In re Marriage of Agers

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Agers, 2013 IL App (5th) 120375
Appellate Court In re MARRIAGE OF HOLLY R. AGERS, n/k/a Holly Shreves,
Caption Petitioner-Appellant, and LEE MICHAEL AGERS, Respondent-
Appellee.
District & No. Fifth District
Docket No. 5-12-0375
Rule 23 Order filed May 30, 2013
Motion to publish
granted July 8, 2013
Opinion filed July 8, 2013
Held In contentious proceedings involving visitation, the trial court did not
(Note: This syllabus abuse its discretion by refusing to consider the child’s uncorroborated
constitutes no part of hearsay statements about the abuse she allegedly suffered at the hands of
the opinion of the court respondent, especially when those statements could not be used to
but has been prepared support a finding of abuse, a videotape of respondent’s visitation with the
by the Reporter of child at the courthouse was properly considered for the limited purpose
Decisions for the of showing that the child did not fear respondent, and the denial of
convenience of the petitioner’s request for an in camera interview with the child was upheld
reader.)
along with the order requiring petitioner to pay $1,500 of respondent’s
attorney fees based on her unilateral termination of visitation.
Decision Under Appeal from the Circuit Court of Pulaski County, No. 09-D-26; the Hon.
Review William J. Thurston, Judge, presiding.
Judgment Affirmed.
Counsel on Leslie J. Peters, of Metropolis, for appellant.
Appeal
Susan C. Burger, of Jonesboro, for appellee.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Justices Welch and Cates concurred in the judgment and opinion.
OPINION
¶ 1 Petitioner, Holly R. Agers, n/k/a Holly R. Shreves, appeals from an order of the circuit
court of Pulaski County denying her amended petition for termination of visitation and a
motion to stay and granting respondent Lee Michael Agers’ petition for rule to show cause
and motion for modification of visitation. As part of this litigation, the trial court also
ordered petitioner to pay $1,500 in attorney fees to respondent’s attorney. On appeal,
petitioner contends the trial court abused its discretion (1) in disregarding out-of-court
statements made by the parties’ minor child to her counselor, her mother, her grandmother,
and her stepfather concerning alleged sexual abuse perpetrated upon her by respondent, (2)
by allowing into evidence a videotape of respondent and the minor during visitation at the
courthouse, (3) by denying petitioner’s motion for an in camera interview with the minor,
and (4) in finding petitioner in contempt and awarding respondent $1,500 in attorney fees.
We affirm.
¶ 2 BACKGROUND
¶ 3 The parties married on October 4, 2004. One child, a daughter, S.A., was born on June
16, 2006. On November 2, 2009, petitioner filed for dissolution. An agreed judgment of
dissolution was entered on May 25, 2010. Petitioner received sole custody of S.A., and
respondent received visitation, including overnight visits with S.A. in Clarksville, Tennessee,
where respondent currently resides. The overnight visits began on April 23, 2010. The
judgment order provided that respondent shall have visitation “[e]very other Friday at 2:00
p.m. until Saturday at 5:00 p.m. *** until May 21, 2010[,] at which time visitation shall be
increased to every other Friday at 2:00 p.m. until Sunday at 5:00 p.m.” Respondent was also
awarded holiday visitation and one week each summer. A visitation exchange location was
also arranged.
¶4 On September 19, 2011, respondent filed a petition for rule to show cause after petitioner
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unilaterally stopped visitation between respondent and S.A. According to respondent,
petitioner failed to give him an explanation as to why she was refusing visitation despite
respondent’s repeated attempts to text and call petitioner in order to determine why visitation
was not being allowed. On October 11, 2011, respondent filed a motion for modification of
visitation, seeking not only additional time with his daughter, but also telephone and Skype
visits via the Internet.
¶ 5 On November 1, 2011, petitioner filed a response to the motion for modification of
visitation, a motion for an in camera interview of S.A., and a petition for termination of
visitation in which petitioner alleged that respondent sexually molested S.A. The petition
specifically alleged as follows:
“1. In June 2011 DCFS [Department of Children and Family Services] investigated
a hotline call regarding the sexual molestation of the minor child [S.A.] by [respondent]
and found all allegations creditable and reported the matter to the Pulaski County State’s
Attorney’s Office on June 29, 2011.
2. Subsequently, DCFS issued and [sic] unfounded report due to lack of jurisdiction
as the molestation took place in Tennessee.
3. [S.A.] has unequivocally identified [respondent] as the perpetrator in the sexual
abuse for both DCFS and her therapist, Valerie, Kasten, LCPC, NCC.
4. The case has been hot lined to Tennessee for investigation.
5. [S.A.] is afraid of [respondent] as he threatened to kill her and her mommy if she
told on him.
6. [S.A.] has made great progress since visitation was discontinued.”
