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08/24/89 In Re Marriage of John Hartley Lewis

August 24, 1989

IN RE MARRIAGE OF JOHN HARTLEY LEWIS, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and SYLVIA ELAINE FARRIS LEWIS, Respondent-Appellant

544 N.E.2d 24, 188 Ill. App. 3d 142, 135 Ill. Dec. 667 1989.IL.1292

Appeal from the Circuit Court of Franklin County; the Hon. David L. Underwood, Judge, presiding.

APPELLATE Judges:

JUSTICE RARICK delivered the opinion of the court. CHAPMAN and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RARICK

Petitioner, John Lewis, filed a motion in the circuit court of Franklin County to restore visitation, his visitation rights having previously been temporarily modified, and respondent, Elaine Lewis Conaughty filed a motion to restrict visitation. After a hearing, the trial court denied Ms. Conaughty's motion to restrict visitation, granted Mr. Lewis' motion to restore visitation, and ordered that the child, David Lewis, cease all visits to any psychologist or psychiatrist until further order of the court. The trial court subsequently entered an award of attorney fees in favor of John Lewis, finding that Elaine Conaughty's actions preventing John Lewis from exercising his visitation rights were unjustified. Elaine Conaughty appeals both orders.

The parties were married on April 22, 1977, and divorced on February 25, 1980. David Lewis was born on January 17, 1979. The dissolution decree awarded both parents joint custody of David, Elaine Lewis having physical custody nine months per year and John Lewis having physical custody for the other three months, as well as visitation privileges.

Prior to November of 1985, David Lewis stayed at the home of John Lewis' parents during the time granted Lewis for visitation and during the summer months. The record indicates that John Lewis lived with his parents during that time except when he was attending college. John Lewis married his present wife, Patty, in November of 1985. Since that time, David stayed with John and Patty Lewis during weekend visitation and during the summer. Beginning in September of 1986, Elaine Conaughty (Elaine Lewis had remarried in 1980) began noticing a radical change in David's behavior. He was moody, had tantrums, and frequently became violent. These episodes coincided with John Lewis' scheduled visitation, and David indicated that he did not want to go for the visitation.

On November 17, 1986, John Lewis filed a petition for rule to show cause and a petition to modify physical custody alleging that Elaine Lewis was denying him visitation, that Elaine Lewis and her husband were having marital difficulties which were having a detrimental impact on David, and that David did not get along with the other children from Elaine Lewis' second marriage. Elaine Lewis filed a counterpetition alleging that David did not want to stay with John Lewis during his summer visitation, that David did not get along with Patty Lewis, and that the visitations with John Lewis were causing David severe emotional distress.

The parties subsequently entered into a stipulation providing that John Lewis' visitation rights would be exercised by his parents and that all parties involved would undergo a psychological evaluation. John Lewis did not complete a portion of the evaluation. Based on his evaluations, Dr. Jeffrey Kellogg devised a proposed visitation stipulation. John Lewis agreed with parts of the stipulation, but refused to agree to accept any modification proposed by Dr. Kellogg and refused to participate in any more therapy sessions. Lewis also indicated that he would not pay part of Dr. Kellogg's fee for evaluation because Elaine Conaughty had established the relationship with Dr. Kellogg without consulting him.

Following the evaluation, Dr. Kellogg recommended a return to normal visitation between David and John Lewis. This visitation schedule was continued without incident until May of 1987. During this time, Dr. Kellogg had continued to see David. In May 1987, Dr. Kellogg prepared a written evaluation which diagnosed David as having a separation anxiety disorder. The evaluation indicated that the source of David's anxiety was his visitation with John and Patty Lewis and that David had a negative attitude toward his relationship with John and Patty Lewis. Dr. Kellogg recommended against the upcoming summer visitation and that all parties involved should participate in family therapy. Based on this evaluation, Ms. Conaughty filed a motion for temporary custody order regarding visitation seeking custody of David during the summer of 1987.

On June 4, 1987, John Lewis filed a petition for rule to show cause and other relief alleging that he had not seen Dr. Kellogg's report until the temporary modification petition was filed, despite having requested it several months earlier, and that Elaine Conaughty was again denying him visitation with David. On June 8, 1987, the court entered an order finding that Elaine Conaughty was not in contempt and temporarily modifying John Lewis' summer visitation rights, reducing it to two weeks and alternating weekends. The court also ordered that Dr. Kellogg was to evaluate David immediately after the two-week visitation and report his findings to the court and the parties. David Lewis spent June 10, 1987, through June 24, 1987, with Mr. Lewis. John and Patty Lewis both testified that David exhibited no emotional problems while with them and was quite happy.

On July 3, 1987, John Lewis came to Elaine Conaughty's home to pick David up for the weekend visitation. David became extremely upset and refused to go. When Mr. Lewis returned later that evening to again attempt to pick up David for visitation, David became hysterical, threatened to strike Mr. Lewis with a broom, and even called the West Frankfort police department. The officer dispatched found ...


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