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In re Marriage of Marsh
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0022 Rel
Case Date: 11/13/2003

NO. 4-03-0022

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of
BROOKS MARSH,
               Petitioner-Appellant,
               and
FRANKIE MARSH,
               Respondent-Appellee.

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Appeal from
Circuit Court of
Champaign
County
No. 96D717

Honorable
Arnold F. Blockman
,
Judge Presiding.

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JUSTICE STEIGMANN delivered the opinion of the court:

In December 1996, the trial court entered an order (1)dissolving the marriage of petitioner, Brooks Marsh, andrespondent, Frankie Marsh, and (2) granting the parties jointcustody of their four children, pursuant to their maritalsettlement agreement. In August 1999, Brooks filed a motion tomodify custody and award him custody of the three children whowere then minors (K.M., born June 1984; J.M., born July 1986; andL.M., born May 1991).

Following hearings in September and October 2001, thetrial court entered a custody order (1) terminating jointcustody; (2) granting Brooks custody of the parties' daughter,K.M.; and (3) granting Frankie custody of their sons, J.M. andL.M. The court reserved issues of child support, visitation, andattorney fees. In September 2002, the court entered a finaljudgment on modification of judgment. Later that month, Brooksfiled a motion to reconsider, which the court denied.

Brooks appeals, arguing that the trial court abused itsdiscretion by (1) awarding Frankie custody of L.M. and J.M., and(2) refusing to either grant his motion to reconsider or conductan evidentiary hearing on the matters raised therein. We affirm.

I. BACKGROUND

Brooks and Frankie married in 1981. Pursuant to thetrial court's December 1996 dissolution judgment, whichincorporated the parties' marital settlement agreement, Brooksand Frankie shared joint custody of their children. At the timeof the hearing on Brooks's August 1999 motion to modify custody,Frankie had custody of K.M., J.M., and L.M. on weekdays and oneweekend per month during the school year. Brooks had custodyduring the summer months and three weekends per month during theschool year. Frankie lived in Champaign, where K.M. and J.M.attended Centennial High School (Centennial). Brooks lived inMahomet with his wife, Tammy Marsh, their infant son, Alec, andTammy's son from a prior marriage, Logan.

Because the parties are familiar with the evidencepresented at the September and October 2001 hearings on Brooks'smotion to modify custody, we review it only to the extentnecessary to put the parties' arguments in context.

During an in camera interview with the trial court,J.M. discussed at length the following: (1) his feelings aboutliving at Brooks's and Frankie's respective homes; (2) hisattachments to Champaign and Mahomet and the friendships he hasin each of those communities; (3) his feelings regarding hischurch in Champaign and Brooks's church; (4) his relationshipswith Frankie and Brooks; (5) his learning disability; (6) hismental health; (7) his parents' participation in his school andchurch activities; (8) his feelings about Centennial; and (9)where he would prefer to live.

In an in camera interview with the trial court, L.M.discussed what it is like to live with Frankie and Brooks,respectively. He also discussed his relationships with Frankie,Brooks, J.M., and his stepsiblings.

The parties presented extensive evidence regarding (1)Frankie and Brooks's inability to effectively communicateregarding the children; (2) persistent disputes between Frankieand Brooks over pickups and drop-offs of the children; and (3)K.M. and her relationship with Frankie and Brooks. Becauseneither party disputes the trial court's order terminating jointcustody and granting Brooks custody of K.M., we will notreiterate the evidence on those matters.

The evidence favoring Frankie as J.M. and L.M.'scustodial parent showed the following: (1) Frankie's school andwork schedule allowed her to be home between 3 and 5 p.m. onweekdays; (2) Brooks was sometimes late picking up the childrenfor visitation; (3) Brooks did not get home from work until 5:30or 6 p.m.; (4) Brooks's job required him to travel two to threedays per week; (5) Brooks occasionally had to be away overnight;(6) although he had a cellular phone, Brooks could not always bereached by phone; (7) on occasion, J.M. did not complete homeworkassignments when he had been with Brooks for the weekend; (8)J.M. and L.M. had friends at their Champaign schools and in theirChampaign neighborhood; (9) Brooks sometimes intimidated J.M.while helping him with his homework; (10) Frankie attended manyof J.M. and L.M.'s activities; (11) Frankie helped L.M. with hishomework and when he did not have homework, she played games withhim that involved math; (12) Brooks had made inappropriateremarks regarding Frankie in front of the children; (13) Frankiewas supportive of the children's school and church activities;and (14) Frankie was very loving toward the children.

