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In re Marriage of Kneitz

July 16, 2003

IN RE MARRIAGE OF JOHN M. KNEITZ, PETITIONER-APPELLEE, AND KIMBERLY F. KNEITZ, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of McHenry County. No. 01-DV-101 Honorable Joseph P. Condon, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

The circuit court found respondent, Kimberly F. Kneitz, in indirect civil contempt of court for failing to make her children available for visitation with petitioner, John M. Kneitz. Respondent appeals, contending that she did not wilfully violate the court's order because another order issued by a Louisiana court forbade her from allowing the visitation. We affirm.

The parties were married in Louisiana in 1992 and had two children together. In January 2001, the family was living in Illinois, where petitioner was stationed at Great Lakes Naval Training Base. On about January 15, 2001, respondent and the children moved to Louisiana. On January 31, 2001, petitioner filed his petition to dissolve the parties' marriage.

Respondent filed a general appearance. Although the record of this portion of the proceedings is incomplete, it appears that the trial court awarded respondent custody of the children, allowed her to remove them to Louisiana, and gave petitioner visitation.

Respondent subsequently petitioned the trial court to suspend or restrict petitioner's visitation, alleging that he had sexually abused one of the children. Following a hearing, the trial court denied the petition. On November 20, 2001, the court ordered that petitioner have visitation with the children in Louisiana from December 6-8, 2001.

On December 5, 2001, respondent filed a petition in the district court of Jefferson Parish, Louisiana, to modify the custody and visitation orders. The verified petition referred to the hearing conducted in McHenry County. The petition alleged that the Illinois court "ruled that [a] DCFS report was inadmissible under Illinois' hearsay laws. This determination precluded the introduction of key information and findings necessary to support the allegations of sexual abuse." According to the petition, the court excluded hearsay statements one of the children made. The petition further alleged that, as a result of those rulings, "and without requiring further investigation or counseling," the court denied the request to suspend visitation.

That day, the Louisiana court issued an ex parte order "suspending the execution of any visitation orders" granting petitioner visitation, specifically including the November 20, 2001, order. The Louisiana court ordered petitioner to show cause on December 13, 2001, why his visitation should not be "suspended and/or supervised."

Petitioner was personally served with notice of the Louisiana proceeding but did not appear. Instead, he filed in Illinois a petition for a rule to show cause why respondent should not be found in contempt of court for failing to abide by the November 20 visitation order. On December 12, 2001, the Illinois court enjoined respondent from filing or continuing any proceedings in Louisiana relating to the parties' children, other than "a proceeding which solely concerns the issue of jurisdiction of the parties' said minor children under the Uniform Child Custody Jurisdiction Law."

At a hearing, respondent testified that the December 5, 2001, order was entered following a recommendation of a counselor at the Metropolitan Battered Women's Shelter in New Orleans. Earlier, respondent had learned from the Illinois Department of Children and Family Services (DCFS) of an "indicated" report of sexual abuse by petitioner. She believed that DCFS would find her "in neglect of [her] children" if she allowed petitioner to have visitation.

On cross-examination, respondent testified that she attended the November 20 hearing in McHenry County. She acknowledged that several witnesses testified, including Lorena Guidry of the Metropolitan Battered Women's Program of New Orleans; Catherine Loisel of the Great Lakes Family Support Center; Gary Keyser, a Louisiana assistant Attorney General; and Kaylyn Marie Dueker of the Navy Criminal Investigative Service. Jim Schaefgas of DCFS also testified.

Respondent denied that the Louisiana petition was the "same petition" she had filed in Illinois. She testified that after she returned to Louisiana, she received "a couple additional pieces of information" that "confirmed some of the [earlier] allegations." These included an opinion from one counselor that visitation would not be good for her son's emotional state. Respondent was unable to identify any other new information in the petition she filed in Louisiana.

The trial court found that respondent wilfully violated the November 20 visitation order. Addressing respondent's contention that she was subject to conflicting orders, the court stated that "the situation that you find you're in is entirely something you initiated." The court deemed the Louisiana order an "excuse" not to comply with the earlier order, likening respondent's situation to a parent who quits his job and then argues that he is unable to pay child support. The court sentenced respondent to 180 days in jail, but provided that she could purge the contempt by making the children available in Illinois for three consecutive days of visitation. Respondent timely appealed. This court stayed the respondent's sentence pending appeal.

On appeal, respondent contends that the trial court's finding that she wilfully violated the November 20 visitation order is against the manifest weight of the evidence. She argues that she reasonably believed that the Louisiana order prevented her from making the children available for visitation. Alternatively, she contends that the purge provision is not an ...


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