place the needs of the child ahead
of his or her own needs, the court found that both parties care for C.H. and want what is best for
him, but the persistent conflict between them was affecting C.H. The court also noted that Bryan
and Sparks had collected evidence for this case through C.H., most of which was barred when
Billie objected to the video and audio contained in Bryan’s exhibit J. It also noted that C.H.
reported that he was collecting evidence for Bryan against Billie, which reflected that Bryan put
his own needs ahead of C.H.’s needs. The trial court’s findings were not unreasonable.
¶ 132 In summary, the trial court determined that relocation was in C.H.’s best interests and it
granted Billie’s petition and denied Bryan’s motion to modify. The court noted that C.H.’s health
was a foremost concern. Billie’s employment provided both the financial means and insurance to
provide for C.H.’s mental and physical health care needs. Billie’s health insurance network does
not include the Chicago area, but Billie found providers that meet C.H.’s needs in Maryland.
Addressing Billie’s job, the court found that requiring her to remain in the Chicago area without a
job and without health insurance was not in C.H.’s best interests. There was no evidence that Billie
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2023 IL App (2d) 220280-Ucould have stayed at her prior employer, nor was there evidence that she failed to pursue a job
opportunity that would have avoided relocation.
¶ 133 The court also noted that Billie had been C.H.’s primary caretaker for his entire life and
that terminating that arrangement was not in his best interests. The parties could not resolve their
reasonable disagreements to reach a joint decision about their son’s health. The court noted that
Bryan did not dispute that his involvement with C.H.’s school and medical appointments had been
very limited. He argued that Billie had operated without his input, but no litigation history existed
to reflect that he sought to enforce his decisionmaking authority.
¶ 134 The trial court allocated to Billie sole decisionmaking in health care issues and noted that
Bryan would continue to have access to C.H.’s medical records and could consult with providers
and attend appointments, so long as he did not interfere with or inhibit treatment. The court left in
place other aspects of decisionmaking, including Bryan’s ability to participate in decisions relating
to education, religion, or extracurricular activities. The court determined that C.H.’s education
would be better in Washington, D.C., noting the GAL’s and Billie’s testimony that Hearst is highly
rated and provides a curriculum and structure appropriate for a student with autism.
¶ 135 It further determined that Bryan and C.H. could maintain a meaningful relationship after
relocation, noting that neither party disputed that such a relationship could be maintained by a
party travelling to C.H.’s residence for one long weekend each month. It allocated to Bryan one
weekend per month with C.H., beginning on Friday after school and ending at 5 p.m. on Sunday,
with a preference to Bryan for three-day weekends, during which his time would be extended to
include the additional day. During summer, Bryan would have parenting time for one week each
month, beginning on a Saturday at noon and ending on the following Saturday at noon. The court
also granted Bryan videoconference calls with C.H., with such calls to take place at 5:30 p.m. each
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2023 IL App (2d) 220280-UTuesday, Thursday, and Friday, unless his parenting time fell on those days. It also granted Billie
videoconference calls with C.H. according to the same schedule during Bryan’s summer parenting
time weeks. Addressing the GAL’s opinion, the court found her credible, persuasive, and
objective.
¶ 136 Finally, the court acknowledged that relocation will significantly reshape Bryan’s
relationship with his son and limit it. However, C.H.’s best interests, it found, were served by
relocation, especially considering that it is possible for C.H. and Bryan to maintain a close and
continuing relationship in spite of the geographic distance.
¶ 137 In his brief, Bryan does not address the statutory factors and complains about several
evidentiary rulings. He also contends that he has a stable home, that reasonable visitation is
impossible due to his limited financial resources, age (69 during trial), and health, and that Billie
emotionally abuses C.H. and has not attended to his health care needs. Bryan cites several cases
which he contends are similar to this case, arguing those cases compel an opposite conclusion than
that made by the trial court. As noted, however, every relocation case must be decided on its own
facts, so the case law cited by Bryan has little comparative value. Levites, 2021 IL App (2d)
200552, ¶ 71.
¶ 138 We conclude that the trial court considered all of the arguments and evidence and
reasonably assessed and weighed the relevant factors and that its findings were not against the
manifest weight of the evidence. Although, upon the parties’ divorce, Bryan was granted liberal
visitation with C.H., it was undisputed that, over time, he stopped exercising all of it. He also, with
one exception, did not pay his agreed upon child support, being in arrears for over $12,000, plus
interest, and did not contribute to C.H.’s school or medical expenses. Billie lost her job in July
2021, found employment in Washington, D.C., and sought permission to relocate there. Her job
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2023 IL App (2d) 220280-Uas an intellectual property paralegal is specialized, and she found work as a senior intellectual
property paralegal in Washington, D.C., the location of the United States Patent and Trademark
Office, where she could earn over $95,000 per year if she worked full-time. She also found a
special-education school there that offered highly rated cluster services like C.H., who has autism,
was receiving in Chicago. Billie also had a support system near Washington, D.C., including not
only friends, but also family in Pennsylvania (which includes her sister, who has a son who is on
the autism spectrum), which had influenced her choice of Washington, D.C.
