In re Knoll

• Decision Date: 30 September 2016
• Docket Number: No. 1–15–2494.,1–15–2494.
• Citation: 65 N.E.3d 878,408 Ill.Dec. 402
• Parties: In re MARRIAGE OF Mary Beth KNOLL, f/k/a Mary Beth Coyne, Petitioner–Appellant and Cross–Appellee, and Roy J. COYNE, Jr., Respondent–Appellee and Cross–Appellant.
• Court: United States Appellate Court of Illinois

65 N.E.3d 878

408 Ill.Dec. 402

In re MARRIAGE OF Mary Beth KNOLL, f/k/a Mary Beth Coyne, Petitioner–Appellant and Cross–Appellee, and Roy J. COYNE, Jr., Respondent–Appellee and Cross–Appellant.

No. 1–15–2494.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 30, 2016.

Rehearing Denied Nov. 18, 2016.

Benton H. Page, Pamela J. Hutul, and Mile Knabe, of Davis Friedman, LLP, of Chicago, for appellant.

Paul L. Feinstein, of Paul L. Feinstein, Ltd., of Chicago, for appellee.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 The instant appeal arises from the trial court's finding that petitioner Mary Beth Knoll was in civil contempt for depriving respondent Roy Coyne, Jr., of his visitation rights with their minor child following the dissolution of the parties' marriage. On appeal, Mary Beth argues that the trial court's finding of civil contempt was erroneous, while in his cross-appeal, Roy argues that the trial court erred in finding that certain of Mary Beth's conduct was not contemptuous. For the reasons that follow, we vacate the civil contempt finding but affirm the trial court's finding of visitation abuse and its order of make-up visitation.

¶ 2 BACKGROUND

¶ 3 I. Dissolution of Marriage and Joint Parenting Agreement

¶ 4 On January 15, 2003, Mary Beth filed a petition for dissolution of marriage, alleging that irreconcilable differences had caused an irretrievable breakdown of the marriage. The petition alleged that Mary Beth was pregnant, with the anticipated due date of March 29, 2003, and sought sole care, custody, control, and educational responsibility of the child.

¶ 5 The record indicates that the parties' son was born on April 10, 2003, and on April 17, 2003, the trial court entered a judgment for dissolution of marriage, which incorporated a marital settlement agreement and joint parenting agreement entered into by the parties. The joint parenting agreement provided that the parties would have joint legal custody of the child, with Mary Beth retaining the physical possession and primary residence of the child. The joint parenting agreement further set forth a visitation schedule and included a provision providing that "[t]he parents agree to be flexible in implementing the visitation program and, should a parent miss a scheduled visitation time for a valid reason, the parents shall attempt to ‘make-up’ the lost time by agreement."

¶ 6 The parenting agreement and visitation schedule were modified a number of times over the years, including on June 7, 2007, when Mary Beth was granted sole custody of the child. At the time of the civil contempt proceedings at issue in the instant case, the visitation schedule had been modified by a December 16, 2011, agreed order and provided, in relevant part:

"a. * * * [Roy] shall have unsupervised parenting time with [the child] every other weekend beginning on Friday at 3:15 p.m. and shall conclude Sunday at 4:00 p.m.

d. ROY will have [the child] for 10 consecutive days every summer from the third Friday in June at 5:00 pm until the Sunday 10 days later at 4:00 pm and such other times as the parties may agree in writing.

* * *

f. * * *

* * *

ii. Every year ROY shall have [the child] on New Year's Day from 9:00 am until January 2 at 6:00 pm.

iii. Every year Roy shall have [the child] from December 28 at 9:00 am until December 31 at 5:00 pm."

Additionally, one provision of the original visitation schedule that had not been amended was a provision providing that Roy was entitled to parenting time with the child until 8 p.m. on Father's Day.

¶ 7 II. Petition for Visitation Abuse

¶ 8 On July 14, 2014, Roy filed several motions and petitions before the trial court, namely, (1) a motion to modify the parenting schedule, (2) a petition to enroll the child in therapy, and (3) a "Verified Petition for Finding of Visitation Abuse, Indirect Civil Contempt and Other Relief." It is the third petition that is at issue on appeal.

