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In re Marriage of Knoche
State: Illinois
Court: 5th District Appellate
Docket No: 5-99-0762 Rel
Case Date: 05/23/2001
                        NOTICE
Decision filed 05/23/01.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. 

NO. 5-99-0762

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re MARRIAGE OF
KATHERINE S. (MEYER) KNOCHE,

     Petitioner-Appellant,

and

STEVEN G. MEYER,

     Respondent-Appellee.

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Appeal from the
Circuit Court of
Madison County.


No. 91-D-1692

Honorable
Daniel J. Stack,
Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court:

Katherine S. (Meyer) Knoche (petitioner) appeals from an order of the circuit courtof Madison County granting the petition of Steven G. Meyer (respondent) to modify thecustody of the parties' daughter. The issues raised by petitioner on appeal are: (1) whetherthe trial court erred in excluding petitioner, who was appearing pro se, from the in camerainterview of the child, (2) whether the trial court applied the proper standard of proof intransferring custody from petitioner to respondent, (3) whether the trial court's decision tomodify custody was against the manifest weight of the evidence, and (4) whether the trialcourt's denial of a continuance to petitioner was an abuse of discretion. We affirm.

FACTS

The parties were married on December 3, 1988. It was respondent's first marriage andpetitioner's second. Petitioner had a daughter from her previous marriage. On September21, 1989, the parties' only child, Chelsea, was born. On January 22, 1992, an order wasentered by agreement, dissolving the parties' marriage, awarding custody of Chelsea topetitioner, and granting respondent certain reasonable visitation rights. Over the followingyears, numerous motions were filed by both parties on a variety of issues including, interalia, child support, visitation, and venue. On April 4, 1996, respondent filed a motion tomodify custody, seeking a transfer of custody of Chelsea from petitioner to respondent. OnMay 30, 1996, respondent filed an amended motion to modify custody, and that is the subjectof the instant appeal.

On July 3, 1996, the trial court entered an order appointing a psychologist, Dr. RobertClipper, to perform psychological evaluations of the parties. Before preparing his report, Dr.Clipper interviewed numerous people over an extended period of time. In particular, Dr.Clipper interviewed petitioner, respondent, Chelsea, and respondent's new wife. Dr. Clipperalso interviewed two Department of Children and Family Services (Department) caseworkersand a police officer who investigated petitioner's report of alleged incidents of sexual abuseof Chelsea by Chelsea's stepgrandfather (respondent's new wife's father). Dr. Clipper filedan extensive report with the trial court on December 18, 1996.

As for the alleged incidents of sexual abuse, Dr. Clipper noted, "[The caseworkers andthe police officer] found Chelsea, much as I did, as if she were merely reporting a story sheheard." The Department determined that the alleged incidents were unfounded, and the trialcourt agreed. Overall, Dr. Clipper found respondent to be a "more stable and consistentparent to Chelsea" who is capable of setting aside his differences with petitioner for Chelsea'ssake. Dr. Clipper opined that he does not believe that petitioner is capable of doing the samething. Dr. Clipper noted that petitioner consistently disallowed respondent's visitation withChelsea, despite police recommendations for her to recognize respondent's visitation rights,and that petitioner engaged in "dramatic scenes" and "histrionic outburst[s]." Ultimately, Dr.Clipper recommended transferring primary physical control of Chelsea from petitioner torespondent.

A hearing on respondent's petition to modify custody began on August 4, 1997. Sevenwitnesses testified for respondent, including Dr. Clipper, a police officer, petitioner's sixthhusband, Roger Knoche, and four of petitioner's former boyfriends. At the end of the day,respondent was not finished presenting all his witnesses. The trial judge scheduled thehearing to resume on September 9, 1997, and explained to the parties that he had taken goodnotes and would not decide the case until he had heard all of the evidence. On September2, 1997, petitioner's attorney filed a motion to continue, which the trial court granted. Thehearing was then scheduled for February 25, 1998, but later rescheduled for March 12, 1998. On October 23, 1997, petitioner's attorney filed a motion to withdraw on the basis thatpetitioner had refused to cooperate with counsel in that she had failed to pay the attorney forservices rendered. Petitioner's attorney sent petitioner a letter in which he notified petitionerof the pending motion, which was scheduled for November 7, 1997, and explained that shehad a right to appear at the hearing on the motion to withdraw, obtain new counsel to appearfor her, or have 21 days to obtain new counsel or enter her own appearance. The motion towithdraw was granted on November 7, 1997. Petitioner did not appear at the hearing.

On February 17, 1998, respondent's lawyer sent a letter to petitioner in which sheexplained that because petitioner's attorney had withdrawn, petitioner might not know thatthe date of the hearing had been changed. Respondent's attorney went on to inform petitionerthat the hearing was scheduled to resume on March 12, 1998. On March 4, 1998, the trialcourt ordered that a summons be sent to petitioner to inform her that all pending matters,including petitioner's former attorney's motion for attorney fees, were set for a hearing. OnMarch 12, 1998, the trial court reported that two days earlier, petitioner contacted his clerkand requested a continuance in order to obtain new counsel. The trial court informedpetitioner that her request was denied. Petitioner attempted to get a continuance on the dayof the hearing, but the trial court again denied the request, explaining that petitioner hadplenty of time to get a new attorney but failed to do so. Petitioner then proceeded pro se. At the end of day, the trial court took the case under advisement.

