Marriage of Brophy, In re

• Decision Date: 15 May 1981
• Docket Number: No. 79-741,79-741
• Citation: 96 Ill.App.3d 1108,52 Ill.Dec. 236,421 N.E.2d 1308
• Parties: , 52 Ill.Dec. 236 In re the MARRIAGE OF Thomas C. BROPHY, Petitioner-Appellant, and Kathleen C. Brophy, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 1308

421 N.E.2d 1308

96 Ill.App.3d 1108, 52 Ill.Dec. 236

In re the MARRIAGE OF Thomas C. BROPHY, Petitioner-Appellant,

and

Kathleen C. Brophy, Respondent-Appellee.

No. 79-741.

Appellate Court of Illinois, First District, Fifth Division.

May 15, 1981.

As Modified on Denial of Rehearing June 26, 1981.

[52 Ill.Dec. 238] Harry Golter, Chicago (Overton, Schwartz & Fritts, Ltd., Chicago, of counsel), for petitioner-appellant

Hynes, Colson, Karnezis & O'Rourke, Chicago (James J. O'Rourke, Chicago, of counsel), for respondent-appellee.

MEJDA, Justice:

A judgment of dissolution of marriage was entered in the first phase of a bifurcated trial. In the second phase an order awarded custody of the parties' four children to respondent, visitation to petitioner, and child support as well as attorney's fees to respondent's attorney and to the children's court-appointed attorney. Petitioner appeals the order as to visitation, child support and the fees awarded.

On appeal, petitioner contends that: (1) the visitation schedule was arbitrarily imposed; (2) excessive child support was awarded without considering the financial resources and needs of the parties; (3) an attorney for the children was improperly appointed without a hearing and without guidelines; (4) the appointed attorney failed to act reasonably in fulfilling her role; (5) excessive fees were awarded the appointed attorney; (6) excessive fees were awarded respondent's attorney; and (7) the division and award of attorney's fees against petitioner was an abuse of discretion absent evidence of the parties' respective abilities to pay.

The parties were married in 1962 and separated in 1972. Respondent thereafter retained custody of the four children born of that marriage; Mike (15), Ed (13), Kathy (10) and Patrick (7). On October 6, 1977, petitioner filed a petition for dissolution of marriage and respondent filed a counter-petition. A bifurcated trial was had. The judgment of dissolution was entered on March 31, 1978, and is not challenged by either party. Custody and support of the children were to be determined in the second phase of trial.

On June 1, 1978, after the parties had filed cross-petitions for sole custody of the children, an order was entered which referred the matter to the Department of Supportive Services for investigation and provided that petitioner have temporary visitation every other weekend from Saturday noon until Sunday at 8 p. m. On August 3, 1978, the court sua sponte appointed a legal representative for the minor children.

Thereafter, a hearing was had as to custody. The court on September 5, 1978, announced its decision awarding sole custody to respondent and awarding visitation to petitioner. The visitation provided alternative weekends during the school year from 10 a. m. Saturday until 8 p. m. Sunday and during summer vacations from 4 p. m. Friday until 9 p. m. Sunday, with alternating spring vacations and specified holidays. Petitioner was also granted visitation of one full month during the children's summer vacation. A custody "decree" was entered October 23, 1978, and supplemented on November 20, 1978, which in addition to the foregoing further provided that petitioner pay $500 per month as child support, abated by 50 percent during the month of summer school vacation which the children spent with petitioner.

On September 14, 1978, the appointed attorney filed her petition for fees and costs requesting $8425.20. Respondent's attorney filed a petition requesting fees of $7857.50. Petitioner filed briefs and responses to both petitions. The appointed attorney filed a reply and a brief. The court awarded respondent's attorney $6000 payable $1000 by respondent and $5000 by petitioner. The appointed attorney was awarded $4000, inclusive of costs, payable $1000 by respondent and $3000 by petitioner.

Petitioner's written motions to vacate the orders as to custody, support, visitation and fees were denied. This appeal followed. The order as to custody is not before us.

OPINION

I.

Petitioner first contends that the trial court abused its discretion by arbitrarily granting the same limited visitation schedule it awards all noncustodial parents rather than considering the particular circumstances of the instant case. In announcing its decision the trial court stated:

"I think visitation with the natural father should be in this case as the Court orders it in each and every case, * * *. Because that's what I do in any case. * * * This is what I do on each and every occasion where I split children between two households. I'm not saying that I'm right. I'm only saying I am consistent. I may be consistently wrong in your opinion. So be it, but that's what I do."

