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Neely A. Grunstad v. Patrick W. Cooper

October 17, 2012

NEELY A. GRUNSTAD,
PETITIONER-APPELLEE,
v.
PATRICK W. COOPER, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois Circuit No. 05-F-20 Honorable R.J. Lannon, Jr., Judge, Presiding.

The opinion of the court was delivered by: Justice Carter

JUSTICE CARTER delivered the judgment of the court, with opinion.

Justices Holdridge and McDade concurred in the judgment and opinion.

OPINION

¶ 1 The respondent-appellant, Patrick W. Cooper, filed a petition to modify custody as to the two children he had with the petitioner-appellee, Neely A. Grunstad. At the close of Patrick's case-in-chief during the hearing on his petition, the circuit court granted Neely's motion for a directed verdict. On appeal, Patrick argues that the court erred when it: (1) denied his motion to conduct an in camera interview of the parties' oldest child, Olyvia; and (2) granted Neely's motion for a directed finding. We affirm.

¶ 2 FACTS

¶ 3 Neely and Patrick had two children together: Olyvia, born September 18, 1998; and Keegan, born April 7, 2001. In a 2003 Nevada court order, Neely and Patrick were granted joint custody of the children with Neely as the primary physical custodian. Both parties moved to Illinois sometime thereafter.

¶ 4 On April 22, 2005, Neely and Patrick entered into an agreed order for child support. The agreement, which was approved by the court, also incorporated the parties' joint parenting agreement, which provided, inter alia, that Neely would have primary physical custody of the children.

¶ 5 On February 19, 2010, Patrick filed a petition to modify custody in which he sought primary physical custody of the children. In the petition, Patrick listed numerous reasons why he believed changes in circumstances warranted a change in custody, including that he could provide a more stable environment for the children and that: (1) Neely intended to remove the children to Nevada without Patrick's consent and against his will; (2) Neely failed to provide an adequate educational environment for the children; (3) Neely failed to provide a stable living environment; (4) Neely exposed the children to domestic violence; (5) the children had poor hygiene in Neely's care; (6) Neely failed to properly provide for the children's medical needs; and (7) Neely was financially irresponsible.

¶ 6 On February 9, 2011, Patrick filed a motion for in camera interview of Olyvia, alleging that Olyvia wished to share her thoughts about custody and that because she was 10 years old, "requiring her to testify in open court would be unnecessarily traumatic to her."

¶ 7 Over several days in November 2011, the circuit court held a hearing on Patrick's petition to modify custody. Evidence presented at the hearing tended to establish, inter alia, the following. Neely testified that she was 33 years old and worked as a cosmetologist in Ottawa. In 2005, she lived in Wedron and was dating Dan Partridge. In 2006, she moved into an apartment with Partridge. They later lived in Mendota. The relationship ended after a single episode of domestic violence.

¶ 8 For the approximately five years (save a period of six to eight months) prior to the hearing, Neely had been living in Ottawa and was dating Brad Hughes. She and the children would sometimes stay overnight at Hughes's house. On one occasion in March 2008, she and Hughes had an argument at Hughes's house. Neely woke the children and took them home.

¶ 9 Over the course of the hearing, testimony was elicited to indicate that the parties had significant problems communicating and cooperating. Patrick's attorney elicited testimony from Neely that she blocked Patrick's number on the cell phones that she provided for the children, and that she and Patrick communicated poorly with regard to Keegan being screened for attention-deficit disorder and his subsequent Ritalin prescription.

ΒΆ 10 Patrick presented several witnesses who testified that Olyvia experienced difficulty during the 2008-09 school year when she was in fourth grade. Olyvia's teacher from that year testified that Olyvia's performance was average, that she did not work up to her potential, that she performed poorly on her reading program, and that she failed to complete her homework on numerous occasions. However, the teacher also acknowledged that Olyvia passed and that she said in a report card that Olyvia had a great year, worked hard, and had a positive attitude. The teacher never contacted ...


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