In response, respondent filed an objection to the motion for an in camera interview and a
motion to dismiss the petition for termination of visitation.
¶6 In his objection to the motion for an in camera interview, respondent asked that the court
allow S.A. to testify subject to cross-examination and refuse to interview her in camera
because “[y]oung children can be made to believe anything, especially when allegations are
repeatedly made to them,” and alleged that S.A. had been “coached, interviewed and even
counseled, to believe in events that never occurred.” On January 10, 2012, petitioner filed
an amended petition for termination of visitation, which did not add any new allegations. On
January 25, 2012, respondent filed a motion to strike the opinion of Valerie Kasten and bar
her testimony on the basis that “it is inherently unreliable and unscientific.” On that same
date, the trial court denied petitioner’s motion for an in camera interview and denied
respondent’s motion to strike the expert opinion and bar her testimony. The trial court also
ordered temporary supervised visitation to begin on that date and each Saturday thereafter
at the Pulaski County dispatch office.
¶ 7 On March 16, 2012, the trial court conducted an evidentiary hearing, which was
ultimately completed on May 11, 2012. Witnesses included petitioner, respondent,
petitioner’s new husband whom she married in December 2010, petitioner’s mother,
respondent’s mother, respondent’s brother, and Valerie Kasten, S.A.’s therapist who was
hired by petitioner. The evidence failed to show that respondent had ever been indicted on
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any charges of sexual abuse either in Illinois or in Tennessee. Respondent testified he called
the DCFS hotline one month prior to petitioner’s hotline call because respondent suspected
that S.A. suffered some type of abuse in Illinois. A VHS tape was admitted into evidence.
The tape showed respondent and S.A. interacting during two recent visits at the Pulaski
County courthouse.
¶ 8 After hearing all the evidence and arguments of the parties, the trial court entered an
order in which it denied petitioner’s petition for termination of visitation, finding that
petitioner failed to meet her burden. The trial court specifically stated:
“The bulk of [petitioner’s] evidence are alleged statements previously made by the
minor child. Those statements are clearly hearsay, [and] double hearsay statements.
Pursuant to 750 ILCS 5/606(e) those statements are admissible. However, because they
are uncorroborated [and] not subject to cross examination, they are not sufficient by
themselves to support a finding of abuse.
The [c]ourt also notes the VHS Tape submitted by respondent father, the [c]ourt
admitted the tape into evidence subject to objection by [petitioner’s] counsel. The [c]ourt
expressly sustains objection made by [petitioner] with respect to statements made by the
child offered for the truth of the matter asserted. The [c]ourt finds the tape relevant for
the purpose [respondent] offered it which was to show that the minor child did not fear
the respondent father [and] for the court to observe the verbal, nonverbal and the physical
interaction between the [respondent] [and] [S.A.].
The [c]ourt also considered the testimony of all remaining witnesses, including
Valerie Kasten.”
The trial court found petitioner fell “far short of meeting her burden” and denied the petition
to terminate visitation.
¶9 The trial court granted respondent’s petition to modify, finding it to be in the best interest
of S.A. to have increased visitation with her father during the summer and holidays and to
have telephone and computer access with each parent during visitation periods spent with
either respondent or petitioner. The trial court gave the parties 21 days to come up with an
agreed-upon schedule. With regard to the petition for rule to show cause, the trial court found
petitioner’s failure to abide by its order was willful, her actions were in violation of the
dissolution order, and petitioner was, therefore, found to be in contempt. The trial court
stated petitioner could purge herself of the contempt order by abiding by the visitation
schedule set forth in the parties’ dissolution order and any modification to the order as a
result of the instant litigation. Respondent was also awarded four weeks of make-up
visitation. The trial court later ordered petitioner to pay $1,500 of respondent’s attorney fees.
¶ 10 Petitioner filed a timely notice of appeal. Thereafter, respondent’s attorney filed a letter
notifying us that respondent “will not be participating in this appeal,” but will rely on the
record. While we certainly do not advise a party to refrain from filing a brief and
participating in the appellate process, we find we may reach the merits of this case because
the record is straightforward and the claimed errors are such that we can easily decide them
without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction
Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).
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¶ 11 ANALYSIS
¶ 12 I. UNCORROBORATED STATEMENTS
¶ 13 Petitioner first contends that the trial court abused its discretion in disregarding out-of-
court statements made by S.A. to her counselor, her mother, her grandmother, and her
stepfather regarding alleged sexual abuse perpetrated upon her by respondent during
visitation in Clarksville, Tennessee. However, our review of the record shows that the trial
court did not disregard the statements, but rather considered them and found them to be
uncorroborated.
