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In re the Marriage of Divelbiss

October 22, 1999


Appeal from the Circuit Court of Du Page County. No. 93-D-559 Honorable Patrick J. Leston, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Respondent, Rebecca Divelbiss, n/k/a Rebecca Maida, appeals the trial court's modification of joint custody providing that petitioner, Richard Divelbiss, be the residential custodian of the parties' minor child for five months of the year. Rebecca also appeals the trial court's denial of her motion to strike the testimony of Richard's expert witness and the denial of her motion for a Rule 215 (166 Ill. 2d R. 215) examination. We affirm.

This appeal involves a highly contested visitation and custody proceeding spanning more than six years. Unfortunately for the child of the parties, this case has been fraught with tremendous hostility and bitterness between the parties. The following facts, as shown in the record, are germane to our Disposition. Other facts, which have more limited relevancy, will be discussed in connection with the individual issues to which they pertain.

Richard and Rebecca were married March 11, 1984. One child, S.D., was born of the marriage on August 15, 1984. A judgment of dissolution of marriage was entered June 8, 1993. Richard and Rebecca entered into a marital settlement agreement and a joint parenting agreement. The joint parenting agreement provided that Rebecca have physical care of S.D. and that Rebecca and Richard share in parenting decisions.

Rebecca and her current husband, Daniel Maida, have one son together. Rebecca is a daycare provider and Daniel is a police officer.

Richard has custody of three sons from a previous marriage. Richard's current wife, Valerie, has two daughters who reside with them.

On October 6, 1995, Richard filed a petition for modification of custody seeking sole custody of S.D. The hearing on Richard's petition commenced April 9, 1998. Richard testified that he has a bachelor's degree in business economics and psychology as well as a master's degree in business administration and clinical social work. Richard stated that he was finishing an internship with a homeless community and performing clinical family, group, and individual therapy. Richard is employed as an engineer with Fermilab and has been a volunteer fireman for approximately 18 years.

Richard testified that Rebecca refuses to cooperate and interferes with visitations and that S.D. now resists visitations. Richard also testified that Rebecca initiated a report with the Department of Children and Family Services (DCFS) for which he was investigated and subsequently arrested for allegedly choking S.D. The result of the DCFS investigation was that Rebecca's report was unfounded and Richard was subsequently found not guilty of the alleged incident. Rebecca has videotaped many of the visitation exchanges. Richard also testified that he complained to the chief of police regarding Daniel Maida's conduct, for which Daniel was suspended for a few days.

Richard and Rebecca met with a social worker in an unsuccessful attempt to resolve their differences. Richard then contacted Dr. Roger Hatcher, a child psychologist, for assistance, but Rebecca refused to cooperate. S.D. began to refer to Richard as "Rick," instead of "Dad," and Richard noticed that S.D.'s last name was written on some of her homework and a book as "Maida." The court previously ordered S.D. to attend counseling with a therapist.

Richard testified concerning his relationship with S.D. and several father-daughter outings they had enjoyed together. According to Richard, he and S.D. enjoy cooking, woodworking, bicycling, camping and hiking, gardening, and various other activities. Richard supervises S.D.'s Internet usage and assists with her homework. Richard attends some of S.D.'s extracurricular activities. He enrolled S.D. in riding lessons and instruction on the care of horses when she exhibited an interest in horses.

When visiting at Richard's home, S.D. shares a bedroom with Richard's 16-year-old stepdaughter. Richard's home has six bedrooms and is located only five or six blocks from Rebecca's home. Richard stated that if S.D. were in his custody she would attend the same school she is currently attending. S.D.'s best friend lives across the street from Richard's home.

Richard stated that S.D.'s relationship with his 16-year-old stepdaughter is sometimes good and sometimes bad. According to Richard, S.D. likes his wife.

Richard testified that S.D. is in eighth grade and that during fourth grade she missed 38 days of school. Richard believes that Rebecca is not consistent, that she exhibits periods of rage, and that her conduct is mentally harming S.D. When S.D. is in public with Rebecca and Daniel, she ignores Richard and his family.

