Evan M.W. v. Emily B. (In re Tate Oliver B.)

• Citation: 402 Ill.Dec. 430,52 N.E.3d 351
• Decision Date: 16 March 2016
• Docket Number: No. 2–15–1136.,2–15–1136.
• Parties: In re TATE OLIVER B., a Minor (Evan M.W., Petitioner–Appellee, v. Emily B., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

52 N.E.3d 351

402 Ill.Dec. 430

In re TATE OLIVER B., a Minor (Evan M.W., Petitioner–Appellee

v.Emily B., Respondent–Appellant).

No. 2–15–1136.

Appellate Court of Illinois, Second District.

March 16, 2016.

Joyce O'Neill Austin, of Shriver, O'Neill & Thompson, Rockford, for appellant.

Russell A. Crull and Tiffany Newton, both of Tess & Maas, LLC, Rochelle, for appellee.

OPINION

Presiding Justice Schostok

delivered the judgment of the court, with opinion.

¶ 1 The respondent, Emily B., appeals from the judgment of the circuit court of Ogle County finding that the petitioner, Evan W., is the father of her child, Tate Oliver B., and making various provisions involving legal custody, visitation, Tate's surname, child support, and the repayment of medical expenses. We affirm in part, reverse in part, and remand.

¶ 2 I. BACKGROUND

¶ 3 Tate was born on August 19, 2014, when Emily and Evan were both 18 years old. The parties, who never married or lived together, continued to reside with their own parents.

¶ 4 By the time of Tate's birth, Emily and Evan were no longer in a dating relationship.

Evan was listed on the birth certificate as Tate's father. Emily gave Tate her own last name.

¶ 5 In November 2014, a little less than three months after Tate's birth, Evan filed a petition to establish parentage. In it, he stated that he was the biological father of Tate. (This fact is not contested.) He sought a finding of parentage, the appointment of a guardian ad litem for Tate, and custody. Emily filed a response admitting that Evan was Tate's father but denying that Evan was a fit and proper person to have custody of Tate. She sought sole legal custody, and she also requested child support and the payment of medical expenses related to her pregnancy and Tate's birth.

¶ 6 Shortly after filing his petition to establish parentage, Evan moved for the entry of a temporary visitation schedule that would include upcoming holidays. On November 26, 2014, the trial court entered an agreed order setting a temporary visitation schedule, allowing Evan visits of about two hours at his home on various days. Another agreed temporary visitation schedule was entered on December 10, 2014, under which Evan had visits at his home of two hours or less, three times per week, and a four-hour visit on alternate Saturday mornings when Emily worked. Evan was to “make an effort” to have his mother or another agreed-upon adult present during visits. Emily was to provide all of the transportation for the visits.

¶ 7 On January 14, 2015, the trial court held a further hearing on the issue of visitation. During the hearing, Evan testified that he worked three nights per week for Vince's Pizzeria, delivering pizzas. Emily testified that she was still nursing Tate and that breast milk was his only sustenance, as he had reflux and had not been able to eat solid food yet. Tate needed to feed about every two hours, which limited the amount of time he could be away from her. When Evan had his four-hour visit, Emily provided him with a bottle of breast milk to feed Tate and then fed Tate again as soon as she picked him up. Emily worked at a bank and the visitation schedule was designed to accommodate both parties' work hours. Both parties testified that, when problems arose with the visitation schedule, they had been able to cooperate to resolve the problems. At the close of the hearing, the trial court modified the previous visitation schedule to extend Evan's visits to five hours on Mondays and Wednesdays (there was no change in the Saturday schedule). Evan was no longer required to have another adult present during his visits. Further, Emily was ordered to list Evan as Tate's father on documents such as medical records and child care forms.

¶ 8 On March 12, 2015, the parties appeared before the trial court on a motion to substitute Emily's attorney. While before the court, Emily drew the court's attention to her motion for temporary child support, which had been served upon opposing counsel but had not been filed with the court. Evan objected to the motion being heard and asked for time to file a response. After some discussion, during which the court admonished Emily's counsel that it required all motions to be properly filed and noticed up, the parties agreed to the entry of an order requiring Evan to pay Emily $40 per week in child support. This amount was based on the amount that Evan had paid Emily in the past voluntarily.

