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In Re Marriage of Beth Dorfman

August 24, 2011

IN RE MARRIAGE OF BETH DORFMAN,
PETITIONER-APPELLEE, AND
BARRY DORFMAN,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 08-D-246 Honorable Dinah J. Archambeault, Judge, Presiding.

The opinion of the court was delivered by: Justice O'brien

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.

OPINION

¶ 1 Beth Dorfman, the petitioner, filed a petition to remove the parties' minor children to Georgia. Barry Dorfman, the respondent, filed a motion asking the court to order Beth and the minors to move back to Illinois. After a hearing, the court granted Beth's petition. Barry appeals, contending that the trial court erred in granting Beth's petition for removal because it: (1) improperly considered the evidence in light of the applicable law and effectively shifted the burden of proof to him; and (2) failed to provide Barry with any visitation rights and improperly relied on the availability of electronic communications. We affirm.

¶ 2 FACTS

¶ 3 Beth and Barry were married on August 9, 1998. Beth gave birth to a son, Dylan, on January 12, 2001, and a daughter, Alayna (Lanie) on July 14, 2002. Thereafter, on February 8, 2008, Beth filed a petition for dissolution of marriage, and the court entered a judgment dissolving the parties' marriage on May 20, 2009. Pursuant to the terms of the judgment of dissolution, the court awarded Beth sole custody of the minors. The court reserved the matter of Barry's visitation and noted that he had yet to complete a parenting class. After the divorce proceedings, the court granted Barry varying terms of supervised visitation.

¶ 4 Beth moved with the minors to Georgia in June 2010, and she filed her petition to remove the minors on August 9, 2010. Barry filed a motion asking the court to order Beth and the minors to move back to Illinois. The court conducted hearings on the removal petition in December 2010 and January 2011. The record indicates that Barry acted pro se.

¶ 5 Barry and Beth testified at the hearings. Barry explained his mental health history and stated that he had been voluntarily institutionalized in the psychiatric wards of various hospitals on seven occasions between February and November 2008. The record indicates that on July 3, 2008, prior to one of Barry's admissions to the psychiatric ward, he left his sister, Barbara Dorfman, a voice mail stating that he had purchased a gun, and police subsequently found him driving in Lockport, Illinois, the town in which Beth and the minors lived at the time. During Barry's testimony, he denied having a gun, but acknowledged that police found him driving around Lockport.

¶ 6 Barry also testified that he suffered from depression, but he believed that his depression was situational. He acknowledged that he informed Rita Murr, the guardian ad litem (GAL) for the minors, that he had been diagnosed with having borderline personality disorder. He also stated that he had been prescribed Lexapro to help manage his depression, but denied taking it at the time of the hearing. He denied ever taking any other psychiatric medications. Beth, however, introduced an e-mail from Barry indicating that he had been prescribed five psychiatric medications and that he filled three of the prescriptions. Beth also introduced additional e-mails from Barry that indicated that Barry needed his psychiatric medication to be able to live a normal life.

¶ 7 According to Beth, sometime around July 2007, Barry became convinced that she was having an extramarital affair, and so he began to "interrogat[e]" her on a monthly basis about her daily whereabouts. During Barry's questioning of Beth, he would either act as if he were in a trance or rage, depending on whether he could get the information he sought from Beth. Beth explained that these "interrogation[s]" occurred weekly starting in November 2007. According to Beth, half of the "interrogation[s]" occurred in the presence of the minors, during which time Barry had called Beth "a liar and a whore." Beth took a polygraph examination to prove to Barry that she did not have an affair, but the results were inconclusive due to problems with her breathing.

¶ 8 Barry acknowledged that the court had granted three emergency orders of protection in favor of Beth and against him. The orders were granted on: (1) January 5, 2008, in case No. 08--OP--93; (2) May 19, 2008, in case No. 08--OP--898; and (3) July 7, 2008, in case No. 08--OP--1197. The record indicates that Beth voluntarily dismissed the first order of protection in an attempt to save the marriage. The record also shows that the order of protection entered in case No. 08--OP--898 was subsequently dismissed, and the court entered a restraining order in its place. The restraining order granted Barry visitation with the minors, but forbade him from "physically or verbally abusing, harassing, threatening, or attempting to discuss issues with Beth Dorfman not related to the parties minor children or logistical necessities." The record further indicates that the court extended the order of protection entered in case No. 08--OP--1197 until July 26, 2012.

