Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois. No. 89-D-237. Honorable Robert J. Cashen, Judge Presiding.
Present - Honorable Peg Breslin, Justice. Honorable Tom T. Lytton, Justice. Honorable Michael P. Mccuskey, Justice. Justice Breslin delivered the opinion of the court: Lytton and McCUSKEY, JJ., concur.
The opinion of the court was delivered by: Breslin
JUSTICE BRESLIN delivered the opinion of the court:
The petitioner, Patsy Hurst, and the respondent, David Aleshire, filed cross-petitions to enforce the visitation provisions of a dissolution of marriage judgment. After entering a visitation schedule, the circuit court ordered David to pay 40% of Patsy's attorney fees and ordered the parties to mediate future nonemergency visitation disputes before seeking further relief in court. Patsy assigns error to the attorney fee and mediation rulings as well as to the trial court's finding that she interfered with David's visitation rights. We reverse.
David has not filed an appellee's brief. We find, however, that the record is sufficiently simple to allow proper review of the merits. See In re Marriage of Vanderpool (1994), 261 Ill. App. 3d 312, 634 N.E.2d 11, 199 Ill. Dec. 411.
When the parties divorced in 1989, they entered into a written settlement agreement which was incorporated into the dissolution judgment. By the terms of the agreement, Patsy became the custodian of the parties' two minor children and David was entitled to reasonable visitation. In addition, David assumed responsibility for the children's medical expenses that were not covered by insurance.
The parties subsequently experienced problems regarding visitation and payment of the children's medical expenses. Patsy's attorney informed David that Patsy would not allow him future visitation unless he signed a "Parental Declaration," which set forth several principles for divorced parents regarding the proper care of their children. David was further asked to sign various insurance forms relating to the children's medical expenses. David refused to sign the parental declaration or otherwise meet Patsy's requests.
In November 1993, Patsy filed an amended petition to enforce the settlement agreement's provisions. Count I alleged that David demanded visitation with little or no notice to Patsy and made disparaging comments about Patsy while exercising visitation. Count II alleged that David refused to reimburse Patsy for the children's medical expenses. Count III alleged that David interfered with Patsy's attempts to schedule ear surgery for one of the children and refused to give Patsy an insurance card which was needed to obtain medical insurance benefits. In response to Patsy's petition, David filed a cross-petition alleging that Patsy engaged in visitation abuse by conditioning visitation upon David's adherence to the parental declaration.
The court found that David's actions were "improper throughout" and thus found for Patsy on all three of her counts. It also found, however, that Patsy interfered with David's visitation rights. After entering a visitation schedule, the court ordered David to reimburse Patsy for medical expenses, to cooperate with Patsy in obtaining insurance benefits, and to pay 40% of the legal fees Patsy incurred in bringing her petition. In addition, the court ruled that the parties were to seek mediation of future nonemergency visitation issues before seeking relief in the circuit court. Patsy appeals.
The first issue we address is whether the trial court's finding that Patsy interfered with David's visitation rights was against the manifest weight of the evidence.
Section 607.1 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that visitation abuse occurs when a party has willfully and without justification denied another party visitation as set forth by the court. (750 ILCS 5/607.1(a) (West 1992).) A trial court's finding that a party committed visitation abuse will not be disturbed unless it is against the manifest weight of the evidence. Cf. Pryweller v. Pryweller (1991), 218 Ill. App. 3d 619, 628, 579 N.E.2d 432, 439 (manifest weight standard applied to finding of contempt).
The trial court found that Patsy committed visitation abuse by threatening to withhold visitation unless David signed the parental declaration. We agree with the trial court that Patsy was not in a position to impose this condition upon David's visitation rights. The record, however, shows that Patsy's actions stemmed from her concern about how David was treating the children, rather than from an intent to interfere with David's rights. In addition, there is no evidence in the record that Patsy actually denied David an opportunity to visit the children based upon his failure to sign the document. Therefore, we hold that Patsy's conduct did not amount to a willful and unjustifiable denial of David's visitation rights.
The next issue is whether the trial court abused its discretion by ordering David to pay only 40% of the attorney fees Patsy ...