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In Re Marriage of Borowczyk

OPINION FILED OCTOBER 24, 1979.

IN RE MARRIAGE OF JENNIE BOROWCZYK, PETITIONER-APPELLANT, AND PAUL BOROWCZYK, RESPONDENT-APPELLEE. — (DONALD A. CARR, RESPONDENT-APPELLEE; SHARI LYNN BOROWCZYK ET AL., MINORS, APPELLANTS.)


APPEAL from the Circuit Court of Cook County; the Hon. JOHN J. CROWN, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This appeal arises out of certain post-decree proceedings which resulted in the trial court's denial of petitioner's petition to modify respondent's right of visitation under section 607 of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1977, ch. 40, par. 607.

Petitioner appeals from those portions of the order dealing with attorneys' fees and costs. She appeals from the denial of her petition for attorney's fees and from the allowance of respondent's attorney's petition for fees under section 508 of the Act. The parties' minor children, through their appointed counsel, join petitioner in appealing those portions of the order relating to section 508 fees. Petitioner also appeals from that portion of the order denying her fees and costs under Supreme Court Rule 219(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 219(b)) for respondent's refusal to admit certain facts. (Petitioner has not appealed the court's denial of her petition to terminate respondent's visitation rights.)

Petitioner and respondent were divorced in 1975. Petitioner was granted custody of the parties' two minor daughters, one born on December 10, 1968, and the other on November 7, 1969. Respondent was granted reasonable rights of visitation.

On August 1, 1977, while the children were on a vacation visit with respondent, respondent's present wife notified petitioner that the 7-year-old girl had a heavy vaginal discharge. Petitioner brought the child home and, on the following day, took her to Dr. S.J. Karras. He examined the child and found her to have gonorrhea. Dr. Karras directed petitioner to take the child to Loyola University Medical Center because it had a child-abuse team. At Loyola, the diagnosis of gonorrhea was confirmed by Dr. Mary Holland. On August 3, 1977, Dr. Holland filed a suspected child-abuse report with the Illinois Department of Children and Family Services.

On November 15, 1977, petitioner requested the court to terminate respondent's right of visitation. She based the request on the diagnosis of gonorrhea and the heavy vaginal discharge while the child was in respondent's home. She requested psychiatric examinations for respondent and herself and for the children. Petitioner also asked that counsel be appointed for the children. The court ordered supervised visitations for respondent pending a final disposition of the petition, and it appointed counsel for the children. The children were seen by Dr. Harasym, a child psychiatrist, and for several months the children attended play therapy at Loyola. During this entire period, neither child would discuss anything having to do with the younger child's infection.

In September 1978, the court conducted a hearing on the petition to terminate respondent's visitation. All parties agree that the following medical testimony was introduced: Both doctors testified the younger child was infected with gonorrhea. Additionally, Dr. Holland had examined both children. The children's hymens were stretched, but there were no bruises in the vaginal area. In Dr. Holland's opinion, the stretching of the hymens was caused by sexual contact and, in view of all the circumstances, the sexual contact occurred with a male person known to the children. Dr. Harasym and a psychiatrist appointed by the court testified that it would be traumatic to the children, no matter what had transpired, if the visits with respondent suddenly halted. At the conclusion of the hearing, the court ruled that petitioner "failed to establish by evidence the required proof to grant the relief prayed for * * *." The court thereupon denied the petition to terminate respondent's visitation rights. The court allowed 20 days for the filing of the petitions for attorney's fees.

Petitioner thereafter filed a petition for fees and costs. She supported her petition with an affidavit which stated that she was unemployed and that her only income was $70 per week child support. She also stated that other than a 1957 automobile, her clothing and furnishings, she had no other property. The affidavit recited that respondent was a butcher and that his present wife was also employed. (Another pleading on file disclosed that respondent's salary was at least $12,000 a year.) The balance of the petition concerned itself with the amount of time and costs expended by petitioner's attorney.

Respondent's attorney filed a response to the petition. He admitted that the petitioner was unemployed and that respondent was employed as a butcher. He urged, however, that petitioner's petition be denied because she had precipitated the entire proceeding without cause. Additionally, respondent's attorney filed a petition asking that petitioner be ordered to pay his fees. As we have noted, the trial court, under section 508 of the Act, granted respondent's attorney fees from petitioner and denied petitioner's request for fees.

Section 508 of the Act reads as follows:

"§ 508. Attorney's Fees.

(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney's fees and for the costs and attorney's fees necessarily incurred by the other spouse, which award shall be made in connection with the following:

(1) The maintenance or defense of any proceeding under this Act.

(2) The enforcement or modification of any order or ...


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