Marriage of Solomon, In re
| Decision Date | 27 May 1980 |
| Docket Number | No. 79-679,79-679 |
| Citation | 84 Ill.App.3d 901,405 N.E.2d 1289,40 Ill.Dec. 197 |
| Parties | , 40 Ill.Dec. 197 In re the MARRIAGE, of Nancy SOLOMON, Petitioner and Counter-Respondent Appellee, and Marvin Solomon, Respondent and Counter-Petitioner Appellant. |
| Court | United States Appellate Court of Illinois |
Kirsh, Nadler & Berman, Ltd., Chicago, for respondent and counter-petitioner appellant; Arthur M. Berman, J. Scott Bonner, Chicago, of counsel.
Barry S. Grossman, Chicago, for petitioner and counter-respondent appellee.
Sixteen months after the entry of a judgment of divorce, Nancy Solomon, petitioner, brought this action to modify the terms of the agreed visitation. Marvin Solomon, respondent, counter-petitioned for a modification of custody and for court-ordered psychiatric treatments for their daughter. Following the trial court's action denying respondent's petition and granting petitioner's request for a reduction in respondent's visitation privileges, Marvin Solomon took this appeal. He contends the trial court erred in refusing to order psychiatric counseling for the child and in substantially reducing respondent's visitation privileges.
As a part of the divorce judgment, petitioner and respondent entered into an agreement covering not only property distribution and monetary settlement but also each aspect of child visitation privileges accruing to respondent. The agreement specifically detailed each possible situation from which a right to visitation might arise and set out, as its first provision, that respondent should be entitled to maximum visitation with the child outside the home. Other sections delineating the scope and nature of the visitation provided for:
(1) Vacation periods, not to exceed 14 days;
(2) One phone call a day;
(3) Consultation with respondent about the child's school activities and reports on non-school activities;
(4) Respondent's participation in school conferences;
(5) Notification of medical emergencies and respondent's participation in decisions concerning child's needs;
(6) Respondent's obligation to pay college costs and right to participate in school selection;
(7) Visitation on:
Wednesday evenings;
alternate Saturdays and Sundays of each week;
one weekend each month from 6 p. m. Friday to 9 p. m. Sunday;
Respondent's birthday and Father's Day;
in alternating years, the child's birthday;
in alternating years, the following holidays;
New Year's eve and day
Easter eve and day
Memorial eve and day
Good Friday
Independence eve and day
Labor day and eve
Halloween eve and day
Thanksgiving eve and day
Christmas eve and day
Jewish Holidays:
Passover (first seder on one year, second seder the next);
Rosh Hashana (first evening and day one year, second day the next) Yom Kippur (evening one year, day the next);
Chanukah (first day one year, second day the next);
(8) Respondent's special family events, on a one-week written notice to petitioner;
(9) One weekend (Thursday to Sunday) a year for paternal grandparents;
(10) Child's visitation if father ill;
(11) Father's visitation if illness confined child.
Both parties signed this agreement and waived all rights of appeal. Sixteen months later, Nancy Solomon petitioned the court to curtail respondent's visitation rights, alleging, among other things, that he was telephoning with threats to harm petitioner, needlessly taking the child to a doctor during his visitation periods rather than using the time more productively, using his telephone privileges to harass and intimidate, making late payments of the lump sum installments in lieu of alimony, and failing to produce evidence of insurance coverage. She concluded that the visitation granted respondent by their agreed settlement was of such frequency that it caused the child to be emotionally upset. Thus, she argued, the best interests of the child demanded that the visitation be curtailed to prevent the continuing destructive impact on the child.
Marvin Solomon's response to the above petition contended that the visitation schedule was an integral part of the property and monetary settlement agreement and that its particularity resulted from extensive negotiation, required because of petitioner's previous interference with respondent's attempts at visitation. Respondent denied the allegations of harassing conduct and alleged violations in the terms of the visitation agreement on petitioner's part. He agreed the child was nervous and unstable but, contrary to petitioner's assertions, contended that petitioner's outbursts and threats to deny visitation caused the child's emotional disturbance. Respondent asked that all parties submit to psychiatric examination, that the court appoint a guardian ad litem to protect the interests of the child, and that the court award him custody of the child.