The evidence favoring Brooks as J.M. and L.M.'scustodial parent showed the following: (1) Frankie sometimesmade Brooks wait when he arrived at her house to pick up thechildren for visitation; (2) Tammy and Brooks had rules andexpectations for the children, and consequences for their failureto meet those expectations were understood; (3) J.M. and L.M. hadfriends in their Mahomet neighborhood; (4) J.M. and L.M. had agood relationship with Tammy; (5) Tammy and Brooks attendedlittle league and soccer activities; (6) during the summers,Brooks took some time off from work to spend time with thefamily; (7) Brooks participated in outdoor activities with J.M.and L.M., such as bike riding and other sports; (8) Brooks couldbe reached on his cellular phone even when he was traveling; (9)Brooks had become more involved in monitoring J.M.'s homeworkassignment schedule; and (10) Frankie had made inappropriateremarks about Brooks in front of the children.

Evidence also showed that during the previous schoolyear, J.M. was depressed and had trouble at school. On threeconsecutive days, Frankie telephoned a physician who hadpreviously seen J.M., reporting that J.M. would not get out ofbed or attend school. The physician prescribed Ritalin. Shortlythereafter, Brooks learned that J.M. was taking Ritalin andcontacted the prescribing physician. He objected to theprescription because he had not observed the type of behaviorthat Frankie had described to the physician, and schoolattendance records at least partially contradicted Frankie'sclaims. Brooks also had been told by a different physician thata diagnosis for ADD (attention deficit disorder) should not bemade while J.M. was depressed. The prescribing physiciandiscontinued the Ritalin prescription. At the time of thehearing, J.M. was taking Wellbutrin (an antidepressant)prescribed by another physician.

Tests had shown that J.M. had a learning disabilitythat affected his reading skills. One of his physicians opinedthat J.M.'s inability to read at the same level as his classmateslikely contributed to his feelings of low self-esteem andfrustration with schoolwork.

At the conclusion of the October 2001 hearing, thetrial court entered a custody order (1) terminating jointcustody, (2) granting Brooks custody of K.M., and (3) grantingFrankie custody of J.M. and L.M. Hearings continued on mattersof child support, visitation, and attorney fees.

After the trial court entered its final judgment orderin September 2002, Brooks filed a motion to reconsider, attachingthe affidavits of K.M. and Brooks. In her affidavit, K.M.averred that (1) since the change in custody, she had beencontinuously employed and was doing well in school; (2) herrelationship with Frankie had continued to decline; and (3) shewas concerned for J.M. and L.M., who continued to have problems. Brooks's affidavit reported six dates on which Frankie did nothave J.M. and L.M. ready to leave for visitation at the appointedhour. The motion also argued that the court should reconsiderits decision based on the evidence already presented.

Following a December 2002 hearing, the trial courtdenied Brooks's motion to reconsider. This appeal followed.

II. ANALYSIS

A. The Trial Court's Custody Decision

Brooks first argues that the trial court abused itsdiscretion by granting Frankie custody of J.M. and L.M. Wedisagree.

When making child custody determinations, the trialcourt should consider all relevant factors, including thoselisted in section 602 of the Illinois Marriage and Dissolution ofMarriage Act (Dissolution Act) (750 ILCS 5/602 (West 2000)), anddecide what custodial order serves the children's best interest. In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 107-08, 775N.E.2d 282, 286 (2002). On review, this court affords greatdeference to the trial court's best interest findings becausethat court is in a far better position than are we to "observethe temperaments and personalities of the parties and assess thecredibility of witnesses." In re Marriage of Stopher, 328 Ill.App. 3d 1037, 1041, 767 N.E.2d 925, 928 (2002). We will notreverse a trial court's custody determination unless it isagainst the manifest weight of the evidence, is manifestlyunjust, or results from a clear abuse of discretion. Stopher,328 Ill. App. 3d at 1041, 767 N.E.2d at 929. This court will notsubstitute its discretion for that of the trial court and willfind an abuse of discretion only where the trial court "actedarbitrarily without conscientious judgment or, in view of all thecircumstances, exceeded the bounds of reason and ignoredrecognized principles of law so that substantial injusticeresulted." In re Marriage of Suriano, 324 Ill. App. 3d 839, 846,756 N.E.2d 382, 388 (2001).