On cross-examination, Richard admitted that he has audiotaped Rebecca. Richard also admitted bringing S.D. home early from one visitation, at S.D.'s request, due to an argument. Richard did not recall a "sick building syndrome" at S.D.'s school during the year she missed 38 days of school. Richard stated that he has custody of his three sons from a previous marriage and that he does not interfere with their mother's visitation.

Richard's wife, Valerie, testified that she is employed as an administrative assistant at the College of Du Page. Valerie has two daughters from a previous marriage, who live with her and Richard. Valerie and her daughters have taken S.D. shopping. Valerie stated that S.D. does not like to sit at the dinner table but would rather watch television while eating. Valerie has observed S.D. ignore Richard and his family in public when she is with Rebecca and Daniel. Valerie believes that S.D. has a good relationship with her and Richard. Valerie has observed Richard and S.D. interacting in various activities.

Laura Piaskowy, a child protection investigator with DCFS, testified that she investigated an incident report concerning S.D. She concluded that the report was unfounded.

M.M. testified that she is 13 years old and that she is friends with S.D. M.M. lives near S.D.'s father and attends the same school as S.D. M.M. recalled that S.D. once visited with Richard for 30 days, during a time when Rebecca was to have no contact with S.D. S.D. asked M.M. to call Rebecca periodically to tell her "hi" and "what's up." M.M. would relay messages between S.D. and Rebecca about every other day during this time. On cross-examination, M.M. stated that she was not afraid of Richard. S.D. told M.M. that Richard used to hit Rebecca.

Dr. Robert Shapiro, a clinical psychologist, testified that his relationship with the parties began in 1995 as the court-appointed conciliator. Dr. Shapiro initially met with Richard and Rebecca individually and performed psychological testing. Rebecca's psychological testing revealed a certain immaturity, self-centeredness, a low-level of energy, and some evidence that she would become irritable and easily annoyed when her needs were not met. Richard's psychological testing revealed that he was fairly self-confident, had a good level of energy, was outgoing and comfortable with himself, and had no indication of thought, character, or mood disorders.

Dr. Shapiro met with Richard and Rebecca together for four sessions in an attempt to mediate custody and visitation issues. Richard brought S.D. to meet with Dr. Shapiro four times, and Rebecca brought S.D. to meet with him three times and was met by Richard in the waiting room. Dr. Shapiro reviewed approximately 15 police reports, handwritten and typed notes of the parties, histories and accusations made by the parties about each other, a letter from Dr. Hatcher, and DCFS reports. Dr. Shapiro also reviewed a letter written by S.D. that was found by Richard. The letter concerned Dr. Shapiro because S.D. was only 11 years old at the time and the letter contained sexual fantasies that she was sharing with her friends. Dr. Shapiro observed the parties being rude during sessions and, in particular, he noted that Rebecca yelled and was short-tempered and short-fused. This had a profound effect on S.D., causing Dr. Shapiro to end the session. Dr. Shapiro observed a warm, loving relationship between Richard and S.D. and a clear, positive bond between them. Rebecca subsequently refused to allow Dr. Shapiro to interview Richard and S.D. together. Rebecca's uncooperative conduct continued, causing Dr. Shapiro to write a letter to the Judge requesting his assistance in gaining her cooperation.

Dr. Shapiro later met with Richard for an update. A second conciliation was ordered and, in 1997, Dr. Shapiro met with S.D. individually, Richard and Rebecca jointly, and Richard individually.

Dr. Shapiro indicated that in 1996 his opinion was that a change of custody was not indicated and that there existed a parent alienation syndrome in that S.D. was being alienated from Richard. Dr. Shapiro recommended, and the court ordered, that S.D. spend 30 days with Richard, with no contact from Rebecca. This 30-day visitation was to be followed by counseling to help S.D. "extricate herself from her parents' divorce and the way that she had become emotionally entangled in their divorce."

In Dr. Shapiro's second conciliation report he continued to suggest that a change of custody should not take place because there was a little less conflict and S.D. was enjoying her visits with Richard. Dr. Shapiro still observed parent alienation syndrome and recommended therapy to deal with that issue and with the harm caused by S.D.'s ...

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