Appeal from the Circuit Court of Cook County; the Hon. Allen
F. Rosin, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Respondent appeals from an order transferring to petitioner permanent custody of the parties' two minor children, contending, essentially, that the trial court's ruling was contrary to the manifest weight of the evidence.
The record discloses that Sheila Michaelson, formerly Sheila Mullins (respondent) and Philip Mullins (petitioner) *fn1 were married from August 12, 1972, until May 11, 1983, when a judgment of dissolution of the marriage was granted to respondent. Incorporated therein was a settlement agreement awarding custody of their two minor children Matthew, age 6, and Katherine, age 4 to her with liberal visitation rights granted to petitioner.
A detailed chronological account of the procedural history of this protracted litigation is both relevant to and necessary for an understanding of the issues presented. On June 2, 1983, petitioner filed a petition for modification of custody and a rule to show cause together with an affidavit alleging, inter alia, that in an attempt to force him to allow Larry Michaelson (Michaelson) whom respondent subsequently married to adopt the children and in retaliation for his refusal to do so, respondent (a) terminated all contact between him and the children by denying him the visitation rights provided for in the judgment of dissolution and any telephone communications with them, and (b) deliberately confused the children by telling them that their surname was to be changed to Michaelson and directing them to call Michaelson "daddy."
The June 2 petition was subsequently withdrawn by agreement of the parties, but in November 1983, petitioner filed another petition for rule to show cause, alleging continued violations of his visitation rights by respondent. Shortly thereafter, respondent filed a report with the Department of Children and Family Services (DCFS) of sexual abuse by petitioner of the children in May and June 1983. She also petitioned in the trial court for a psychiatric examination of him and for termination or restriction of his visitation, alleging as grounds therefor acts of violence and sexual perversion by him in the children's presence as well as failure by him to protect their safety or provide for their well-being while they were in his care. Due to a preliminary finding by the DCFS that respondent's sexual abuse charges were "founded," the trial court ordered on January 5, 1984, that visitations be supervised pending receipt of psychiatric evaluations of both parties.
During February 1984, petitioner variously filed (a) a motion to amend the interim visitation order claiming, inter alia, noncompliance by respondent with it, (b) a petition for a temporary restraining order to enjoin respondent from moving to Florida with the children and from obstructing his attempts to exercise the visitation rights granted by the court in its January order, (c) a motion to hold respondent in contempt of court for refusing to permit a scheduled visitation which he voluntarily withdrew when she agreed to a make-up visit, and (d) a petition for rule to show cause for various other incidents of interference with his efforts to communicate and visit with the children. Following this series of petitions and motions, respondent filed (a) a second complaint with the DCFS charging that petitioner had sexually molested their daughter in a restaurant on February 22, 1984, and (b) a verified emergency petition for termination of his visitation rights and for a rule to show cause in which she additionally alleged that petitioner had threatened, bribed, attempted to brainwash and, on one occasion, physically assaulted both children and repeatedly harassed her and Michaelson, who had been supervising the visitations.
At the March 27, 1984, hearing thereon, petitioner testified generally that since the divorce, respondent had consistently attempted to deny him contact with the children. Specifically, he testified to difficulties he encountered during the previous three months of court-ordered, supervised visitations. On one occasion in late January 1984, when Matthew was ill, respondent refused to allow him visitation with Kathy unless his fiance's daughter, who had accompanied him to the restaurant as his witness, sat at another table. On the next scheduled date, February 12, respondent called him at the restaurant to cancel visitation because Michaelson was unable to supervise it, and when he suggested that she or someone else substitute as supervisor or that they arrange another time or day, she cursed at him and hung up. The following week, he asked to see the children at a restaurant closer to his home, but Michaelson denied the request, saying, when reminded of the court order, that he (petitioner) could "take [the] court order and shove it." Later that day he received a mailgram from Michaelson advising him where and when visitation would be allowed and suggesting he telephone for any additional information he might need, but when he did he received no answer, nor did Michaelson respond to the message he left on the answering machine. A make-up visitation was arranged by the parties' attorneys for February 22, and on that date, as he was apologizing to the children for not seeing them the previous week and assuring them that he loved and missed them, Michaelson spoke out from another table, telling the children that he was a liar and not to pay any attention to him. A short time later, he brought Kathy to his side of the table, put his arm around her and read the Valentine's card he brought for her, but when their meals arrived, she returned to her seat across from him and remained there until they left. The following week, February 26, he and his fiance arrived at the restaurant before Michaelson and the children and requested two tables but were told that only one was available and that there would be a 15-minute wait for the other. Upon learning of the delay, Michaelson insisted that the children not be seated until his table was ready. when petitioner protested, noting the short time allotted for the visitation, Michaelson grabbed the children by their wrists, said, in the presence of a crowd of patrons waiting to be seated, "I'm not leaving them here, we already have you under investigation for * * * sexual molestation to [sic] your daughter, and I'm not about to leave them here with you," and took them out of the restaurant. On March 4, because Michaelson was unable to supervise, respondent brought the children to the restaurant and waited out in the car. At one point during the visit, Kathy informed him that respondent had instructed her to tell people that he fondled her, but that she (Kathy) knew that was not true.
