Appeal from the Circuit Court of Petitioner-Appellant, Cook County. and 11 D 02116 FRANK M. PERRY, The Honorable Edward R. Jordan, Respondent-Appellee. Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Sterba concurred in the judgment and opinion.
¶1 The instant case is an appeal by the wife, Lori Perry, from the entry of an order of the circuit court granting the husband, Frank Perry, temporary custody of the parties' children and possession of the home upon hearing on Lori's petition for temporary custody of the children and temporary possession of the home. Lori contends: (1) the circuit court erred in granting Frank temporary custody and exclusive possession of the home because he did not have a pleading on file; (2) the court erred in granting Frank temporary custody of the children; (3) the circuit court erred in admitting into evidence a flash drive containing photographs that were allegedly copies of photos of Lori from an escort service agency Web site; and (4) the circuit court abused its discretion in denying Lori's motion to reopen the proofs to enter Frank's cell phone as rebuttal evidence, as she contended the photos were actually photos on Frank's cell phone.
¶2 We hold the following: (1) The circuit court did not err in granting relief to Frank because Lori's petition presented a justiciable issue and Lori did not object when Frank sought custody of the children at the hearing. (2) The trial court's order awarding temporary custody of the minor children to Frank was not against the manifest weight of the evidence or an abuse of discretion where the court considered the statutory factors and the best interest of the children under section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602(a) (West 2008)). (3) The circuit court did not abuse its discretion in admitting the photographs on Frank's flash drive where Frank established a proper foundation and authenticated that the photographs are photographs of Lori, but there was insufficient foundation that the photographs were specifically from the Web site "Chix Escorts." Nevertheless, any error in admission of the photographs on this basis was harmless because the circuit court had other evidence before it that Lori was working as an escort and did not base its decision on the fact that she was working for this particular escort agency, and the court had other evidence before it that granting temporary custody to Lori was not in the children's best interest. (4) The circuit court did not abuse its discretion in denying Lori's motion to reopen the proofs to admit Frank's cell phone where there was no need for cumulative rebuttal evidence, the evidence was not of the utmost importance to her case, and the circuit court articulated a cogent reason for denying the request, in that there was a chain of custody problem with the cell phone. Therefore, we affirm the order of the circuit court granting temporary custody of the children and temporary possession of the home to Frank.
¶4 Frank and Lori were married on April 17, 2000. Frank and Lori have three minor children, Frank Jr., Michael, and Christopher. An additional child, Hillary, was born on November 27, 1992, is Lori's child from a previous relationship and was adopted by Frank. Hillary is no longer a minor. The parties lived in Frank's non-marital residence, which he purchased prior to the marriage, at 708 N. Rockwell, Chicago. Frank is a fire inspector for the city of Chicago and works 10-hour shifts, starting at 7 a.m. and ending at 5 p.m., Mondays through Thursdays. Frank also works as an exam proctor for the college of the city of Chicago every Friday from between 2 and 5 p.m. and ending at 10 p.m., and on Saturdays beginning at 7 a.m. working all day. Lori has been a stay-at-home mother since the parties' marriage in 2000.
¶5 On or about February 15, 2011, Frank left the house because Lori threatened him, stating, "If I could kill you and get away with it I would." Lori had been physically violent with Frank in the past, and Frank felt it was in his best interest to leave. Frank spent two nights at his mother's house and then stayed in a hotel for two nights. Even though Frank left the house, he sent texts to Lori to try to resolve their problems. While Frank was out of the house, Lori changed the locks. According to Frank, he repeatedly asked for the opportunity to see the boys but his requests were denied. Lori prevented Frank from seeing the children for six weeks. According to Lori, from February 15, 2011 to March 18, 2011, Frank did not visit with the children or pay any support to Lori or the children. On March 18, 2011, the parties entered into an order which provided that Lori would have temporary "possession" of the minor children and "exclusive possession" of the residence and Frank would have visitation every Sunday and pay Lori $175 per week for groceries and pay other household bills directly.
