In re Marriage of Ricketts

Case Date: 04/25/2002
Court: 2nd District Appellate
Docket No: 2-00-1291 Rel

No. 2--00--1291



IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re MARRIAGE OF

EDWARD T. RICKETTS,

               Petitioner-Appellee,

and

DENISE A. RICKETTS,

               Respondent-Appellant.

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Appeal from the Circuit Court
of Du Page County.




No. 95--D--2364

Honorable
Rodney W. Equi,
Judge, Presiding.



JUSTICE McLAREN delivered the opinion of the court:

The trial court terminated the joint custody arrangement ofthe minor child of the parties, A.R., and awarded sole custody tothe father, petitioner, Edward Ricketts. The trial court alsoordered the respondent, the mother, Denise Ricketts, to pay supportfor the child in the amount of $1,124 per month. Denise appeals. We affirm.

Edward Ricketts and Denise Brown were married on October 4,1985. One child, A.R., was born to the parties on August 4, 1995,after three years of fertility treatments. The parents separatedwhen the child was three weeks old. Edward moved out of themarital residence and on September 1, 1995, filed a petition fordissolution of marriage. Denise filed a counterpetition fordissolution. Both parties sought sole custody of their only child,A.R.

The child lived with Denise on a continuous basis throughoutthe dissolution proceedings. On February 20, 1997, a judgment fordissolution of marriage, marital settlement agreement, and jointparenting agreement was entered. The agreements provided for jointcustody of A.R. The joint parenting agreement specified the jointcustody arrangement, including a visitation schedule for Edward, asthe child continued to reside with Denise in the former maritalresidence, holiday and vacation time, child support payments byEdward, and other arrangements for the care of the child.

Difficulties concerning the visitation and care of A.R.pursuant to the joint parenting agreement quickly ensued. OnSeptember 5, 1997, Edward filed a petition for a change of custody,seeking the sole custody of A.R. Mediation of the custody andvisitation disputes did not resolve continued problems with thejoint custody arrangement. On September 10, 1999, Edward filed asecond petition for a change of custody, again seeking the solecustody of A.R. On October 22, 1999, Denise also filed a petitionto change custody, seeking the sole custody of the child.

A lengthy evidentiary hearing was held on the cross-petitionsfor change of custody filed by both parents. After hearingtestimony from numerous witnesses over the course of three weeks,the trial court entered a memorandum opinion on October 3, 2000. Utilizing the best interest standard, the trial court concludedthat it was in the best interest of A.R. to terminate the jointparenting agreement and provide Edward with the sole custody ofA.R., with visitation by Denise. Based on the trial court's six-page opinion, it appears that its decision to transfer sole custodyto Edward was based on evidence that Denise was "committed tominimizing if not destroying Edward's parenting rights," which isnot in the best interest of the child. On October 20, 2000, anorder was entered modifying the judgment for dissolution ofmarriage to terminate the joint parenting agreement and incorporatethe trial court's ruling concerning custody and visitationcontained in its memorandum opinion of October 3, 2000.

On appeal, Denise contends that the trial court's decision toprovide sole custody to Edward is against the manifest weight ofthe evidence. She makes this argument by repeatedly asserting thatthe trial court's decision was made in an effort to punish her forfailing to comply with court orders concerning Edward's visitation. She also contends that the trial court's decision failed toconsider the best interests of A.R. in that the custodial transferwill have a devastating impact on the child.

We note at the outset that Denise's brief, consisting of 75pages, contains scant citation to the record, to the evidenceadduced at the three-week hearing, or to the trial court's findingsto support her assertion. Instead, she resorts to speculation andacrimonious attacks on the trial court's ruling without citation topertinent authority or portions of the voluminous record submittedon appeal.

Denise's brief stands in violation of Supreme Court Rule 341. 188 Ill. 2d R. 341. Throughout most of the argument portion of herbrief, she fails to cite to the record so as to direct us to thoseplaces where her claims can be substantiated. The appellate courtis not a depository onto which a litigant may dump the burden ofresearch and review of the record. This practice violates SupremeCourt Rule 341 (188 Ill. 2d R. 341) and makes our review undulyonerous. Such a failure generally results in waiver of the issueon appeal. Ray Dancer, Inc. v. DMC Corp., 175 Ill. App. 3d 997,1005 (1988). However, we will review the issues raised by Deniseon the merits, considering that the interests of a child are atissue.