On cross-examination, petitioner denied molesting Kathy as she sat next to him on February 22, grabbing or having used physical force against either of the children to prevent Michaelson from removing them from the restaurant on February 26, or having threatened them to refrain from giving information about him to anyone; to the contrary, because of Kathy's remarks concerning what respondent instructed her to say, he specifically directed both children to always tell the truth.
Following the brief, but essentially corroborative testimony of the petitioner's fiance and her adult daughter, respondent called Sandra Roy, the DCFS social worker who conducted the initial investigation of respondent's November 1983 sexual abuse complaint against petitioner. Ms. Roy summarized the allegations made by respondent and the interviews she conducted with the family members and stated that although the children did not admit to having been sexually abused by petitioner, it was her opinion, based on respondent's apparent sincerity, the children's anxious demeanor and petitioner's "too cooperative and calm" attitude during her respective interviews with them that such abuse was "indicated." With respect to the six-month lapse between the alleged incidents and respondent's report thereof, she at first stated that "people hesitate to call DCFS," but then acknowledged that she had found and noted the delay in reporting "unusual."
Bonnie Nuenschwander, the DCFS caseworker who investigated respondent's February 1984 sexual abuse complaint, also testified regarding conversations with the family members, including statements by Kathy concerning a "pinching" game petitioner played with her and that it was her opinion, as reflected in her report, that sexual abuse by him was "indicated." On cross-examination, however, she acknowledged that she had read Ms. Roy's earlier report prior to preparing hers; that Matthew said nothing to indicate sexual abuse; that in her report, she noted that both parties appeared to be loving parents; and that the children had been undergoing psychological therapy for two months and had been referred to the Psychiatric Institute for additional evaluations the results of which she had not seen. The trial court found the evidence insufficient to warrant termination of visitation, but ordered future visits to occur under the supervision of a licensed, professional supervisor rather than Michaelson.
In late May 1984, respondent and Michaelson took the children, without leave of court, to live in Florida, and on June 5, 1984, petitioner filed a petition for temporary custody. The trial court immediately entered an order directing respondent to return to the jurisdiction with the children, and on June 22, held her in contempt for failing to do so and issued an order directing her arrest. Shortly after her return to Illinois on October 12, 1984 petitioner filed an amended petition seeking a permanent change of custody together with an affidavit asserting, on various grounds, that the children's physical, mental, moral and emotional health was seriously endangered by their environment.
Although we have reviewed and carefully considered the voluminous record of the trial thereon, which consists of approximately 1,000 pages of transcript from 13 days of hearings, we will set forth only that evidence extensive in itself most relevant to the arguments raised on appeal.
As in the earlier hearing, petitioner testified at trial that beginning in May 1983, when the dissolution judgment was entered, respondent consistently attempted to deny him the visitation rights granted therein, noting that he was allowed only two post-judgment visits in May and one in June, and that it was not until he filed the first petition for modification and rule to show cause that she promised there would be no more problems. Visitations occurred fairly regularly, though with some difficulties, from late July through October. In late October, he noticed a label reading "Michaelson" in Matthew's coat, and upon inquiry, Matthew told him that respondent put it there because she wanted them to use that name rather than their own, and then began to cry, stating that he "didn't know what to call [himself] anymore." Despite a provision in the judgment allowing him to visit with Kathy on her birthday November 4 respondent denied him visitation on that day and only after several unsuccessful attempts was able to arrange the next visitation for November 23. He arrived at respondent's house at the appointed time on that date but no one was there, and after waiting for about an hour, he went home and telephoned her. She told him that she had been detained and that he could come back for the children, but when he did, no one answered the door. Hearing music from within, he went to a side window, looked inside and, finally, started walking back to his car. At that point, the police arrived and informed him that they had received a call of a burglary in progress. Respondent and Michaelson then came out and signed a complaint against him for damaging their front door, whereupon he left without seeing the children.