¶ 9 On March 31, Emily filed motions to: modify visitation; require Evan to search for fulltime work and report his progress to the court; set permanent child support and require Evan to contribute toward Emily's pregnancy-related medical expenses; and award her interim attorney fees. On April 22, Evan filed responses to Emily's motions along with a motion of his own, in which he sought to have Tate's surname changed from Emily's surname to Evan's. Emily filed a response objecting to this motion. On May 13, the trial court entered an order modifying visitation to allow Evan three-hour afternoon visits on Tuesdays, Thursdays, Saturdays, and alternate Sundays.

¶ 10 On July 13, 2015, the trial court held a hearing on Evan's petition and all of the pending motions. Emily, Evan, and Evan's mother testified. The testimony given and the exhibits admitted are summarized below, as relevant to the various arguments raised on appeal. At the close of evidence, the court outlined the “highlights” of its rulings on various issues. As to custody, the court found, based upon the evidence and its observation of the parties, that the parties were able to cooperate to raise their child and that joint legal custody was in Tate's best interest. Emily was to remain the residential parent. As to Tate's surname, the court found that it would promote Tate's connection to both parents' families and communities to carry both parents' surnames. The court specified that Evan's surname would be added to the end of Tate's name so that his full name would be Tate Oliver B.W. Thus, Tate would have Evan's surname, while Emily's surname would become a second middle name for Tate.

¶ 11 On July 22, 2015, the trial court issued a nine-page order. The order recorded the court's previous verbal rulings regarding custody and Tate's surname. The order further placed conditions on Emily and Evan, which the court described as similar to those found in “a standard joint parenting order,” requiring each of them to preserve Tate's relationship with the other parent and to share all information about Tate's health and education. In the event of conflicts, the parties were to attend mediation before returning to court. The order also set a visitation schedule that divided the holidays evenly between the parties and provided Evan with parenting time from morning to late afternoon on every Monday and Wednesday, and Saturdays and Sundays of alternate weekends. Overnight visitation would commence when Tate was 15 months old, with the addition of Saturday nights on Evan's weekends. Overnight visits on Friday nights on Evan's weekends would be added six months later. As to child support, the trial court continued Evan's previously agreed obligation of $40 per week, stating that this amount was 20% of his net income. The trial court ordered Evan to pay one-half of Emily's medical expenses ($932.85), but allowed him to pay that sum over time at the rate of $5 per week. As to attorney fees, the parties were to bear their own costs.

¶ 12 Emily moved for reconsideration. When her motion was denied, she filed this appeal.

¶ 13 II. ANALYSIS

¶ 14 On appeal, Emily challenges five aspects of the trial court's order of July 22, 2015: the imposition of joint legal custody; certain portions of the visitation schedule; the imposition of Evan's surname as Tate's surname; the amount of child support; and the rate at which Evan was required to reimburse Emily for her medical expenses.

¶ 15 A. Joint Legal Custody

¶ 16 We begin with the issue of joint legal custody. Under section 602.1(b)¹ of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), a trial court must consider whether joint legal custody is in the best interest of the child, even if the parties have not requested it. 750 ILCS 5/602.1(b)

(West 2014) (“Upon the application of either or both parents, or upon its own motion, the court shall consider an award of joint custody.”); see also 750 ILCS 45/14 (West 2014)² (all matters pertaining to the custody, visitation, and support of a child of unmarried parents must be determined using the same standards applicable under the Marriage Act). If it is in the best interest of the child, a trial court may order joint legal custody where it finds that the parents are able “to cooperate effectively and consistently in matters that directly affect the joint parenting of the child.” 750 ILCS 5/602.1(c)(1) (West 2014). A trial court's determination regarding custody is given great deference because that court is in a superior position to judge the credibility of the witnesses and determine the best interests of the child. In re Marriage of Lonvick, 2013 IL App (2d) 120865,¶ 33, 374 Ill.Dec. 510, 995 N.E.2d 1007. “A trial court's determination as to the best interests of the child will not be reversed on appeal unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. [Citation.] A judgment is against the manifest weight of the evidence only when the opposite conclusion is clearly apparent.” In re Parentage of J.W., 2013 IL 114817, ¶ 55, 371 Ill.Dec. 510, 990 N.E.2d 698.

¶ 17 Emily argues that section 602.1(b) mandated that a trial court must first ask the parties to produce a joint parenting agreement and that it could not impose a joint parenting order unless they failed to produce such an agreement. See 750 ILCS 5/602.1(b)

(West 2014) (“[T]he court shall initially request the parents to produce a Joint Parenting Agreement. * * * In the event the...