In re Eckersall
| Decision Date | 28 May 2014 |
| Docket Number | No. 1–13–2223.,1–13–2223. |
| Citation | 12 N.E.3d 830 |
| Parties | In re the MARRIAGE OF Raymond A. ECKERSALL III, Petitioner and Counterrespondent–Appellee, and Catherine Eckersall, Respondent and Counterpetitioner–Appellant. |
| Court | United States Appellate Court of Illinois |
Pamela Hutul, Benton Page, and Errol Zavett, all of Davis Friedman, LLP, of Chicago, for appellant.
No brief filed for appellee.
¶ 1 All too frequently children become casualties, caught in the crossfire of their parents' hostilities. Alert judges and lawyers aware of the signs of potential trouble, as a matter of course, will enter an order placing restrictions on the parents when their children are in their custody. Restrictions, for purposes of illustration, may preclude the parents from engaging in electronic surveillance, using alcohol and drugs, discussing the divorce, administering corporal punishment, and criticizing, demeaning, or disparaging the other parent. At issue is this type of order, which in this case was characterized as an “injunction.”
¶ 2 Catherine Eckersall filed what she contends is an interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from a so-called injunction order entered against her and Raymond Eckersall. The order directs the divorcing couple from participating in certain behaviors when their three children are in their custody. Catherine argues: (i) the trial court lacked jurisdiction to enter the order in the absence of either party filing a motion; (ii) the order violates her right to due process because it was entered without an evidentiary hearing; (ii) the trial court failed to make findings of fact as required by section 11–101 of the Illinois Code of Civil Procedure (735 ILCS 5/11–101 (West 2012) ); (iv) the order infringes on her rights to parent her children in violation of the fourteenth amendment (U.S. Const., amend.XIV), and section 2, article I, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2 ); and (v) the order violates her freedom of speech under the United States and Illinois constitutions.
¶ 3 We dismiss the appeal because the trial court order did not enter an injunction subject to a Rule 307 interlocutory appeal.
¶ 5 On February 25, 2013, Raymond Eckersall filed a petition for dissolution of marriage to Catherine and for joint custody of the couple's three daughters, ages 14, 12, and 10. Catherine filed a counterpetition for dissolution of marriage and also sought joint custody, but requested sole custody if the parties could not reach an agreement on custody. On April 8, 2013, by agreement of the parties, the trial court appointed attorney Howard Rosenberg to represent the minor children under section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/506(a)(3) (West 2012)).
¶ 6 Raymond had moved out of the marital home, and on March 21, 2013, he filed a petition to set a temporary parenting schedule stating that he and Catherine had been unable to reach an agreement on visitation. On May 1, 2013, the trial court ordered the parties and the minor children to immediately begin family therapy and scheduled a June 5 hearing on Raymond's petition to set a temporary parenting schedule if the parties could not reach an agreement in the interim.
¶ 7 After the June 5 status hearing, the trial court entered an order scheduling a June 24 hearing date for the petition to set a temporary parenting schedule, stating, “The parties shall enter a parenting order (enjoining discussion of court/case related issue with the children) on the June 24 status date.” On June 24, 2013, the trial court entered an order setting July 10, 2013, as a status date “for the entry of a custody/visitation injunctive order.” The court warned, “If the parties cannot reach an agreement on the terms of said order, the court shall set the terms.”
¶ 8 At the July 10 status hearing, the counsel for the minor children submitted to the trial judge a proposed custody and visitation injunction order. He first informed the court he met with the children and worked out a “decent schedule” that provided for visitation with their father all day on Saturday and one week night and that at the children's request, Raymond's family was not to be present while they are in their father's custody. The children's representative also told the court that he and the parties negotiated the terms of a “prophylactic” order setting forth the conditions of visitation but were unable to reach agreement on the terms. Catherine and her attorney, as well as Raymond's attorney, were present in court. Under the proposed order, the parties would be prohibited from engaging in specific types of conduct regarding the minor children, including: (1) beating, striking, threatening or in any way interfering with the personal liberty of the minor children; (2) discussing any aspect of the pending litigation in the presence of the minor children, including custody, visitation, support, grounds for dissolution, financial information, and court dates; (3) questioning or discussing with the children their preferences regarding custody or visitation; (4) questioning, discussing, rehearsing or coaching the minor children regarding court testimony or interviews with the court, mediators, attorneys, investigators or any other person related to the dissolution proceeding; (5) engaging in any kind of electronic surveillance of the other party or the minor children; (6) using, consuming or possessing alcohol or nonprescription drugs in the presence of the minor children; (7) permitting an unrelated member of the opposite sex to reside on an overnight basis while the minor children are present; and (8) criticizing, demeaning, disparaging or placing either party in a negative light. The order also prohibited either party from using corporal punishment in disciplining the children or from removing the children from the state without written consent from the other party or by court order.