¶6 On March 3, 2011, Lori filed a petition for dissolution of marriage. On March 17, 2011, Frank filed his response to the petition. On March 15, 2011, Lori filed a motion for interim relief seeking: (1) temporary custody of the children; (2) temporary child support; and (3) temporary exclusive use and possession of Frank's non-marital home. The hearing on Lori's motion began on July 27, 2011 and concluded on October 11, 2011. The court heard testimony from three witnesses over four days of contentious hearings.
¶7 Frank testified both as an adverse witness and on his own behalf in his case-in-chief. In Lori's case-in-chief, Frank testified as an adverse witness. Lori then testified on her own behalf and then rested. At the close of Lori's case-in-chief, Frank made an oral motion pursuant to section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2010)) for exclusive possession but the court denied the motion.
¶8 During Frank's case-in-chief, Frank called Thomas Jun as a subpoenaed witness. Lori listed Thomas Jun as the children's emergency contact at school and was being paid $5,000 per month by him. At the time of the hearing, Lori was bringing Jun with her to pick up the children from school. Frank believed Jun was one of Lori's escort clients.
¶9 Lori testified as an adverse witness, and Frank testified on his own behalf. Both parties testified to instances where the children were injured while in the care of the other parent, but no issue is raised on appeal regarding the physical safety of the children, nor did the circuit court base its ruling in any way on any testimony concerning the physical well-being of the children.
¶10 Frank testified that he believed Lori was working as an escort and maintained that her work negatively affected the children, including their schoolwork and their relationship with Lori. Frank maintains Lori denied him visitation with the children for two Sundays in a row. The three children are all experiencing difficulties in school. The oldest child, Frank, refused to do his homework and has thrown it in the garbage. Lori had a difficult time managing the three boys. Frank was willing to retire in order to have custody of the parties' three children. During his testimony Frank was asked about custody and testified, without objection from Lori, that he should be the custodial parent.
¶11 During his case-in-chief, Frank offered into evidence a flash drive containing photographs of Lori which Frank testified he downloaded from a Web site called "Chix Escorts" on the Internet offering escort services. Frank downloaded the pictures and the information offered on the Web site, which included an e-mail and Lori's cell phone number, onto the flash drive. Counsel for Lori objected to the flash drive based on relevance, foundation, and the fact that it was never produced in response to a Supreme Court Rule 214 request (Ill. S. Ct. R. 214 (eff. Jan. 1, 1996)). Frank testified that he ran Lori's escort name, "April," in the search engine Google, found pictures of Lori on the Web site "Chix Escorts," and downloaded copies of the pictures onto his flash drive. Lori's counsel requested that the court open the picture files from the flash drive on the court's computer. The court found the photographs were relevant and admitted them into evidence. There was no further ruling on the remaining objections, and Lori's counsel did not make a motion to strike.
¶12 Lori testified in rebuttal that she did not set up the Web site "Chix Escorts." Lori testified that one of the photographs was an old picture on Frank's cell phone, and she further maintained that all of the photos on the "Chix Escorts" Web site were photos she had previously sent to Frank. Lori had had Frank's cell phone since Frank left the house, but she did not have it with her in court when she gave her rebuttal testimony.
¶13 The guardian ad litem, Gloria Block, was given the opportunity to testify but declined. Block indicated that she had some "recommendations or comments" for the court and commented that she found the children "engaging," "bright," and "really pretty well behaved." Block recommended a more specific parenting schedule for Frank. However, Block also commented that she had significant concerns about the oldest child that, even though he is a very bright child, she was getting reports that he throws his homework in the garbage. Both parties agreed to the appointment of a counselor for the children.
¶14 On October 11, 2011, after hearing closing arguments from the parties, the court ruled and denied Lori the relief she sought in her motion and instead granted Frank temporary custody of the minor children and temporary exclusive possession of the house and allowed Lori 14 days to vacate the home. The court found that both parties lied on the stand, but it held that on the issue of credibility, the court had to weight the testimony in a light most favorable to Frank. The court noted that "Frank is one of the angriest people I have met in a long time," but found that it could explain Frank's lies but not Lori's, "other than to attempt to gain an advantage in this litigation." The court specifically took issue with Lori's numerous trips and unexplained income during 2010, which the court inferred was due to her working as an escort. The court also noted that Lori averred some fairly "dramatic stuff" in her affidavit in her motion, including an alleged attack by Frank when he placed his hand in her mouth and attempted to rip her jaws apart and then twisted her arm behind her back and threw her across the room, but Lori did not testify to any such conduct during the hearing. The court also told the parties' attorneys to arrange for visitation for Lori.
