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In Re: the Marriage of v. James T. Smithson

January 31, 2011

IN RE: THE MARRIAGE OF CHRISTINA L. SMITHSON, N/K/A CHRISTINA CAMPBELL,
PETITIONER-APPELLEE,
v.
JAMES T. SMITHSON,
RESPONDENT-APPELLANT.



Appeal from Circuit Court of Macon County No. 04D534 Honorable Theodore E. Paine, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Knecht

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justice Turner concurred in the judgment and opinion. Justice Pope specially concurred in part and dissented in part, with opinion.

OPINION

The trial court terminated the joint-custody agreement of the parties and awarded sole custody of their minor children, Jacob Smithson and Ryan Smithson, to the mother, petitioner, Christina Smithson, n/k/a Christina Campbell. The trial court also found respondent, the father, James Smithson, to be in indirect civil contempt for failure to pay his half of non-covered health-care expenses for the children. James appeals both the custody decision and the finding of indirect civil contempt. We affirm in part and vacate in part.

I. BACKGROUND

James and Christina were married on March 7, 2000. Two children were born during the marriage, Jacob, on July 17, 2000, and Ryan, on May 30, 2003. James was in the United States Marine Corps and served two tours of duty in Iraq and Kuwait during the marriage. On November 15, 2004, Christina filed a petition for dissolution of marriage. On November 23, 2004, the parties filed a waiver of the time period for grounds. That same day, the parties entered into a joint parenting agreement which provided Christina would be the primary custodian of Jacob and Ryan. A judgment of dissolution of marriage was also entered on November 23, 2004, which included a property-settlement agreement providing James would be entitled to custody of the children on alternate Christmas vacations and 30 consecutive days during the summer.

The property agreement also required each party to maintain medical insurance for the children during their employment. The parties were then to each pay one-half of medical, dental, optical, orthodontal, or health-care-related expenses for the children not otherwise covered by insurance.

On January 25, 2008, James filed a motion to modify custody, requesting the joint-parenting agreement be terminated and he be awarded sole custody of Jacob and Ryan. On September 11, 2009, Christina filed a petition for adjudication of civil contempt, alleging James had failed to pay the one-half of medical, dental, optical, orthodontal, or health-care-related expenses for the children not otherwise covered by insurance as required by the judgment of dissolution.

On March 2 to 4, 2010, and April 30, 2010, the trial court held a hearing on the motion to modify custody and the petition for adjudication of contempt. After hearing testimony from numerous witnesses, the trial court entered an order on August 4, 2010. The court concluded joint custody was not working for James and Christina. The court also found James had not proved by clear and convincing evidence a change in physical custody from Christina to him was necessary for the well-being of Jacob and Ryan. Further, James failed to prove there was an agreement under which Christina would pay all health-care expenses not covered by James' insurance nor did he request modification of the judgment. He did not pay one-half of uncovered medical expenses nor did he request modification of the judgment. The court then denied the motion to modify custody, terminated the joint-parenting agreement, and awarded sole custody of Jacob and Ryan to Christina. The court also found James in contempt for failing to pay his share of the boys' medical bills. This appeal followed.

II. ANALYSIS

A. Custody

The determination of child custody rests largely within the discretion of the trial court, and its decision will not be disturbed on appeal unless it is against the manifest weight of the evidence or the trial court abused its discretion. In re Marriage of Craig, 326 Ill. App. 3d 1127, 1129, 762 N.E.2d 1201, 1203 (2002).

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610(b) (West 2008)) provides:

"(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. *** In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child's best interest. The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination."

To modify a custody order, a petitioner must demonstrate by clear and convincing evidence (1) a change of circumstances of the child or his custodian has occurred and (2) a modification is necessary to serve the best interests of the child. See In re Marriage of Burke, 185 Ill. App. 3d 253, 256, 541 N.E.2d 245, 247 (1989). However, in the case of a joint-parenting agreement, where both parties agree to a termination of the agreement, a trial court may proceed directly to a determination of the child's best interests.

James argues the trial court applied the wrong burden of proof in denying his motion to modify custody. He contends he did not need to prove a change of circumstances had occurred as Christina agreed the joint-parenting agreement was not working and the court needed only to determine what custody arrangement was in the best interests of Jacob and Ryan. James notes with regard to joint custody, the supreme court has found stipulations by both parents they no longer wish to be joint custodians constitutes a change in circumstances and a custody modification should be made in accordance with the child's best interests. In re Marriage of Lasky, 176 Ill. 2d 75, 81, 678 N.E.2d 1035, 1038 (1997). Following Lasky, this court found in In re Marriage of Ricketts, 329 Ill. App. 3d 173, 768 N.E.2d 834 (2002), where both parents file petitions to modify a joint-custody agreement, each seeking sole custody, both parents are, in essence, agreeing joint custody should be terminated and there was no need to show serious endangerment to the child's physical, mental, moral, or emotional health in order to modify the custody agreement. Ricketts, 329 Ill. App. 3d at 178, 768 N.E.2d at 838.

James contends although he alone filed a motion to modify custody by terminating the joint-custody agreement and awarding sole custody to him, testimony by Christina at the hearing on his motion amounted to an admission joint custody is not working and, therefore, should be considered to be a stipulation she no longer desires to have joint custody. He contends the trial court should have gone right to a best-interest analysis as the change in circumstances noted by both Lasky and Ricketts had occurred.

The circumstances of this case are different from those found in Lasky and Ricketts. Although Christina did testify as an adverse witness she found joint parenting not working, during her attorney's opportunity to elicit testimony to clarify her testimony, Christina testified the reason she did not believe joint custody was working was she believed she was parenting with Julia, James' new wife, and not James. She based her belief on the fact the communication between the two families was conducted mostly by e-mail and James was at work when most of the e-mail exchanges were made. Julia operated an in-home day-care facility and was home during the day. Christina further stated she could continue to joint parent with James and this was in the best interests of the children.

Section 610(b) requires both parties agree to a termination of joint custody before the court can terminate a joint-custody order and make any modification of custody in the best interests of the children. However, these parties did not agree to terminate joint custody. Both parties did not file petitions to modify custody nor was there a stipulation to that effect. Christina's testimony, equivocal at best, was not an agreement to terminate joint custody. We will not extend the reasoning of either Lasky or Ricketts to include the facts of this case.

James argues even if Christina's testimony is not sufficient to eliminate a finding of change of circumstances or be considered the change of circumstances itself, he has proved by clear and convincing evidence there has been a substantial change in circumstances.

The trial court essentially made a finding of change of circumstances by finding joint custody was not working for James and Christina as "[b]oth have not communicated as necessary in the past" and, when they did communicate, James has dictated rather than discussed issues and has belittled Christina's parenting choices. Thus, James got part of the remedy he sought, the termination of the joint-parenting agreement, as the trial court found it was not working. The court went on to find James had not proved by ...


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