Marriage of LaTour, In re

• Decision Date: 25 February 1993
• Docket Number: No. 4-92-0683,4-92-0683
• Parties: , 181 Ill.Dec. 865 In re: the MARRIAGE OF Cynthia L. LaTOUR, f/k/a Cynthia L. Duschinsky, Petitioner-Counterrespondent-Appellee, and Paul A. Duschinsky, Respondent-Counterpetitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 1339

608 N.E.2d 1339

241 Ill.App.3d 500, 181 Ill.Dec. 865

In re: the MARRIAGE OF Cynthia L. LaTOUR, f/k/a Cynthia L. Duschinsky, Petitioner-Counterrespondent-Appellee and Paul A. Duschinsky, Respondent-Counterpetitioner-Appellant.

No. 4-92-0683.

Appellate Court of Illinois Fourth District.

Feb. 25, 1993.

Marvin H. Gesell, Bloomington, for appellant.

F. Donald Heck, Jr., Pollock, Ennis & Heck, Quincy, for appellee.

Justice KNECHT delivered the opinion of the court:

Cynthia LaTour and Paul Duschinsky were married in 1978, and had four children before their marriage was dissolved in 1985. LaTour was awarded custody of the four children, "subject to [Duschinsky's] reasonable rights of visitation at reasonable times and places." LaTour lives in Quincy while Duschinsky lives in the Chicago suburbs. In order to facilitate visitation, the order of dissolution provided LaTour "shall take the said children to the Dixie Truck stop in [McLean] on weekends when requested by Duschinsky with sufficient advance notice to [LaTour]."

On May 7, 1992, Duschinsky filed a petition to modify visitation. Duschinsky alleged LaTour refused to allow him reasonable visitation at reasonable times and places. Duschinsky requested he be granted weekend visitation on a specific weekend each month from Friday at 6 p.m. until Sunday at 6 p.m., alternating Christmas and spring break vacations, alternating Easter and Thanksgiving weekends, and one month per summer. At this time Duschinsky also filed a petition for a rule to show cause alleging LaTour violated court orders by denying him visitation, refusing to sign tax forms he needed to claim the children as his dependents for tax purposes, and failing to provide him with copies of the children's medical bills he needed to obtain reimbursement from his insurer. A rule to show cause was signed by the court on June 10, 1992.

On July 9, 1992, LaTour filed a motion to strike the petition to modify the visitation order and the rule to show cause, alleging the issues raised had already been litigated by the parties, and ruled upon by the court and the circumstances of the parties had not changed since the prior rulings.

On July 20, 1992, the court held a hearing on the petition to modify, the rule to show cause, and the motion to strike. The court granted the motion to strike with respect to the tax issues, finding they had already been litigated. Duschinsky represented the parties had reached an agreement regarding the children's medical bills; thus, that matter did not need to be litigated. The court then heard testimony regarding the petition to modify and whether LaTour should be held in contempt of court for allegedly refusing Duschinsky visitation. After the hearing, the trial court denied Duschinsky's request with regard to specific weekend visitation, and modified the visitation order with respect to weekend, holiday and summer visitation. The court found Duschinsky failed to meet his burden on the rule to show cause. Duschinsky was additionally ordered to pay $350 of LaTour's attorney fees. Duschinsky appeals, alleging the trial court erred in making these rulings. We agree in part and disagree in part. Accordingly, we affirm in part and reverse in part, remanding with directions.

I. VISITATION

Duschinsky contends the trial court erred in denying his request that a more specific visitation schedule be set by the court, and in modifying visitation to provide weekend visitation and the three-week summer visitation were to be at times agreed upon by the parties. Duschinsky contends (1) the modification of the visitation order operates as a restriction of his visitation rights and is an unlawful delegation of the court's responsibilities to LaTour, and (2) the denial of Duschinsky's requests was an abuse of discretion. We agree and reverse.

Under the visitation provision of the original order, subject to the limitations of reasonableness, Duschinsky had an unconditional right to visitation with his children on any given weekend, if he provided LaTour with sufficient advance notice. Although not due to the fault of any one party, this arrangement did not work. Sometimes Duschinsky would fail to provide LaTour with sufficient advance notice. Sometimes LaTour would refuse to transport the children to McLean, alleging the unavailability of her husband or financial circumstances. Sometimes LaTour consented to visitation, but refused to transport the children to McLean, as required by the visitation order, or refused to transport them to McLean at a time outside Duschinsky's working hours.

