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In re Marriage of Minix

December 18, 2003

IN RE: THE MARRIAGE OF DAVID WAYNE MINIX, PETITIONER-APPELLEE, AND WENDY SUE DUNAVEN-MINIX, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Macon County No. 99D651 Honorable Albert G. Webber, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

UNPUBLISHED

Respondent, Wendy Sue Dunaven-Minix, appeals the trial court's order denying her request to prohibit petitioner, David Wayne Minix, from taking their child to his church. She contends that by denying her motion, the trial court has violated her statutory exclusive right as the custodial parent to control the religious upbringing of the parties' minor child. We affirm.

I. BACKGROUND

On October 23, 2000, the circuit court of Macon County entered a judgment dissolving the parties' marriage. Wendy (we refer to the parties' first names for simplicity purposes and not out of disrespect) was granted custody of their minor child, Nicole, born May 13, 1996, subject to David's right to visitation. No specified visitation schedule was ordered with the exception of alternating major holidays. The parties were to continue visitation as previously arranged and agreed between them.

On August 2, 2002, David filed a motion requesting that the trial court specify a visitation schedule. On October 4, 2002, the trial court entered an order specifically defining David's visitation including every other weekend from 3:30 p.m. on Friday until 5:30 p.m. on Sunday. On November 6, 2002, Wendy filed a document entitled "Motion to Modify and Limit Visitation," requesting the trial court to enforce her statutory right and order David to refrain from taking Nicole to any church or from teaching her any religious faith other than Wendy's. David filed a response claiming that Wendy and he both practice the Christian faith, no provision in the judgment of dissolution prohibits him from taking Nicole to church, Nicole is not injured in any way from participating in religious activities with David, and Wendy had never asked David not to take Nicole to church with him.

On March 24, 2003, the trial court conducted a hearing on Wendy's petition. Wendy testified that she was a member of the Unity Church while David practiced a religion "close to Pentecostal," which were different denominations within the Christian faith. Wendy desires that Nicole be educated in the Unity religion. Wendy spoke with David about Nicole's religious education and informed him that Nicole was getting confused by attending both churches and "it needed to stop." She asked David to stop taking Nicole to his church. Wendy testified that she was not asking that David's visitation be interrupted, only that he not take her to his church. On cross-examination, Wendy testified that her and David's churches taught completely different beliefs, which caused Nicole to pose questions.

David was called as an adverse witness. He testified that both denominations are of the Christian faith, and he denied that Wendy asked him to stop taking Nicole to church with him. Upon questioning by his counsel, David testified that he spent approximately two hours in church on Sundays. He had been taking Nicole to church with him for approximately three years. No other evidence was presented.

On March 25, the trial court, by docket entry, denied Wendy's motion, finding that Wendy failed to show any substantial threat to Nicole by David's religious instruction. The trial court found nothing to suggest that David's religious instruction prevented or hindered Wendy's religious instruction. On April 21, 2003, Wendy filed a motion to reconsider, alleging, inter alia, the trial court erred in its consideration of relevant case law. On May 19, 2003, the trial court denied Wendy's motion. This appeal followed.

II. ANALYSIS

The issue before us is whether the trial court's order, denying Wendy's request to prohibit David from taking Nicole to his church during visitation, was an abuse of discretion. We hold that it was not and affirm the trial court.

The resolution of this issue requires sensitivity to two competing interests. On the one hand, Wendy, as the custodial parent, has the statutory right, pursuant to section 608(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/608(a) (West 2000)), to control the religious upbringing of her child. See In re Marriage of Nuechterlein, 225 Ill. App. 3d 1, 7, 587 N.E.2d 21, 25 (1992) (custodial parent controls the religious training of the child regardless of premarital agreement); In re Marriage of Bennett, 225 Ill. App. 3d 828, 833, 587 N.E.2d 577, 581 (1992) (agreement to raise children in the Jewish faith was not an enforceable contract; decision is made by custodial parent).

On the other hand, David, as the non-custodial parent, has a right to unrestricted visitation with his child pursuant to section 607(c) of the Dissolution Act (750 ILCS 5/607(c) (West 2000)), as well as a right to the free exercise of religion. We resolve the controversy in David's favor for the reasons that follow.

We note that the trial court is vested with wide discretion in resolving visitation issues. The appellate court will not interfere with the trial court's determination unless an abuse of discretion occurred or where manifest injustice has been done to the child or parent. In re Marriage of Diehl, 221 Ill. App. 3d 410, 429, 582 N.E.2d 281, 294 (1991), cert. denied, 144 Ill. 2d 632, 591 N.E.2d ...


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