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In Re Marriage of

July 12, 2012


Appeal from the Circuit Court of Cook County. No. 10D4934 The Honorable Kathleen Kennedy, Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.


¶ 1 This matter is before the court on an interlocutory appeal by respondent, Robert Levinson (Robert), pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from an order of the circuit court issued September 8, 2011, awarding the temporary exclusive possession of the marital residence, pursuant to section 701 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/701 (West 2010)), to petitioner, Robin Mitchell Levinson (Robin), for the duration of the dissolution proceedings.


¶ 3 The parties were married on March 28, 2004. Throughout their marriage, Robert and Robin resided together at the marital residence at issue here. They have two young children:

Bennet, born in 2007, and Jacob, born in 2005. According to the record, both Bennet and Jacob have special needs. Jacob has been diagnosed with sensory processing disorder and dyspraxia, and Bennett is currently being tested for sensory processing disorder.

¶ 4 This litigation has an extensive procedural history. We will address herein those motions and hearings pertinent to the issue before us.

¶ 5 On May 12, 2010, Robin filed a petition for dissolution of marriage, alleging irreconcilable differences. She asked for custody of the children as well as exclusive possession of the marital residence. Two days later, she also filed an emergency petition for an order of protection asking that Robert be prohibited from committing physical abuse, willful deprivation, harassment, interference with personal liberty, and intimidation of a dependent.*fn1 Additionally, she sought restriction or denial of visitation with the children because Robert was likely to abuse or endanger them during visitation, use visitation as an opportunity to abuse or harass Robin and the children, improperly detain or conceal the children, and otherwise act in a manner that is not in the best interest of the children.

¶ 6 The court appointed a child representative. It also began what the parties refer to as a "birdnesting" schedule, wherein each party occupies the marital residence during his or her parenting time, but vacates it during the other's parenting time. For example, from a court order:

"The parties shall not be in or at the martial 'home' located at 3834 Marshfield, Chicago, IL at the same time and Robert shall be allowed in the home as follows which tracks his parenting time:

(a) May 14 from 3 pm to 6 pm, (b) May 15 from 3:30 pm to 6:30 pm. However Robert may pick Jake up at said home at 2:30 pm and take him to soccer that day, (c) May 16 from 9 am to 1 pm, (d) May 17, 18 & 19 Robert shall pick Jake up at school at 3:00 and return to said home to be with Bennett and Jake until 6:00 pm. *** Robin shall have the use of the home except as set forth in paragraph a-d set forth above and shall have the balance of time as her parenting time."

¶ 7 On May 21, 2010, the court allowed Robin to withdraw her emergency petition for order of protection without prejudice. In the May 21 order, the court addressed numerous issues, including parenting time through the next month:

"Robin shall have exclusive possession of the marital residence *** except during Robert's parenting time referenced herein when he shall have exclusive possession of said marital residence, Robert shall take Jake to and from OT on his Thursday parenting time as referenced above. Each party may attend all scholastic and extra-curricular activities for the children regardless of the parenting time schedule; however no other relative shall be present at such events *** the parenting schedule and all aspects of this Order is without precedent and prejudice *** No relatives of either party shall be on the premises of said marital residence."

¶ 8 In June 2010, Robert filed a counterpetition for dissolution of marriage. He, too, asked for custody of the children and alleged that it was in the best interests of the children to be in his custody. He also filed a petition for interim relief in which he asked the court to "continue the nesting arrangement of the parties with the children in the marital residence."

¶ 9 On June 23, 2010, the court, by written order, set forth another temporary parenting schedule. Per this order, Robert was to have parenting time in the marital residence on alternating weekends from Friday at 5 p.m. through Sunday at 5 p.m. and weekday parenting time on Tuesdays from 3 p.m. through 8 a.m. and Wednesdays and Thursdays from 3 p.m. to 7:30 p.m.

¶ 10 In August 2010, Robin filed a petition for exclusive possession of the marital residence wherein she alleged that, even after court-ordered therapy sessions, the level of tension between the parties had not diminished and Robert's unpredictable behavior had jeopardized her's and the children's physical and mental well-being. Further, she claimed that the temporary parenting agreement caused the children confusion and a lack of stability as they do not understand when each parent will be in the marital residence and do not understand where the other parent goes:

"5. In an effort to create a temporary parenting schedule with the least disruption to the children, the Court entered a temporary Order in order for [Robert] to arrange for suitable housing that included an arrangement whereby Robin was awarded exclusive possession of the marital residence except during [Robert's] parenting time which he exercises at the marital residence.

