In re Petrik
| Decision Date | 19 July 2012 |
| Docket Number | No. 2–11–0495.,2–11–0495. |
| Citation | 2012 IL App (2d) 110495,362 Ill.Dec. 374,973 N.E.2d 474 |
| Parties | In re MARRIAGE OF Lynne PETRIK, Petitioner, and Edward Petrik, Respondent–Appellant (Daniel F. O'Connell, Guardian ad litem–Appellee). |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Edward Petrik, Elburn, appellant pro se.
Daniel F. O'Connell, Attorney at Law, Geneva, appellee pro se.
[362 Ill.Dec. 376]¶ 1 Pro se respondent, Edward Petrik, appeals from orders (1) reappointing attorney Daniel F. O'Connell as the guardian ad litem (GAL) in Lynne and Edward Petrik's dissolution-of-marriage proceeding; (2) denying Edward's motion to discharge O'Connell as GAL and to strike his GAL report; (3) granting O'Connell's petitions for GAL fees; and (4) denying Edward's petition for sanctions against O'Connell pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). For the following reasons, we affirm in part, reverse in part, and remand.
¶ 3 Lynne and Edward were married in September 1997 and had two children, Michael and Jacob. Lynne filed for divorce, and in April 2007 the court entered a judgment of dissolution, which incorporated the parties' marital settlement agreement (MSA) and joint parenting agreement (JPA). Lynne was awarded sole custody and Edward was awarded reasonable visitation.1 Shortly thereafter, the parties filed against each other petitions for rule to show cause, alleging violations of various provisions of the MSA and the JPA. Edward also petitioned to modify visitation and to appoint a GAL. The court appointed O'Connell as GAL.
¶ 4 On June 11, 2008, the court entered an order in which Lynne and Edward agreed to modify the visitation provisions of the MSA and the JPA. The modified visitation schedule, which was based at least in part on Edward's work schedule, required a complicated process of corresponding back and forth each month to set the following month's visitation schedule. The order also stated that the parties “agree and have stated to the G.A.L. that there are no pending issues that have not been addressed with the G.A.L., and both parties agree to withdraw their pending petitions.” The order further provided that the parties “agree that they will not file additional petitions relating to the children without first going to mediation” and that they “agree to use Dan O'Connell as an ongoing mediator in this case.”
¶ 5 Following entry of the June 11, 2008, order, the parties litigated O'Connell's GAL fees, which were resolved by an order entered November 8, 2008. At that point, no petitions or other issues remained pending before the court.
¶ 6 On March 17, 2009, O'Connell filed a motion entitled, “Motion to Compel Parents' Cooperation with GAL.” He alleged that he had been appointed GAL in the dissolution action and, at the request of the parents, had continued to investigate matters involving the children. He further alleged that, on March 2, 2009, at the request of the children's therapist, he had observed one of Michael's therapy sessions. Based on his observations and on conversations with the therapist, with Michael's physician, and with Lynne, O'Connell believed that there was cause to be concerned for Michael's welfare. He stated that Michael was suffering from a gastrointestinal condition and that Michael's physician had opined that the condition was stress-related. O'Connell concluded that it was in Michael's best interest that the matter be investigated.
¶ 7 O'Connell appeared before Judge Kostelny on March 26, 2009, for a hearing on his motion, even though his notice of motion had indicated that the motion would be heard on March 27, 2009. No one else appeared, and Judge Kostelny granted O'Connell's motion. O'Connell nevertheless appeared the next day before Judge Grady, who was hearing Judge Kostelny's court call. Judge Grady vacated the prior day's order and conducted a new hearing on O'Connell's motion with all parties present. In his written order granting the motion, Judge Grady stated that “O'Connell will continue to serve as GAL.” The court granted O'Connell full access to the children's medical, mental-health, and educational records, and ordered the parents to cooperate with O'Connell during his investigation. Otherwise, the order did not specify the tasks expected of O'Connell as GAL. Although the record does not contain a transcript from the hearing, we know from the record that Edward opposed O'Connell's motion. 2
¶ 8 Nothing else took place in the matter until September 15, 2009, when O'Connell filed a GAL report. In his report, O'Connell concluded, based on information received from Michael's gastroenterologist, that Michael's condition was in no way stress-related. Nevertheless, O'Connell went on to report, he had received a letter from the children's therapist, dated July 30, 2009, in which the therapist surmised that Michael “turns his feelings inward and was having significant physical problems as a result.” The therapist further suggested that the current visitation schedule was “confusing for the children, who have been traumatized as a result of the conflicted divorce,” and she recommended a traditional visitation schedule consisting of alternating weekends. O'Connell adopted the therapist's recommendation and concluded that a change in visitation would “improve the stability and predictability of the boys' schedule with their parents, better provide for a consistent home environment on school nights[,] and decrease the opportunities for conflicts between the parents.”
