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In re Marriage of Agers

Court of Appeals of Illinois, Fifth District

July 8, 2013

In re MARRIAGE OF HOLLY R. AGERS, n/k/a Holly Shreves, Petitioner-Appellant, and LEE MICHAEL AGERS, Respondent-Appellee.

Rule 23 Order filed May 30, 2013.

Motion to publish granted July 8, 2013.

Held [*]

In contentious proceedings involving visitation, the trial court did not abuse its discretion by refusing to consider the child’s uncorroborated hearsay statements about the abuse she allegedly suffered at the hands of respondent, especially when those statements could not be used to support a finding of abuse, a videotape of respondent’s visitation with the child at the courthouse was properly considered for the limited purpose of showing that the child did not fear respondent, and the denial of petitioner’s request for an in camera interview with the child was upheld along with the order requiring petitioner to pay $1, 500 of respondent’s attorney fees based on her unilateral termination of visitation.

Appeal from the Circuit Court of Pulaski County, No. 09-D-26; the Hon. William J. Thurston, Judge, presiding.

Leslie J. Peters, of Metropolis, for appellant.

Susan C. Burger, of Jonesboro, for appellee.

Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Cates concurred in the judgment and opinion.

OPINION

GOLDENHERSH, Justice.

¶ 1 Petitioner, Holly R. Agers, n/k/a Holly R. Shreves, appeals from an order of the circuit court of Pulaski County denying her amended petition for termination of visitation and a motion to stay and granting respondent Lee Michael Agers' petition for rule to show cause and motion for modification of visitation. As part of this litigation, the trial court also ordered petitioner to pay $1, 500 in attorney fees to respondent's attorney. On appeal, petitioner contends the trial court abused its discretion (1) in disregarding out-of-court statements made by the parties' minor child to her counselor, her mother, her grandmother, and her stepfather concerning alleged sexual abuse perpetrated upon her by respondent, (2) by allowing into evidence a videotape of respondent and the minor during visitation at the courthouse, (3) by denying petitioner's motion for an in camera interview with the minor, and (4) in finding petitioner in contempt and awarding respondent $1, 500 in attorney fees. We affirm.

¶ 2 BACKGROUND

¶ 3 The parties married on October 4, 2004. One child, a daughter, S.A., was born on June 16, 2006. On November 2, 2009, petitioner filed for dissolution. An agreed judgment of dissolution was entered on May 25, 2010. Petitioner received sole custody of S.A., and respondent received visitation, including overnight visits with S.A. in Clarksville, Tennessee, where respondent currently resides. The overnight visits began on April 23, 2010. The judgment order provided that respondent shall have visitation "[e]very other Friday at 2:00 p.m. until Saturday at 5:00 p.m. until May 21, 2010[, ] at which time visitation shall be increased to every other Friday at 2:00 p.m. until Sunday at 5:00 p.m." Respondent was also awarded holiday visitation and one week each summer. A visitation exchange location was also arranged.

¶ 4 On September 19, 2011, respondent filed a petition for rule to show cause after petitioner unilaterally stopped visitation between respondent and S.A. According to respondent, petitioner failed to give him an explanation as to why she was refusing visitation despite respondent's repeated attempts to text and call petitioner in order to determine why visitation was not being allowed. On October 11, 2011, respondent filed a motion for modification of visitation, seeking not only additional time with his daughter, but also telephone and Skype visits via the Internet.

¶ 5 On November 1, 2011, petitioner filed a response to the motion for modification of visitation, a motion for an in camera interview of S.A., and a petition for termination of visitation in which petitioner alleged that respondent sexually molested S.A. The petition specifically alleged as follows:

"1. In June 2011 DCFS [Department of Children and Family Services] investigated a hot line call regarding the sexual molestation of the minor child [S.A.] by [respondent] and found all allegations creditable and reported the matter to the ...

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