Hunsaker v. Hunsaker

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE CHAPMAN delivered the judgment of the court.
• Citation: In re Marriage of Hunsaker, 2017 IL App (5th) 160437-U, NO. 5-16-0437 (Ill. App. Apr 10, 2017)
• Decision Date: 10 April 2017
• Docket Number: NO. 5-16-0437,5-16-0437
• Parties: In re MARRIAGE OF PAUL KELLY HUNSAKER, Petitioner-Appellee, and WANDA F. HUNSAKER, n/k/a WANDA F. GREER, Respondent-Appellant.

2017 IL App (5th) 160437-U

In re MARRIAGE OF PAUL KELLY HUNSAKER, Petitioner-Appellee, and WANDA F. HUNSAKER, n/k/a WANDA F. GREER, Respondent-Appellant.

NO. 5-16-0437

APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

April 10, 2017

NOTICE

Decision filed 04/10/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Johnson County.

No. 07-D-32

Honorable James R. Williamson, Judge, presiding.

JUSTICE CHAPMAN delivered the judgment of the court.

Justices Goldenhersh and Cates concurred in the judgment.

ORDER

¶ 1 Held: Where the trial court did not err in denying a motion to conduct an in camera interview of a minor and in granting a motion to modify residential custody, we affirm.

¶ 2 The trial court entered a judgment dissolving Paul Kelly (Kelly) and Wanda Hunsaker's marriage in July 2007 after two years and eight months. During the marriage, Kelly and Wanda had one child, a daughter, named Kelsey. Kelsey was two years of age at the time of the divorce. The joint parenting agreement provided that Kelly and Wanda would share joint legal custody, with Wanda receiving physical custody subject to Kelly's visitation rights. Subsequent to the entry of this joint parenting agreement, on September 24, 2009, and on July 21, 2014, Kelly and Wanda agreed to orders modifying custody and visitation. Wanda continued to have primary residential custody of Kelsey. On March 7, 2016, Kelly filed a petition to modify residential custody. This appeal involves the trial court's order granting this motion on September 6, 2016. Wanda appeals and asks us to reverse the trial court's order because the order is not in the best interests of the minor child and because the trial court failed to set forth its findings of fact in its written decision. For the reasons contained in this order, we affirm.

¶ 3 FACTS

¶ 4 Joint Parenting Agreement

¶ 5 Kelly and Wanda agreed to joint custody. They also agreed to confer about important matters involving Kelsey's health, education, religion, disciplinary matters, unsupervised use of motor vehicles, and vacations with anyone other than the parents for more than 72 hours. Kelly and Wanda agreed that Kelsey should live with Wanda, and that Kelly would be able to exercise visitation rights every weekend from Friday through Sunday and every other Tuesday through Thursday. The agreement allowed Kelly two weeks of summer visitation. Kelsey would split the holidays between Kelly and Wanda. Kelly and Wanda also agreed to share all health care and educational information.

¶ 6 2008 Petition to Modify

¶ 7 On May 2, 2008, Kelly filed a petition seeking to modify custody. He attached a supporting affidavit to his petition in which he attested that Kelsey's life was endangered by living with Wanda because her then husband, Michael S., was a convicted felon andhad been accused of sexually molesting Kelsey. Additionally, he alleged that Kelsey's health was not being well-managed in that she was occasionally ill when she arrived at his house for visitations-once with pink eye and once with pneumonia.

¶ 8 After discovery and after amended and counter petitions were filed, Kelly and Wanda agreed to an order modifying custody and visitation. In this September 24, 2009, order, the parties agreed to continued joint custody with Wanda having primary residential custody. Kelly's visitation schedule was modified in that he would have visitation every week from mid-day Thursday through mid-day Sunday. Both parties agreed to modify their work schedules in order to accommodate this visitation. The agreement also provided that if either party "is unable to care for the child during the scheduled custodial time period, the other parent should be offered the first option to be the babysitter for the minor child."

¶ 9 July 2014 Agreed Order Modifying Child Support and Visitation

¶ 10 On July 21, 2014, the trial court entered an agreed order. In this pro se order, Kelly and Wanda agreed to continue joint custody with Wanda as residential custodian. The parties modified weekend visitation in that Kelly would have three consecutive weekends, followed by Wanda having one weekend. The parties defined the weekend as Friday through Sunday, which could be extended by an extra day-Thursday or Monday-if Kelsey was on summer school break or a school holiday. This agreement also contained the provision that if "either party is unable to care for the child during their scheduled time period, the other parent is to be offered the first option to be the babysitter for the minor child." Kelly agreed to increase his weekly child support payments.