¶15 After the hearing, Lori filed a motion to reopen the proofs to offer Frank's cell phone into evidence to rebut Frank's testimony concerning the pictures on the flash drive. The circuit court denied the motion based on a chain of custody problem because the cell phone had been in Lori's possession and control since the parties broke up.
¶16 On October 21, 2011, Lori filed an emergency motion to stay enforcement of the circuit court's order pending her leave to appeal. On October 21, 2011, the circuit court granted Lori's motion and entered an order staying its order of October 11, 2011. We entered an order December 7, 2011, granting Lori temporary possession and custody of the minor children and temporary exclusive possession of the property pursuant to the trial court's October 21, 2011 stay order. We further ordered that pursuant to the September 21, 2011 order of the trial court, Frank shall pay $300 per week in temporary child support until further order of the trial court and that the trial court shall determine if an additional amount is appropriate to replace funds not paid pursuant to our November 7, 2011 stay order. By our December 7, 2011 order we also reinstated the appointment of Carroll Craddick as the children's therapist with parent involvement and reinstated Leslie Starr as the custody evaluator.
¶18 I. Award of Temporary Custody to Frank and Exclusive Possession of the Residence Where Frank Did Not Have a Pleading on File in Response to Lori's Motion
¶19 On appeal, Lori first argues the circuit court exceeded its authority when it granted Frank temporary custody of the minor children and exclusive possession of the residence and lacked authority to do so because Frank did not have a pleading on file requesting such relief. Frank responds that the trial court's authority to exercise jurisdiction and resolve a justiciable question is granted by our state constitution and invoked through the filing of a complaint or petition, citing In re Marriage of Baniak, 2011 IL App (1st) 092017, and that here Lori's petition presented the justiciable issue that the court had authority to determine.
¶20 We find Lori's assertion without merit. Circuit courts have " 'original jurisdiction of all justiciable matters.' " Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994) (quoting Ill. Const. 1970, art. VI, § 9). The court's authority to exercise its jurisdiction and resolve a justiciable question is invoked through the filing of a complaint or petition and pleadings that function to frame the issues for the trial court and circumscribe the relief the court is empowered to order. Ligon, 264 Ill. App. 3d at 707. Thus, Lori's own motion placed the children's custody and possession of the house in issue.
¶21 Further, Frank is correct that Lori failed to object at the hearing when Frank indicated he was seeking custody and that he was the better parent. "Where a party proceeds with the case as though his adversary's pleadings joining issue were on file, he waives the adversary's failure to plead." Nerini v. Nerini, 140 Ill. App. 3d 848, 851 (1986) (citing Public Electric Construction Co. v. Hi-Way Electric Co., 62 Ill. App. 3d 528, 532 (1978)).
¶22 Lori sought temporary custody and possession of the house, thereby making these issues justiciable to allow their determination by the court. The fact that the court resolved these issues in a manner not in her favor does not undermine its authority to have made this determination. In dissolution proceedings, " 'the court has the authority and the responsibility to act for the child's care, custody and support until it reaches majority,' " and " 'the court's primary concern obviously is not the wishes of the parents but rather the best interests of the child.' " In re A.W.J., 197 Ill. 2d 492, 498 (2001) (quoting Sommer v. Borovic, 69 Ill. 2d 220, 233 (1977)). The circuit court did not exceed its authority under our constitution to determine justiciable issues.
¶23 II. Awarding Temporary Custody to Frank Based on Alleged Conduct of Lori
¶24 Lori argues that the court should not have considered her work as an escort in awarding temporary custody to Frank because it has no bearing on her parenting. Frank concedes that the circuit court indeed considered her work as an escort in awarding temporary custody of the children to Frank. However, Frank argues, it was not Lori's work as an escort that was at issue but, rather, the impact of ...