Find Legal Information

JUSTICE BYRNE delivered the opinion of the court:

The circuit court found respondent, Kimberly F. Kneitz, inindirect civil contempt of court for failing to make her childrenavailable for visitation with petitioner, John M. Kneitz. Respondent appeals, contending that she did not wilfully violatethe court's order because another order issued by a Louisiana courtforbade her from allowing the visitation. We affirm.

The parties were married in Louisiana in 1992 and had twochildren together. In January 2001, the family was living inIllinois, where petitioner was stationed at Great Lakes NavalTraining Base. On about January 15, 2001, respondent and thechildren moved to Louisiana. On January 31, 2001, petitioner filedhis petition to dissolve the parties' marriage.

Respondent filed a general appearance. Although the record ofthis portion of the proceedings is incomplete, it appears that thetrial court awarded respondent custody of the children, allowed herto remove them to Louisiana, and gave petitioner visitation.

Respondent subsequently petitioned the trial court to suspendor restrict petitioner's visitation, alleging that he had sexuallyabused one of the children. Following a hearing, the trial courtdenied the petition. On November 20, 2001, the court ordered thatpetitioner have visitation with the children in Louisiana fromDecember 6-8, 2001.

On December 5, 2001, respondent filed a petition in thedistrict court of Jefferson Parish, Louisiana, to modify thecustody and visitation orders. The verified petition referred tothe hearing conducted in McHenry County. The petition alleged thatthe Illinois court "ruled that [a] DCFS report was inadmissibleunder Illinois' hearsay laws. This determination precluded theintroduction of key information and findings necessary to supportthe allegations of sexual abuse." According to the petition, thecourt excluded hearsay statements one of the children made. Thepetition further alleged that, as a result of those rulings, "andwithout requiring further investigation or counseling," the courtdenied the request to suspend visitation.

That day, the Louisiana court issued an ex parte order"suspending the execution of any visitation orders" grantingpetitioner visitation, specifically including the November 20,2001, order. The Louisiana court ordered petitioner to show causeon December 13, 2001, why his visitation should not be "suspendedand/or supervised."

Petitioner was personally served with notice of the Louisianaproceeding but did not appear. Instead, he filed in Illinois apetition for a rule to show cause why respondent should not befound in contempt of court for failing to abide by the November 20visitation order. On December 12, 2001, the Illinois courtenjoined respondent from filing or continuing any proceedings inLouisiana relating to the parties' children, other than "aproceeding which solely concerns the issue of jurisdiction of theparties' said minor children under the Uniform Child CustodyJurisdiction Law."

At a hearing, respondent testified that the December 5, 2001,order was entered following a recommendation of a counselor at theMetropolitan Battered Women's Shelter in New Orleans. Earlier,respondent had learned from the Illinois Department of Children andFamily Services (DCFS) of an "indicated" report of sexual abuse bypetitioner. She believed that DCFS would find her "in neglect of[her] children" if she allowed petitioner to have visitation.

On cross-examination, respondent testified that she attendedthe November 20 hearing in McHenry County. She acknowledged thatseveral witnesses testified, including Lorena Guidry of theMetropolitan Battered Women's Program of New Orleans; CatherineLoisel of the Great Lakes Family Support Center; Gary Keyser, aLouisiana assistant Attorney General; and Kaylyn Marie Dueker ofthe Navy Criminal Investigative Service. Jim Schaefgas of DCFSalso testified.

Respondent denied that the Louisiana petition was the "samepetition" she had filed in Illinois. She testified that after shereturned to Louisiana, she received "a couple additional pieces ofinformation" that "confirmed some of the [earlier] allegations." These included an opinion from one counselor that visitation wouldnot be good for her son's emotional state. Respondent was unableto identify any other new information in the petition she filed inLouisiana.

The trial court found that respondent wilfully violated theNovember 20 visitation order. Addressing respondent's contentionthat she was subject to conflicting orders, the court stated that"the situation that you find you're in is entirely something youinitiated." The court deemed the Louisiana order an "excuse" notto comply with the earlier order, likening respondent's situationto a parent who quits his job and then argues that he is unable topay child support. The court sentenced respondent to 180 days injail, but provided that she could purge the contempt by making thechildren available in Illinois for three consecutive days ofvisitation. Respondent timely appealed. This court stayed therespondent's sentence pending appeal.

On appeal, respondent contends that the trial court's findingthat she wilfully violated the November 20 visitation order isagainst the manifest weight of the evidence. She argues that shereasonably believed that the Louisiana order prevented her frommaking the children available for visitation. Alternatively, shecontends that the purge provision is not an effective one becausecomplying with it would subject her to a contempt finding inLouisiana.

Whether a party has committed indirect civil contempt is aquestion of fact for the trial court, and its decision will not beoverturned on appeal unless it is against the manifest weight ofthe evidence. In re Marriage of Scott, 286 Ill. App. 3d 1056, 1059(1996). When the facts are not in dispute, their legal effect maybe a question of law, but if divergent inferences could be drawnfrom the undisputed facts, a question of fact remains and themanifest weight of the evidence standard applies. Busey Bank v.Salyards, 304 Ill. App. 3d 214, 217 (1999).

Here, the record supports the trial court's finding thatrespondent wilfully did not comply with the November 20, 2001,visitation order. Respondent does not contend that she was unawareof the order or did not understand what it required. The onlyquestion, then, is whether the Louisiana order excused respondent'snoncompliance. The record supports the trial court's finding thatrespondent intentionally procured the Louisiana order as an"excuse" not to follow the order with which she disagreed.

Although respondent was apparently unhappy with the orderrequiring visitation, she did not challenge the Illinois order byseeking a stay, asking the trial court to reconsider, or pursuingan appeal. Instead, the day before the visitation was to occur,she filed a petition in Louisiana and procured an ex parte orderprohibiting the visitation. She did not advise petitioner of theproceeding until after that order was issued. Although respondentwould not concede that the Louisiana petition was "the samepetition" she filed in Illinois, she was vague and evasive whenasked what was different about it. Respondent acknowledged thatpetitioner had no contact with the children between November 21 andDecember 5. At most, the petition contained some additionalopinions from one of the children's counselors that "confirmed"some of respondent's earlier allegations.

Rather than challenge the McHenry County court's order by oneof the procedures that Illinois provides for that purpose,respondent waited until the eleventh hour to procure an order in adistant (for petitioner) forum without prior notice to petitioner,thus virtually assuring that the visitation would not take place onthe scheduled dates. This conduct evinces an intentional violationof the Illinois court's order.

Respondent contends, however, that she could not comply withthe McHenry County court's order because doing so would subject herto being held in contempt of court for violating the Louisianacourt's order forbidding visitation. It is true that the inabilityto comply with a court order precludes a finding of contempt. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 137(1974). Accordingly, there can be no contempt finding wherecompliance with an order would require a party to violate the law. Abbott v. Abbott, 129 Ill. App. 2d 96, 100 (1970); 12 Ill. L. &Prac. Contempt