NO. 4-03-0142

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE MYERSCOUGH delivered the opinion ofthe court:

In February 2003, the trial court removed custody ofA.S. from petitioner, Jami M. Spent, and awarded custody torespondent, Bradley K. Spent (Brad). Jami appeals, arguing that (1) the trial court erred when it failed to strike and dismissBrad's petition to modify custody; (2) the trial court erred whenit granted a change in custody because Brad failed to establishby clear and convincing evidence that custody with her constituted a serious endangerment to the physical, mental, moral, oremotional health of A.S.; (3) the trial court's decision to awardsole custody to Brad was against the manifest weight of theevidence; and (4) the trial court's finding her in indirect civilcontempt was against the manifest weight of the evidence. Weaffirm.

I. BACKGROUND

Because the parties are familiar with the facts andacrimonious history of this case, we set forth only those factsnecessary to understand this court's disposition. The partiesmarried on July 16, 1994, and one child was born to the marriage,A.S. (born June 26, 1994). Jami filed a petition for dissolutionof marriage on June 28, 1999. The parties filed a writtenstipulation, agreeing that it was in A.S.'s best interests thatthe parties have joint custody, that A.S. should reside withJami, and Brad would have reasonable visitation. In July 1999,the trial court entered a judgment of dissolution of marriage,awarding the parties joint custody of A.S. pursuant to thewritten stipulation.

On October 10, 2001, Brad filed a motion for scheduledvisitation. On October 31, 2001, the trial court held a hearingon Brad's motion and entered an order setting forth Brad'svisitation schedule and location for the exchange. On that sameday, Jami filed a petition to terminate joint legal custody andto award her custody and to restrict Brad's visitation. OnNovember 1, 2001, Jami filed a motion to vacate the visitationorder. On November 2, 2001, Brad filed a petition for rule toshow cause against Jami, alleging she willfully and contumaciously failed to comply with the court's visitation order. OnNovember 30, 2001, Brad filed a petition for indirect civilcontempt, alleging Jami denied him visitation on several occasions.

In April 2002, the trial court conducted a hearing onthe issues pending, conducted an in camera interview of A.S., anddenied Jami's petition to terminate joint legal custody, to awardcustody to her, and to restrict Brad's visitation. The courtentered further orders regarding the other pending matters.

On October 15, 2002, Jami filed a petition to changethe pickup place and time that was scheduled for hearing onOctober 28, 2002. On the date of the hearing, Brad's attorneyrequested a continuance. Jami objected, and the court stated:

"Well, if what you are worried about, ma'am,is somehow you are going to be in noncompliance with the court order because of yourlack of vehicle, you filed your motion andthat testimony would be heard. So if yourconcern is some amount of contempt on accountof that, that should not be a concern toyou."

On December 20, 2002, Jami filed a verified petition for an orderof protection as a result of a physical incident that occurred onDecember 16, 2002, at the Argenta High School. The trial courtentered an emergency order of protection and specifically toldJami that she was still under court order to provide Brad visitation, which was not going to be stopped by the emergency order ofprotection.

In January 2003, Brad filed a petition for adjudicationof indirect civil contempt, a petition for modification ofjudgment as to custody, and a petition for sanctions. Jami fileda motion to strike and dismiss the petition for modification ofjudgment as to custody. The trial court held a hearing onJanuary 31, 2003, and February 3, 2003, on the pending petitionsand motions. The evidence revealed that fighting and cussingamong the parties, family members, and Jami's fiancé occurredduring visitation exchanges, at public events, and in front ofA.S. The police were often called. The visitation exchangeswere to occur at a gas station that was located approximately onemile from the parties' respective residences. The last visitBrad had with A.S. was on October 31, 2002, because Jami stoppedbringing A.S. to the gas station. Brad did not have his visitation with A.S. over Christmas. Several witnesses testified,giving varying accounts about an incident that occurred inDecember 2002 after A.S.'s Christmas program, where there werewords between Jami, Brad's wife, Jami's fiancé, and Brad thatresulted in an altercation between Brad and Jami's fiancé, all ofwhich took place in front of A.S. There was also testimony thatthe parties make disparaging remarks about each other in front ofA.S.

