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In Re: B.B. and K.B., Minors v. Michael J. Branson

October 28, 2011

IN RE: B.B. AND K.B., MINORS, CHASTITY HOPE WALLACE, PETITIONER-APPELLANT,
v.
MICHAEL J. BRANSON, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Edgar County No. 02F22 Honorable Steven L. Garst, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

JUSTICE TURNER delivered the judgment of the court, with opinion. Justices McCullough and Cook concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner, Chastity Hope Wallace, appeals the Edgar County circuit court's May 2011 judgment, awarding custody of the parties' two minor children to respondent, Michael J. Branson. On appeal, petitioner argues (1) the court's May 12, 2010, child-support order constituted a custody judgment; (2) respondent should not have been allowed to seek a modification of custody within two years of the May 2010 child-support order; (3) the court erred by finding a change in the minor children's circumstances occurred; and (4) respondent failed to prove a modification of custody was in the minor children's best interests. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In December 2002, petitioner filed a petition against respondent to establish a father-child relationship and for custody of their minor children. The petition alleged the parties had one child, B.B. (born November 1999), and she was pregnant with another child. In February 2003, respondent filed an answer, denying paternity of the unborn child, and a motion regarding temporary child support. The child-support motion noted a plenary order of protection had been entered on October 24, 2002, requiring respondent to pay petitioner $100 a week in child support. Wallace v. Branson, No. 02-OP-69 (Cir. Ct. Edgar Co.). That same month, petitioner filed a motion for a paternity test, noting the unborn child was due to be born in late March 2003. On March 3, 2003, the trial court held a hearing and ordered respondent to pay $58 per week in temporary child support, retroactive to February 14, 2003. The court also granted petitioner's request for paternity testing. K.B. was born on March 18, 2003. A written temporary child- support order was entered on March 25, 2003, which provided respondent was also to pay 20% of his net income from self-employment. A May 2003 paternity test showed respondent was K.B.'s father.

¶ 4 At a June 29, 2004, hearing, the parties announced they were back together. The court (1) found the custody petition was now moot, (2) vacated the temporary child-support order, and (3) granted the petition to establish a father-child relationship as to both B.B. and K.B.

¶ 5 In January 2010, the Illinois Department of Healthcare and Family Services (Department) filed (1) a petition to intervene and (2) a petition for "modification" of child support. In March 2010, the trial court granted the Department's petition to intervene. The next month, respondent filed an answer to the Department's child-support petition. Respondent noted a court order had not assigned custody of the children to either party but petitioner currently has physical possession of the children. He also noted he (1) was currently in school and unemployed and (2) gave petitioner child support on a regular basis. At an April 14, 2010, hearing, the court ordered respondent to pay $57.26 per week in temporary child support. On May 12, 2010, the court held a hearing on permanent "modified" child support and set child support at $64.68 per week, effective May 14, 2010.

¶ 6 On June 1, 2010, respondent filed a petition for temporary and permanent custody of the minor children. Thereafter, petitioner filed a motion to dismiss the petition, asserting the April 2010 child-support order granted her custody of the minor children under section 14(a)(2) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/14(a)(2) (West Supp. 2003)), and thus respondent's modification petition was within two years of the custody judgment and had to allege the minor children were seriously endangered in their present environment, which it did not. After a June 17, 2010, hearing, the trial court granted petitioner's motion to dismiss, finding the May 2010 child-support order was a custody judgment. Respondent then filed a motion to reconsider the court's dismissal. In August 2010, the court heard the reconsideration motion, found the June 2004 parentage order was a custody judgment, and gave respondent leave to file a modification-of-custody petition.

¶ 7 On August 31, 2010, respondent filed his petition for modification of custody. In October 2010, respondent filed an amended petition to modify custody. On March 16, 2011, the trial court commenced the trial on respondent's amended modification petition. Respondent testified on his own behalf and presented the testimony of (1) Jo Ellen Henson, the social worker at B.B.'s school; (2) Mona Babette Dillon, respondent's fiancee; (3) William Joseph Simpson, a friend of respondent's family who lived near respondent after the parties' separation; (4) Chris Branson, respondent's mother; (5) Jerry Thurman, respondent's brother-in-law; (6) Mary Catherine Winchester, a friend of respondent's parents; (7) Holly Thurman, respondent's sister; (8) Lisa Miller, respondent's cousin; (9) Jerry Branson, respondent's father; (10) petitioner, as an adverse witness; and (11) Karen Burkybile, the guardian ad litem. At respondent's request, the court also conducted in camera interviews of the minor children. Petitioner testified on her own behalf and presented the testimony of (1) Joyce Henriott, K.B.'s teacher; (2) Heidi Wallace, petitioner's aunt; (3) Stephanie Hovis, petitioner's cousin; and (4) Karen Winkler, petitioner's grandmother. We note the exhibits presented at the trial and the guardian ad litem's report are not included in the record on appeal.

¶ 8 The following is a brief synopsis of the evidence presented at the trial. The minor children had lived in Paris, Illinois, all of their lives and that was where their maternal and paternal relatives also resided. After the parties' separation in 2006, respondent had the children three or four days a week. Sometime in 2008, respondent began having the children every other weekend. The parties presented conflicting evidence as to the reason for the decline in respondent's visitation. The minor children had attended the Paris District 95 schools since preschool, had the same medical clinic since birth, and had a free dentist in town. Petitioner admitted she had allowed the kids to go four years without seeing a dentist. Both minor children had good school attendance. Respondent had always been the party responsible for cutting the minor children's hair and trimming their nails. When interviewed by the trial court, both children stated they wanted to live with respondent. The guardian ad litem also recommended respondent receive custody of the minor children.

¶ 9 B.B. played the trumpet in the school band and was involved in a city basketball league. During the 2010-11 school year, B.B. started having behavioral concerns at school and his grades dropped. According to petitioner, B.B.'s grades had started to improve. About two weeks before the custody trial, B.B. threatened to kill himself at school. His school counselor testified he had anxiety from the court proceedings and the custody issues. B.B. also mentioned petitioner's alcohol usage. His school counselor referred him to Coles County Mental Health for a screening. Coles County Mental Health recommended B.B. receive individual and family counseling for a period of three months. Petitioner was working on getting counseling established for B.B. Respondent and some of his witnesses testified about B.B. being fearful of petitioner and expressing hatred toward her. The guardian ad litem also testified B.B. was upset and wanted out of petitioner's home. Petitioner and her witnesses testified B.B. showed affection for petitioner.

¶ 10 K.B. did not have any extracurricular activities. K.B. was a good student, a good child, and overall in good health. K.B. did have warts that petitioner admitted she did not consistently treat. She did not think the warts were a health concern but did admit a few of them were unsightly. The parties gave conflicting testimony on (1) whether K.B. had asthma and still needed breathing treatments, (2) the reason for the delay in treating his warts, and (3) whether petitioner properly treated his scabies.

ΒΆ 11 In September 2009, the minor children were unsupervised in Sunset Park when acquaintances set a car on fire. The police asked the minor children to come to the police station to discuss the incident. Sunset Park was three blocks ...


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