¶ 9 Raymond's attorney requested a single change—that the parties be permitted to have alcohol in the home, even if they were not permitted to drink it in the presence of the children. Catherine's attorney, however, objected to the order as a whole on the grounds that it infringed on Catherine's right to parent and communicate with her children. Her attorney asserted the minor children were having productive conversations with their mother, who encouraged the children to attend therapy sessions and to see their father, and the order would prevent the children from confiding in their mother about the divorce. After hearing from both sides, the trial court agreed to the change requested by Raymond and entered the order over Catherine's objection. On July 16, 2013, Catherine filed a notice of appeal.
¶ 11 As an initial matter, neither Raymond nor the children's representative filed a responsive brief. Because the record is not complex, and the claimed errors can be decided without the aid of an appellee's brief, we will decide this appeal on Catherine's brief alone. State Farm Mutual Insurance Co. v. Ellison, 354 Ill.App.3d 387, 388, 289 Ill.Dec. 936, 820 N.E.2d 1011 (2004).
¶ 12 A trial court may grant temporary relief in the nature of temporary maintenance or child support, preliminary injunctions, “or * * * other appropriate temporary relief. ” (Emphasis added and internal quotation marks omitted.) In re Marriage of Meyer, 197 Ill.App.3d 975, 978, 145 Ill.Dec. 472, 557 N.E.2d 242 (1990). “Section 501(a)(3) [of the Dissolution of Marriage Act] is an all-inclusive provision which allows a party to move for any other appropriate temporary relief, such as temporary custody; exclusive possession of the marital residence; sequestration of assets; and temporary attorney fees.” Id. “Temporary relief * * * is often in the form of neither a temporary restraining order nor a preliminary injunction.” Id.
¶ 13 In the initial stages of a dissolution proceeding, a trial court may enter temporary orders addressing custody of minor children and the terms of visitation with the noncustodial parent. The issue of visitation is governed by section 607(a) of the Act, which provides that “[a] parent not granted custody of the child is entitled to reasonable visitation rights.” 750 ILCS 5/607(a) (West 2012). The “trial court has broad discretion in fashioning the terms of visitation and those terms will not be overturned absent proof that the court has abused its discretion.” In re Marriage of Engelkens, 354 Ill.App.3d 790, 792, 290 Ill.Dec. 487, 821 N.E.2d 799 (2004). An abuse of discretion exists where no reasonable person would agree with the position of the trial court. Brax v. Kennedy, 363 Ill.App.3d 343, 355, 298 Ill.Dec. 994, 841 N.E.2d 137 (2005).
¶ 14 Shortly after initiating the dissolution proceedings, Raymond filed a petition to set a temporary parenting schedule. At the July 10 status hearing on that petition, the children's representative informed the judge the parties reached an informal agreement as to visitation, with some limitations on Raymond's family requested by the children. Although the court did not enter a formal visitation schedule as requested by Raymond's attorney, the court entered the order at issue, setting forth the terms and restrictions on each parent when the minor children are in their custody. The children's representative drafted the order. A children's representative is tasked with “advocat[ing] what [he or she] finds to be in the best interests of the child after reviewing the facts and circumstances of the case.” 750 ILCS 5/506(a)(3) (West 2012). The children's representative carries “the same authority and obligation to participate in the litigation as does an attorney for a party.” 750 ILCS 5/506(a)(3) (West 2012). Orders like the one here are a wise and often necessary tool that diligent and experienced...
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