Appeal from Circuit Court of Vermilion County. No. 95D20. Honorable Gordon R. Stipp, Judge Presiding.
Rehearing Denied November 1, 1996. Released for Publication November 1, 1996. As Corrected January 2, 1997.
Honorable Robert J. Steigmann, J., Honorable Frederick S. Green, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Steigmann delivered the opinion of the court.
The opinion of the court was delivered by: Steigmann
JUSTICE STEIGMANN delivered the opinion of the court:
In January 1995, petitioner, Crystal K. Fields, filed a petition for dissolution of her marriage with respondent, Richard Allen Fields. In March 1995, Richard filed a petition requesting temporary visitation with the parties' two children, M.F. and A.F. Crystal subsequently filed a petition requesting temporary custody and support of the children. In May 1995, pursuant to an agreement reached by Crystal and Richard during a hearing on the petitions, the trial court entered a temporary order granting custody of the children to Crystal and visitation privileges to Richard, subject to certain restrictions. In October 1995, a successor judge conducted a final hearing on dissolution and all other pending issues, including visitation. The court subsequently entered an order dissolving Crystal's and Richard's marriage, and granting Richard reasonable visitation with both children, without restrictions or required counseling.
Crystal appeals, arguing that the trial court erred by (1) determining that the original court's decision in the temporary relief hearing was res judicata and refusing to allow evidence that was or could have been introduced at the prior hearing; (2) allocating more than half of the marital debts to Crystal; (3) placing the burden on her to show that restricted visitation should be continued as provided by the temporary order; (4) determining that M.F.'s counselor could not testify as an expert and denying the introduction of the counseling center's billing records; and (5) failing to apply the proper standard when it refused to order counseling. We affirm all portions of the judgment except with regard to the visitation order; because we agree with Crystal's first argument, we reverse and remand for a de novo hearing on the issue of visitation.
Crystal and Richard married in September 1991. Two children were born to them, M.F., born in November 1989, and A.F., born in July 1994.
The parties separated in June 1994, and the children remained with Crystal. After the separation, Richard visited M.F. and A.F. on a regular basis. In November 1994, Crystal began requiring Richard's visits to be supervised because she believed that Richard was sexually abusing M.F. In January 1995, Crystal filed a petition for dissolution of the marriage. In March 1995, Richard filed a petition requesting temporary reasonable visitation with M.F. and A.F. Crystal subsequently filed a petition requesting temporary custody and support of their children.
During April and May 1995, the original trial judge, Judge Borbely, conducted a partial hearing on the petitions for temporary support, custody, and visitation. Because the parties are familiar with the evidence, we review it only to the extent necessary to put Crystal's arguments in context. Linda Jacques, an investigator for the Department of Children and Family Services (DCFS), testified that in November 1994 and January 1995 she investigated two allegations that M.F. had been sexually abused. Jacques determined that the initial report of abuse was unfounded. After conducting an investigation of the second report of abuse, including interviews with M.F., Richard, and Dr. Frank Stephens, a pediatrician who examined M.F. in December 1994, Jacques determined that the report was indicated for sexual penetration of M.F. by Richard.
The trial court also allowed into evidence Dr. Stephens' evidence deposition, in which he testified that Crystal brought M.F. for an examination in December 1994. During that examination, Crystal reported that M.F. exhibited vaginal and rectal redness, wet her bed five or six times a week, masturbated frequently, and had experienced an episode of unexplained vaginal bleeding around November 1994. Crystal also told Dr. Stephens that she suspected sexual abuse. Dr. Stephens determined that, based upon the history provided by Crystal and the physical examination, M.F. had been sexually abused. On cross-examination, Dr. Stephens testified that Crystal had told him that the initial report of abuse to DCFS resulted in an indicated report. Dr. Stephens further stated that if the conclusions of the initial DCFS report were otherwise and if there had been no vaginal bleeding, he would be unable to conclude that sexual abuse had occurred, although he would still have concerns based solely on the physical examination.
Dr. Padmasharee Reddy, M.F.'s pediatrician, testified that she examined M.F. in November 1994 and found no physical evidence of abuse. Sarah Baron, Crystal's 12-year-old daughter from a previous marriage, testified that near the end of 1994, M.F. climbed on top of her and told her that M.F. and Richard "rub butts." Sarah also testified that she listened to a conversation between Richard and M.F. during which Richard told M.F. if she broke "the secret," Richard would go to prison.
Crystal testified that in November 1994 she first suspected that Richard may have abused M.F. because of M.F.'s statement to Sarah. Crystal denied telling Dr. Stephens that the initial DCFS report had resulted in an indicated finding. Crystal also stated that M.F. masturbates excessively, is often angry, and displays violent behaviors.
Richard testified and denied sexually abusing M.F. Richard also stated that he was fired from two jobs for sexual harassment, although he denied harassing the female coworkers. On cross-examination, Richard stated that prior to being fired the second time in 1994, he was accused by the coworker of more than one incident of sexual harassment. Richard also stated that he was a heavy drinker prior to May 1993, and when he drank he was verbally abusive to Crystal.
On the third day of testimony, the trial court, the parties' attorneys, and the guardian ad litem met in chambers and discussed a settlement agreement. After that discussion took place, the court stated the following:
"Mr. and Mrs. Fields, let me describe for you folks just exactly what has happened during the recess. ***
When we began the recess and met in chambers, the subject of our discussion, first of all, was [Richard's attorney's] motion for the Court to conduct an interview in chambers with M.F. And in the process of discussing that motion, our discussion evolved into what I would describe as a settlement conference. And I want the two of you to understand just exactly what my process and procedure is in conducting such a process. The best way I can describe it is this:
Each of your attorneys and [the guardian ad litem] will have an opportunity more or less informally to describe to the Court any additional evidence that they would have. They are all allowed to make any arguments that they want to make based on the evidence -- assuming that everything comes out just the way they expected it would in the presentation of evidence. And then based on that I have attempted to give them some guidance as to where we might end up if things go just the way they anticipate. *** I have not ruled on these matters. But in conducting a settlement conference I do attempt to give the parties some guidance. ***
At the conclusion of all of that I understand [the attorneys] have met with [the] clients and that you have now been able to reach an agreement that will dispose of the temporary issues ***."
The parties indicated to the court that they had reached an agreement. The court approved the agreement and stated the following:
"I don't think the record is sufficient to support a specific finding of abuse in this case. That doesn't mean that I don't have concerns. I do. *** That is the reason that this agreement contains a counseling component."
The trial court subsequently entered a written order reflecting the settlement reached during the temporary relief hearing. The court granted (1) Crystal temporary custody of M.F. and A.F., and (2) Richard "reasonable visitation privileges" with the children subject to certain terms and conditions, including that all visits had to be supervised by one of Richard's siblings or parents. The court also ordered both parties to seek counseling and ...