In re Marriage of Kneitz

• Decision Date: 16 July 2003
• Docket Number: No. 2-02-0807.,2-02-0807.
• Citation: 276 Ill.Dec. 229,341 Ill. App.3d 299,793 N.E.2d 988
• Parties: In re MARRIAGE of John M. KNEITZ, Petitioner-Appellee, and Kimberly F. Kneitz, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

793 N.E.2d 988

341 Ill. App.3d 299

276 Ill.Dec. 229

In re MARRIAGE of John M. KNEITZ, Petitioner-Appellee, and

Kimberly F. Kneitz, Respondent-Appellant.

No. 2-02-0807.

Appellate Court of Illinois, Second District.

July 16, 2003.

Michael C. Poper, Michael C. Poper, P.C., Woodstock, for John M. Kneitz.

Michael Bercos, Robert O. Ackley, Law Offices of Robert O. Ackley, Mundelein, for John M. Kneitz.

Justice BYRNE delivered the opinion of the court:

The circuit court found respondent, Kimberly F. Kneitz, in indirect civil contempt of court for failing to make her children available for visitation with petitioner, John M. Kneitz. Respondent appeals, contending that she did not wilfully violate the court's order because another order issued by a Louisiana court forbade her from allowing the visitation. We affirm.

The parties were married in Louisiana in 1992 and had two children together. In January 2001, the family was living in Illinois, where petitioner was stationed at Great Lakes Naval Training Base. On about January 15, 2001, respondent and the children moved to Louisiana. On January 31, 2001, petitioner filed his petition to dissolve the parties' marriage.

Respondent filed a general appearance. Although the record of this portion of the proceedings is incomplete, it appears that the trial court awarded respondent custody of the children, allowed her to remove them to Louisiana, and gave petitioner visitation.

Respondent subsequently petitioned the trial court to suspend or restrict petitioner's visitation, alleging that he had sexually abused one of the children. Following a hearing, the trial court denied the petition. On November 20, 2001, the court ordered that petitioner have visitation with the children in Louisiana from December 6-8, 2001. On December 5, 2001, respondent filed a petition in the district court of Jefferson Parish, Louisiana, to modify the custody and visitation orders. The verified petition referred to the hearing conducted in McHenry County. The petition alleged that the Illinois court "ruled that [a] DCFS report was inadmissible under Illinois' hearsay laws. This determination precluded the introduction of key information and findings necessary to support the allegations of sexual abuse." According to the petition, the court excluded hearsay statements one of the children made. The petition further alleged that, as a result of those rulings, "and without requiring further investigation or counseling," the court denied the request to suspend visitation.

That day, the Louisiana court issued an ex parte order "suspending the execution of any visitation orders" granting petitioner visitation, specifically including the November 20, 2001, order. The Louisiana court ordered petitioner to show cause on December 13, 2001, why his visitation should not be "suspended and/or supervised."

Petitioner was personally served with notice of the Louisiana proceeding but did not appear. Instead, he filed in Illinois a petition for a rule to show cause why respondent should not be found in contempt of court for failing to abide by the November 20 visitation order. On December 12, 2001, the Illinois court enjoined respondent from filing or continuing any proceedings in Louisiana relating to the parties' children, other than "a proceeding which solely concerns the issue of jurisdiction of the parties' said minor children under the Uniform Child Custody Jurisdiction Law."

At a hearing, respondent testified that the December 5, 2001, order was entered following a recommendation of a counselor at the Metropolitan Battered Women's Shelter in New Orleans. Earlier, respondent had learned from the Illinois Department of Children and Family Services (DCFS) of an "indicated" report of sexual abuse by petitioner. She believed that DCFS would find her "in neglect of [her] children" if she allowed petitioner to have visitation.

On cross-examination, respondent testified that she attended the November 20 hearing in McHenry County. She acknowledged that several witnesses testified, including Lorena Guidry of the Metropolitan Battered Women's Program of New Orleans; Catherine Loisel of the Great Lakes Family Support Center; Gary Keyser, a Louisiana assistant Attorney General; and Kaylyn Marie Dueker of the Navy Criminal Investigative Service. Jim Schaefgas of DCFS also testified.

Respondent denied that the Louisiana petition was the "same petition" she had filed in Illinois. She testified that after she returned to Louisiana, she received "a couple additional pieces of information" that "confirmed some of the [earlier] allegations." These included an opinion from one counselor that visitation would not be good for her son's emotional state. Respondent was unable to identify any other new information in the petition she filed in Louisiana.