Petitioner replied, denying the allegations and adding that the outbursts were really those of respondent. Claims of mistreatment and abandonment were also made.
Judge Hunter ordered a psychiatric evaluation of the child, with the psychiatrist to be chosen by petitioner. Petitioner requested a rehearing on the order, claiming the examination would be detrimental and unnecessary because the child's behavior was "rational and complete." Her motion was denied.
Following a two-month evaluation which encompassed eight sessions with the child, six with respondent, and two with petitioner and a referral to a child psychologist for a parallel consultation, the psychiatric expert tendered his opinion and a hearing on the petitions was held before Judge Goier. Both sides stipulated to the qualifications of the psychiatrist. He testified that the child showed signs of extreme emotional tension and that although highly guarded, most of her verbalizations and psychological expressions were of depression. She was noncommittal in regard to her feelings about her mother but verbally both critical and affectionate toward her father. The psychiatrist found that her confidence and sense of esteem were impaired, as demonstrated by her feelings of failure when she made attempts to prove herself. He stressed that the child's level of anxiety was rising as her tension mounted, leading at times to frenetic behavior. He concluded the child had several abnormal personality traits and characteristics. Accordingly, he made the strong recommendation that the child's developmental disturbance, which probably resulted from the situation between her parents, required immediate psychological treatment on a regular continuing basis. He also stated that the consulting psychologist's findings and conclusions were consistent with his own. When asked whether he felt that the noncustodial parent's visitation should be limited or curtailed if psychological treatment were instituted, the expert replied negatively.
The court then asked him whether it would be beneficial to eliminate all visitation every other month or to alter the visitation pattern. The doctor responded that he had experimented with such a possibility during the evaluation period but felt that, unless part of a closely supervised treatment program, to deprive the child of parental contact would be a disservice and to stagger the visitation periods with increases one month and cessation the next (as suggested by the court) would be a disaster for the child. He also indicated familiarity with the terms of the visitation and felt that the child's problems did not rise from that "per se." The court asked if it was his professional viewpoint that it would serve the best interests of the child if professional help were continued by a different psychiatrist or psychologist; he responded with a strong affirmative.
The court then held an in camera interview with the child. Only a few general questions were asked. The court asked the child three questions about her father:
"Have you and your daddy been getting along?
I guess so.
Do you like to see your daddy every week?
Yes.
Do you love your daddy and mommy, do you ?
Yes."
The last question was the only one pertaining to the mother. The judge also asked the child one question each about her health, her participation in sports, and her grades, then concluded: "She seems to be a very normal, nice little girl."
The last witness called was the petitioner, who testified on her own behalf. She stated that she knows her daughter very well and that during the last year the child had been tranquil and happy, loving her school and her home. On cross-examination, in response to a question about the child's reaction to visitation, petitioner stated that the child "could be quite content and happy and laugh with her father if he were in an acceptable mood and he took her to acceptable places that was not a hostile environment with people that had shall we say emotional problems." When respondent's counsel asked if petitioner was now stating that the child does not and did not at any time have a personality disorder, anxiety, nervousness or instability, petitioner responded that that was correct. Her attention was drawn to her initial petition which alleged the child's emotional distress as a basis for modification of visitation. Petitioner admitted that she had signed the petition.
Immediately following this testimony the trial judge denied the petition for psychological treatment "for good cause" and announced a modification of visitation. The father was given alternate weekends and alternating holidays, but the court refused to explain its ruling or to enter specific findings of fact.
A petition for rehearing was presented and argued less than a month later. Respondent asked the court to reconsider its restructuring of visitation and to allow visitation cancelled by petitioner, ostensibly because of the child's illness, to accrue. The court denied this request and stated repeatedly that the standard he used to evaluate all visitation modification was the best interests of the child. Respondent...
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