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03/31/89 Sarah Klumpner, A Minor, v. George H. Klumpner

March 31, 1989

LITEM, PLAINTIFF-APPELLEE

v.

GEORGE H. KLUMPNER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

SARAH KLUMPNER, a Minor, by Richard Kahn, her Guardian ad

537 N.E.2d 914, 182 Ill. App. 3d 22, 130 Ill. Dec. 585

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

Rehearing Denied May 17, 1989. 1989.IL.457

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant George H. Klumpner appeals from an order of the circuit court of Cook County denying his motions to vacate the registration of a foreign judgment and for a change of venue.

The foreign judgment at issue in this matter was entered by the Fourth Judicial District Court of Hennepin County, Minnesota, in 1984 after a number of proceedings instituted first in Illinois and subsequently in Minnesota. Specifically, on August 13, 1980, Judith Klumpner filed a petition for dissolution of her marriage to George in the circuit court of the Nineteenth Judicial Circuit, Lake County, Illinois, and sought custody of their minor child, Sarah, born December 31, 1978. Shortly thereafter, she left the marital home, taking Sarah with her without court approval, and moved to Minnesota, where her brother, Richard Kahn, resided. On September 3, 1980, Judith filed an amended petition alleging that George was guilty of extreme and repeated mental cruelty. On September 11, 1980, the court granted George visitation with Sarah. Judith subsequently filed a petition to vacate the visitation order, alleging George had psychiatric problems, was an alcoholic, and was a danger to Sarah. On September 24, 1980, George sought a rule to show cause against Judith, alleging she had refused to comply with the court's visitation order and had taken Sarah to a location unknown to him. George also subsequently filed a counterpetition for a dissolution of the parties' marriage and sought custody of Sarah. On September 26, 1980, the court appointed an attorney for Sarah. That attorney later executed an affidavit wherein he stated that during approximately one year while he served as Sarah's attorney, he had uncovered "no evidence of wrongdoing" by George relative to any allegations made by Judith. On October 17, 1980, George filed a second petition for rule to show cause against Judith because she continued to refuse to allow him visitation with Sarah and was keeping her at a location unknown to him. On the same date, the court ordered the parties and Sarah to undergo psychiatric evaluation by a court-appointed psychiatrist and that its visitation order be given full effect.

The court entered a judgment of dissolution on July 9, 1981. On August 24, 1981, pursuant to an amended judgment, custody of Sarah was awarded to Judith by agreement of the parties, and George was to have visitation with Sarah in accordance with a schedule attached to the judgment. By an order dated September 2, 1981, the court specifically fixed George's visitation times through the summer of 1982 and expressly provided that visitation would be determined more liberally thereafter. On October 5, 1981, Judith filed an action in the Family District Court of Minnesota, entitled In re Custody of Sarah Nicole Klumpner, seeking to restrict George's visitation rights with Sarah. The Minnesota court dismissed the case on February 2, 1982, based on its ruling that Illinois had continuing primary jurisdiction over the matter; prior to the dismissal of Judith's action in Minnesota, George had filed a petition for change of custody in Lake County on December 28, 1981. On April 4, 1982, Judith also filed a petition in Lake County for modification of the marriage dissolution judgment, seeking to terminate George's visitation rights with Sarah based on her allegations that George had sexually abused Sarah during his visit with her in Minnesota on September 7, 1981, that he was an alcoholic, and that he had psychiatric problems.

The Lake County court conducted hearings on the parties' petitions on June 10 and September 7, 1982. During the June 10 hearing, Dr. Stanley W. Shapiro, Judith's psychiatric expert who practiced in the St. Louis-Minneapolis area, testified that based on two interviews with Judith and 35-month-old Sarah, George had sexually abused Sarah on September 7, 1981, in Minnesota. George's expert testified to the contrary; this expert examined George and Judith, but not Sarah. At the September 7, 1982, hearing, Judith alleged that George had again abused Sarah on September 6, one day prior to that hearing. In describing the September 1982 incident, Judith referred to similar phrases allegedly used by Sarah and communicated to Dr. Shapiro concerning the September 1981 alleged molestation. No testimony was given by either of the parties' medical experts at the September 7 hearing regarding this alleged second incident. Closing arguments were made on September 21, 1982. On October 1, 1982, the court denied both parties' petitions; the court ruled that custody of Sarah should remain with Judith, found that there was no credible evidence that George ever physically or sexually abused Sarah, and found that Judith's belief that George's visits with Sarah were detrimental to her health was unsupported by any credible evidence and was irrational. The court further ordered that the parties and Sarah submit to extended psychiatric counseling, allowed George specific visitation with Sarah in Cook County, and continued the cause to February 11, 1983, for a status hearing concerning the progress of the counseling and as to visitation.

Judith and George both filed appeals from the September 21 order in Lake County. Judith subsequently filed two additional appeals from an order entered December 29, 1982, wherein the Lake County court found her in contempt for refusing to comply with its visitation orders and required her to obtain a $5,000 surety bond to insure her compliance thereafter, and an order dated January 13, 1983, denying, among other requested relief, her motion to vacate the December 29 order.

On December 19, 1983, the second district of this court, in an unpublished Rule 23 opinion (In re Marriage of Klumpner (1983), 119 Ill. App. 3d 1168), affirmed the trial court's orders denying George's and Judith's petitions for change of custody and termination of George's visitation rights, respectively, stating that where the evidence was conflicting, the trial court was in a far better position to determine the credibility of the witnesses. The court, however, reversed the trial court's order finding Judith in contempt of court but affirmed the order as to the requirement of posting a bond to assure compliance with the court's orders of George's visitation with Sarah. A subsequent petition for leave to appeal to our supreme court filed by Judith was denied.

Apparently shortly after the denial of Judith's petition for leave to appeal to the supreme court, Richard Kahn, Judith's brother, filed an action as guardian ad litem of Sarah in the juvenile division of the Fourth Judicial District, Hennepin County, Minnesota, entitled In re the Matter of the Welfare of Sarah Klumpner, *fn1 to have Sarah adjudicated a dependent and neglected child. The identical allegations of sexual abuse of Sarah by George on September 7, 1981, and September 6, 1982, were reasserted in this action. The court conducted hearings on February 13 through 17, 23, and 24, 1984. In rendering its decision that George had sexually abused Sarah, the Minnesota court conceded that its findings contravened those of the Illinois courts, but stated its decision was based on "significant differences" in the evidence presented, i.e., the court relied heavily on the testimony of Dr. Shapiro based on his interviews with Judith and Sarah subsequent to the Lake County proceedings and decisions. A Disposition hearing was set for June 5, 1984. Prior to that time, George sent a letter to the court stating he would not appear at the hearing, asserting, among other reasons, that the Minnesota trial Judge in the juvenile proceeding was not impartial (he had attended the same law school as Daniel Schermer, Judith's former Illinois babysitter ...


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