At the conclusion of the October 2001 hearing, thetrial court announced its custody decision from the bench anddiscussed at length its decision to grant Frankie custody of J.M.and L.M. In so doing, the court stated that (1) it hadconsidered all of the statutory factors under the Dissolution Act(750 ILCS 5/602 (West 2000)); and (2) the decision regarding J.M.and L.M. was difficult. The court acknowledged that normally itwould work toward keeping siblings together, but in this caseseparating K.M. from her brothers was justified.

The trial court acknowledged that Brooks had a realinterest in the boys but determined that Frankie had been theirprimary custodial parent. The boys had lived in their Champaignhome with Frankie since at least 1996 and seemed well adjusted totheir home, their neighborhood, and their schools. J.M.expressed a strong preference for remaining in Frankie's home andcontinuing his education at Centennial.

The trial court found that Frankie truly loved the boysand was interested in their "well-being and development." Thecourt noted the following observations from the home andbackground report prepared by Doctor Carol Diener: (1)"'[Frankie] is very creative and offers the children a great dealof her time and energy'"; (2) "'Frankie is very sensitive to theneeds of the children and is very involved in their lives'"; (3)"'[Frankie] is better able to take care of [J.M.]'"; and (4)"'[Brooks] appears to downplay [J.M.'s] real problems and seeksto normalize behavior that is a cry for help.'" The court alsofound that Frankie's schedule was more amenable to taking care ofthe boys because she could be home on all weeknights and mostweekday afternoons.

The trial court noted that the evidence related to thestatutory factor of "parental preference" favored neither parent. The court found that the factor regarding "adjustment toenvironment" favored Frankie and attributed significant weight tothis factor. The court acknowledged that J.M. had problems withdepression, self-worth, and confidence. In the court's opinion,those problems were going to demand attention and would bedifficult to deal with regardless of where J.M. lived. The courtfurther opined that to keep the situation as stable as possible,it would be best for J.M. and L.M. to remain in the environmentthey had been in for several years.

Finally, the trial court acknowledged that its decisionwas contrary to Diener's recommendation. The court explainedthat it was unable to discern from the report the reasoningbehind Diener's recommendation.

Brooks contends that the above-stated factual findingswere against the manifest weight of the evidence. Findings areagainst the manifest weight of the evidence when the correctnessof an opposite finding is clearly evident. In re Marriage ofKnoche, 322 Ill. App. 3d 297, 307, 750 N.E.2d 297, 305 (2001). As the trial court frankly stated, this case presented a closecall. The evidence regarding custody of J.M. and L.M. did notoverwhelmingly support or disfavor either parent. We concludethat sufficient evidence existed to support the court's findings. We further conclude that the trial court did not abuseits discretion by granting Frankie custody of J.M. and L.M. Therecord shows that the trial court carefully considered all of theevidence and all of the relevant factors. The court did notignore applicable principles of law, and its judgment does not"exceed the bounds of reason" so as to constitute an abuse ofdiscretion. Suriano, 324 Ill. App. 3d at 846, 756 N.E.2d at 388. The teenage years can be difficult even in the most stablefamilies and under the best of circumstances. Making the rightcustody decision for a troubled teen requires more sensitivitythan review of a cold record affords, and where the emotionalwell-being of a youth is at stake, we are particularly reluctantto second-guess the trial court.