Jami testified that she lives with her fiancé, JoeMasters, in his house. She has two older daughters who do notlive with her. Jami does not own a vehicle. She is employed ata tanning center, where she works nights and weekends (4 p.m. toeither 8 or 9 p.m.), working between approximately 20 and 26hours a week. Joe usually takes her back and forth to work, butshe sometimes drives herself in Joe's truck. Joe owns twobusiness trucks, one of which is a "dump truck." Joe previouslyowned a Cadillac that she sometimes drove. He planned on sellingthe Cadillac, which meant that she would not have a vehicle todrive, and that was the reason she wanted to change the visitation exchange to take place in her driveway rather than at thegas station. Jami admitted that she called A.S.'s school andasked that they prohibit Brad from visiting A.S. at her schooland also made that request in the order of protection that wasultimately denied.

Brad testified that he was told that Jami and Joe didnot want Candy, Brad's wife, on Joe's property. He furthertestified that there was one incident where Candy went to the gasstation to pick up A.S. for Brad's scheduled visit, and Joe wouldnot release A.S. to Candy. Joe said that Jami told him torelease A.S. to Brad only. Brad testified that Jami never toldhim that she did not want anyone else to pick up A.S.

Brad did not want the exchanges changed to Joe'sdriveway because it would probably result in another order ofprotection against him and more lost time with A.S. Brad testified that he heard "through the courts" that Jami did not have avehicle, but she did not speak to him about the situation. Hehas not been able to have his court-scheduled visitation sinceOctober 31, 2002, and A.S. had not called him. He admitted thathe did not call her because "[c]alling her just causes problems." Candy testified that she is employed by Wellness Centerand works evenings "a lot of the times." She and Brad have afive-month-old daughter. Candy testified that she has a verygood relationship with A.S. She loves A.S. When asked how shefelt about fostering a relationship between A.S. and Jami, Candytestified that "[A.S.] should see her mother. I have a daughterand I wouldn't expect or wouldn't want someone to take my daughter from me. I think that she should see her mother."

Joe testified that he is an independent landscapingcontractor. He owns the house but rents the ground. He also hasa snow-removal operation as part of his business. He owns a one-ton dump truck and leases a 2001 C-71 pickup, on which he canonly put 12,000 miles a year. He uses the pickup for snowremoval. There have been occasions where he told Jami that shecould not drive the truck to the gas station for visitationexchanges. He testified that Jami has permission to drive histruck at certain times after she pays him $5. Joe testifiedabout some of the incidents that occurred at visitation exchangesand that there had been times when he felt physically threatenedby Brad. Joe testified about the September 27, 2002, incidentwhere he would not let A.S. go with Candy. He further testifiedthat after that incident, he refused to furnish his vehicle forthe visitations, and he refused to drive to the exchange. Hetestified that "[i]t's not my responsibility." He testified thathe got mad, and Brad should have appreciated the fact that hewould stop his work to drive A.S. to the visitation exchangelocation. He sold the Cadillac on approximately November 6 or 7,2002.

Joe testified that he has a wonderful relationship withA.S. He takes her to different events when Jami is working. Hetestified that the situation is starting to effect A.S. "[T]hesituation that she's in because she has had two or three papersbrought home that wasn't [sic] very good. She has been to acounselor a few more times than--really, if she wasn't effected[sic] about this, it wouldn't be necessary to go to counseling."

After closing argument, the trial court found that Jamifailed to prove abuse by a preponderance of the evidence asalleged in her petition for an order of protection and terminatedthe order of protection. The court also denied Jami's petitionfor a change of pickup time and location and granted Brad'spetition for indirect civil contempt. The court specificallyfound Jami's conduct was willful, contumacious, and knowing. Thecourt also granted Brad's modification as to child custody,terminated joint custody, and awarded Brad sole custody andcontrol of A.S. with specified visitation with Jami.

This appeal followed.