¶ 9 1. Petition

¶ 10 With respect to the petition for a finding of visitation abuse and indirect civil contempt, which is the petition at issue on appeal, count I of the petition was for visitation abuse and alleged that Mary Beth had violated the court orders concerning Roy's visitation with the child, who was now 11 years old, in a number of ways. First, under the heading "Missed Parenting time," the petition alleged that during Father's Day weekend 2014, Mary Beth contacted Roy to inform him that the child was not feeling well and that Roy would not be able to retrieve the child for his parenting time. However, the following day, the child texted Roy and informed him that he had recovered and was able to play in his baseball game later that day. When Roy requested make-up time for the missed Father's Day weekend visitation, Mary Beth responded that " ‘[the child] didn't want to go with you, he is more than willing to discuss that with the Judge,’ " and would not agree to provide Roy with make-up time. The petition alleged that Mary Beth also refused to respond to Roy's request for make-up time for Roy's missed parenting time from December 28, 2013, to December 31, 2013, and January 1, 2014, to January 2, 2014.

¶ 11 Next, under the heading "Violation of Reasonable Telephone Access," the petition alleged that in January 2014, Roy was unable to communicate with the child for a period of six days, with the child not responding to Roy's texts and phone calls and Mary Beth not facilitating any communication between Roy and the child during that time period. The petition further alleged that "[a]s a regular occurrence during MARY BETH's parenting time," the child would not return Roy's phone calls or text messages. However, the child had his phone with him at all times during Roy's parenting time and was "very protective of his phone." The petition also alleged that, upon information and belief, during Roy's parenting time, Mary Beth "incessantly" called and texted the child at least 10 to 15 times a day on the child's cell phone to ask if he wanted to come home and had advised him " ‘don't let your dad take your phone.’ "

¶ 12 Under the heading "Loss of Opportunity to Vacation with Minor Child Due to Unreasonable Notice of Extracurricular Activities," the petition alleged that Mary Beth provided notice of the child's extracurricular activities one day prior to Roy's scheduled vacation time, when Roy had planned to take the child to Wisconsin during Roy's only scheduled period of summer vacation time with the child. The petition further alleged that, upon information and belief, Mary Beth advised the child that he would be allowed to attend his activities while exercising vacation time with Roy. The petition alleged that the child's scheduled activities occurred during the entire period of Roy's summer vacation period and, in light of this, Roy was unable to take the child to Wisconsin and Mary Beth would not agree to permit Roy to have any additional vacation time in order to take the child to Wisconsin.

¶ 13 Finally, under the heading "Not Mentally Preparing the Child for Visitation and Attempting to Prevent ROY from exercising his parenting time with [the child]," the petition alleged that on Friday, June 20, 2014, when Roy attempted to retrieve the child for his vacation parenting time, Mary Beth called the police in an attempt to stop Roy from taking the child. The petition further alleged that in the presence of police officers, Mary Beth continually asked the child if he wanted to go with Roy and told him that if he did not, he could stay at home. The petition alleged that the child indicated he wanted to leave with Roy and, after a period of 20 minutes, the child was allowed to leave with Roy.

¶ 14 Count I of the petition alleged that Roy was requesting make-up parenting time for his missed parenting time (1) on Father's Day weekend and (2) from December 28, 2013, to January 2, 2014, and also requested additional time in the summer to exercise vacation parenting time with the child. The petition further requested that the child be required to engage in therapy or counseling and that Mary Beth be required to facilitate at least one phone call per day from the child to Roy. Count I of the petition requested an order: (1) finding Mary Beth in civil contempt for visitation abuse, (2) entering a rule to show cause against Mary Beth requiring her to show cause why she should not be held in indirect civil contempt for her failure to comply with the court orders concerning visitation, (3) ordering the child to attend therapy, (4) ordering Roy to be allowed make-up parenting time for the missed visitation dates, (5) ordering Mary Beth to facilitate at least one phone call per day from the child to Roy, and (6) ordering attorney fees and costs for the preparation and presentation of the petition.

¶ 15 Count II of the petition was for indirect civil contempt and realleged the same factual allegations concerning visitation as in count I. Count II also alleged that Mary Beth violated several additional provisions of the judgment for dissolution of marriage. First, under the heading "Lack of Information concerning [the child's] Medical Issues," the petition alleged that on January 2, 2014, the child underwent a medical procedure, but Mary Beth did not inform Roy of the procedure until she contacted him on February 28, 2014, to seek payment for the procedure. Additionally, under the heading "Inability to Foster a Loving Relationship Between the Minor Child and Roy," the petition alleged that on June 20, 2014, when Roy arrived at Mary Beth's residence to pick up the child for his vacation time, Mary Beth repeatedly asked the child if he wanted to go and told him that he did not have to go with Roy if he did not want to go; she continued asking him despite the child indicating that he wanted to leave with Roy. The petition also alleged that Mary Beth called the police and refused to allow Roy to leave with the child until the police...