6. Each time that the parties' [sic] transition between parenting time, the arriving parent stays on the front steps until the other parent exits the front door, effectively creating a 'changing of the guard.' This practice has prohibited any overlap of time by the parties within the marital residence.

7. This 'changing of the guard' is confusing to the children and contrary to their best interests of the children [sic] as they don't understand why Robin is waiting outside the home. This practice has been in place because as previously alleged, the tension and hostility between the parties prohibits the parties from being in the same place at the same time. When Robin leaves the residence for [Robert's] parenting time, the children express feelings of abandonment, often asking why she is leaving, where she is going, whether she has another home, does she live alone, and the like.

8. Furthermore, the temporary schedule jeopardizes the children's mental well being. Having both parties occupy the marital residence has created a lack of stability and confusion for the children because they don't know which parent will be with them at the marital residence or where the other parent is when they are not at home.

9. The children's environment would be significantly more stable if each party maintained a residence where the children could establish their own space and routine with that parent."

Robin further alleged that Robert leaves the house in disarray after his parenting time. She also stated that, while Robert owns several properties and has family in Chicago, Robin does not have an alternate residence at which she can stay when it is Robert's turn to be in the marital residence.

¶ 11 On October 12, 2010, the children's representative filed a motion for custody evaluation in which he alleged, in part:

"Since the first date of appointment, the level of acrimony in this case has been very high. There have been Petitions and Cross-Petitions filed alleging deficiencies in the parties' parenting abilities as well as allegations and counter-allegations regarding what is consistent with the children's best interest vis-ai-vis a parenting schedule. [The] Court worked very hard with the parties and the attorneys to try to resolve the custody/parenting schedule by agreement. A hearing proceeded for a full afternoon over the issue of exclusive possession which included many allegations and incidences relating to the best interests of the children and the effects of the dissolution proceedings and the actions of the parties on the children. The parties met with their attorneys and Judge Michael Hyman in a mediation session which lasted approximately four hours on September 27th and another hour on September 28, 2010. The mediation session, which was focused on custody and parenting time, was unsuccessful. The parties continue to be at odds over the issues of joint versus sole custody and an appropriate parenting schedule consistent with the children's best interest."

The court appointed Dr. John Palen as the evaluator pursuant to section 604 of the Act (750 ILCS 5/604(b) (West 2010)) .

¶ 12 Dr. Palen issued his initial section 604(b) report on May 30, 2011. In his report, he evaluated the personalities and relationships of the parties and their children and made several recommendations regarding custody and visitation. In regard to Robin, Dr. Palen noted:

"The children are attached primarily to their mother and enjoy a close, warm and trusting relationship with her. Ms. Mitchell has been their principal caretaker since birth and Jake and Bennett rely on her to meet their needs for physical and emotional sustenance. The boys feel happy and secure in her presence and experience anxiety to varying degrees when contemplating separation from her. Collateral contacts report that she is an exemplary parent in many ways. The principal parenting weakness that one could identify is that, as Mr. Levinson describes, Ms. Mitchell can have a tendency to 'hover', thereby possibly interfering with the boys' ability to function as independently as they might otherwise. She is exceedingly patient and nurturing and while one can certainly not fault her for being so, it is the rare parent who does not occasionally lose patience and raise his or her voice. Mr. Levinson is not as patient, loses his temper and although the manner in which he disciplines may not rise to a level that would cause undue alarm, from the boys' perspective it is so very different from what they experience with their mother that it is perceived as frightening and off-putting. And, as written elsewhere--the more reactive Mr. Levinson is to the boys' expression of anger toward him, the more protective Ms. Mitchell becomes, causing Mr. Levinson to interpret her actions as interference and leading to stepped up efforts to gain control. A circular process ensues that is corrosive to the boys' relationship with their father as well as to the co-parenting relationship. One might further hypothesize that the trouble Jake experiences in processing sensory data may pre-dispose him to react in an exaggerated manner to his dad's style of discipline. "

Dr. Palen continued:

