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In re Marriage of Minix
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0479 Rel
Case Date: 12/18/2003

NO.  4-03-0479
 

IN THE APPELLATE COURT
 

OF ILLINOIS
 

FOURTH DISTRICT
 

In re: the Marriage of
DAVID WAYNE MINIX,
                         Petitioner-Appellee,
                         and
WENDY SUE DUNAVEN-MINIX,
                         Respondent-Appellant.
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Appeal from
Circuit Court of
Macon County
No. 99D651

Honorable
Albert G. Webber,
Judge Presiding.


JUSTICE APPLETON delivered the opinion of the court:

Respondent, Wendy Sue Dunaven-Minix, appeals the trialcourt's order denying her request to prohibit petitioner, DavidWayne Minix, from taking their child to his church. She contendsthat by denying her motion, the trial court has violated herstatutory exclusive right as the custodial parent to control thereligious upbringing of the parties' minor child. We affirm.

I. BACKGROUND

On October 23, 2000, the circuit court of Macon Countyentered a judgment dissolving the parties' marriage. Wendy (werefer to the parties' first names for simplicity purposes and notout of disrespect) was granted custody of their minor child,Nicole, born May 13, 1996, subject to David's right to visitation. No specified visitation schedule was ordered with theexception of alternating major holidays. The parties were tocontinue visitation as previously arranged and agreed betweenthem.

On August 2, 2002, David filed a motion requesting thatthe trial court specify a visitation schedule. On October 4,2002, the trial court entered an order specifically definingDavid's visitation including every other weekend from 3:30 p.m.on Friday until 5:30 p.m. on Sunday. On November 6, 2002, Wendyfiled a document entitled "Motion to Modify and Limit Visitation," requesting the trial court to enforce her statutory rightand order David to refrain from taking Nicole to any church orfrom teaching her any religious faith other than Wendy's. Davidfiled a response claiming that Wendy and he both practice theChristian faith, no provision in the judgment of dissolutionprohibits him from taking Nicole to church, Nicole is not injuredin any way from participating in religious activities with David,and Wendy had never asked David not to take Nicole to church withhim.

On March 24, 2003, the trial court conducted a hearingon Wendy's petition. Wendy testified that she was a member ofthe Unity Church while David practiced a religion "close toPentecostal," which were different denominations within theChristian faith. Wendy desires that Nicole be educated in theUnity religion. Wendy spoke with David about Nicole's religiouseducation and informed him that Nicole was getting confused byattending both churches and "it needed to stop." She asked Davidto stop taking Nicole to his church. Wendy testified that shewas not asking that David's visitation be interrupted, only thathe not take her to his church. On cross-examination, Wendytestified that her and David's churches taught completely different beliefs, which caused Nicole to pose questions.

David was called as an adverse witness. He testifiedthat both denominations are of the Christian faith, and he deniedthat Wendy asked him to stop taking Nicole to church with him. Upon questioning by his counsel, David testified that he spentapproximately two hours in church on Sundays. He had been takingNicole to church with him for approximately three years. Noother evidence was presented.

On March 25, the trial court, by docket entry, deniedWendy's motion, finding that Wendy failed to show any substantialthreat to Nicole by David's religious instruction. The trialcourt found nothing to suggest that David's religious instructionprevented or hindered Wendy's religious instruction. On April21, 2003, Wendy filed a motion to reconsider, alleging, interalia, the trial court erred in its consideration of relevant caselaw. On May 19, 2003, the trial court denied Wendy's motion. This appeal followed.

II. ANALYSIS

The issue before us is whether the trial court'sorder, denying Wendy's request to prohibit David from takingNicole to his church during visitation, was an abuse of discretion. We hold that it was not and affirm the trial court.