Denise first contends that the trial court's order providingEdward with the sole custody of A.R. is against the manifest weightof the evidence. A decision regarding child custody modificationwill not be disturbed on appeal unless it is against the manifestweight of the evidence. In re Marriage of Divelbiss, 308 Ill. App.3d 198, 206 (1999). In determining whether a judgment is contraryto the manifest weight of the evidence, the reviewing court viewsthe evidence in the light most favorable to the appellee. Divelbiss, 308 Ill. App. 3d at 206. Where the evidence permitsmultiple reasonable inferences, the reviewing court will acceptthose inferences that support the court's order. Divelbiss, 308Ill. App. 3d at 206-07. We will affirm the trial court's ruling ifthere is any basis to support the trial court's findings. Divelbiss, 308 Ill. App. 3d at 207. The trial court's custodydetermination is afforded "great deference" because the trial courtis in a superior position to judge the credibility of the witnessesand determine the best interests of the child. In re Marriage ofGustavson, 247 Ill. App. 3d 797, 801 (1993).

In a footnote, Denise challenges the standard applied by thetrial court. She asserts that a change in custody should have beengranted only if the trial court found, by clear and convincingevidence, that a change in circumstances occurred such that themodification of the joint parenting agreement was in the bestinterest of the child. Although both Edward and Denise filedpetitions to modify the joint custody agreement, each seeking solecustody, Denise claims that she did not agree to a termination andthat clear and convincing evidence of a change in circumstances wasnecessary to terminate the joint custody agreement.

Section 610(b) of the Illinois Marriage and Dissolution ofMarriage Act (Act) provides as follows:

"The court shall not modify a prior custody judgmentunless it finds by clear and convincing evidence, upon thebasis of facts that have arisen since the prior judgment orthat were unknown to the court at the time of entry of theprior judgment, that a change has occurred in thecircumstances of the child or his custodian, or in the case ofa joint custody arrangement that a change has occurred in thecircumstances of the child or either or both parties havingcustody, and that the modification is necessary to serve thebest interest of the child. In the case of joint custody, ifthe parties agree to a termination of a joint custodyarrangement, the court shall so terminate the joint custodyand make any modification which is in the child's bestinterest. The court shall state in its decision specificfindings of fact in support of its modification or terminationof joint custody if either parent opposes the modification ortermination." 750 ILCS 5/610(b) (West 2000).

Although no stipulation was entered whereby both parentsagreed that the joint custody agreement should be terminated, as inIn re Marriage of Lasky, 176 Ill. 2d 75 (1997), both parties filedpetitions to modify the custody agreement, each seeking solecustody. We agree with the trial court's reasoning that, by filinga petition to modify the custody agreement, Denise impliedly agreedthat the parties were not able to cooperate and jointly parenttheir daughter. See In re Marriage of Melton, 288 Ill. App. 3d1084, 1087 (1997). The fact that no formal stipulation oragreement was reached is irrelevant. Once both parties moved toterminate the joint parenting agreement, there was no need to showany serious endangerment to the child's physical, mental, moral, oremotional health. Section 610(b) provides that, under thesecircumstances, the trial court shall make any modification that isin the children's best interest. Lasky, 176 Ill. 2d at 81; In reMarriage of Oertel, 216 Ill. App. 3d 806, 814 (1991).

As recognized in In re Marriage of Wycoff, 266 Ill. App. 3d408 (1994), joint custody can succeed only where the parties havean ability to cooperate effectively and consistently with eachother towards the best interest of the child. When suchcooperation no longer exists, joint custody should be readilyterminated. Wycoff, 266 Ill. App. 3d at 412. Requiring astricter standard defeats the purpose of protecting the child, and,as pointed out by our supreme court in Lasky, the petitions toterminate joint custody standing alone establish a substantialchange in circumstances. Lasky, 176 Ill. 2d at 81. We,therefore, conclude that the trial court applied the properstandard in modifying custody in this instance.

After close scrutiny of the trial proceedings, we determinethat the trial court's decision to terminate the joint custodyarrangement and grant Edward sole custody of A.R. was consistentwith the manifest weight of the evidence presented at theevidentiary hearing. Section 602 of the Act directs the trialcourt to consider the following factors in determining custody inaccordance with the best interest of the child:

"(1) the wishes of the child's parent or parents as tohis custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the childwith his parent or parents, his siblings and any other personwho may significantly affect the child's best interest;

(4) the child's adjustment to his home, school andcommunity;

(5) the mental and physical health of all individualsinvolved;

(6) the physical violence or threat of physical violenceby the child's potential custodian, whether directed againstthe child or directed against another person;

(7) the occurrence of ongoing abuse as defined in Section103 of the Illinois Domestic Violence Act of 1986, whetherdirected against the child or directed against another person;and

(8) the willingness and ability of each parent tofacilitate and encourage a close and continuing relationshipbetween the other parent and the child." 750 ILCS 5/602(a)(West 2000).