Section 607(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill.Rev.Stat.1977, ch. 40, par. 607(a)) provides that the noncustodial parent is entitled to "reasonable visitation rights." Nonetheless, the policy of this state is to grant liberal visitation rights. (Regan v. Regan (1977), 53 Ill.App.3d 50, 11 Ill.Dec. 1, 368 N.E.2d 552; Valencia v. Valencia (1977), 46 Ill.App.3d 741, 4 Ill.Dec. 951, 360 N.E.2d 1384, modified on other grounds (1978), 71 Ill.2d 220, 16 Ill.Dec. 467, 375 N.E.2d 98.) In matters of visitation, as in custody, the primary concern of the court is the welfare of the child. (Regan v. Regan; Valencia v. Valencia.) The best interest of the child is normally fostered by having a healthy and close relationship with both parents. (Hock v. Hock (1977), 50 Ill.App.3d 583, 584, 8 Ill.Dec. 639, 365 N.E.2d 1025, 1027; Doggett v. Doggett (1977), 51 Ill.App.3d 868, 872, 9 Ill.Dec. 474, 366 N.E.2d 985, 988.) In order to effectuate the child's best interest, the award of visitation privileges rests within the sound discretion of the trial court and, absent a showing of manifest injustice, such determinations will not be disturbed by a court of review. Rodely v. Rodely (1963), 28 Ill.2d 347, 192 N.E.2d 347; Valencia v. Valencia; Regan v. Regan.

Petitioner's reliance on McManus v. McManus (1976), 38 Ill.App.3d 645, 348 N.E.2d 507, is misplaced. The court there held that visitation of one full day per month, although limited, is not so limited as to cause a manifest injustice to either the noncustodial parent or child. Petitioner further relies on Blazina v. Blazina (1976), 42 Ill.App.3d 159, 1 Ill.Dec. 164, 356 N.E.2d 164, which affirmed an order continuing a visitation schedule previously worked out by the parties. However, Blazina did not even remotely suggest that such agreements should be followed but rather held that the trial court under the circumstances did not abuse its broad discretion in continuing a visitation schedule which amounted to every other weekend and one full week during the child's summer vacation.

Although petitioner correctly notes that the court characterized the portion of its ruling relating to Friday visitation as arbitrary, the record demonstrates that the schedule, as a whole and as to Fridays in particular, was in fact tailored to the Brophy family. The court carefully considered that the disparity in the ages of the children justified a restricted schedule. In denying petitioner's request to begin the weekend visitation on Friday evening rather than Saturday morning, the court noted that during the school year the children often engage in school activities on Friday. Accordingly, Friday visitation as requested was limited to the children's summer vacation. In denying petitioner's request for visitation of one week per month during the school year, the court commented it did not feel this ever worked out. Finally, petitioner's vacation time was also taken into account in allowing him extended visitation during the children's summer vacation.

The trial court's primary concern was the best interests of the children. Petitioner's request to increase the visitation schedule was considered in light of the children's needs and convenience. There is no indication that respondent was unfairly favored over petitioner or that the present visitation will not foster a healthy and close relationship with both parents. Consequently, we cannot say the visitation schedule was manifestly unjust or that it did not provide reasonable visitation. Petitioner's reliance upon the statement of the court to establish an arbitrary ruling is without merit.

II.

Petitioner next contends that the award of $500 per month child support is excessive and that the trial court abused its discretion in basing the award solely on the noncustodial parent's income. He argues that the court arbitrarily determined this award since it did not hold a hearing to determine the actual needs of the children and because it neither considered respondent's net annual salary of $10,000 nor determined petitioner's needs for food, shelter and clothing. Respondent maintains that the award is proper and supported by the evidence presented at the custody hearing as to the children's needs and the financial ability of each parent to meet those needs.

The report of proceedings of the custody hearing has not been made a part of the record. Ordinarily, a presumption exists that the omitted report of proceedings justifies the order from which the appeal is taken (Reace v. Reace (1976), 39 Ill.App.3d 496, 350 N.E.2d 143) and any incompleteness will be resolved against an appellant. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill.App.3d 605, 35 Ill.Dec. 940, 400 N.E.2d 77.) Where, as here, the judgment order recites that the court is fully advised in the premises, a reviewing court must presume that evidence heard was sufficient to support the judgment absent any contrary indication in the record. (Brokerage Resources, Inc. v. Jordan; Needler v. Needler (1971), 131 Ill.App.2d 11, 268 N.E.2d 517.)

However, the record does contain a report of the proceedings had on September 5, 1978, a date following the custody hearing. In those subsequent proceedings, the...