¶ 11 2016 Petition to Modify

¶ 12 On March 7, 2016, Kelly filed a petition asking the court to modify parenting time, residential designation for education, child support, and the income tax exemption. In response, Wanda filed a counterpetition asking the trial court to terminate joint custody and to limit Kelly's visitation time. In May 2016, Wanda filed a motion for an in camera examination of Kelsey. Kelly filed his proposed parenting plan with the court. Kelly suggested that the court suspend joint custody; appoint Kelly as residential custodian; appoint Kelly to make all major decisions-including education, religion, health, and extracurricular activities; order Wanda to pay child support; and to set a visitation schedule for Wanda.

¶ 13 Hearing on Petition to Modify-August 9, 2016

¶ 14 Testimony of Kelly Hunsaker

¶ 15 Kelly testified that he was 41 years of age; had been married to Michelle Dawn Hunsaker for the past 7 years; and that they had a 6-year-old daughter. Michelle had two other children who lived with them-two girls-one 17 and the other 12. They all lived in a house in Vienna. He worked as a general manager of a car wash located in Paducah, Kentucky. Michelle worked as a high school teacher at Vienna High School. Additionally, Kelly's parents and his sister, as well as his in-laws, all lived in close proximity in Vienna. Kelly testified that Kelsey adored her stepsister, Mia, who was 12 years old and that she got along well with Michelle and all of their children.

¶ 16 Kelly testified that he was formerly married to Wanda, and they had one child, a daughter named Kelsey. He and Wanda divorced when Kelsey was two years old. At thetime of the hearing, Kelsey was 11 years old and was enrolled for the sixth grade. Kelsey lived with her mother, Wanda. Wanda also had a 19-year-old son, Austin, who lived in the house but had not yet completed high school, and a girl named Lexie who was younger than Kelsey.

¶ 17 Kelly testified that Wanda frequently moved. As a result, Kelsey moved from one school to another. Kelly provided documents showing that Kelsey had only been in the same school for one full school year-in the fourth grade. Kelly expressed his concern that these frequent changes were causing Kelsey to do poorly in school-especially in mathematics. When they had visitation with Kelsey, his wife Michelle attempted to work with Kelsey to ensure that her homework was completed.

¶ 18 Kelly also testified that Kelsey frequently wore inappropriate clothing to school. The clothing was either inappropriate due to the weather at the time or inappropriate in that the clothing she wore violated school dress code. When Kelsey was enrolled in a Vienna school and went to school in inappropriate clothing, the office would contact Kelly's current wife's parents to bring proper clothing to school for Kelsey.

¶ 19 Kelly's issues with Wanda dominated his testimony. Kelly testified that Wanda had been married six times, and had lived with two boyfriends. On several occasions when Kelly had Kelsey for visitation, she was quite ill. This would occur on weekends when there was no ability to get Kelsey in to see her pediatrician. In these situations, Wanda did not provide medication or inform Kelly about whether or not Kelsey had seen her physician. Additionally, Kelsey had a long-standing history of allergy issues-with breathing and contact dermatitis. Kelly repeatedly asked Wanda to take Kelsey forallergy testing so that she could potentially avoid the unknown allergens and receive treatment. However, Wanda refused to do so.

¶ 20 Kelly testified that Wanda refused to provide him information or paperwork about Kelsey's education, including parent-teacher conferences and report cards. He claimed that Wanda moved and changed Kelsey's school on at least one occasion without telling him. Additionally, he testified that Wanda would not provide him with her work schedule after he learned that she was working a night shift. The prior visitation orders provided him with the right to take Kelsey at any time that Wanda was not available-which he contended would include these night shifts. He did not know who was staying with Kelsey during these shifts, but suspected that it was her older stepbrother.

¶ 21 Kelly testified that Kelsey spent a lot of time sleeping when at his house. Kelly stated that Kelsey told him that she was tired because she spent many nights up waiting for her mother to come home. Kelly testified that he did not believe that Wanda was providing Kelsey with an adequate healthy environment in that she was not getting enough sleep and that she came to his house with existing hygiene issues and stained clothing. Additionally, earlier this summer, he and his family members noted that Kelsey's demeanor had changed. She had become reserved and would often stay by herself in her bedroom. She also had begun wearing only long-sleeved shirts in the summer.

¶ 22 Additionally, Kelly testified that during the summer of 2016 when he drove through the town of Metropolis (where Wanda and Kelsey lived), he saw his daughter walking alone with her younger half-sister in unsafe...