In re MARRIAGE OF ERIC LONVICK, Petitioner and Counterrespondent-Appellee and Cross-Appellant, and LINDA LONVICK, Respondent and Counterpetitioner-Appellant and Cross-Appellee.
Appeal from the Circuit Court of Du Page County. No. 10-D-1555 Honorable Paul A. Marchese and Robert J. Anderson, Judges, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.
¶ 1 Respondent, Linda Lonvick, appeals from the judgment of the Du Page County circuit court awarding custody of the parties' minor child, E.L., to petitioner, Eric Lonvick, and from the order denying her motion to reconsider. Specifically, Linda contends that the child custody determination is against the manifest weight of the evidence. Additionally, Linda contends that the trial court erred when it (1) denied her motion for substitution of judge for cause; (2) admitted into evidence a court-appointed evaluator's report prepared pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604(b) (West 2010)); (3) accepted and relied on the testimony of the evaluator that was allegedly hearsay; and (4) ruled that funds that Eric received from his father during the marriage were gifts, and therefore nonmarital property, and that no commingling with the marital estate occurred. Eric cross-appeals from the judgment of the trial court awarding $120, 000 in attorney fees to Linda. For the reasons set forth herein, we affirm the judgment of the trial court.
¶ 2 I. BACKGROUND
¶ 3 Eric and Linda were married on October 2, 2004; they had one child, E.L., born August 22, 2005. In November 2009, Linda left the marital residence in Glen Ellyn, Illinois, with E.L. and moved into a women's shelter; Linda and E.L. then returned home after 16 days. On July 9, 2010, Eric filed a petition for dissolution of marriage, and on July 12 Linda filed a counterpetition. On July 17, Linda and E.L. moved out of the marital home and stayed with a friend, Ingrid Zynga, in Glen Ellyn, for eight weeks. Thereafter, she and E.L. moved into an apartment in Wheaton, Illinois.
¶ 4 Prior to trial, on July 2, 2011, Eric filed a motion to enroll E.L. in kindergarten in Glen Ellyn, the district where Eric resided, as opposed to Wheaton, the district where Linda resided with E.L. After an evidentiary hearing on August 16, to which Linda objected, the trial court, Judge Paul A. Marchese presiding, granted Eric's motion, stating that, because E.L. had lived in the Glen Ellyn school district until he and his mother moved from the marital home, and was familiar with the neighborhood and the school, it was in E.L.'s best interest to attend the Glen Ellyn school.
¶ 5 On August 22, 2011, Linda filed a motion for substitution of judge for cause that was heard on September 2, by Judge Robert J. Anderson. The motion alleged that because Judge Marchese ordered that E.L. attend kindergarten in Glen Ellyn, he had predetermined a factor under section 602(a)(4) of the Act (750 ILCS 5/602(a)(4) (West 2010)), pertaining to E.L.'s adjustment to his home, school, and community. On September 2, Judge Anderson denied the motion, finding that there was no showing of actual prejudice, and returned the case to Judge Marchese. The case proceeded to trial before Judge Marchese, commencing October 20, 2011.
¶ 6 At trial, Eric testified that he purchased a home in Glen Ellyn in 1991, prior to the marriage, and kept it in his name alone. Linda moved in when they married and continued to reside there until 2010 when she moved out. At the time of his testimony, Eric was 51 years old, and he had been employed by Walgreens as senior database administrator since 2005. In 2005, he obtained a master's degree in computer science from DePaul University. He was in good health, but suffered from sleep apnea and used a CPAP machine to help him breathe at night. For 20 years he had volunteered as a member of the National Ski Patrol.
¶ 7 Eric testified extensively regarding his relationship with E.L. and the activities they shared, which included skiing, T-ball, Sunday school, and visiting extended family. Additionally, Eric tried to have E.L. participate in activities through the Y.M.C.A. and the Glen Ellyn Park District and in an early development class at the College of DuPage (C.O.D.). Eric testified that Linda either withdrew E.L. from programs Eric had enrolled him in or objected to his participation.
