In re Marriage of Kopecky
| Docket Number | 4-22-0548 |
| Decision Date | 02 May 2023 |
| Citation | 2023 IL App (4th) 220548 U |
| Parties | In re MARRIAGE OF TRACEY SIMS KOPECKY, Petitioner-Appellee, and MATTHEW P. KOPECKY, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Sangamon County No. 19D374 Honorable Matthew Maurer, Judge Presiding.
¶ 1 Held: The appellate court affirmed the trial court's order allocating parenting time and decision-making responsibilities, dividing marital assets and ordering payment of attorney fees because the order was not against the manifest weight of the evidence.
¶ 2 Petitioner, Tracey Sims Kopecky, and respondent, Matthew P. Kopecky, were married in 2015 and had twin children during the marriage, Au. K. and Al. K. (born June 2018). In June 2019, Tracey filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2018)).
¶ 3 In May 2022, the trial court entered an order (1) dividing the marital estate between the parties, (2) allocating primary decision-making and the majority of parenting time to Tracey, (3) deciding Matthew would be responsible for child support, (4) denying maintenance to either party, and (5) requiring Matthew to pay some of Tracey's attorney fees.
¶ 4 Matthew appeals, arguing the trial court's order was against the manifest weight of the evidence. Matthew contends the court erred by (1) allocating primary parenting time and parental responsibilities to Tracey, (2) failing to equitably divide marital assets, (3) ordering Matthew to pay Tracey's attorney fees, and (4) violating his due process rights. We disagree and affirm the court's order.
¶ 7 In June 2019, Tracey filed a petition for dissolution of marriage, alleging that the parties had twin boys during the marriage, Au. K. and Al. K. Tracey lived in Sherman, Illinois, and was self-employed as a dance instructor. Matthew lived in Glen Carbon, Illinois, and was employed full-time as a financial advisor. The petition alleged that no agreement existed regarding (1) support, (2) allocation of parental responsibilities, or (3) maintenance.
¶ 8 That same month, Tracey petitioned for temporary relief, asking the trial court to grant her, among other things, (1) "temporary primary significant decision-making authority regarding the children and the majority of parenting time with the minor children," (2) temporary maintenance, (3) temporary child support, and (4) interim attorney fees and costs.
¶ 9 In July 2019, the trial court entered an agreed upon temporary order. Regarding the children, Tracey and Matthew agreed to "observe a temporary, non-prejudicial schedule," which gave Tracey the majority of parenting time. Regarding parenting time, the agreed order remained in effect largely unchanged for the duration of the dissolution proceedings.
¶ 10 In September 2019, the trial court entered a temporary maintenance, child support, and contribution toward interim attorney's fees order in favor of Tracey. The court found "that an award of attorney's fees from the [sic] Matthew to Tracey is necessary to allow Tracey to adequately participate in the litigation and level the playing field." The court also ordered a custodial evaluation at Matthew's expense.
¶ 11 In February 2022, Matthew filed a notice of intent to claim dissipation of marital assets, asking, among other things, that the trial court recognize approximately $20,000 in loans that Matthew provided to Tracey to pay her premarital debts before she moved out of the marital residence. Later in February, Tracey filed a motion to strike the notice of intent to claim dissipation of marital assets. The court denied Tracey's motion as to the premarital debt claim but granted her motion as to the remaining dissipation claims.
¶ 13 In March and April 2022, the trial court conducted hearings on the petition for dissolution of marriage. The court heard testimony from Tracey, Matthew, Jennifer Howard (Tracey's sister), and Dr. Brian Heatherton, who performed a custody evaluation of the parents. The parties also presented numerous exhibits to the court, including the results of the custody evaluation, various invoices, text messages, e-mails, financial documents, and personal affidavits.
¶ 14 In May 2022, the trial court entered a written order in which it, relevant to this appeal, (1) granted Tracey primary decision-making authority and majority parenting time, (2) divided the marital assets, (3) ordered Matthew to pay Tracey's attorney fees, and (4) set forth a summary of the evidence presented, which we note is consistent with the record. Regarding the parties' testimony,
¶ 15 Because the parties do not dispute the evidence that was presented, just the weight the court gave to the evidence in reaching its conclusions, we will set forth only the relevant parts of the trial court's order.
¶ 17 The trial court first addressed decision-making authority, noting that it considered the statutory best interest factors listed in section 602.5(c) of the Act (750 ILCS 5/602.5(c) (West 2020)) when determining allocation of parental responsibilities. Relevant to this appeal, the court made the following findings regarding those statutory factors.
¶ 18 The children were well adjusted to Tracey's home and the community, at which they had lived for the majority of their lives, attending school, speech therapy, church, and recreational events. The court noted that, although the twins were also well adjusted to their home with Matthew, they would have to relocate from Sherman to Glen Carbon to reside with Matthew.
¶ 19 Tracey had attention-deficit/hyperactivity disorder, for which she took medication, and high blood pressure. Both parents had problems with alcohol consumption. Al. K. had seizures and both twins had severe speech issues. Heatherton's report indicated that Matthew may be seen as demanding, with a history of alcohol abuse, and Tracey had a rigid personality, tending to present herself in a favorable light. Heatherton opined that the children should remain with Tracey because they were heading into kindergarten and would benefit from the continuation of one home environment.
¶ 20 The parties were not able to effectively cooperate to make joint parenting decisions. However, "Tracey took the steps necessary to place the children in pre-school and provided the information to Matthew," selecting "a two-day [pre-school] program to accommodate Matthew's parenting time." She also secured speech therapy for the children. Both programs were positive for the twins. Both parents obtained medical treatment for the children, appropriate services as needed, and were attentive to the needs of the children. The twins' needs were well met by both parents.
¶ 21 Tracey lives 1 hour and 15 minutes' drive from where Matthew lives, and the parties had cooperated in transporting the children for custodial exchanges. The trial court noted that Tracey's decision to relocate from the marital residence to a different city "did not evidence a willingness to facilitate and encourage a close and continuing relationship between Matthew and the twins." However, the move allowed her to be close to her family, who the court found were a good support system for the twins. After her relocation, Tracy facilitated and encouraged a close and continuing relationship between Matthew and the twins, speaking of Matthew in "encouraging and positive terms."
¶ 22 The trial court found that (1) Matthew presented no testimony or evidence of similar actions on his part to facilitate and encourage a close and continuing relationship between Tracey and the twins, (2) Tracy had "the willingness and ability to facilitate and encourage a close and continuing relationship between Matthew and the twins," and (3) Tracey had "appropriately exercised decision-making with respect to medical care, speech therapy, pre-school and the other issues relating to the twins."
¶ 23 Ultimately, the trial court gave Tracey significant decision-making authority.
¶ 25 Regarding parenting time, the trial court considered the factors listed in section 602.7 of the Act (id. § 602.7), finding, in addition to what the court found regarding decisionmaking responsibilities, the following:
¶ 26 Prior to the parties' separation, they each were actively involved in taking care of the twins. Once the parties separated, Tracey was primarily responsible for the twins' care. The parties followed the agreed parenting schedules set in the July 2019 order. Tracey's sister testified that she and the maternal grandmother had family get-togethers and had a good relationship with the twins. Matthew testified that his parents would visit from Wisconsin and his brother would visit from the St. Louis area when he had custody. The court found that Tracey's family was a resource for babysitting and her schedule was flexible when necessary. Matthew did not possess that same flexibility, having a demanding and time-intensive job. Tracey was also willing to compromise-for example, she wanted the twins to attend preschool five days a week, but she chose only two days so as not to interfere with Matthew's parenting time. The children were doing...
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