Contrary to Denise's contention, there is no indication thatthe trial court failed to consider these factors in its decision orthat its decision was contrary to the manifest weight of theevidence. In the trial court's view, evidence was presented byEdward mostly with regard to Denise's mental health and her failureto facilitate and encourage a close and continuing relationshipbetween A.R. and Edward. Although Denise presented evidence at thehearing that established a close relationship between mother andchild and the child's positive adjustment toward her currentcustodial situation, there was no evidence presented by eitherparty concerning the child's wishes concerning custody.

Nevertheless, the evidence overwhelmingly established thatDenise failed to foster a close and continuing relationship betweenA.R. and Edward by repeatedly interfering with Edward's visitationschedule, failing to facilitate a calm and positive environment forthe child at the point of transfer for visitation, and makingderogatory remarks concerning Edward and his family in the child'spresence. The fact that the court did not interview A.R. or hearany evidence concerning her wishes about custody, or that theevidence indicated that both parents interacted appropriately withA.R., does not lead us to conclude that the court's decision wasagainst the manifest weight of the evidence.

A great deal of evidence was presented through the testimonyof family, friends, school teachers, police officers, custodyevaluators, physicians, and the parties on the issues of A.R.'sprogress at school, her relationships with peers and familymembers, visitation with Edward, Denise's performance onpersonality tests, and the interaction between Denise and Edwardduring the transfers for visitation. The court's memorandum opinionspecifically states that it attributed virtually no weight to thetestimony of physicians that evaluated Denise pursuant to SupremeCourt Rule 215, since these persons last saw her approximately fouryears earlier. Therefore, we reject Denise's contention that shewas denied a fair trial or that the trial court's decision wastainted by "inflammatory" and "prejudicial" testimony from thesephysicians.

Stability for a child is a major consideration with both aninitial award of custody and with a modification of custody undersection 610 of the Act. In re Marriage of Wycoff, 266 Ill. App. 3d408, 410 (1994). By creating a presumption in favor of the presentcustodian, the legislature in section 610 sought to promotestability and continuity in the child's custodial and environmentalrelationships. In re Custody of Harne, 77 Ill. 2d 414, 421 (1979). In Wycoff, 266 Ill. App. 3d at 412-13, the court noted thatstability and continuity are in the best interest of a child andthat the presumption in favor of the present custodian should beapplied, even when a joint custody arrangement is terminated byagreement.

In discussing the evidence presented, the trial court notedthat the child's adjustment to her current home and communityfavored placement with Denise, since the child resided with hersince the dissolution and there was a strong bond between themother and her child. Although the trial court's memorandumopinion does not specifically state that the evidence presentedrebutted the statutory presumption in favor of Denise as thepresent custodian, the court's reference to the present custodialarrangement indicates that it was considered. The court furthernoted that the evidence presented at the hearing focused on themental and physical health of Denise (750 ILCS 5/602(a)(5) (West2000)) and the willingness and ability of each parent to facilitateand encourage a close and continuing relationship between the otherparent and the child (750 ILCS 5/602(a)(8) (West 2000)). The courtfound that providing sole custody to Edward was in the child's bestinterest, reasoning as follows:

"The record is replete with additional testimonysubstantiating Denise's absolute disregard of Edward'sparenting rights. If there were some minor occurrences overcontrol it may not have been enough to outweigh in [A.R.]'sinterest in the strong relationship between Denise and [A.R.].Here however it is plain that Denise is committed tominimizing if not destroying Edward's parenting rights, and topermit such conduct is not in A.R.'s best interests."

Based on the trial court's comments, it is clear that thecourt considered the present custodial arrangement but determinedthat the presumption in favor of preserving this relationship wasrebutted by the evidence presented.

A custody determination, in particular, is afforded "greatdeference" because the trial court is in a superior position tojudge the credibility of the witnesses and determine the bestinterests of the child. Divelbiss, 308 Ill. App. 3d at 207. Thetrial court noted that it found the testimony of Edward and Deniseparticularly relevant to its decision and that Denise's explanationof various exchanges with Edward was "unconvincing, and oftenunclear and contradictory" and that "her attempts to explain theseoccurrences are not plausible; indeed, her testimony is often sotransparent that the court wonders about her mental health." Basedon the evidence presented, including the testimony of Edward andDenise, the trial court found that Denise obstructed therelationship between Edward and A.R., asserted "complete authority"over when and how Edward was able to see the child, deprived Edwardof substantial parenting time, and in sum totally failed andrefused to facilitate or encourage a close and continuingrelationship between Edward and the child. In contrast, however,the evidence did not establish that Edward attempted to undermineDenise's relationship with the child.