¶ 8 Eric further testified that E.L. had his own bedroom and bathroom at the marital home. If Eric had custody, E.L. would attend a morning "kindergarten roundup" at the Y.M.C.A. and its bus would then take him to kindergarten at Ben Franklin School in Glen Ellyn. After school, four different families would be able to assist if Eric had work obligations.
¶ 9 Eric testified that during the marriage his father had gifted him with money via checks that were made out to Eric as payee and were deposited into various investment and individual retirement accounts. His father also contributed money directly to a checking account that was held solely in Eric's name.
¶ 10 Linda testified that she was 48 years old, in good health, and not currently taking any medications. She had a bachelor's degree from Columbia College in art and design and had last worked in that field in 1992. Since 2005, she had been the primary caregiver for E.L. and had not worked outside the home.
¶ 11 Linda stated that early in their marriage Eric choked her and threatened to "chop [her] into pieces." She testified that he would not give her enough money to buy food, and would not allow her to spend money on anything for their home.
¶ 12 Linda also testified that "checks from Grandpa Lonvick" were deposited into the investment accounts that were held jointly. On cross-examination, Linda testified that none of the checks from Eric's father were made out to her and that the checks were deposited into various accounts. Linda also testified that sometimes a check was deposited into a joint account and then Eric would transfer money into an Ameriprise account held solely by him.
¶ 13 Dr. Gerald Blechman, the court-appointed evaluator, testified that he prepared a section 604(b) custody evaluation report, applying each of the factors contained in section 602 of the Act. See 750 ILCS 5/602 (West 2010). Dr. Blechman met with Linda, Eric, and E.L. on multiple occasions; he also interviewed Dr. James Natter, Dr. Ellen Keating, and Jahn O'Brien, Eric's next-door neighbor. Dr. Blechman also received letters from Zynga and Dorothy Lance, Linda's mother. Blechman recommended that Eric be granted sole custody subject to "reasonable visitation" as set forth in his report. Dr. Blechman testified that Linda was "overprotective" and that, when he observed E.L. with Linda, E.L.'s behavior was "very passive, relatively nonverbal, constricted." When Dr. Blechman observed E.L. with his father, he was more verbally expressive, had more ideas of his own, and "in general, appeared to be a different child."
¶ 14 Dr. Keating's testimony was allowed for the purpose of impeachment of Dr. Blechman's testimony regarding what he had considered in forming his opinion. Dr. Keating testified that she was a clinical psychologist and had counseled Linda intermittently between 2005 and 2007. She diagnosed Linda with an "adjustment disorder, " i.e., "life stressors that cause upset." She testified that she told Dr. Blechman "something to the effect of there was nothing in my observations or conclusions at the time that would preclude her from being an adequate parent." She also stated that, as her observations were from 2005 to 2007 and she was testifying in 2011, "it has been a long time."
¶ 15 Several other witnesses testified at trial. Lance testified that, on May 20, 2009, Eric punched Linda with a closed fist and she heard Linda yell. She called to her husband to help Linda. O'Brien testified regarding the same altercation; she observed Linda slap Eric on his arm with an open hand and Eric immediately slap her back the same way. O'Brien did not hear any yelling, screaming, or crying.
¶ 16 O'Brien and E.L.'s babysitter, Natalie Nestrok, each testified about an occasion when Eric was riding his bike on the sidewalk while pulling E.L. in a bike trailer. They both stated that Linda ran after Eric and shouted at him that he was riding too fast. Nestrok stated that there was nothing unusual or concerning about how Eric was riding with E.L. in the trailer.
¶ 17 Jean Spyksma, music minister at Eric's church, testified that she had known Eric and Linda since their wedding and that Eric had been bringing E.L. to church regularly. She observed E.L. to be happy and bubbly, not fearful or frightened of other children.
¶ 18 City of Wheaton police officer James Craig testified for Eric on rebuttal that on January 27, 2012, he and another officer responded to a call at Linda's apartment in Wheaton. Eric met them in the parking lot and told them that he was there to pick up his son and that Linda "was not letting the child come out." Officer Craig and the other officer then went to Linda's apartment and spoke to her in the hallway, where she told them that E.L. did not want to go with his father and that she was not going to force him. They entered the apartment and saw E.L. watching television; Linda sat down next to him on the couch. Officer Craig testified that she put her arm around E.L. and her other hand on his knee. Officer Craig stood about 10 feet away and the other officer was in the doorway to the apartment. Linda raised her hand and told them in a "slightly elevated voice" to "stop, get back, give him room to breathe." Officer Craig then went outside and called the supervisor, and the decision was made that, because E.L. was six years old, "[s]he needed to present the child for visitation, or we would be forced to do a charge for unlawful visitation and [sic] interference." He stated that E.L. was "a little kid" and "seemed scared when I went into the apartment."
