In re Marriage of Charous, No. 2-06-0084 (Ill. App. 9/13/2006)

• Decision Date: 13 September 2006
• Docket Number: No. 2-06-0084.,2-06-0084.
• Citation: 368 Ill. App. 3d 99,305 Ill. Dec. 437,855 N.E.2d 953
• Parties: In re MARRIAGE OF DAVID CHAROUS, Petitioner-Appellant, and JODI CHAROUS, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

368 Ill. App. 3d 99

855 N.E.2d 953

305 Ill. Dec. 437

In re MARRIAGE OF DAVID CHAROUS, Petitioner-Appellant, and JODI CHAROUS, Respondent-Appellee.

No. 2-06-0084

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

September 13, 2006, Filed

JUDGES: JUSTICE HUTCHINSON delivered the opinion of the court. BOWMAN and BYRNE, JJ., concur.

OPINION BY: HUTCHINSON

OPINION

JUSTICE HUTCHINSON delivered the opinion of the court:

Petitioner, David Charous, appeals from the trial court's judgment denying his petitions alleging visitation abuse and seeking a finding that respondent, Jodi Charous, was in indirect civil contempt of court for failing to comply with the visitation provisions of the parenting agreement incorporated into the parties' dissolution judgment. On appeal, David contends that (1) the trial court's denial of his petitions was against the manifest weight of the evidence, and (2) the trial court erred in denying his request for attorney fees pursuant to the provisions of the parties' parenting agreement as well as section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508(b) (West 2004)). We reverse and remand for further proceedings.

The parties were married on October 21, 1984. During the marriage, the parties had two children, Erica, born October 6, 1988, and Daniel, born June 12, 1993. On November 18, 2003, the trial court entered a judgment dissolving the parties' marriage. The dissolution judgment incorporated the terms of a parenting agreement entered into between the parties. Under the terms of the parenting agreement, Jodi was granted sole custody of the children, and David was granted visitation. The parenting agreement provided that the children were to visit David on alternating weekends and on every Wednesday evening. Weekend visitation was to begin at 5 p.m. on Friday and conclude at 7:30 p.m. on Sunday. The children were to be with Jodi and David alternatively on Passover, Memorial Day weekend, the Fourth of July, Labor Day, Rosh Hashanah, Yom Kippur, Thanksgiving, and summer and spring school vacations. The children were to be with Jodi on her birthday and Mother's Day and were to be with David on his birthday and Father's Day. The parenting agreement also contained provisions (1) requiring the parties to work together to resolve scheduling conflicts and to cooperate in rescheduling missed visits; (2) prohibiting the parties from withholding visitation because of nonpayment of support or other monetary disputes; (3) prohibiting each party from discussing in the presence of the children issues regarding the marital conflict or perceived deficiencies of the other parent in any regard; (4) prohibiting each party from making disparaging remarks about the other parent or "attempt[ing] to poison the children's minds"; (5) requiring the parties to cooperate in facilitating the disclosure of the children's grades, evaluations, and school records; (6) requiring the children to attend psychological therapy with Dr. Burns; and (7) requiring Jodi to consult with David prior to making any decisions regarding the children's extracurricular activities.

On May 21, 2004, David filed a verified petition for adjudication of indirect civil contempt of court. As subsequently amended, the petition alleged that Jodi had interfered with David's right to visitation with the children. The petition alleged that Jodi consistently "condoned or encouraged" the children to miss their visitation time with David. Specifically, the petition alleged that the children had refused to spend a single night at David's home since the parenting agreement was entered. The petition further alleged that Jodi violated the parenting agreement by regularly discussing in the presence of the children financial disputes between the parties and David's purported refusal to pay for certain expenses. The petition also alleged that Jodi had violated the parenting agreement by removing David's name from the "contact list" at Erica's school, which prevented David from being informed of Erica's grades and school events. The petition sought the entry of an order finding Jodi in indirect civil contempt of court and the entry of appropriate sanctions. The petition also sought the entry of an order requiring Jodi (1) to unconditionally support David's right to visitation and encourage the children to participate in visitation; (2) to desist from scheduling the children's extracurricular activities during David's scheduled visitation without first obtaining David's consent; (3) to refrain from discussing the parties' financial disputes in front of the children; (4) to execute all documents necessary for David to receive communications from the children's schools; and (5) to have the children ready and present when David is scheduled to pick them up for his visitation. David also requested an award of attorney fees and costs incurred in prosecuting the petition.