B. Brooks's Motion To Reconsider

Brooks next argues that the trial court abused itsdiscretion by denying his motion to reconsider. Specifically, hecontends that the affidavits attached to his motion "establishedconvincing newly discovered evidence that was not available atthe time of the hearing that carried critical importance inshowing the mistake of the court's earlier order." We agree withBrooks that ordinarily, the trial court has discretion to grantor deny a party's timely filed motion to reconsider. However, inthis case, the court did not have discretion to consider Brooks'sevidentiary material. Instead, the court was required to denythe motion because it did not comply with the requirements ofsection 610(a) of the Dissolution Act (750 ILCS 5/610(a) (West2000) (providing that "no motion to modify a custody judgment maybe made earlier than 2 years after its date, unless the courtpermits it to be made on the basis of affidavits that there isreason to believe the child's present environment may endangerseriously his physical, mental, moral or emotional health"). SeeIn re Marriage of Mitchell, 103 Ill. App. 3d 242, 245, 430 N.E.2d716, 718 (1981).

In Mitchell, 103 Ill. App. 3d at 244, 430 N.E.2d at718, the trial court granted permanent custody of the parties'son to the husband in June 1980. In May 1981, the wife filed amotion for rehearing under what was then section 68.3 of theCivil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3),and what is now section 2-1203 of the Code of Civil Procedure(Code) (735 ILCS 5/2-1203 (West 2000)). Mitchell, 103 Ill. App.3d at 245, 430 N.E.2d at 718. The court refused to consider hermotion and instructed her counsel to file instead a motion tomodify custody under section 610 of the Dissolution Act (Ill.Rev. Stat. 1979, ch. 40, par. 610 (now 750 ILCS 5/610 (West2000))). Mitchell, 103 Ill. App. 3d at 245, 430 N.E.2d at 718.

The Second District Appellate Court affirmed, holdingthat the trial court's June 1980 custody order, although not afinal appealable order, constituted a permanent custody order themodification of which could not be considered unless inaccordance with the provisions of section 610 of the DissolutionAct. In so holding, the court wrote as follows:

"It is clear from the record that the custodyorder entered June 4, 1980, was intended tobe permanent. The fact that the order maynot have been final for appeal purposes doesnot alter the fact that it was a consciousmodification of the temporary custodyarrangement made after a testimonial hearing. Under such circumstances[,] it could only bealtered upon a showing made in accordancewith the terms of section 610 of the Marriageand Dissolution of Marriage Act." Mitchell,103 Ill. App. 3d at 246, 430 N.E.2d at 719.

This case is analogous to Mitchell. Brooks filed hisSeptember 2002 motion to reconsider, requesting a new evidentiaryhearing, within 30 days of the trial court's final judgment. However, the trial court's permanent custody order was entered inOctober 2001, and the parties (and their children) had beenliving under the terms of that order ever since. Thus, underMitchell, in September 2002, the only means by which Brooks couldchallenge the October 2001 custody determination would have beento seek a modification of custody under section 610 of theDissolution Act (750 ILCS 5/610 (West 2000)).

The Mitchell rule is consistent with the goal ofsection 610 of the Dissolution Act. By setting a high thresholdfor disturbing custody within two years of a permanent custodyorder, section 610 of the Dissolution Act promotes stability andcontinuity in the "custodial and environmental relationships" ofchildren of divorce. In re Marriage of Gustavson, 247 Ill. App.3d 797, 801, 617 N.E.2d 1313, 1316 (1993); see also Department ofPublic Aid ex rel. Davis v. Brewer, 183 Ill. 2d 540, 553, 702N.E.2d 563, 568 (1998) (section 610 of the Dissolution Act seeksto discourage "ping-pong" litigation in custody disputes). If atrial court could reconsider and disturb its custody orderspursuant to a motion to reopen evidence filed within 30 days ofthe final judgment of dissolution albeit many months beyond theentry of the court's permanent custody order, the goal of section610 of the Dissolution Act would be eviscerated.

We note that Mitchell is not inconsistent with thesupreme court's holding in Leopando that a custody order is notappealable until all of the ancillary issues attendant to thedissolution are resolved. In re Marriage of Leopando, 96 Ill. 2d114, 120, 449 N.E.2d 137, 140 (1983). The Mitchell courtaddressed the apparent conflict between Leopando and Mitchell bynoting that a permanent custody order can be permanent andeffective for section 610 purposes, even though it is not yetappealable. Thus, what Mitchell impliedly held was that partiesare entitled to file section 2-1203 posttrial motions (such asmotions for reconsideration or rehearing) (735 ILCS 5/2-1203(West 2000)) following a trial court's entry of a permanentcustody order, even though a final appealable dissolutionjudgment has not yet been entered. Mitchell, 103 Ill. App. 3d at246, 430 N.E.2d at 719.