¶ 9 Barry admitted that prior to dismissal of the January 5, 2008, order of protection, he had violated it by approaching Beth while she was in the Flossmoor library. Beth explained that she visited the library frequently, while Barry did not. On the day of the violation, Barry approached her and asked to talk. Beth declined and called the police. Beth noticed that Barry had a black eye, but someone had already informed Beth that it was self -inflicted. Barry also acknowledged that he violated the restraining order by coming to Beth's work, but he contended that he "didn't think [he] was violating anything" at that time.

¶ 10 Beth also explained the basis of the order of protection entered in case No. 08--OP--898. Barry had become angry and had accused Beth of having "a hundred f*** friends that [he] kn[e]w nothing about," and ripped his underwear off of his body. Beth then gathered the minors and attempted to leave their residence, at which point Barry threw Beth's car keys across the yard and shoved Beth to the ground. A neighbor intervened and helped Beth and the children leave. The following day, Barry attempted to remove Dylan from his school, but he was unsuccessful because the order of protection was already in place. Barry later called Judy Dorfman, his mother, and informed her that he was attempting suicide by sitting in a running car in a closed garage. The police subsequently rescued Barry, and he voluntarily entered the hospital for psychiatric help.

¶ 11 Barry also stated that the court had convicted him of two misdemeanor offenses of violating an order of protection, and he served jail terms on each conviction of 18 and 28 days, respectively. The court also convicted Barry of a third offense of violating an order of protection. This conviction was a felony, and Barry was sentenced to a one-year term of imprisonment. Barry's term of imprisonment for this offense began on December 22, 2009, and ended on June 22, 2010. At that time, he was released to Judy's home subject to an ankle monitoring device that prohibited him from leaving this residence without advance permission. The ankle monitoring device was to be removed on June 22, 2011.

¶ 12 Pursuant to the May 30, 2008, restraining order, Barry was granted visitation of various times for five or six days per week. In orders entered on August 21, 2008, and August 26, 2009, the court granted Barry supervised visitation of the minors for one day per week.

¶ 13 Barry exercised visitation with the minors on three occasions from May 31 to June 13, 2008; three times from September 1 to October 1, 2008; at no time between October 15, 2008, and January 5, 2009; and four times between January 10 and February 13, 2009. The record contains an e-mail from Barry to Beth dated April 1, 2009, where Barry requested that Beth stop sending him "report cards or anything else." In that e-mail, Barry further stated that he was "done," and that he "ha[d] no family...they [were Beth's] kids." Although the record does not disclose further specific information on Barry's visitation with the minors, it indicates that Barry filed a motion on August 17, 2010, stating that he was permitted to have contact with the minors, but that he also wanted visitation with them. Barry also testified that he had phoned the minors every day since August 2010, and that a recent visit with them had gone very well.

¶ 14 The record also contains numerous other e-mails and voice mails from Barry to Beth. Many of these messages were addressed to the minors, but Barry stated that he sent them to Beth's e-mail and voice mail accounts with the expectation that she would intercept them. In these messages, Barry generally accused Beth of having an extramarital affair, and specifically stated that "a whole bunch of dominos will come falling down on [Beth] and expose her for the liar, cheater, horrible person, breaker of the ten commandments she [was]. And yes, unfortunately, that [made] her a WHORE." Barry also wrote an e-mail that had "Dylan & Lane" in the subject, and continued in the body by stating that the minors "[we]re better off being raised by ANYONE who [did not] run off at night F*** other guys while their home with their father. You f*** WHORE!!! You're a f*** whore. How's your other daughter, you whore, huh? Everyone will know [the truth] soon, cuz I've got nothing to lose. So, the truth is coming out... YOU F*** SLUT, CHEAT, WHORE!!!!!" Barry also sent an e-mail with "Kids" in the subject line, and in the body called Beth "GARBAGE."

¶ 15 According to Barry, he was drinking heavily when he sent Beth these e-mails. Barry acknowledged that two men in Wisconsin had obtained orders of protection against him, because Barry left offensive and threatening voice mail messages for them due to his belief that they were involved in Beth's alleged affair.

¶ 16 Regarding Barry's reference to Beth's "other daughter," the record indicates that Beth had a daughter at age 18 and gave her up for adoption. While Beth's parents and Barry knew this information, Beth intentionally kept this information from her extended family, including her grandparents, aunts, and uncles. Barry admitted, however, that he had sent a letter to five of Beth's extended-family members stating that she had had a child at age 18 and that she had had an extramarital affair. Beth stated that Barry sent this information to over 10 of her relatives and that it had caused her problems with her family.

ΒΆ 17 Beth also read some of the contents of two compact discs (CD) of phone messages left for her or the children by Barry. One disc was compiled on June 10, 2009, by the Mokena police department, and it consisted of 28 messages. The second disc was compiled by the department on November 3, 2009, ...


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