¶ 139 Bryan is employed part-time, earns a minimal salary, receives public assistance, and lives
with two adult men, both of whom have felony convictions and one of whom has substance abuse
issues. His objections to the relocation and his assertion that C.H. should be placed with him were
based on his allegations that Billie was endangering C.H.’s mental and physical health, C.H. had
missed a lot of school, and that living in an urban area such as Washington, D.C., or Chicago was
unsafe for C.H. He also maintains that C.H. prefers to live with him, though the GAL overheard
C.H. express a preference for Billie (and concluded that he loved both of his parents and would
like to live with each of them). C.H., who had engaged in violent outbursts and was hospitalized,
has generalized anxiety disorder and ADHD, for which he was prescribed medication and therapy.
Billie reported that his outbursts decreased after therapy and that his speech improved after he
began taking medication. Further, as the court found, C.H. was in the middle of an emergent health
crisis when Billie unilaterally decided to move to Pennsylvania. Finally, her testimony concerning
C.H.’s weight gain reflected that his pediatrician expected it to subside when he returned to school
full-time, similar to trends with other patients. The trial court considered all of the evidence and,
as noted, thoroughly assessed all of the relevant factors. We conclude that its findings were not
erroneous.
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2023 IL App (2d) 220280-U¶ 140 2. Billie’s Alleged Criminal Contempt Does Not Compel a Change in Custody
¶ 141 Bryan also argues that he proved by clear and convincing evidence his allegations of direct
and indirect criminal contempt, specifically, that Billie removed C.H. from Illinois without prior
court approval, interfered with his parenting time, and made false statements under oath. He asserts
the appropriate remedy for Billie’s contempt is a change in custody. We reject Bryan’s argument
for three reasons.
¶ 142 First, Bryan cites one case in support of his position, In re Marriage of Almquist, 299 Ill.
App. 3d 732 (1988). Almquist did not involve a request to relocate or a request to modify an
allocation of parental responsibilities and is, therefore, inapposite. Bryan otherwise offers no
authority to support his assertion. See Elder v. Bryant, 324 Ill. App. 3d 526, 533 (2001).
¶ 143 Second, Bryan’s argument on this point is wholly underdeveloped and is therefore
forfeited. Illinois Supreme Court Rule 341(h)(7) states, “Points not argued are forfeited.” Ill. S. Ct.
R. 341(h)(7) (eff. Oct. 1, 2020). Bare contentions, without reasoned argument based on the record
evidence and without citation of authority, are not enough to comply with the rule and do not merit
consideration. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 12. Further, this
court is not a depository into which a party may dump the burden of argument. Id. ¶ 13. Bryan’s
argument is devoid of any discussion of the relevant court orders, pleadings, and testimony, and
he does not explain how Billie’s conduct was a contumacious violation of the trial court’s orders.
¶ 144 Third, Bryan’s argument overlooks the fact that the trial court deferred hearing Bryan’s
amended petition for criminal contempt and instead, after the hearing on the other matters
concluded, appointed the State’s Attorney to prosecute the matter, who ultimately declined to do
so. Stated differently, while Bryan may have presented evidence that Billie violated the court’s
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2023 IL App (2d) 220280-Uorders, Bryan’s amended petition for adjudication of direct and indirect criminal contempt was not
at issue during the hearing.
¶ 145 D. Bryan’s Petitions for Orders of Protection
¶ 146 Bryan also contends the trial court erred by denying his petitions for orders of protection.
His argument on this point states, in its entirety, as follows:
“[T]he burden of proof for orders of protection is a preponderance of the evidence ***.
Furthermore, proving emotional abuse of a child with speech difficulties is exceptionally
difficult. For all these reasons, the Trial Court, sua sponte, should have allowed Group
Exhibits J and J1 under the excited utterance exception to the hearsay rule, or found that
the recordings contained sufficient allegations of abuse, due to [C.H.’s] speech difficulties,
for admission under the statutory exception to the hearsay rule in the [Act]. And the orders
of protection should have been granted.”
¶ 147 Bryan’s argument is wholly inadequate under Rule 341. He made no effort to develop a
reasoned argument, supported by citation of authority and with reference to the relevant portions
of the record. Accordingly, we conclude Bryan forfeited his contention that the trial court erred by
denying his petitions for orders of protection.