During a telephone conversation with her the following week, respondent refused his request to take the children to his home for Thanksgiving as was provided in the custody agreement, but later that evening she called him and said that because they were "crying and carrying on" about her decision, if he still wanted them, he should "come now or I'll kill them." He immediately drove to the house and knocked on the door, but, like the previous visit, received no response. A few minutes later, the police arrived, informed him that respondent had called them and they asked him to leave. The day after Thanksgiving, he filed a petition for rule to show cause why he was denied visitation and a few days later, respondent filed the first of her two sexual child abuse complaints against him with the DCFS. On the advice of his attorney, he did not request visitation during December 1983 nor did respondent contact him thereabout. Following his testimony regarding the court-ordered, supervised visitations between January and May 1984, which was substantively the same as that he gave at the March 27 hearing on respondent's petition to terminate visitation, petitioner testified concerning his plans and ability to care for the children if he were granted custody of them, asserting that he was the president of his own computer sales and service business; that he drew an annual salary of approximately $24,000 and lived with his fiance and her two teenage daughters in a five-bedroom rental home; that they planned to be married as soon as "things calmed down"; that he enjoyed a close and loving relationship with the children and would arrange for them to attend school across the street from his home and be cared for in a reputable day-care center for the few hours each day between their dismissal from school and his or his future wife's arrival home; that he appreciated and was capable of dealing with certain physical disabilities Matthew experienced and that he would not deny respondent reasonable visitation with them.
On cross-examination petitioner stated that he and his fiance had not set a date to be married; that he had taken the children out in his Corvette on a few occasions in summer 1983, despite respondent's objections to the lack of individual seat belts therein; and that excepting one month in 1983, he timely paid respondent or put in an escrow account while she was in Florida $520 each month for child support. He further acknowledged that the children were present when, pursuant to the court's order, the sheriff who he had called took respondent into custody upon her return from Florida.
Sara Lieber, a registered social worker selected by the court to supervise visitations, testified that during their first meeting in early May 1984, respondent repeated the sexual abuse charges she had filed against petitioner and also claimed that he did not take proper care of Matthew, whom she [respondent] described often in his presence as a severely handicapped child suffering from a birth defect involving malformation of his joints. Upon meeting Matthew, however, she noted that while he appeared to have some minor physical limitations, he was eager to demonstrate his strength and agility, and observed, on that day and subsequent occasions, that he was able to run, skip, skate, ride a standard bicycle and play pinball and that he resisted all offers of assistance in the performance thereof. Nevertheless, respondent consistently and strenuously objected not only to any visitation plans which included activities of a physical nature, but to most aspects of petitioner's life and to almost all plans she did not personally devise subjects they discussed during a meeting in late May at her attorneys' office regarding the necessity for cooperation in arranging the court-ordered visitations. She next tried to call respondent in early June 1984, to confirm a scheduled visitation but learned that respondent, Michaelson and the children had moved to Florida. Court-ordered visitations resumed following respondent's return to Illinois in October 1984, but as with the earlier visitations, she often expressed objections to the nature and location thereof and, finally, requested that a new supervisor be appointed.
It was Lieber's opinion, based on respondent's past behavior, that she (respondent) did not want visitations between petitioner and the children to occur; that absent court intervention, future visitations were unlikely; and that due to her desire for complete control over the children's lives any such visitations would occur only at her initiation and convenience and without any input from petitioner. It was also her opinion that petitioner interacted well with the children; that they responded positively and warmly to him; and that there was no evidence to substantiate respondent's allegations of sexual abuse or inappropriate sexual behavior by him charges which respondent had not mentioned since the initial interview. On cross-examination, Lieber stated that the children were also affectionate toward respondent and Michaelson, but on redirect examination noted that respondent's frequent references to Matthew's birth defect seemed to cause the child considerable stress and embarrassment.
Francis Shefler, an associate of and the replacement for Mrs. Lieber as visitation supervisor, also testified to having substantial difficulties with respondent in arranging visitations, noting in particular that on two occasions in November 1984 one of which was a party planned by petitioner for Kathy's birthday respondent failed to make the children available; that following one visitation, respondent threatened that her aunt and uncle with whom respondent was then living would kill or otherwise harm petitioner in some manner if he ever returned there; and that respondent attempted in some manner to obstruct each of the five visitations she supervised. On ...