In re Marriage of Bates

• Decision Date: 28 October 2004
• Docket Number: No. 97059.,97059.
• Citation: 212 Ill.2d 489,289 Ill.Dec. 218,819 N.E.2d 714
• Parties: In re MARRIAGE OF Norma Perez de BATES, Appellant, and R. Edward Bates, Appellee.
• Court: Illinois Supreme Court

819 N.E.2d 714

212 Ill.2d 489

289 Ill.Dec. 218

In re MARRIAGE OF Norma Perez de BATES, Appellant, and R. Edward Bates, Appellee.

No. 97059.

Supreme Court of Illinois.

October 28, 2004.

Paul L. Feinstein, Chicago, for appellant.

Joel D. Arnold, of Fortunato, Farrell, Davenport & Arnold, Ltd., Westmont (Robert G. Black, Naperville, of counsel), for appellee.

Alene Ross Levy, of Haynes & Boone, L.L.P., Houston, Texas, Pamela Harris, of O'Melveny & Myers, L.L.P., Washington, D.C., for amicus curiae Justice for Children.

Richard L. Ducote, New Orleans, Louisiana, amicus curiae pro se.

Justice KILBRIDE delivered the opinion of the court:

Following a lengthy hearing on the petition of Edward Bates to modify custody, the trial court terminated Norma Bates' custody of the minor child, awarded custody to Edward, and restricted Norma's visitation rights pending a professional evaluation. The court also denied Edward's petition to terminate unallocated maintenance and support based on an alleged continuing conjugal relationship between Norma and another man. Prior to the hearing, the court denied Norma's constitutional challenge to section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/506(a)(3) (West 2002)) and, at trial, read and relied on the written report of the child's representative appointed pursuant to that statute. Norma appealed, Edward cross-appealed, and the appellate court affirmed. 342 Ill.App.3d 207, 276 Ill.Dec. 618, 794 N.E.2d 868. We granted Norma leave to appeal. 177 Ill.2d R. 315. Edward seeks cross-relief. 155 Ill.2d R. 318. We now affirm.

BACKGROUND

The parties were granted a judgment of dissolution, incorporating a joint parenting agreement, on July 14, 2000. The agreement provided that the minor child, S.B., would reside primarily with Norma, subject to Edward's defined rights of visitation. The agreement mandated the "involvement and cooperation of both parents" in S.B.'s best interests, and both parents were ordered to use their "best efforts to foster the respect, love and affection of S.B. toward each parent" and to "cooperate fully in implementing a relationship with S.B. that would give her the maximum feeling of security that may be possible." The judgment further provided that Edward would pay unallocated family support to Norma until one of several described events, including the death of either party, the remarriage of Norma, or the cohabitation of Norma on a resident, continuing, conjugal basis as determined by a court after notice and a hearing.

On March 9, 2001, Norma filed a petition for modification of visitation and other relief, alleging that Edward had breached the joint parenting agreement and that S.B. was experiencing extreme anxiety and distress following contact with her father. She also requested appointment of a guardian ad litem pursuant to section 506(a) of the Act (750 ILCS 5/506(a) (West 2000)). In an agreed order, attorney John Bush was appointed as the child's representative. The record is silent as to why a child representative was appointed, rather than a guardian ad litem as requested by Norma.

On March 19, 2001, Edward petitioned the court for a rule to show cause why Norma should not be held in contempt for denying him all contact with S.B., including by telephone, beginning around January 1, 2001. Edward's petition claimed that Norma failed to discuss decisions regarding S.B.'s activities with him; that she unilaterally transferred S.B. to a different school without prior notice to or discussion with Edward; and that she repeatedly denigrated Edward in the presence of S.B. On May 15, 2001, Edward petitioned to modify the judgment for dissolution, including custody, asserting the same grounds as a willful violation of the judgment of dissolution and the joint parenting agreement. Edward also sought termination of the unallocated family support, alleging that Norma had cohabited on a resident, continuing, conjugal basis with another man. The matter was set for trial on all issues on December 19, 2001.

Pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West 2000)), the court appointed Dr. Gerald Blechman to evaluate the postjudgment visitation dispute and to make a recommendation for its resolution. After interviewing S.B., Dr. Blechman became concerned about her emotional stability and suggested to the court that she be referred to Dr. Roger Thatcher for therapy. Dr. Thatcher began his involvement as a therapist in September 2001.

