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In Re Marriage of Lynne Petrik

July 19, 2012


Appeal from the Circuit Court of Kane County. Honorable Marmarie J. Kostelny, Joseph M. Grady, Judges, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.


¶ 1 Pro se respondent, Edward Petrik, appeals from orders (1) reappointing attorney Daniel F. O'Connell as the guardian ad litem (GAL) in Lynne and Edward Petrik's dissolution-of-marriage proceeding; (2) denying Edward's motion to discharge O'Connell as GAL and to strike his GAL report; (3) granting O'Connell's petitions for GAL fees; and (4) denying Edward's petition for sanctions against O'Connell pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994). For the following reasons, we affirm in part, reverse in part, and remand.


¶ 3 Lynne and Edward were married in September 1997 and had two children, Michael and Jacob. Lynne filed for divorce, and in April 2007 the court entered a judgment of dissolution, which incorporated the parties' marital settlement agreement (MSA) and joint parenting agreement (JPA). Lynne was awarded sole custody and Edward was awarded reasonable visitation.*fn1 Shortly thereafter, the parties filed against each other petitions for rule to show cause, alleging violations of various provisions of the MSA and the JPA. Edward also petitioned to modify visitation and to appoint a GAL. The court appointed O'Connell as GAL.

¶ 4 On June 11, 2008, the court entered an order in which Lynne and Edward agreed to modify the visitation provisions of the MSA and the JPA. The modified visitation schedule, which was based at least in part on Edward's work schedule, required a complicated process of corresponding back and forth each month to set the following month's visitation schedule. The order also stated that the parties "agree and have stated to the G.A.L. that there are no pending issues that have not been addressed with the G.A.L., and both parties agree to withdraw their pending petitions." The order further provided that the parties "agree that they will not file additional petitions relating to the children without first going to mediation" and that they "agree to use Dan O'Connell as an ongoing mediator in this case."

¶ 5 Following entry of the June 11, 2008, order, the parties litigated O'Connell's GAL fees, which were resolved by an order entered November 8, 2008. At that point, no petitions or other issues remained pending before the court.

¶ 6 On March 17, 2009, O'Connell filed a motion entitled, "Motion to Compel Parents' Cooperation with GAL." He alleged that he had been appointed GAL in the dissolution action and, at the request of the parents, had continued to investigate matters involving the children. He further alleged that, on March 2, 2009, at the request of the children's therapist, he had observed one of Michael's therapy sessions. Based on his observations and on conversations with the therapist, with Michael's physician, and with Lynne, O'Connell believed that there was cause to be concerned for Michael's welfare. He stated that Michael was suffering from a gastrointestinal condition and that Michael's physician had opined that the condition was stress-related. O'Connell concluded that it was in Michael's best interest that the matter be investigated.

¶ 7 O'Connell appeared before Judge Kostelny on March 26, 2009, for a hearing on his motion, even though his notice of motion had indicated that the motion would be heard on March 27, 2009. No one else appeared, and Judge Kostelny granted O'Connell's motion. O'Connell nevertheless appeared the next day before Judge Grady, who was hearing Judge Kostelny's court call. Judge Grady vacated the prior day's order and conducted a new hearing on O'Connell's motion with all parties present. In his written order granting the motion, Judge Grady stated that "O'Connell will continue to serve as GAL." The court granted O'Connell full access to the children's medical, mental-health, and educational records, and ordered the parents to cooperate with O'Connell during his investigation. Otherwise, the order did not specify the tasks expected of O'Connell as GAL. Although the record does not contain a transcript from the hearing, we know from the record that Edward opposed O'Connell's motion.*fn2

¶ 8 Nothing else took place in the matter until September 15, 2009, when O'Connell filed a GAL report. In his report, O'Connell concluded, based on information received from Michael's gastroenterologist, that Michael's condition was in no way stress-related. Nevertheless, O'Connell went on to report, he had received a letter from the children's therapist, dated July 30, 2009, in which the therapist surmised that Michael "turns his feelings inward and was having significant physical problems as a result." The therapist further suggested that the current visitation schedule was "confusing for the children, who have been traumatized as a result of the conflicted divorce," and she recommended a traditional visitation schedule consisting of alternating weekends. O'Connell adopted the therapist's recommendation and concluded that a change in visitation would "improve the stability and predictability of the boys' schedule with their parents, better provide for a consistent home environment on school nights[,] and decrease the opportunities for conflicts between the parents."

¶ 9 On November 23, 2009, based upon O'Connell's GAL report, Lynne filed a petition to modify visitation. As O'Connell had recommended, Lynne sought modifications of the MSA and the JPA to provide for a traditional visitation schedule of alternating weekends.

¶ 10 Edward filed a motion to discharge O'Connell as GAL and to strike his GAL report. Edward argued, among other things, that the June 11, 2008, order, which resolved all pending issues in the dissolution proceeding, effectively discharged O'Connell as GAL and that it had been improper to reappoint him on March 27, 2009.

ΒΆ 11 While his motion to discharge O'Connell was pending, Edward filed a petition to modify custody. He alleged, among other things, that Lynne had interfered with his visitation and telephone contact with the children. Edward sought ...

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