Consistent with Mitchell, we hold that section 610'stwo-year proscription on motions to modify custody, absentaffidavits showing serious endangerment, starts to run when thetrial court enters a permanent custody order, regardless ofwhether such order is entered contemporaneously to the finaljudgment of dissolution or earlier in the dissolutionproceedings. We further hold that section 2-1203 posttrialmotions challenging the court's custody determination must befiled within 30 days of the trial court's entering a permanentcustody order.

In so holding, we emphasize that the two-year period ofsection 610 of the Dissolution Act starts to run in all casesupon the trial court's entry of a permanent custody order, and itstarts to run only once. Accordingly, if a trial courtbifurcates proceedings (as in this case) and a previously enteredcustody order goes unchallenged for many months, the date uponwhich the final judgment of dissolution is entered is irrelevantfor purposes of calculating the section 610(a) two-yearproscription period.

We further note that the Mitchell rule applies only tocustody orders that are intended to be permanent, not temporarycustody orders, which by definition are modifiable. See In reMarriage of Fields, 283 Ill. App. 3d 894, 901-04, 671 N.E.2d 85,89-92 (1996) (which discusses the differences between temporaryand permanent custody orders). To avoid confusion, we stronglyurge trial courts to notify the parties on the record when achild custody determination is intended to be a permanent custodydecision.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

COOK, J., concurs.

TURNER, J., specially concurs.

JUSTICE TURNER, specially concurring:

I agree with the result reached by the majority andthus concur in its affirmation of the trial court's judgment. Iwrite separately, however, because I disagree with the majority'sholding "that section 610's two-year proscription on motions tomodify custody, absent affidavits showing serious endangerment,starts to run when the trial court enters a permanent custodyorder, regardless of whether such order is enteredcontemporaneously to the final judgment of dissolution or earlierin the dissolution proceedings." Slip op. at 13. Because of thedecision in Leopando, 96 Ill. 2d at 120, 449 N.E.2d at 140, theeffect of the majority's holding is to trigger the application ofsection 610(a) of the Act (750 ILCS 5/610(a) (West 2000)) incases that are not yet final for appeal.

As the majority notes, the goal of section 610 of theAct is to promote stability and continuity in the "'custodial andenvironmental relationships'" of children of a divorce. Slip op.at 12, quoting Gustavson, 247 Ill. App. 3d at 801, 617 N.E.2d at1316. Thus, affidavits must be filed under section 610(a) if aparty desires to modify custody within two years of a finalcustody judgment in which the trial court has ultimately made afinding in the child's best interest (750 ILCS 5/610(a) (West2000)). In my view, however, if the order is not appealable, itis not final for purposes of section 610(a). It is axiomaticthat if the final order is immediately appealable, the party whohas unsuccessfully sought custody of a child is entitled to havethe trial court's judgment reviewed for error. However, underLeopando, 96 Ill. 2d at 120, 449 N.E.2d at 140, if otherancillary issues are still pending before the trial court, noright of appellate review attaches. Thus, the majority's holdingmay leave an unsuccessful party in a custody dispute without theability to appeal and at the same time limit the party's accessto the trial court. Moreover, the holding's effect deprives thetrial court of the opportunity to hear newly discovered evidencepertaining to the child's best interest unless section 610(a)affidavits are filed, even though the trial judge still haspending issues before it, some of which pertain to the child.

In the case sub judice, the trial court determined thatthe new evidence Brooks sought to introduce was merely cumulativeand would not alter the court's original ruling. This ruling issupported by the record and was not an abuse of the trial court'sdiscretion. I would, therefore, affirm on that basis. The trialjudge was in a position, with matters still pending before it, tomodify custody if doing so was in the children's best interest. The filing of section 610(a) affidavits is neither necessary norwarranted until the custody judgment is final for purposes ofappeal.

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