On May 12, 2005, David filed a petition pursuant to section 607.1 of the Act (750 ILCS 5/607.1 (West 2004)), alleging visitation abuse. The petition alleged that Jodi had willfully and without justification denied him visitation as set forth by the provisions of the parenting agreement. The violations alleged were similar to those alleged in the previously filed amended petition for adjudication of indirect civil contempt of court. The petition sought the entry of an order (1) entitling David to make-up visitations for missed visits that were the result of Jodi's interference and encouragement of the children to miss visitation with David; (2) requiring Jodi to no longer permit or encourage the children to miss visitation; (3) requiring Jodi to refrain from scheduling extracurricular activities for the children during David's scheduled visitation without first obtaining David's consent; and (4) requiring Jodi to have the children ready and present when David is scheduled to pick them up for visitation. The petition also requested an award of attorney fees and costs incurred in prosecuting the petition.

On May 12, 2005, the trial court conducted an in camera interview of the parties' children. Transcriptions of these interviews appear in the record on appeal, and we will not detail the children's testimony here. We limit our comments to the observation that both children expressed negative feelings about David and indicated that they did not wish to visit him. On June 6, 2005, the trial court entered an order requiring the parties' children to fully comply with the visitation schedule contained in the parenting agreement. The trial court's order further provided that the children's noncompliance with the order would subject them to sanctions.

On October 21, 2005, the trial court conducted a hearing on David's petitions alleging visitation abuse and seeking a finding of contempt. During the hearing, David called Jodi as an adverse witness. Jodi testified that she always had the children ready for visitation with David. Jodi testified that the children did visit David every Wednesday night unless David canceled the visit. Jodi testified, however, that the children sometimes did not want to visit David and that they would not always go to see him for weekend visitation. Jodi testified that, on these occasions, she made the children call David to tell him that they did not want to visit him. Jodi testified that David nonetheless would drive to her house to pick up the children even when the children had already called to tell him that they were not coming. Jodi testified that she has previously punished Daniel for refusing to visit David by making him stay in his room and taking away his video games.

Jodi testified that Thanksgiving 2003 was the first weekend that the children went to visit David under the parenting agreement. During the weekend, Erica called Jodi from David's house and stated that she was upset and that she did not want to spend the night. David later had a telephone conversation with Jodi and told her not to come to David's house. Jodi nonetheless went to David's house and asked to come inside. Jodi testified that the children were "hovering" in a corner, crying and yelling that they wanted to leave the house. Jodi testified that David and David's mother were yelling back at the children. David told Jodi that everything was alright and asked her to leave the house, but she refused to leave unless she could take the children with her. Jodi acknowledged that the children had never stayed overnight at David's house since that incident.

Jodi further testified that she once planned a surprise birthday party for Erica to take place during a weekend that the children were scheduled to visit David. Jodi never told David about the party and she did not invite him. Jodi also acknowledged that David once asked to reschedule a Wednesday evening visitation because he was having a medical procedure. Jodi refused the request because the children were busy on the day that David wanted to reschedule. Jodi testified that the children were busy with extracurricular activities and that "they have something to do probably every day of the week." Jodi testified that she was responsible for deciding whether the children would be involved in extracurricular activities and that she permitted the children to be involved in these activities even though they interfered with David's visitation. Jodi also admitted that she once told David that, if he did not pay for Erica's "MYA trip" to Philadelphia, she would tell Erica that it was David's fault that she could not go. Jodi also admitted that she once told David that if he wanted Erica to cancel a babysitting commitment so that she could visit him, he would have to reimburse Erica for the wages she would have earned babysitting. Jodi also acknowledged that, on December 8, 2004, she wrote a letter to Erica's school, instructing that David should be "taken off any list as a contact person or legal guardian." Jodi...