The modified order grants Duschinsky visitation on alternating Christmas and spring vacations; alternating Easter, Labor Day and Thanksgiving weekends; and for three weeks during the summer. However, the summer visitation is to occur at a time agreed upon by the parties, and regular weekend visitation is also to occur at times agreed upon by the parties.

While granting Duschinsky specific visitation on holidays, the modification actually provides Duschinsky with a lesser ability to obtain weekend visitation than the original order. Under the original order, Duschinsky, upon providing LaTour with sufficient advance notice, had an unconditional right to visitation on any given weekend. Under the modification, weekend visitation is conditioned upon the agreement of the parties.

Although Duschinsky and LaTour have, on occasion, been able to reach an agreement, the record is replete with evidence that they have failed to agree, on multiple occasions, regarding numerous issues involving the children. Moreover, the testimony at the hearing indicated LaTour and Duschinsky do not talk on the telephone because they cannot complete a telephone conversation without arguing. Prior to the summer of 1992, Duschinsky and LaTour had not spoken on the telephone for two years. Visitation arrangements were generally made between Duschinsky and the children, who then discussed the matter with LaTour. Other times Duschinsky made arrangements through LaTour's husband.

Duschinsky alleges conditioning his ability to exercise his visitation rights on LaTour's agreement effectively restricts his visitation. The court may not restrict a parent's visitation rights unless it finds that the visitation would seriously endanger the child's physical, mental, moral, or emotional health. (Ill.Rev.Stat.1991, ch. 40, par. 607(c).) In this case, the court did not make a finding of serious endangerment, nor would such a finding have been possible since the parties stipulated Duschinsky was a fit and proper person, and his home was an appropriate place for visitation. Thus, Duschinsky alleges, the trial court erred in conditioning his weekend visitation and summer visitation upon LaTour's agreement.

A restriction on visitation is action which limits, restrains, or confines visitation within bounds. (In re Marriage of Tisckos (1987), 161 Ill.App.3d 302, 310, 112 Ill.Dec. 860, 865, 514 N.E.2d 523, 528.) A termination of visitation is a restriction (In re Marriage of Dunn (1987), 155 Ill.App.3d 247, 254, 108 Ill.Dec. 89, 94, 508 N.E.2d 250, 255), as is a prohibition on overnight visitation. Likewise, a requirement that visitation be supervised, occur in the home of the custodial parent, or outside the home of the noncustodial parent is a restriction. (Tisckos, 161 Ill.App.3d at 310, 112 Ill.Dec. at 865, 514 N.E.2d at 528.) Eliminating one day from a weekend visitation or shortening a summer visitation due to the activities of the child is not a restriction. (See Gibson v. Barton (1983), 118 Ill.App.3d 576, 579-80, 74 Ill.Dec. 252, 254-55, 455 N.E.2d 282, 284-85.) Nor is the interruption of a weekend visitation, so that the child may attend religious services, a restriction. Tisckos, 161 Ill.App.3d at 311, 112 Ill.Dec. at 865-66, 514 N.E.2d at 528-29.

In the present case the condition does not merely shorten visitation to accommodate the activities of the children. Rather, the condition operates to grant the ultimate determination of whether Duschinsky may exercise his visitation rights to LaTour. Thus, if LaTour fails to agree to visitation on any given weekend, Duschinsky may not see his children. Based upon the parties' history of discord, and their inability to communicate and reach agreements, we believe the court's modification was a restriction and, accordingly, was in error.

Duschinsky additionally alleges conditioning his visitation on the parties' agreement was a delegation of the court's power and an abuse of discretion. While conditioning weekend visitation on the agreement of the parties might be reasonable in other cases, it was imprudent in the present case. The evidence indicated the children wanted to attend visitation with their father, but were also involved in a variety of extracurricular activities. Duschinsky and LaTour have demonstrated they cannot agree. Yet, the court refused Duschinsky's request for visitation according to a structured schedule, leaving the time for such visitation up to the agreement of the parties.

Duschinsky and LaTour require structure. Under ideal circumstances, given the children's busy schedules, Duschinsky and LaTour should confer monthly, and determine on which weekend most of the children would be able to schedule visitation, and schedule visitation accordingly. If the parties can work out visitation under this approach, they should be encouraged to do so. However, there must be a scheduled visitation which will occur when they fail to agree. Duschinsky has acknowledged that under a structured visitation schedule, those children involved in extracurricular activities on his weekend for visitation will not be able to attend visitation.

The order of the trial court is affirmed with respect to the visitation schedule for spring break, Easter, Labor Day, Thanksgiving, and Christmas, as well as the determination that Duschinsky should be allowed three weeks' visitation in...