¶ 14 A determination regarding the admissibility of evidence is within the sound discretion
of the trial court, and a reviewing court will not reverse that decision absent a clear abuse of
discretion. In re Marriage of Rudd, 293 Ill. App. 3d 367, 371-72, 688 N.E.2d 342, 345
(1997). Section 606(e) of the Illinois Marriage and Dissolution of Marriage Act (Act)
provides:
“Previous statements made by the child relating to any allegations that the child is an
abused or neglected child *** shall be admissible in evidence in a hearing concerning
custody of or visitation with the child. No such statement, however, if uncorroborated
and not subject to cross-examination, shall be sufficient in itself to support a finding of
abuse or neglect.” 750 ILCS 5/606(e) (West 2008).
The first sentence of section 606(e) creates a statutory exception to the general rule against
hearsay for a minor’s out-of-court statements of allegations of abuse or neglect in a hearing
concerning custody of or visitation with the child. Therefore, pursuant to section 606(e) of
the Act, the hearsay statements were admissible.
¶ 15 The trial court specifically stated in its order that the statements were admissible under
section 606(e) of the Act, but because they were uncorroborated, they were insufficient to
support a finding of abuse. We agree with the trial court that S.A.’s uncorroborated hearsay
statements alone were insufficient to support a finding of abuse. Whether there is sufficient
corroboration of evidence is determined on a case-by-case basis. In re A.P., 179 Ill. 2d 184,
198, 688 N.E.2d 642, 650 (1997). Sufficient corroboration of the alleged abuse or neglect
requires more than just witnesses testifying that a minor related claims of abuse or neglect
to them. In re A.P., 179 Ill. 2d at 198, 688 N.E.2d at 650. Corroboration of abuse or neglect
requires “independent evidence which would support a logical and reasonable inference that
the act of abuse or neglect described in the hearsay statement occurred.” In re A.P., 179 Ill.
2d at 199, 688 N.E.2d at 650. Corroborating evidence “makes it more probable that a minor
was abused or neglected.” In re A.P., 179 Ill. 2d at 199, 688 N.E.2d at 650. In In re A.P., a
doctor testified that A.P. had an “abnormal hymen in that its opening was enlarged and it had
an irregular border,” which the doctor believed had been penetrated by a finger or foreign
object. 179 Ill. 2d at 191, 688 N.E.2d at 646. Such corroborating evidence is absent in the
instant case.
¶ 16 In this case, S.A. did not testify at the proceedings and was not subject to cross-
examination, making it necessary for corroborative evidence to support a finding that she had
been sexually abused by respondent. There was no medical evidence presented to corroborate
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claims of sexual abuse. While petitioner and her mother both claimed S.A.’s vaginal area
was red, respondent testified that S.A.’s vaginal area was red during visits and that the
redness could have been caused by the bubble baths which S.A. regularly enjoyed. Petitioner
also claims corroboration of abuse was indicated in S.A.’s art therapy, play therapy, and the
alleged turnaround in S.A.’s behavior once visitation was terminated. We disagree.
¶ 17 First, we point out that Valerie Kasten was not an unbiased witness, as she was hired by
petitioner. Second, Kasten’s methods were questionable. Third, respondent himself made
claims of abuse against petitioner one month prior to petitioner’s claims against respondent.
Respondent’s mother testified that S.A.’s behavior was not abnormal for a child of S.A.’s
age and that in her opinion, respondent was not hard enough on his daughter when she
exhibited bad behavior. After a careful review of the record, we find it cannot be said that
S.A.’s behavior makes it more probable that she was sexually abused. We also agree with
the trial court that S.A.’s uncorroborated statements cannot be used to support a finding of
abuse and that petitioner failed to present sufficient evidence to show that respondent’s
visitation would seriously endanger S.A.
¶ 18 II. VIDEOTAPE
¶ 19 Petitioner next contends that the trial court abused its discretion in permitting a videotape
of respondent and S.A. during visitation at the courthouse to be admitted into evidence.
Petitioner argues the videotape was not properly authenticated and its admission constitutes
reversible error. We disagree.
¶ 20 As previously set forth, a determination regarding the admissibility of evidence is within
the sound discretion of the trial court. In re Marriage of Rudd, 293 Ill. App. 3d at 371, 688
N.E.2d at 345. Here, the trial court found the tape relevant only for the purpose of showing
that S.A. did not fear respondent and to observe the respondent’s interaction with his
daughter. The trial court specifically disallowed any statements made by S.A. on the tape to
be proof of the matter asserted.
¶ 21 Petitioner made serious allegations of sexual abuse and verbal abuse by respondent
toward S.A. The trial court correctly ruled that nothing said on the tape could be used as
proof of any matter asserted, but found the videotape to be helpful in discerning whether S.A.
was fearful of respondent. After careful consideration, we cannot say that the trial court
abused its discretion in allowing into evidence the VHS tape for the limited purpose for
which it was allowed. Error, if any, was harmless.