¶ 9 On November 23, 2009, based upon O'Connell's GAL report, Lynne filed a petition to modify visitation. As O'Connell had recommended, Lynne sought modifications of the MSA and the JPA to provide for a traditional visitation schedule of alternating weekends.
¶ 10 Edward filed a motion to discharge O'Connell as GAL and to strike his GAL report. Edward argued, among other things, that the June 11, 2008, order, which resolved all pending issues in the dissolution proceeding, effectively discharged O'Connell as GAL and that it had been improper to reappoint him on March 27, 2009.
¶ 11 While his motion to discharge O'Connell was pending, Edward filed a petition to modify custody. He alleged, among other things, that Lynne had interfered with his visitation and telephone contact with the children. Edward sought custody of the children with visitation to be awarded to Lynne.
¶ 12 At the February 24, 2010, hearing on Edward's motion to discharge O'Connell, Judge Kostelny agreed with Edward that the June 11, 2008, order had effectively discharged O'Connell as GAL, pursuant to a circuit court rule that provided that, “[u]nless previously discharged, the final order disposing of the issues resulting in the appointment shall act as a discharge of the court-appointed * * * Guardian ad Litem.” 16th Judicial Cir. Ct. R. 15.20( l ) (Apr. 12, 2007). Referencing another section of the local rule, the court admonished the parties that it had been improper to use O'Connell as a mediator. See 16th Judicial Cir. Ct. R. 15.20(f) (Apr. 12, 2007) (). Nevertheless, the court found that the March 27, 2009, order “reappointed essentially” O'Connell as GAL. The court denied Edward's motion to discharge O'Connell and entered another order reappointing O'Connell as GAL and directing him to address the issues raised by the parties' pending petitions. The reappointment order included the following language:
¶ 13 O'Connell conducted an investigation and filed a second GAL report on June 2, 2010, in which he recommended maintaining sole custody with Lynne. Following other developments in the case, including the filing of a custody evaluation pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/604(b) (West 2008)), in which the evaluator recommended granting Edward custody, the parties reached an agreement. On November 8, 2010, the court entered a modified JPA, which awarded joint custody to Lynne and Edward and provided for equal parenting time, with the children spending alternating weeks with each parent.
¶ 14 Following entry of the agreed order, the focus of the litigation shifted to O'Connell's GAL fees. O'Connell filed fee petitions for his work as GAL after March 27, 2009. Edward opposed the petitions on the same basis that he had opposed O'Connell's reappointment on March 27, 2009, arguing that O'Connell was not entitled to GAL fees after June 11, 2008, because he had never properly been reappointed as GAL. Edward also filed a petition for sanctions against O'Connell pursuant to Rule 137, alleging, among other things, that in O'Connell's March 17, 2009, motion to compel the parents' cooperation O'Connell misrepresented that he was still GAL in the matter. On March 11, 2011, following a hearing, the trial court, Judge Pilmer, granted O'Connell's fee petitions and denied Edward's petition for Rule 137 sanctions. The court denied Edward's motion to reconsider, and this timely appeal followed.
¶ 16 Edward's notice of appeal lists 12 orders from which he appeals; however, his brief addresses only 4 of them. These include (1) the March 27, 2009, order reappointing O'Connell as GAL and granting O'Connell's motion to compel the parents' cooperation; (2) the February 24, 2010, order denying Edward's motion to discharge O'Connell as GAL and to strike his GAL report; (3) the separate February 24, 2010, order reappointing O'Connell as GAL; and (4) the March 11, 2011, order granting O'Connell's petitions for GAL fees and denying Edward's petition for Rule 137 sanctions against O'Connell.
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