II. ANALYSIS

A. Failure To Strike and Dismiss

Jami argues that the trial court erred when it failedto strike and dismiss Brad's petition to change custody. Specifically, she contends that Brad filed his petition within twoyears of a custody determination. Therefore, he was required toattach an affidavit as required by section 610(a) of the IllinoisMarriage and Dissolution of Marriage Act (Dissolution Act) (750ILCS 5/610(a) (West 2000)), which he failed to do. Brad arguesthat the trial court correctly found that section 610(a) of theDissolution Act did not apply. We agree with Brad. Initially wenote that the parties provide some discussion regarding whetherJami waived her right to require conformity with that section. Because of our resolution of the applicability of section 610(a),we need not address the waiver argument.

Sections 610(a) and (b) of the Dissolution Act establish a dual-step process for modification petitions filed andheard within two years of the last custody judgment. 750 ILCS5/610(a), (b) (West 2000). Section 610(a) empowers a trialcourt, under certain circumstances, to grant a hearing on thepetition for modification, with the ultimate decision on modification to be made pursuant to the legal standards set forth insection 610(b). Department of Public Aid ex rel. Davis v.Brewer, 183 Ill. 2d 540, 554, 702 N.E.2d 563, 569 (1998).

Section 610(a) provides:

"Unless by stipulation of the parties,no motion to modify a custody judgment may bemade earlier than 2 years after its date,unless the court permits it to be made on thebasis of affidavits that there is reason tobelieve the child's present environment mayendanger seriously his physical, mental,moral[,] or emotional health." 750 ILCS5/610(a) (West 2000).

Section 610(b) specifies the legal standards a court must use indetermining whether to grant a petition to modify custody andapplies to all petitions, regardless of whether they are filedand heard before or after two years from the date of entry of thecustody judgment. Brewer, 183 Ill. 2d at 555, 702 N.E.2d at 569.

In June 1999, the parties stipulated that joint custodywas in A.S.'s best interests. In July 1999, the trial courtentered a judgment of dissolution and awarded the parties jointcustody of A.S. with Jami having physical custody. In October2001, Jami filed a petition to terminate joint legal custody, toaward custody to her, and to restrict Brad's visitation. After ahearing on this petition, the court found that no persuasiveevidence existed that visitation by the child with respondent,his family, or his friends presents any danger to the child'sphysical, psychological, or moral safety. In essence, the courtfound that Jami failed to present evidence sufficient to satisfysection 610(b) and warrant a custody modification. See Brewer,183 Ill. 2d at 556, 702 N.E.2d at 569-70 (after meeting theprocedural prerequisite of subsection (a), the case then proceedsto an evidentiary hearing, where the trial court applies thelegal standards contained in subsection (b) to determine whetherthe modification petition should be granted). In April 2002, thecourt denied Jami's petition to terminate joint legal custody, toaward custody to Jami, and to restrict Brad's visitation.

Jami argues that the trial court's April 2002 denial of herpetition was a custody judgment and, therefore, that date was thepoint at which the two-year provision of section 610(a) began torun. As a result, Brad's petition for modification of custody,filed in January 2003, was filed within two years of that April2002 custody judgment thereby triggering the requirements ofsection 610(a). We disagree. The parties have cited no cases,and our research has not revealed any cases, that hold that adenial of a petition to terminate joint custody amounts to a"custody judgment" thereby triggering the two-year provision ofsection 610(a). In fact, we conclude just the opposite. We findthat a denial of a petition to terminate joint custody or amotion to modify custody does not amount to a "custody judgment." Here, the trial court's denial of Jami's petition in noway modified the original custody judgment entered in July 1999. Rather, the denial simply maintained the status quo of thatoriginal custody judgment. In In re Marriage of Spangler, 124Ill. App. 3d 1023, 1026, 464 N.E.2d 1120, 1122 (1984), this courtheld that the original custody order stands as the judgment ofthe court as to the circumstances before the court at the time ofentry and that judgment is not changed by a grant of relief undersection 610. This court acknowledged that although the grantingof such relief is said to "modify" the judgment of custody,actually, a new judgment is entered based on new facts andcircumstances. Spangler, 124 Ill. App. 3d at 1026, 464 N.E.2d at1122. Here, the trial court denied Jami relief under section610(b). Therefore, the original custody judgment was neither"modified" nor was a new judgment entered. In contrast, in Inre Marriage of Eleopoulos, 186 Ill. App. 3d 374, 379, 542 N.E.2d505, 508 (1989), the parties stipulated to a change in theoriginal custody order whereby custody of one child was transferred but custody of the other child was not changed, therebyresulting in the trial court entering an order that constituted anew custody judgment.

