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In re Marriage of Bates

July 09, 2003

IN RE MARRIAGE OF NORMA PEREZ DE BATES, N/K/A NORMA I. PEREZ PETITIONER-APPELLANT AND CROSS-APPELLEE, AND R. EDWARD BATES, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


Appeal from the Circuit Court of Du Page County. No. 99-D-958 Honorable John W. Demling and James J. Konetski, Judges, Presiding.

The opinion of the court was delivered by: Justice Kapala

UNPUBLISHED

Petitioner, Norma Bates, n/k/a Norma Perez, filed an appeal (No. 2--02--0488) from the order of the circuit court of Du Page County granting the request of respondent, Edward Bates, for a change of custody and awarding custody of the minor child to respondent. Petitioner also filed a separate appeal (No. 2--02--0516) from that same order. The same order denied respondent's petition to terminate unallocated family support and he filed his own appeal (No. 2--02--0597). This court consolidated the three appeals, and petitioner proceeded as the appellant/cross-appellee and respondent proceeded as the appellee/cross-appellant. For the following reasons, we affirm the order of the circuit court granting respondent's request for a change of custody and affirm the order denying respondent's request for termination of unallocated support.

MOTIONS IN THE APPELLATE COURT

The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

[Nonpublishable material removed here.]

BACKGROUND

As the parties are familiar with the facts, we will set forth only those facts necessary to establish the background for the issues raised in this appeal. We will discuss additional facts where necessary in our analysis of the various issues.

The original judgment of dissolution of marriage was entered on July 14, 2000. The judgment included a joint custody agreement, which required petitioner and respondent to cooperate in raising their child. Also pursuant to the joint parenting agreement, the child was to reside primarily with petitioner and respondent was to have certain visitation.

The judgment further provided that respondent must pay unallocated family support to petitioner. Such payments would continue until one of several situations occurred. Of relevance to this appeal, one of those situations was the "cohabitation of [petitioner] on a resident, continuing, conjugal basis as found by a Court of competent jurisdiction upon proper notice, petition and hearing."

On May 15, 2001, respondent filed a petition to modify the judgment of dissolution to award him sole custody of the child. On July 3, 2001, he also filed a petition seeking to terminate unallocated family support based on allegations that petitioner was cohabiting on a continuing and conjugal basis.

On March 9, 2001, petitioner petitioned for modification of the visitation schedule and also sought appointment of a guardian ad litem under section 506(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/506(a) (West 2000)). On March 19, 2001, the trial court appointed attorney John Bush as the child's representative under section 506. The trial court also set a trial date of December 19, 2001.

On the scheduled trial date, petitioner filed several motions, including a motion to dismiss respondent's petition to modify custody pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/ 2--615 (West 2000)), a motion to bar the testimony of Dr. Richard Gardner, a motion to order the child representative to testify or, alternatively, to strike his written recommendation and to declare section 506 of the Act unconstitutional, and a motion under section 2--619(a)(9) (735 ILCS 5/2--619(a)(9) (West 2000)) to dismiss the petition to modify custody. Respondent moved to strike these motions as having been filed in violation of the time requirements under the local rules.

The trial court denied petitioner's request to order the child representative to testify or, alternatively, to declare section 506 unconstitutional. It ruled in that regard that the child representative's report be "redacted and removed" from the court file. The trial court also struck petitioner's motion to bar Dr. Gardner's testimony based on a lack of timely notice but decided to consider it as a motion in limine to be decided at the appropriate time during trial. The court also ordered a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine the admissibility of evidence regarding parental alienation syndrome (PAS) and set the hearing for January 15, 2002. The court also struck the section 2--619 motion as untimely but deemed it a motion in limine to be renewed at the appropriate time during trial. The court denied petitioner's section 2--615 motion. The trial date was also continued.

At a hearing on January 7, 2002, the trial court granted respondent's motion to bar Dr. Jeffrey Johnson from testifying because his expert report had not been disclosed in a timely manner. The trial court also denied ...


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