The resolution of this issue requires sensitivity totwo competing interests. On the one hand, Wendy, as the custodial parent, has the statutory right, pursuant to section 608(a)of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/608(a) (West 2000)), to control thereligious upbringing of her child. See In re Marriage ofNuechterlein, 225 Ill. App. 3d 1, 7, 587 N.E.2d 21, 25 (1992)(custodial parent controls the religious training of the childregardless of premarital agreement); In re Marriage of Bennett,225 Ill. App. 3d 828, 833, 587 N.E.2d 577, 581 (1992) (agreementto raise children in the Jewish faith was not an enforceablecontract; decision is made by custodial parent).

On the other hand, David, as the noncustodial parent,has a right to unrestricted visitation with his child pursuant tosection 607(c) of the Dissolution Act (750 ILCS 5/607(c) (West2000)), as well as a right to the free exercise of religion. Weresolve the controversy in David's favor for the reasons thatfollow.

We note that the trial court is vested with widediscretion in resolving visitation issues. The appellate courtwill not interfere with the trial court's determination unless anabuse of discretion occurred or where manifest injustice has beendone to the child or parent. In re Marriage of Diehl, 221 Ill.App. 3d 410, 429, 582 N.E.2d 281, 294 (1991), cert. denied, 144Ill. 2d 632, 591 N.E.2d 20 (1992); In re Marriage ofTisckos/Stewart, 161 Ill. App. 3d 302, 310, 514 N.E.2d 523, 528(1987).

First, we look to the language of the relevantstatutory authority. Section 608(a) provides:

"Except as otherwise agreed by theparties in writing at the time of the custodyjudgment or as otherwise ordered by thecourt, the custodian may determine thechild's upbringing, including but not limitedto, his education, health care[,] andreligious training, unless the court, afterhearing, finds, upon motion by thenoncustodial parent, that the absence of aspecific limitation of the custodian'sauthority would clearly be contrary to thebest interests of the child." (Emphasesadded.) 750 ILCS 5/608(a) (West 2000).

Section 607(c) provides in relevant part as follows:

"[T]he court shall not restrict aparent's visitation rights unless it findsthat the visitation would endanger seriouslythe child's physical, mental, moral[,] oremotional health." 750 ILCS 5/607(c) (West2000).

We note that this case is procedurally skewed in thatsection 608 provides that disputed issues should come before thecourt upon the noncustodial parent's motion. The noncustodialparent has the burden of going forward. Here, Wendy, thecustodial parent, was the moving party. Nevertheless, theparties are before the court, and we decide the issue on itsmerits.

Wendy argues that this court should follow its decisionin Tisckos/Stewart and find that the trial court abused itsdiscretion in failing to prohibit David from taking Nicole to hischurch. We decline to do so, distinguishing Tisckos/Stewart fromthe case sub judice.

In Tisckos/Stewart, the custodial mother was RomanCatholic, and the father, after remarrying, changed his religiousaffiliation from Catholic to Baptist. The mother was raising theminor child in the Catholic faith, as she was attending Catholicschool and in the midst of her religious training. The fatheracknowledged it was a mandatory requirement of the Roman CatholicChurch that those of Catholic faith attend Sunday mass. Thefather stated he was not attempting to convert the child fromCatholicism, but desired to take the child to church with himsimply because his church's services occurred during hisvisitation time. The pastor of the Catholic parish testifiedthat attending a non-Catholic church would confuse the child,place her in a dichotomy, and be counterproductive to herreligious education. He further testified to the doctrinaldifferences between Catholic and other Christian denominations. Tisckos/Stewart, 161 Ill. App. 3d at 306-07, 514 N.E.2d at 525-26.

This court affirmed the trial court's order (1)requiring the noncustodial father to deliver the minor child tothe mother's home on Sunday mornings in time for the child toattend church services with the mother or transport the child toa Roman Catholic Church to fulfill her mass obligations, and (2)prohibiting the father from taking the child to religiousservices other than those approved by the mother. In so holding,we found the visitation provisions were accommodations to be madein the child's best interest based upon the right of thecustodial mother to determine the religious upbringing of thechild rather than restrictions of the father's visitation rights. Tisckos/Stewart, 161 Ill. App. 3d at 311, 514 N.E.2d at 529.