¶ 19 On cross-examination, Officer Craig stated that he had been wearing his uniform with his badge and had his gun in his holster. He stated that "[u]nder these particular circumstances, it seemed to me that [Linda] was being a little oversensitive about the whole situation." He also stated that he thought it odd that she had her arms around E.L. and was patting his knee, "like we're going to come in there and beat him with our clubs or something."
¶ 20 On March 20, 2012, the trial court issued its ruling and read its memorandum opinion in open court. Regarding custody, the court considered all the relevant factors, including those in section 602 of the Act. The court noted that both parents wished to be the custodial parent, and that, during the marriage, while Eric was working, Linda was a homemaker and was responsible for E.L. Until Linda moved with E.L. to Wheaton, he had lived in Eric's home in Glen Ellyn. While E.L. lived with Linda, there was no temporary designation of custody and Eric had regular visitation with E.L.
¶ 21 The trial court noted that Dr. Blechman conducted a thorough investigation and it found his testimony and conclusions credible. Dr. Blechman concluded that there was a significant difference in E.L.'s interaction and interrelationship with Linda and with Eric. When Dr. Blechman observed E.L. with Eric, E.L. was animated, verbal, and happy; notably, when E.L. was with Linda, he spoke very little and was passive. Dr. Blechman found Linda to be fearful and anxious. The trial court noted that Dr. Blechman's findings regarding Linda's "overprotectiveness" were corroborated by three witnesses, including Officer Craig. The trial court also noted that Dr. Natter had counseled Linda and Eric together for two years and had diagnosed Linda with an anxiety disorder. The trial court further found that Dr. Keating's testimony did not impeach Dr. Blechman. The trial court then found that Linda had a "mental disorder such that her ability to be a sole custodian [was] seriously impaired."
¶ 22 The trial court found that Linda's allegations of physical abuse were not credible. The trial court further found that Eric demonstrated "more willingness and ability to facilitate and encourage a close and continuing relationship" with Linda than Linda did with Eric. Additionally, the trial court noted:
"While both parties indicated that they appreciate the role of the other parent in their child's life, [Linda's] actions are dispositive. Apart from signing up [E.L.] in the Wheaton school district, signing [Eric's] name to documents to withdraw [E.L.] from C.O.D., and withdrawing [E.L.] from activities without consulting [Eric] during the trial in this matter, on different occasions when it was time for [E.L.] to go with [Eric] for visitation, [Linda] wished to be with [E.L.] instead [and] delayed visitation."
The trial court then found that the parties did not have the ability to cooperate as required for joint custody (see 750 ILCS 5/602.1 (West 2010)) and awarded E.L.'s sole care and custody to Eric, subject to Linda's visitation rights. Linda was ordered to pay child support to Eric.
¶ 23 In awarding rehabilitative maintenance to Linda, the trial court considered the statutory factors. The trial court noted that, although the marriage lasted only seven years, "the Court is mindful of the disparity of nonmarital assets and income of the parties and the present and future earning capacities." The trial court also noted that during the course of the marriage Linda was a stay-at-home mother by agreement of the parties, and the trial court considered the testimony regarding Linda's "emotional health." The trial court ordered Eric to pay maintenance in the amount of $3, 000 per month for a period of 36 months, after which Linda could petition for review.
¶ 24 Regarding nonmarital property, the trial court noted that: Eric testified as to gifts he received from his father; "the presumption of gift to the marriage can be rebutted by clear and convincing evidence if the elements of gift are satisfied"; and Eric's father gave him checks payable to him alone or made deposits into specific accounts held in Eric's name alone. The court found that these checks and deposits were intended as gifts; were unconditional and without consideration; involved family; were ...