¶ 148 E. Motion to Reconsider
¶ 149 Bryan next contends the trial court erred by denying his amended motion to reconsider.
Specifically, Bryan takes issue with the court’s order as it related to his claim of newly-discovered
evidence. He contends the information from Clancy was not discoverable and would have probably
changed the outcome of the trial. (He makes no such argument as to the proposed testimony from
Sparks.) He asserts the court should have heard the proposed testimony to determine whether it
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2023 IL App (2d) 220280-Uwould have changed the trial outcome, but the court did not “want to hear it” and instead denied
his motion.
¶ 150 As an initial matter, we note Bryan’s brief is devoid of any discussion of the standards
applicable to motions to reconsider based on newly-discovered evidence. He cites one case, People
v. Washington, 256 Ill. App. 3d 445 (1993), which involved proceedings under the Post-Conviction
Hearing Act (Ill. Rev. Stat. 1989, ch. 38, ¶ 122-1 et seq.). He claims, without any citation of
authority, that the same standards are applicable in this context. He has therefore forfeited his
contention. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); In re Marriage of Reicher, 2021 IL App (2d)
200454, ¶ 33.
¶ 151 Forfeiture aside, we find no error in the trial court’s denial of Bryan’s motion to reconsider.
A motion to reconsider brings to the court’s attention (1) newly-discovered evidence unavailable
at the time of the hearing, (2) changes in the law, or (3) errors in the court’s application of the
existing law. City of Chicago v. Eychaner, 2020 IL App (1st) 191053, ¶ 37. Because such motions
are matters for the court’s discretion, we may reverse the court’s decision only when it has abused
its discretion. Id. An abuse of discretion occurs when the court’s decision is unreasonable. Blum
v. Koster, 235 Ill. 2d 21, 36 (2009).
¶ 152 Posttrial motions based on newly-discovered evidence are disfavored and, thus, courts must
subject them to close scrutiny. Eychaner, 2020 IL App (1st) 191053, ¶ 37. When a party brings
such a motion, he or she must establish that the new evidence is (1) so conclusive that it would
probably change the outcome if a new trial is granted; (2) discovered after the trial; (3) could not
have been discovered, with the exercise of due diligence, before trial; (4) material to the issue; and
(5) not merely cumulative to the evidence already presented. Id. ¶ 38. The new evidence must have
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2023 IL App (2d) 220280-Ubeen in existence at the time of trial or pertain to facts in existence at that time. In re Marriage of
Wolff, 355 Ill. App. 3d 403, 410-11 (2005).
¶ 153 As to Clancy, putting aside the issue of whether Bryan could have discovered that evidence
prior to trial, we conclude the trial court properly denied the motion because his testimony would
have been cumulative to that which was already presented. According to Bryan’s offer of proof,
Clancy would have testified that he determined that C.H. had not attended school or therapy and
had only one visit with a psychiatrist since November 2021. But, during Bryan’s adverse
examination of Billie, she acknowledged these facts as true. Essentially, Clancy would have
provided evidence of which the trial court was already aware and Billie did not dispute.
¶ 154 As to Sparks, we again conclude the trial court properly denied the motion. Assuming, for
the sake of argument, that Sparks would have testified as to Billie’s alleged obstruction of Bryan’s
parenting time while the matter was pending (as opposed to obstruction that occurred after the trial
court’s decision), the evidence was not new because Bryan had first-hand knowledge of it, as the
alleged obstruction occurred during his parenting time. Further, Sparks was Bryan’s witness
during trial and had knowledge of Billie’s obstruction that purportedly occurred during the
proceedings. Simply put, nothing prevented Bryan from presenting evidence of Billie’s obstruction
through his own or Sparks’ testimony.
¶ 155 In sum, the “new evidence” that Bryan presented in his motion to reconsider was either
known to Bryan or cumulative of that which was already presented at trial. Under these
circumstances, we conclude the trial court’s decision to deny Bryan’s motion to reconsider was
not an abuse of discretion.
¶ 156 F. Video and Audio Recordings
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2023 IL App (2d) 220280-U¶ 157 Bryan’s final contention is that the trial court erred by excluding from evidence several
video and audio recordings of C.H. that were created by Bryan and Sparks. During trial, Bryan
sought to admit group exhibits J and J1, arguing they were admissible, the hearsay rule
notwithstanding, under section 606.5 of the Act (750 ILCS 5/606.5 (West 2020)). As to the
recordings contained in exhibit J, he also argued they were admissible as statements of C.H.’s
then-existing mental, emotional, or physical condition (Ill. R. Evid. 803(3) (eff. Sept. 28, 2018)).