The trial court correctly found that the April 2002ruling on Jami's petition was not an order affecting custodywithin the meaning of section 610(a), i.e., that started a newtwo-year waiting period or invoked the affidavit requirement. Because Brad's petition to modify custody was filed some threeyears after the custody judgment in July 1999, section 610(a) wasinapplicable.

B. The Trial Court's Custody Decision

Jami contends that she did not consent to a terminationof joint custody. Further, the parties did not stipulate to atermination of joint custody, and only one party filed a petitionto modify the joint-custody agreement. Therefore, Jami maintainsthat the trial court should have proceeded under section 610(a). We disagree for the reasons stated. We note, however, we agreethat the parties did not stipulate that the joint-custody agreement should be terminated. We disagree, though, that Brad wasthe only party to file a petition to terminate joint custody. Jami filed her petition in October 2001 requesting, in part, toterminate joint custody. The fact that no formal stipulation oragreement was reached is irrelevant. In re Marriage of Ricketts,329 Ill. App. 3d 173, 178, 768 N.E.2d 834, 838 (2002). Becauseeach party filed a petition seeking sole custody, they effectively stipulated to terminate the joint-custody arrangement andagreed that a change in circumstances warranted awarding custodyto only one of the parents. In re Marriage of Lasky, 176 Ill. 2d75, 81, 678 N.E.2d 1035, 1038 (1997); see also In re Marriage ofWycoff, 266 Ill. App. 3d 408, 412, 639 N.E.2d 897, 901 (1994)(finding the change-in-circumstances clause allows a trial courtto terminate a joint-custody agreement whenever it becomesapparent that the parents cannot cooperate in the child's bestinterests). Therefore, once both parties moved to terminate thejoint-custody agreement (indicating a change of circumstances hadoccurred), the trial court, pursuant to section 610(b), had toterminate the joint-custody arrangement and make any modificationthat was in the child's best interests.

Alternatively, Jami argues that the trial court'sdecision to award sole custody to Brad was against the manifestweight of the evidence. Specifically, Jami contends that theevidence failed to overcome the presumption in favor of thepresent custodial parent. We disagree.

The trial court should consider all relevant factors,including those listed in section 602 of the Dissolution Act (750ILCS 5/602 (West 2000)), when making child custody determinationsand decide what custodial order serves the child's best interest. In re Marriage of Seitzinger, 333 Ill. App. 3d 103, 107-08, 775N.E.2d 282, 286 (2002). A custody determination inevitably restson the parties' temperaments, personalities, and capabilities,and the witnesses' demeanor. In re Marriage of Felson, 171 Ill.App. 3d 923, 926, 525 N.E.2d 1103, 1105 (1988). Because thetrial court is in a far better position to "observe the temperaments and personalities of the parties and assess the credibilityof the witnesses," the reviewing court affords great deference tothe trial court's best interests findings. In re Marriage ofStopher, 328 Ill. App. 3d 1037, 1041, 767 N.E.2d 925, 928 (2002). We acknowledge that stability and continuity are major considerations in custody decisions, so that a presumption exists infavor of the present custodian. Wycoff, 266 Ill. App. 3d at 410,639 N.E.2d at 900. However, once a trial court has determinedthat the presumption in favor of the present custodian has beenovercome, we are not to disturb that 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.

At the conclusion of the February 2003 hearing, thetrial court found that the legislative presumption favoring thefinality of the prior custody judgment had been overcome by clearand convincing evidence, proving that a change occurred in thecircumstances of the child and parties, terminated joint custody,and awarded sole care, custody, and control of A.S. to Brad. Thecourt explained the basis of its decision, stating:

"Now, the basis for the [c]ourt's change ofcustody is that the [c]ourt does find thatthere's been a change of circumstances withthe child and her custodian and [Brad] sincethe last custody order. The modification isnecessary to serve the best interests of thechild. This was not punishment. This is the[c]ourt deciding what is going to be in thisminor's best interests under all of the circumstances for the foreseeable future."