The trial court found that respondent wilfully violated the November 20 visitation order. Addressing respondent's contention that she was subject to conflicting orders, the court stated that "the situation that you find you're in is entirely something you initiated." The court deemed the Louisiana order an "excuse" not to comply with the earlier order, likening respondent's situation to a parent who quits his job and then argues that he is unable to pay child support. The court sentenced respondent to 180 days in jail, but provided that she could purge the contempt by making the children available in Illinois for three consecutive days of visitation. Respondent timely appealed. This court stayed the respondent's sentence pending appeal.

On appeal, respondent contends that the trial court's finding that she wilfully violated the November 20 visitation order is against the manifest weight of the evidence. She argues that she reasonably believed that the Louisiana order prevented her from making the children available for visitation. Alternatively, she contends that the purge provision is not an effective one because complying with it would subject her to a contempt finding in Louisiana.

Whether a party has committed indirect civil contempt is a question of fact for the trial court, and its decision will not be overturned on appeal unless it is against the manifest weight of the evidence. In re Marriage of Scott, 286 Ill. App.3d 1056, 1059, 222 Ill.Dec. 594, 678 N.E.2d 1 (1996). When the facts are not in dispute, their legal effect may be a question of law, but if divergent inferences could be drawn from the undisputed facts, a question of fact remains and the manifest weight of the evidence standard applies. Busey Bank v. Salyards, 304 Ill.App.3d 214, 217, 238 Ill.Dec. 197, 711 N.E.2d 10 (1999).

Here, the record supports the trial court's finding that respondent wilfully did not comply with the November 20, 2001, visitation order. Respondent does not contend that she was unaware of the order or did not understand what it required. The only question, then, is whether the Louisiana order excused respondent's noncompliance. The record supports the trial court's finding that respondent intentionally procured the Louisiana order as an "excuse" not to follow the order with which she disagreed.

Although respondent was apparently unhappy with the order requiring visitation, she did not challenge the Illinois order by seeking a stay, asking the trial court to reconsider, or pursuing an appeal. Instead, the day before the visitation was to occur, she filed a petition in Louisiana and procured an ex parte order prohibiting the visitation. She did not advise petitioner of the proceeding until after that order was issued. Although respondent would not concede that the Louisiana petition was "the same petition" she filed in Illinois, she was vague and evasive when asked what was different about it. Respondent acknowledged that petitioner had no contact with the children between November 21 and December 5. At most, the petition contained some additional opinions from one of the children's counselors that "confirmed" some of respondent's earlier allegations.

Rather than challenge the McHenry County court's order by one of the procedures that Illinois provides for that purpose, respondent waited until the eleventh hour to procure an order in a distant (for petitioner) forum without prior notice to petitioner, thus virtually assuring that the visitation would not take place on the scheduled dates. This conduct evinces an intentional violation of the Illinois court's order.

Respondent contends, however, that she could not comply with the McHenry County court's order because doing so would subject her to being held in contempt of court for violating the Louisiana court's order forbidding visitation. It is true that the inability to comply with a court order precludes a finding of contempt. County of Cook v. Lloyd A. Fry Roofing Co., 59 Ill.2d 131, 137, 319 N.E.2d 472 (1974). Accordingly, there can be no contempt finding where compliance with an order would require a party to violate the law. Abbott v. Abbott, 129 Ill.App.2d 96, 100, 262 N.E.2d 502 (1970); 12 Ill. L. & Prac. Contempt § 34, at 53 (1983). However, the contemnor may not assert her inability to comply where she has voluntarily created the incapacity. Lloyd A. Fry, 59 Ill.2d at 137,319 N.E.2d 472. The burden is on the alleged contemnor to show that her noncompliance was not contumacious and that she had a valid excuse for not complying. In re Marriage of Tatham, 293 Ill.App.3d 471, 480, 228 Ill. Dec. 166, 688 N.E.2d 864 (1997).

Here, it is clear that respondent was responsible for creating the condition—the Louisiana order—that she now claims makes her compliance with the Illinois order impossible. Respondent appears to contend that the Louisiana court validly took jurisdiction of the matter from Illinois and, therefore, properly modified the Illinois custody decree. We disagree.

The Uniform Child Custody Jurisdiction Act (the Jurisdiction Act) has been adopted in both Illinois and Louisiana. See 750 ILCS 35/1 et seq. ...