¶ 22 III. IN CAMERA INTERVIEW
¶ 23 Petitioner next contends that the trial court abused its discretion in denying her motion
for an in camera interview with S.A. Again, we disagree.
¶ 24 Section 604(a) of the Act states that a “court may interview the child in chambers to
ascertain the child’s wishes as to his custodian and as to visitation.” 750 ILCS 5/604(a)
(West 2008). As our colleagues in the Third District noted in In re Marriage of Willis, 234
Ill. App. 3d 156, 159, 599 N.E.2d 179, 182 (1992), “there is no absolute right to present a
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child’s testimony during a custody proceeding, and, when that testimony is presented, it is
left to the trial court’s discretion whether to receive it from the witness stand or in camera.”
Courts in Illinois have repeatedly held that whether a child should be interviewed in camera
lies within the considerable discretion given to trial courts in such matters. In re Marriage
of Johnson, 245 Ill. App. 3d 545, 554, 614 N.E.2d 1302, 1308 (1993). An abuse of discretion
only occurs where no reasonable person would agree with the position taken by the trial
court. Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871, 876 (1997).
¶ 25 In denying petitioner’s motion for an in camera interview, the trial court not only noted
S.A.’s young age of five, but also specifically stated:
“[T]he main factor in this was the Petitioner’s attorney–the purpose of the hearing, she
did indicate, was to have [S.A.] tell me what had happened to her, which is not the same
as ascertaining [S.A.’s] preferences with respect to visitation and custody. And I will also
note the amount of time that [respondent] has had no contact with [S.A.]. I find that to
be inherently prejudicial to the Respondent.”
Petitioner’s request for an in camera interview was based mainly upon petitioner’s desire to
have S.A. tell the trial court what respondent allegedly did to her, not to ascertain S.A.’s
wishes about visitation. Petitioner could have presented S.A.’s testimony during the hearing,
but chose not to do so. We find the trial court’s decision to be well reasoned. In child custody
cases, there is a strong and compelling presumption in favor of the result reached by the trial
court because it is in a superior position to evaluate the evidence and determine the best
interests of the child. In re Marriage of Simmons, 221 Ill. App. 3d 89, 90, 581 N.E.2d 716,
718 (1991). By all accounts, these were messy and explosive proceedings. Both parties
claimed inappropriate conduct toward S.A. The trial court was clearly in a better position
than us to make this determination of whether an in camera interview was warranted. Under
the circumstances presented here, we cannot say that no reasonable person would take the
position adopted by the trial court with regard to petitioner’s request for S.A. to be
interviewed in camera. Accordingly, we find the trial court’s denial of petitioner’s motion
for an in camera interview of S.A. was not an abuse of discretion.
¶ 26 IV. ATTORNEY FEES
¶ 27 The final argument raised by petitioner on appeal is that the trial court abused its
discretion in finding petitioner in contempt and awarding respondent $1,500 in attorney fees.
Petitioner contends that she withheld visitation in order to protect her child from respondent,
and, therefore, her failure to comply with the court-ordered visitation schedule was justified,
and she should not be required to pay attorney fees. However, after carefully reviewing the
record before us we agree with the trial court that petitioner fell far short of meeting her
burden of proof. The trial court properly denied her petition to terminate visitation, and the
trial court did not err in ordering petitioner to pay a portion of respondent’s attorney fees.
¶ 28 Petitioner is aware that if a party fails to comply with a prior order of the court without
cause or justification, an award of attorney fees is mandatory. In re Marriage of Baggett, 281
Ill. App. 3d 34, 40, 666 N.E.2d 850, 854 (1996). Here, petitioner failed to comply with the
trial court’s order regarding visitation and unilaterally stopped S.A.’s visitation with
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respondent. The trial court found petitioner’s failure to abide by its order regarding visitation
was willful, and petitioner was held in contempt. The trial court’s order makes it clear that
it did not believe petitioner was justified in stopping visitation because it did not believe
respondent sexually abused S.A. The trial court stated petitioner could purge herself of
contempt by abiding by the visitation schedule. The trial court later ordered petitioner to pay
$1,500 of respondent’s attorney fees associated with this litigation.
¶ 29 A trial court has broad discretion in determining whether to grant attorney fees in divorce
proceedings, and its discretion will not be interfered with unless it is clearly abused. In re
Marriage of Baggett, 281 Ill. App. 3d at 40, 666 N.E.2d at 854. Here, the trial court ordered
petitioner to pay $1,500 of respondent’s attorney’s bill, which was nearly $4,000. We take
very seriously allegations of sexual abuse of a minor. However, the record before us simply
does not support petitioner’s allegations. After carefully considering the record, we cannot
say the trial court abused its discretion in ordering petitioner to pay $1,500 of respondent’s
attorney fees.
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, the judgment of the circuit court of Pulaski County is hereby
affirmed.
¶ 32 Affirmed.
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