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In re Marriage of Marsh

November 13, 2003

IN RE: THE MARRIAGE OF BROOKS MARSH, PETITIONER-APPELLANT, AND FRANKIE MARSH, RESPONDENT-APPELLEE.


SYLLABUS BY THE COURT

Appeal from Circuit Court of Champaign County No. 96D717

Honorable Arnold F. Blockman, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

UNPUBLISHED

In December 1996, the trial court entered an order (1) dissolving the marriage of petitioner, Brooks Marsh, and respondent, Frankie Marsh, and (2) granting the parties joint custody of their four children, pursuant to their marital settlement agreement. In August 1999, Brooks filed a motion to modify custody and award him custody of the three children who were then minors (K.M., born June 1984; J.M., born July 1986; and L.M., born May 1991).

Following hearings in September and October 2001, the trial court entered a custody order (1) terminating joint custody; (2) granting Brooks custody of the parties' daughter, K.M.; and (3) granting Frankie custody of their sons, J.M. and L.M. The court reserved issues of child support, visitation, and attorney fees. In September 2002, the court entered a final judgment on modification of judgment. Later that month, Brooks filed a motion to reconsider, which the court denied.

Brooks appeals, arguing that the trial court abused its discretion by (1) awarding Frankie custody of L.M. and J.M., and (2) refusing to either grant his motion to reconsider or conduct an evidentiary hearing on the matters raised therein. We affirm.

I. BACKGROUND

Brooks and Frankie married in 1981. Pursuant to the trial court's December 1996 dissolution judgment, which incorporated the parties' marital settlement agreement, Brooks and Frankie shared joint custody of their children. At the time of the hearing on Brooks's August 1999 motion to modify custody, Frankie had custody of K.M., J.M., and L.M. on weekdays and one weekend per month during the school year. Brooks had custody during the summer months and three weekends per month during the school year. Frankie lived in Champaign, where K.M. and J.M. attended Centennial High School (Centennial). Brooks lived in Mahomet with his wife, Tammy Marsh, their infant son, Alec, and Tammy's son from a prior marriage, Logan.

Because the parties are familiar with the evidence presented at the September and October 2001 hearings on Brooks's motion to modify custody, we review it only to the extent necessary to put the parties' arguments in context.

During an in camera interview with the trial court, J.M. discussed at length the following: (1) his feelings about living at Brooks's and Frankie's respective homes; (2) his attachments to Champaign and Mahomet and the friendships he has in each of those communities; (3) his feelings regarding his church in Champaign and Brooks's church; (4) his relationships with Frankie and Brooks; (5) his learning disability; (6) his mental health; (7) his parents' participation in his school and church activities; (8) his feelings about Centennial; and (9) where he would prefer to live.

In an in camera interview with the trial court, L.M. discussed what it is like to live with Frankie and Brooks, respectively. He also discussed his relationships with Frankie, Brooks, J.M., and his stepsiblings.

The parties presented extensive evidence regarding (1) Frankie and Brooks's inability to effectively communicate regarding the children; (2) persistent disputes between Frankie and Brooks over pickups and drop-offs of the children; and (3) K.M. and her relationship with Frankie and Brooks. Because neither party disputes the trial court's order terminating joint custody and granting Brooks custody of K.M., we will not reiterate the evidence on those matters.

The evidence favoring Frankie as J.M. and L.M.'s custodial parent showed the following: (1) Frankie's school and work schedule allowed her to be home between 3 and 5 p.m. on weekdays; (2) Brooks was sometimes late picking up the children for visitation; (3) Brooks did not get home from work until 5:30 or 6 p.m.; (4) Brooks's job required him to travel two to three days per week; (5) Brooks occasionally had to be away overnight; (6) although he had a cellular phone, Brooks could not always be reached by phone; (7) on occasion, J.M. did not complete homework assignments when he had been with Brooks for the weekend; (8) J.M. and L.M. had friends at their Champaign schools and in their Champaign neighborhood; (9) Brooks sometimes intimidated J.M. while helping him with his homework; (10) Frankie attended many of J.M. and L.M.'s activities; (11) Frankie helped L.M. with his homework and when he did not have homework, she played games with him that involved math; (12) Brooks had made inappropriate remarks regarding Frankie in front of the children; (13) Frankie was supportive of the children's school and church activities; and (14) Frankie was very loving toward the children.

The evidence favoring Brooks as J.M. and L.M.'s custodial parent showed the following: (1) Frankie sometimes made Brooks wait when he arrived at her house to pick up the children for visitation; (2) Tammy and Brooks had rules and expectations for the children, and consequences for their failure to meet those expectations were understood; (3) J.M. and L.M. had friends in their Mahomet neighborhood; (4) J.M. and L.M. had a good relationship with Tammy; (5) Tammy and Brooks attended little league and soccer activities; (6) during the summers, Brooks took some time off from work to spend time with the family; (7) Brooks participated in outdoor activities with J.M. and L.M., such as bike riding and other sports; (8) Brooks could be reached on his cellular phone even ...


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