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In re Marriage of McCormick

Court of Appeals of Illinois, Second District

August 26, 2013

In re MARRIAGE OF AMY K. McCORMICK, Petitioner-Appellee, and DAVID A. McCORMICK, Respondent-Appellant.

Appeal from the Circuit Court of Winnebago County. No. 04-D-1073, Honorable Joseph J. Bruce, Judge, Presiding.

Presiding Justice Burke and Justice Schostok concurred in the judgment and opinion.

OPINION

JORGENSEN, JUSTICE

¶ 1 Respondent, David A. McCormick, initiated his second postdecree contempt proceedings against his former spouse, petitioner, Amy K. McCormick, based on violations of an underlying visitation order. On his first postdecree contempt petition, the trial court entered a finding of no contempt. Amy continued to violate the visitation order, though it would be fair to characterize her subsequent violations as less severe. Therefore, the subsequent violations did not demonstrate a willful disrespect of the order, and we hold that the trial court did not err in entering a second finding of no contempt. This is so even though this court later determined that the trial court erred in denying the initial contempt petition. Accordingly we affirm.

¶ 2 I. BACKGROUND

¶ 3 This appeal concerns the trial court's order, entered December 29, 2011, finding that Amy was not in contempt for conduct occurring between August 11, 2011, and October 26, 2011. However, an earlier violation period and contempt proceeding provides context to Amy's allegedly contemptuous behavior at issue in this appeal, and so we begin our recitation of the facts there.

¶ 4 A. Initial Contempt Proceeding:

Subject of In re Marriage of McCormick, 2013 IL App (2d) 110894-U

¶ 5 David filed a petition for rule to show cause on July 20, 2010, and an amended petition on January 14, 2011. In the amended petition, David alleged that Amy had repeatedly and willfully violated the visitation order. David, who lived 80 minutes away from Amy and their sons, alleged that he missed 43 visits with one son, 39 with another, and 19 with the third. The court asked David to present evidence of the incidents that seemed most serious to him.

¶ 6 The incidents included: (1) Amy allowed two of the boys to miss David's scheduled 2008 New Year's Eve celebration in favor of a sleepover with friends; (2) Amy allowed one of the boys to miss an extended, two-week summer visit in favor of football practice; (3) Amy allowed two of the boys to miss a scheduled Easter visit in favor of sporting activities; and (4) Amy allowed one of the boys to miss a scheduled camping trip in order to participate in a dodgeball tournament, even though, due to the boys' recent vacation with Amy, David had not seen them in three weeks. Amy admitted to each of these incidents, essentially explaining that she felt the other commitments were important to the boys.

¶ 7 The trial court issued its finding on August 11, 2011. It found the parties' visitation problem to be one of the most difficult it had seen. It could not say that the problem was "all one party's fault." However, while it "didn't want to even say [that Amy was in] contempt [of court], " it would say that Amy went "overboard" in prioritizing the children's wishes over visitation with their father.

The court did not find Amy to be in contempt.

¶ 8 David appealed the trial court's finding of no contempt. This court initially dismissed David's appeal as potentially premature, and David later perfected the appeal. See In re Marriageof Knoerr, 377 Ill.App.3d 1042, 1049-50 (2007) (respondent may file a petition for rehearing and to supplement the record to establish that the appeal was not premature). Subsequently, on the merits, this court held that the trial court erred in its August 11, 2011, finding that Amy was not in contempt and we remanded for a determination on sanctions. McCormick, 2013 IL App (2d) 110894-U, ¶¶ 31, 35. We reasoned that Amy had admitted she violated the visitation order and that her rationale, primarily that the children had other commitments, established that the violations were willful. Id. ΒΆ 31. Moreover, we stated that ...


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