"The boys' relationship with their father is not on the same solid footing as is their relationship with their mother for a number of reasons. By many accounts Mr. Levinson was only tangentially involved with the children until the marital separation took place in May, 2010. To his credit he then stepped into a role that was relatively unfamiliar to him and has been diligent about asking for more time with the children since then. He has never failed to assume responsibility on his parenting time, arrives at the appointed hour, and engages in activities with the boys that they enjoy. And, like Ms. Mitchell, he has kept abreast of Jake's progress in speech and occupational therapy, as well as with both boys' general academic progress. He is an intelligent man, well read with regard to Jake's special needs as well as in the area of the importance of fathers to their sons, but a man who despite good intentions is not as able to resonate with his sons on an emotional or empathetic level as he might want to be. He is also an individual who is accustomed to meeting goals that he sets and getting what he wants--certainly attributes that contribute to his success in the world of business but not ones that lend themselves to warm and sensitive relationships with people with whom he might want to be emotionally intimate. Findings from psychological testing reveal that 'Mr. Levinson is someone who is highly self-focused, and concerned or even preoccupied with meeting his own needs--often at the expense of paying attention to the needs of others.' This particular personality characteristic would make it challenging for Mr. Levinson to spend extended periods of time with children who are by nature unrelenting in their demands and need for attention."

¶ 13 Dr. Palen discussed the children's particular emotional sensitivities and concluded that "[t]hese children, perhaps more than others in their age range, require a consistent and predictable schedule that can serve as a secure base from which to explore their worlds."

¶ 14 Dr. Palen presented the court with a supplement to his report in August 2011. In the supplement, Dr. Palen said that he reconsidered some of his initial recommendations after reviewing the case file in preparation for his deposition. Dr. Palen recommended that Robert spend more time with the children than he originally recommended, noting:

"The challenge is that of devising a plan that meets the boys' needs for exposure to their male parent while simultaneously providing them with the high level of predictability and consistency that they need given Jake's special needs. It is my understanding that Bennett is presently being evaluated for Sensory Processing Disorder, which if diagnosed, would also suggest that he too requires a highly stable and predictable schedule--particularly during the academic year."

¶ 15 Dr. Palen stated, "Ideally, few changes should be made until the parents are living in separate residences. The boys are accustomed to the current schedule and should not be required to adjust to a different one prior to acclimating to having two homes." He recommended that the schedule should remain essentially the same but that:

"The caveat to the above recommendation is that the schedule may remain as is (whether the parents are in the same residence or separated) but only if the children are able to do well at school following the overnight during the school week. This needs to be evaluated at the end of the first six weeks of school ***" (Emphasis in original.)

¶ 16 On July14, 2011, Robin filed a motion to modify visitation, or in the alternative for de novo hearing, for exclusive possession of the marital residence and for other relief. Robin asked, in pertinent part, for exclusive possession of the marital residence at all times. Robert asked, in pertinent part, that the court deny Robin's motion and that the parties maintain shared possession of the marital residence, continuing with the "birdnesting" schedule that was in place by agreement and court approval since June 2010.

¶ 17 In the motion at issue, Robin made the following allegations to support her position that she should be awarded exclusive possession: (1) there remained tension between the parties at pickups and drop-offs, resulting in Robert responding in an overly aggressive manner; (2) Robin suffered "tension" caused by the co-occupancy of the marital residence; (3) Robin does not have alternative housing or means with which to obtain same; (4) Robert has housing available to him through real estate investment properties and family members; and (5) the current visitation schedule is seriously endangering the mental and emotional well-being of the children, "the effects of which are delineated in Dr. Palen's report." In her motion, Robin also incorporated her initial petition for exclusive possession, which contained additional allegations that: (1) Robert exhibits an inability to control his emotions in dealing with Robin and the children; (2) Robert used physical violence against Robin in May 2010; (3) when Robert leaves the home after his parenting time, the house is left in disarray and in a messy condition.

¶ 18 The court held a hearing on this motion spanning five afternoons ending September 1, 2011. The court limited the hearing to two issues: exclusive possession of the marital residence and Robert's school-year overnight parenting time. We are interested here in the portion of the hearing relating to exclusive possession of the marital residence. The court heard testimony from the parties; the court's appointed section 604(b) expert, Dr. Palen; Robert's brother-in-law; and Robert's sister.

¶ 19 At the hearing, Dr. Palen testified consistently with his report and supplemental report. He testified:

"[MR. HURST (attorney for respondent):] There's nothing in your report, either your initial report or your supplemental report, that says anything about any ...

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