Having had a superior opportunity to observe the witnesses,evaluate the evidence, and consider the needs of A.R., the trialcourt was in a better position than the reviewing court todetermine the child's best interest. See In re Marriage ofKaronis, 296 Ill. App. 3d 86, 88 (1998). A determination ofcustody will not be overturned unless the trial court's decision iscontrary to the manifest weight of the evidence. In re Marriage ofPetraitis, 263 Ill. App. 3d 1022, 1031 (1993). A judgment isagainst the manifest weight of the evidence when the oppositeconclusion is apparent or when the findings appear to beunreasonable, arbitrary, or not based upon the evidence. Karonis,296 Ill. App. 3d at 88. In light of the evidence presented at thehearing, and the lack of evidence concerning the impact of atransfer of custody on the welfare of A.R., the trial court'sjudgment was consistent with the manifest weight of the evidence.

Denise next contends that the trial court erred by failing toappoint a guardian ad litem for A.R. in determining custody.Section 506 of the Act provides:

"[i]n any proceedings involving the support, custody,visitation, education, parentage, property interest, orgeneral welfare of a minor or dependent child, the court may,on its own motion or that of any party, and subject to theterms or specifications the court determines, appoint anattorney to serve in one of the following capacities:

(1) as an attorney to represent the child;

(2) as a guardian ad litem to address issues thecourt delineates;

(3) as a child's representative whose duty shall beto advocate what the representative finds to be in thebest interests of the child after reviewing the facts andcircumstances of the case." 750 ILCS 5/506(a) (West2000).

The appointment of a guardian ad litem is subject to the sounddiscretion of the trial court, and the failure of the trial courtto appoint a guardian sua sponte is not an abuse of discretion. Inre Marriage of Doty, 255 Ill. App. 3d 1087 (1994).

Although Denise now claims that a guardian should have beenappointed, there is no indication that she ever sought such anappointment in the trial court. In any event, the child's bestinterests were adequately considered by the trial court. Numerouswitnesses, including psychologists, therapists, and a custodyevaluator testified concerning the child's best interests. Thecourt also heard from the child's baby-sitters, family, friends,and neighbors. We cannot say under the facts of this case that thetrial court abused its discretion in failing to appoint a guardianad litem for A.R.

Finally, Denise contends that the trial court abused itsdiscretion by ordering her to pay child support in the amount of$1,124 per month based on an imputed income of $100,000 per year. She contends that the evidence concerning her income was notconcrete and that the trial court should have conducted a completehearing on the issue of child support after custody was decided. Section 505(a) of the Act sets forth a number of relevantfactors to be considered by the court in determining child support. 750 ILCS 5/505(a) (West 2000). Section 505(a) also sets forthguidelines for determining the minimum amount of child support. 750 ILCS 5/505(a) (West 2000). The statutory guideline for onechild is 20% of the supporting party's net income. 750 ILCS5/505(a) (West 2000).

Although the trial court normally makes a thresholddetermination of the party's net income before applying section505, the legislature recognized that situations may arise wherethe amount of the noncustodial parent's net income cannot beaccurately determined. Section 505(a)(5) states that "[i]f the netincome cannot be determined because of default or any other reason,the court shall order support in an amount considered reasonable inthe particular case." 750 ILCS 505(a)(5) (West 2000).

At the time of the evidentiary hearing, Denise was notemployed, having last worked as a wholesaler of mutual funds andannuities in April 1998 earning $100,000 per year in salary. Shesupported herself from interest income generated from approximately$500,000 that Denise had saved from earnings attributed to herprior employment. No evidence was presented concerning the amountof Denise's annual interest income. Commencing with her father'sdeath in February 2000, Denise had additional income ranging from$50,000 to $100,000 per year derived from a trust fund. Pursuantto the marital settlement agreement, Edward paid $646 per month forA.R.'s support. In its memorandum opinion, the trial court notedthat the figure of $1,124 per month in child support was based upona gross income of $100,000 and represented the court's "best effortto set appropriate support when the evidence of Denise's income isdifficult to establish and not clearly delineated."

The amount of an award of child support is within the trialcourt's discretion and will not be disturbed on appeal absent anabuse of that discretion. Karonis, 296 Ill. App. 3d at 92. Anabuse of discretion occurs where no reasonable person would takethe view adopted by the trial court. Karonis, 296 Ill. App. 3d at92. Although the trial court did not make a determinationconcerning Denise's net income, the evidence concerning Denise'sgross income indicates that support for A.R. in the amount of$1,124 was reasonable. The trial court's setting of child supportto be paid by Denise in the amount of $1,124 per month was not anabuse of discretion.

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

GEIGER and GROMETER, JJ., concur.