The court clearly considered A.S.'s current custodial environmentbut determined that the presumption in favor of preserving thisrelationship was rebutted by the evidence presented.

Further, in deciding custody under thebest-interest-of-the-child standard, the court shall consider"the willingness and ability of each parent to facilitate andencourage a close and continuing relationship between the otherparent and the child." 750 ILCS 5/602(a)(8) (West 2000). Therecord is replete with evidence that Jami was unwilling tofacilitate and encourage a close and continuing relationshipbetween A.S. and Brad. In its written memorandum and orders, thecourt found:

"The evidence clearly established that [Jami]wilfully failed to foster a close and continuing relationship between the child and herfather by denying visitation, denying telephone contact, and making disparaging remarksin the presence of the child. There is noevidence upon which this [c]ourt may reasonably infer that [Jami] will change her conduct. [Jami's] inappropriate conduct adversely affects the child and it is a relevant factor in determining the best interestof the child."

The record demonstrates that the trial court alsoconsidered the fact that Jami had undertaken new employment,requiring her to work evenings and weekends, working approximately 20 to 26 hours per week, which would not enable her toprovide care and supervision for A.S. In contrast, respondentwas married and maintained a home for his wife and infant daughter, with whom A.S.'s interaction and interrelationship would beenhanced if A.S. were living with her infant sister.

We find the record in the present case supports thetrial court's findings and, therefore, its judgment was notagainst the manifest weight of the evidence.

C. The Trial Court's Indirect Civil Contempt Finding

Jami argues that the trial court's finding that she wasin contempt of court was against the manifest weight of theevidence. Specifically, Jami contends that on October 28, 2002,Judge Webber assured her that her lack of a vehicle would not beheld against her.

Civil contempt, unlike criminal contempt, consistsgenerally of failing to do something ordered by a court, and theresult is the loss of a benefit or advantage to the opposingparty, with the dignity of the court being only incidentallyinvolved. People v. City of East St. Louis, 206 Ill. App. 3d626, 634, 564 N.E.2d 1372, 1377 (1990). Contempt that occursoutside the presence of the court is classified as indirectcontempt. City of East St. Louis, 206 Ill. App. 3d at 637, 564N.E.2d at 1379. The existence of an order of the court and proofof willful disobedience of that order are essential to anyfinding of indirect contempt. People v. Wilcox, 5 Ill. 2d 222,228, 125 N.E.2d 453, 456 (1955). The burden rests upon thealleged contemnor to show that noncompliance was not willful andcontumacious and that he or she has a valid excuse for failure tofollow the court order. People v. Stanley, 60 Ill. App. 3d 909,911, 376 N.E.2d 1095, 1097 (1978). Whether a party is guilty ofcontempt is a question of fact for the trial court, and itsdecision will not be disturbed on appeal unless it is against themanifest weight of the evidence or the record reflects an abuseof discretion. In re Marriage of Logston, 103 Ill. 2d 266,286-87, 469 N.E.2d 167, 176 (1984).

In support of her argument, Jami relies on what shecharacterizes as an "assurance by Judge Webber on October 28,2002[,] that her lack of vehicle could not be held against her." We find Jami's reliance misplaced. We conclude, after considering the trial court's comments in context, that the court wassimply telling Jami that when her petition was heard and if theevidence revealed that the sole reason she was not able tofacilitate visitation was because she did not have a vehicle,then she would not have to be concerned. If that were what theevidence revealed, we would agree with the court's statement. However, the evidence showed that Jami used the lack of a vehicleas one more excuse to deny Brad visitation with A.S.

Assuming, arguendo, the trial judge's comments amountedto an "assurance" that no contempt would be found, we concludethat the later admonishments from Judge White sufficientlyinformed Jami that she was still under court order to permit Bradto have visitation with A.S., and she needed to comply with thatorder.

In the instant case, the evidence supports the trialcourt's findings that Jami's conduct was willful, contumacious,and knowing. We conclude, therefore, that the trial court'sjudgment was not against the manifest weight of the evidence.

III. CONCLUSION

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

Affirmed.

COOK and McCULLOUGH, JJ., concur.