In his closing argument, Bryan alternatively asserted the recordings were admissible under the
excited-utterance exception to the hearsay rule (Ill. R. Evid. 803(2) (eff. Sept. 28, 2018)). Here,
Bryan argues that the two group exhibits, which contain several video and audio recordings, should
have been admitted.6
¶ 158 Initially, we note that, in the trial court, Bryan filed a motion to compel Billie to produce
C.H. to testify at the hearing on her petition. The trial court reserved ruling on the issue until the
conclusion of the hearing and ultimately found that Bryan abandoned the motion by failing to
present it before resting his case. On appeal, Bryan suggests that the court should have required
C.H. to testify, but he does not squarely present that contention. Rather, he focuses on the video
and audio recordings. Thus, we limit our discussion to those recordings.
¶ 159 Bryan argues—apparently in response to the trial court’s finding that exhibits J and J1 were
inadmissible because they were obtained in violation of the eavesdropping statute—that the
6
During our initial review, we discovered that exhibits J and J1 were not contained in the
record. On January 11, 2023, this court, on its own motion, entered an order directing Bryan to
submit, by January 19, 2023, the exhibits to the circuit clerk for submission to this court. The
exhibits were filed on January 25, 2023.
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2023 IL App (2d) 220280-Urecordings were exempt from the eavesdropping statute, because either he or Sparks recorded the
conversations under a reasonable suspicion that Billie was committing, about to commit, or had
committed a criminal offense. See 720 ILCS 5/14-3(i) (West 2020). However, even assuming, for
the sake of argument, the recordings were exempt from the eavesdropping statute, nowhere in the
eavesdropping statute does it state that recordings that are exempt from the statute are admissible
in evidence. Thus, Bryan would still have to demonstrate that the recordings—which were hearsay,
that is, out-of-court statements offered for the truth of the matter asserted—were admissible under
some exception to the hearsay rule.
¶ 160 Next, Bryan argues that the recordings should have been admitted under the excited-
utterance exception to the hearsay rule. A statement that would otherwise be inadmissible hearsay
may be admitted as substantive evidence under the excited-utterance exception to the hearsay rule,
if it “relat[es] to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” Ill. R. Evid. 803(2) (eff. March 24, 2022). For a
statement to be admitted as an excited utterance, the proponent must show an occurrence
“sufficiently startling to produce a spontaneous and unreflecting” statement, the absence of time
for the declarant to fabricate, and that the statement relates to the circumstances of the occurrence.
People v. DeSomer, 2013 IL App (2d) 110663, ¶ 12. Courts analyze the totality of the
circumstances to determine if the exception applies. People v. Sutton, 233 Ill. 2d 89, 107 (2009).
“The totality of the circumstances analysis involves consideration of several factors, including
time, the mental and physical condition of the declarant, the nature of the event, and the presence
or absence of self-interest.” Id. The critical inquiry is “whether the statement was made while the
excitement of the event predominated.” People v. Smith, 152 Ill. 2d 229, 260 (1992) (quoting
Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 803.3 (5th ed. 1990)).
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2023 IL App (2d) 220280-UA trial court’s evidentiary rulings on hearsay testimony and any applicable exceptions are reviewed
for an abuse of discretion. People v. Burney, 2011 IL App (4th) 100343, ¶ 40. An abuse of
discretion occurs where the trial court’s ruling is unreasonable. Id.¶ 161 The trial court did not abuse its discretion in determining that the exception did not apply.
The video and audio exhibits do not depict any statements by C.H. that could be reasonably
characterized as excited utterances, including two examples to which Bryan specifically points. In
the first example, he contends that C.H.’s statement that, “I don’t trust my mom because she always
lies,” was admissible. However, in the recording, this statement is prompted by Sparks’s question,
“Is there anyone you don’t trust?” The totality of the circumstances reasonably reflects that the
occurrence, i.e., the conversation or questioning, was not startling in any sense; the parties’ tone
was conversational. In a second example, recorded during a visitation, Bryan asks C.H. about a
film he watched, which C.H. characterized as “scary.” Billie disagrees that it was scary, and C.H.
responds, “I saw it with my own eyes.” Bryan argues that this recording was admissible and shows
that Billie was emotionally abusing C.H. We cannot conclude that C.H.’s comment during the
disagreement over the film constituted a startling occurrence such that C.H.’s response was
admissible. Further, even if the second statement should have been admitted, we cannot conclude
that Bryan was prejudiced as a result of its exclusion, as it cannot reasonably be argued that the
court’s best-interests determination would have been different had the recording been admitted.
¶ 162 III. CONCLUSION
¶ 163 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
¶ 164 Affirmed.
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