Tisckos/Stewart addressed the questions of whether thefather's visitation rights were improperly restricted and whetherhis first amendment rights were violated by the trial court'sorder. We held they were not. Without a detailed analysis, weheld the trial court's order, requiring the father to transportthe child to Catholic mass on Sundays and prohibiting him fromtaking her to any other church, were not "restrictions" on hisvisitation within the meaning of section 607(c) of theDissolution Act. Instead, they were permissible "accommodations"to be made by him in the best interest of the child.

An important distinction between our holding inTisckos/Stewart and our decision here is that in Tisckos/Stewart,we were presented with evidence of the dichotomy between the tworeligions at issue. For example, evidence was presented that asa Roman Catholic, a person undertakes certain responsibilitiesand is required to do certain things pursuant to the tenets ofthe religion. There was a doctrinal distinction betweenCatholicism and Protestantism. The child was in the midst of herreligious training, and the evidence showed that any additionalreligious teachings would prove counterproductive to hereducation or confusing to her. The doctrinal distinctions andthe stage of the child's religious education affected the trialcourt's order in that the court specifically held that byordering the child only to attend Catholic services, it wasattempting to avoid confusion in the child's mind. We affirmedthe order.

Here, no evidence of doctrinal differences between thetwo churches was presented. No evidence of how the childsuffered harm by attending church with David was presented. Therefore, we are faced with the following question: whethersection 608(a) of the Dissolution Act (750 ILCS 5/608(a) (West2000)) permits the custodial parent to obtain an orderprohibiting the noncustodial parent from involving the child inhis religion without evidence that the two religions are mutuallyexclusive or without evidence of harm. As in Tisckos/Stewart,this issue requires us to balance the custodial parent's right tocontrol the religious upbringing of the child with thenoncustodial parent's right to the uninterrupted and unrestrictedvisitation with the child and the freedom of religion.

Given the dearth of Illinois authority, we look to thecase law of other states. In the majority of Americanjurisdictions that have considered the question, the courts haverefused to restrain the noncustodial parent from exposing thechild to his or her religious beliefs and practices absent aclear, affirmative showing that those religious activities wouldbe harmful to the child. See In re Marriage of Heriford, 586S.W.2d 769, 773 (Mo. App. 1979); In re Marriage of Murga, 103Cal. App. 3d 498, 505, 163 Cal. Rptr. 79, 82 (1980); Felton v.Felton, 383 Mass. 232, 239, 418 N.E.2d 606, 610 (1981); In reMarriage of Mentry, 142 Cal. App. 3d 260, 264-65, 190 Cal. Rptr.843, 846 (1983); Zummo v. Zummo, 394 Pa. Super. 30, 49-50, 574A.2d 1130, 1140 (1990); In re Marriage of Weiss, 42 Cal. App. 4th106, 117, 49 Cal. Rptr. 2d 339, 346 (1996).

As was stated in Zummo:

"Custody and visitation casesessentially involve salvaging operations. Judges are asked to preserve, as best as maybe, the interests of any children involved,while at the same time disentangling theirparent's spousal relationship. Under thebest of circumstances it is a task requiringSolomonic judgment.

The difficulties involved are compoundedwhen emotional issues such as the religiousupbringing of children are involved." Zummo,394 Pa. Super. at 35, 574 A.2d at 1132.

The United States Supreme Court specifically has heldparental authority in matters of religious upbringing may beencroached only upon a showing of a "substantial threat" of harmto the "physical or mental health of the child or to the publicsafety, peace, order, or welfare." Wisconsin v. Yoder, 406 U.S.205, 230, 32 L. Ed. 2d 15, 33, 92 S. Ct. 1526, 1540 (1972).

Turning to the law in other jurisdictions, the Missouricase of Heriford provides some guidance. There, the custodialmother sought to modify the father's weekend visitation rights toexclude Sunday morning so the children could attend church withher rather than the father. The mother attended a SouthernBaptist church, and the father attended the local Christianchurch. The mother's argument was primarily based upon thestatutory provision that gave the custodial parent the right todetermine the child's religious upbringing. See Mo. Rev. Stat.

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