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04/04/96 MARRIAGE KATHY SUE MARSHALL

April 4, 1996

IN RE MARRIAGE OF: KATHY SUE MARSHALL, PETITIONER-APPELLANT, AND SHELDON NUSSBAUM, RESPONDENT-APPELLEE, (HEIDI NUSSBAUM AND RACHEL NUSSBAUM, CONTEMNORS-APPELLANTS).


Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois. No. 93-MR-6538. Honorable Ludwig J. Kuhar, Judge, Presiding.

Released for Publication May 9, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice Lytton delivered the opinion of the court: McCUSKEY and Slater, JJ., concurring.

The opinion of the court was delivered by: Lytton

The Honorable Justice LYTTON delivered the opinion of the court:

These consolidated appeals arise from a dispute over child visitation. The mother, Kathy Marshall, appeals from the denial of her petition to modify the visitation rights of the father, Sheldon Nussbaum. Kathy and Sheldon's minor children, Heidi and Rachel, appeal a circuit court finding that they were in direct civil contempt for refusing to go to North Carolina to visit Sheldon. For the reasons stated below, we affirm the ruling denying modification of visitation, affirm the finding of contempt against the minors, but reverse the sanctions imposed and remand for further proceedings.

I. FACTS

Kathy and Sheldon were married in January 1982, and resided in North Carolina. The couple had two children. Heidi was born in December 1982, and Rachel was born in December 1986. In February 1990, the couple separated and Kathy commenced dissolution proceedings.

The record shows that, from the onset, the litigation between Kathy and Sheldon was acrimonious. Each party alleged that the other was guilty of physical and psychological abuse. In three separate pleadings -- filed in May 1990, April 1991 and December 1991 -- Sheldon alleged that Kathy was improperly denying him visitation.

Kathy moved with the children to Illinois in November 1991. A judgment of dissolution of marriage was entered in North Carolina in 1992. In a separate order, entered in April 1993, Kathy was awarded custody of the children. Under the visitation schedule, Sheldon was to have the children in North Carolina for five to six weeks in the summer, every Christmas and every other spring break.

The girls visited their father during the summer of 1993 and for about a week at Christmas; however, Kathy did not send the girls for their spring break visit in April 1994. Sheldon brought a contempt action in North Carolina. In May 1994, Kathy filed a petition in the circuit court of Will County, Illinois, seeking to enroll the North Carolina judgment and restrict Sheldon's visitation rights. Sheldon brought another contempt action when the girls did not come to North Carolina for their summer visitation in 1994.

On September 28, 1994, the North Carolina court declined to exercise further jurisdiction and transferred Sheldon's contempt actions to Illinois to be heard with Kathy's petition to modify.

In late February and early March 1995, an extended hearing was held in the circuit court of Will County. Kathy presented the testimony of a psychologist, Dr. Eleanore A. Ryan. Ryan testified that she was contacted by Kathy in February 1994. Kathy told her that Heidi had been experiencing behavioral problems both at home and at school in the past month. Kathy also reported that Heidi had recently run away from home.

Ryan met with Heidi on February 26, 1994. Heidi said that during the recent Christmas visitation in North Carolina, her father woke her up every night and said that it was father/daughter time. Heidi told Ryan that her father would keep her up until 4:00 in the morning. Heidi said that her father also kept her up nights during the summer visitation in 1993. Heidi also told Ryan she had received a rifle from her father for Christmas, and they went hunting. She claimed that her father forced her to shoot a bird. Heidi told Ryan that she began hearing voices after this visit with her father.

Ryan met with Heidi a second time on March 12, 1994. At this meeting, Heidi said that she was afraid of her father and she was concerned about the upcoming spring break visit. Heidi expressed the fear that if she went to North Carolina, her father would not allow her to return to Illinois. Based on Heidi's fears, Dr. Ryan recommended to Kathy that neither child go to North Carolina for the visit scheduled to start April 1, 1994.

In the meantime, Sheldon had mailed airline tickets to Kathy. Kathy did not call Sheldon until the morning the children were to leave for North Carolina. Sheldon had already gone to the airport.

Ryan met with Heidi nine more times between April 1994 and the hearing in February 1995. During these meetings, Heidi claimed that her father repeatedly stated that her mother and maternal grandparents were evil. He said things would be better if she came and lived with him. Heidi related that her father made her repeat things over and over. Heidi also told Ryan that she had run away from home on February 19, 1994, because her father had told her to do so.

At the hearing, Ryan opined that Heidi was suffering from post-traumatic stress disorder resulting from contacts with her father. Ryan testified at the hearing, "I feel that to schedule any kind of visitation at this point would be very threatening for Heidi, would reduce the feelings of security that she currently has." Ryan testified she interviewed Rachel on three occasions in late 1994 and early 1995. She diagnosed Rachel as suffering "adjustment disorder with mixed emotional features." Ryan opined there should be no visitation with the father at that time.

Kathy Marshall testified that she noted behavioral differences in Heidi following the Christmas visit in 1993. After the February 19, 1994, incident in which Heidi ran away from home for several hours, Heidi began telling her mother that she was hearing voices. Kathy decided to seek professional help and contacted Dr. Ryan.

Kathy also testified that Heidi had told her about an incident, during the 1993 Christmas visit, when Sheldon was going to spank Rachel for crying for her mother. Heidi said that she grabbed her father's arm and told him not to spank Rachel. Heidi stated that her father chased her until she hid behind a waterbed, where he tried to hit her with a stick.

Heidi asked Kathy not to send her back to North Carolina. Heidi stated that she was afraid of her father and he said she would not be allowed to return to Chicago.

On cross-examination, Kathy conceded that just prior to Heidi running away, Heidi had been grounded by her mother for failing to give Kathy a note from Heidi's gym teacher. Kathy also conceded that it made no sense for Heidi to run away to be with her father if she was afraid of him.

Sheldon Nussbaum testified to events surrounding the girls' visitation in the summer of 1993 and at Christmas. Sheldon testified he took each of the girls hunting during their Christmas visit. He took the girls out separately; when he went with seven-year-old Rachel, they did not take any guns. Sheldon denied giving Heidi a rifle, although he did let her use one of his guns. He said it was Heidi's idea to shoot the bird.

He admitted waking Heidi up, but testified that this was at Heidi's request because she wanted to stay up later than Rachel. Therefore, after Rachel would fall asleep, Heidi would get up. Heidi and he would eat popcorn, watch videos and "shoot the bull." Sheldon said that they may have discussed Kathy Marshall, but he denied telling Heidi that her mother and grandparents were evil.

Sheldon also confirmed the incident where he went to spank Heidi and she hid behind the waterbed. He stated that he tried to get her to come out from behind the ...


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