The evidence reflects that after the parties divorced, petitioner married and divorcedfour additional times and lived with at least four men that she did not marry. Petitionermoved to seven different residences during this time, and each time Chelsea moved with her. Petitioner's third marriage to Kenneth Spencer was short-lived, as a judgment of dissolutionwas entered on March 25, 1993, slightly more than a year after her divorce from respondentwas entered. Petitioner married her fourth husband, Michael Martin, on September 3, 1993. That marriage lasted less than a year. She obtained an order of protection against him onNovember 1, 1993, alleging that Martin drank excessively and physically abused her. Shealso alleged that he left her children home alone when he was supposed to be babysitting. Chelsea was four years old at the time, and petitioner's oldest daughter was seven. Petitionerdivorced Martin, but she remarried him on March 25, 1994.

Sometime after her second marriage to Martin (marriage number five), petitioneralleged that Martin sexually abused her oldest daughter, and she again filed for divorce. Atthe hearing on the instant matter, petitioner explained the allegations: "Michael Martin hadbeen exposing himself, masturbating in front of my daughter and everything. So, yes, I didfile charges against him for that." An order of dissolution was entered on December 8, 1994.

Petitioner married her sixth husband, Roger Knoche, in September 1995, and shedivorced him on November 15, 1996. During her marriage to Mr. Knoche, she was stillhaunted by her previous husband, Michael Martin. In July 1996, she obtained an order ofprotection for her and Roger Knoche against Mr. Martin. Mr. Knoche also had a violentpersonality, as evidenced by photos submitted as part of the posttrial motion in the instantcase showing petitioner with severe bruising, allegedly caused by a beating from RogerKnoche when she and Chelsea were residing with him.

The evidence also indicated that petitioner interfered with respondent's visitation onnumerous occasions. Respondent was forced to file various motions to compel visitation,and ultimately petitioner was found in willful contempt for violating court-ordered visitation. The record is replete with motions and cross-motions concerning visitation and court ordersrelating to visitation. Transcripts of messages that petitioner left on respondent's answeringmachine were introduced into evidence and reflect enormous hostility and anger on the partof petitioner and show that petitioner was indeed interfering with respondent's court-orderedvisitation with Chelsea.

Petitioner attempted to explain her hostility on the basis that respondent's new wifeintercepted her phone calls and interfered with her relationship with Chelsea. According topetitioner, respondent and his new wife are not so much concerned about Chelsea's well-being but, instead, have a "personal vendetta" against petitioner and harass her and "dig updirt" to make her look bad. Petitioner realizes that she made some mistakes, but sheconsiders herself a good and loving mother. She said she was tired of the "lies" respondentand his wife told about her and was "very sick and tired of the interference." Petitionertestified that her divorce from Roger Knoche was precipitated by respondent's "interference"and "badgering." Petitioner explained that she wants the fighting to stop and thinks that theparties should be able to work out their differences; however, she stated that they are unableto do that and everything ends in a fight.

The trial court conducted an in camera interview with Chelsea. Prior to the interview,the trial court explained to petitioner that since she did not have an attorney, she would nothave anyone present during the in camera interview. Petitioner then inquired whetherrespondent's attorney would be allowed to talk to Chelsea. The trial judge told petitioner that he would not allow respondent's attorney to ask Chelsea any questions. During the interview,Chelsea stated a preference to remain with petitioner. Respondent's attorney was presentduring the interview. While the attorney did not ask questions directly to Chelsea, she didsubmit questions to the court for Chelsea to answer. The trial judge took the case underadvisement because he wanted time to "absorb" the evidence.

On July 16, 1998, the trial court entered an order transferring the custody of Chelseato respondent. The order also granted petitioner visitation, similar to the visitationpreviously awarded to respondent. Accordingly, the trial court granted petitioner a periodof summer visitation with Chelsea. Chelsea, therefore, stayed with petitioner for herscheduled summer visitation. As soon as that period came to an end, petitioner filed amotion to stay the order of the trial court and a motion to reconsider. Petitioner engagedcounsel to assist her in this matter. Petitioner retained custody during the time the motionto stay and reconsider was pending. The motion to reconsider was set for October 1, 1998. On that date, respondent and his attorney appeared, and the trial court grantedpetitioner a continuance based upon her representations to the trial court that she had a backinjury which prohibited her from appearing in court. In order to verify her incapacity, thetrial court ordered petitioner to provide a doctor's statement within five days. Petitionerfailed to supply such a statement. The hearing was reset for November 23, 1998. OnNovember 20, 1998, petitioner's attorney filed a motion for a continuance due to a schedulingconflict in another matter. The trial court granted the continuance over respondent'sobjection and rescheduled the hearing for December 3, 1998. On that day, an order wasentered that permitted petitioner to obtain a transcript of the trial court's in camera interviewwith Chelsea, to have the opportunity to lay a foundation to admit photographs which hadbeen in her previous attorney's possession, to file additional pleadings, and to presentadditional witnesses. A hearing on all remaining issues was then set for January 19, 1999. Petitioner did not file further pleadings or present additional evidence or witnesses. Anothercontinuance was granted over respondent's objection.

On February 2, 1999, the trial court entered an order denying petitioner's motion toreconsider. On February 16, 1999, the trial court entered an order to enforce the transfer ofcustody previously ordered by the trial court on July 16, 1998. Petitioner filed a notice ofappeal on March 4, 1999. On September 21, 1999, this court granted respondent's motionto dismiss the appeal because the issue of child support remained undetermined, therebymaking the appeal premature. On October 27, 1999, the trial court entered an order whichstated, inter alia, that petitioner was not required to pay child support because she was unableto obtain employment. Petitioner now appeals from the July 16, 1998, order that transferredcustody of Chelsea from petitioner to respondent.

ISSUES

1. In Camera Interview

Petitioner first contends that the trial court erred when it excluded her, a pro selitigant, from the in camera interview. Petitioner argues that the father was permitted toparticipate in the interview of the child through his attorney and that such one-sidedparticipation was unfair and requires a reversal. We disagree.

Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750ILCS 5/604(a) (West 1996)) allows for the interview of a child in chambers. It provides asfollows:

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