On October 1, 2001, Dr. Blechman sent his evaluation to the court and to all attorneys, including the child's representative. The report recounted diagnostic interviews with S.B. and her parents, a collateral interview with Kristin La Scala (a daughter of Edward), and psychological testing administered to Norma and Edward. Dr. Blechman concluded that Norma had induced alienation of S.B. from her father and that this had taken a significant toll on S.B.'s mental health. He recommended immediate intervention to restore the father-daughter relationship. He suggested family therapy two or three times a week with Edward and S.B., and a strong admonishment to Norma to cooperate with the program, including ceasing any form of abuse allegations against Edward.

At the request of Edward, the court, pursuant to Supreme Court Rule 215 (166 Ill.2d R. 215), required Norma to submit to a psychological examination by Dr. Robert Shapiro. After conducting three clinical interviews and psychological testing on Norma in October and November 2001, Dr. Shapiro submitted his written report, admitted in evidence at trial. He concluded that most of the psychological testing was invalid because Norma's answers produced results indicative of an individual who is purposely trying to deceive and present herself as virtuous. He recounted that Norma reported she was afraid of Edward caring for S.B. because he was an alcoholic who was "always drunk."

Norma also reported that S.B. did not enjoy her visitations with Edward. At the time of his evaluation of Norma, S.B. had not visited her father since January 2001. Norma acknowledged that she called the police in Florida on three occasions while S.B. was visiting Edward there during the Christmas holiday in 2000 because she could not reach S.B. and was worried about her safety. Dr. Shapiro concluded that the presence of police during this vacation disrupted the quality of the vacation and served to remind S.B. of her mother's omnipotence. He could not confirm the existence of parent alienation because he had not evaluated the child, the child-father relationship, and the child-mother relationship.

At the request of Norma, the court appointed Dr. Patrick J. Kennelly, a licensed clinical psychologist with a practice in the treatment of alcoholism, to conduct an examination of Edward pursuant to Supreme Court Rule 215 (166 Ill.2d R. 215). He conducted three interviews with Edward in October 2001 and administered psychological testing and alcoholism screening tests. He furnished a written report, concluding that Edward had no evidence of psychological disorders and that the testing showed no indication of alcoholism.

The child's representative proceeded with an investigation and filed a written report with the court on November 19, 2001. The parties also conducted extensive discovery.

On January 11, 2002, the court ordered Dr. Blechman to conduct a reevaluation concerning whether the recommended steps were successful in improving S.B.'s relationship with her father. He filed an updated evaluation on January 24, 2002, concluding that Norma was still manipulating S.B. and recommending that sole custody of S.B. be given to Edward, with supervision of Norma's visitation by a professional familiar with parental alienation syndrome. He also recommended continued psychotherapy for S.B. and her father for the foreseeable future and strongly recommended that Norma seek psychotherapy.

Pretrial Motions

On December 14, 2001, Norma filed a number of motions. She moved to dismiss Edward's petition to modify custody pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2000)), alleging the failure of Edward to present affidavits establishing a reason to believe S.B.'s physical, mental, moral or emotional health was seriously endangered by the present environment, as required by section 610 of the Act (750 ILCS 5/610 (West 2000)).

Norma next filed a motion to bar the testimony of Dr. Richard Gardner, Edward's disclosed expert witness, on the ground that the subject matter of his testimony, parental alienation syndrome (PAS), did not meet the reliability requirements set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

Norma then filed a "motion to order child representative to testify or in the alternative to strike his recommendations and for declaratory judgment regarding the constitutionality of 750 ILCS 5/506." The motion claimed that Norma's right to due process of law would be denied if the child's representative were allowed to present his report with no attendant right to cross-examine him. The motion asked the court either to strike and disregard the recommendations of Mr. Bush, or to order him to submit to deposition and to testify in the case, or to declare the statute unconstitutional "on its face and/or as applied to Norma Perez."

Finally, Norma filed a motion pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2000)) to dismiss Edward's petition to modify custody on the ground that Edward had improperly asserted the physician-patient privilege when his physical and mental health were at issue.

Edward filed written responses to those motions, asserting, inter alia, that Norma had filed dispositive motions less than 63 days before trial, in violation of a local rule. The motions were called for hearing on the first day of trial and decided the following day.

On December 20, 2001, the court...