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In re Marriage of Turk

Court of Appeals of Illinois, First District, Fifth Division

September 6, 2013

In re MARRIAGE OF IRIS TURK, Petitioner-Appellee, and STEVEN TURK, Respondent-Appellant Jennifer Turk, Third-Party Respondent

Appeal from the Circuit Court of Cook County. No. 04 D 6815 Honorable David Haracz, Judge Presiding.

Justices Hall and Reyes concurred in the judgment and opinion.

OPINION

GORDON, PRESIDING JUSTICE.

¶ 1 Following a hearing on March 6, 2012, the trial court entered an order finding that, pursuant to an agreement between respondent, Steven Turk, and petitioner, Iris Turk, Steven had sole custody of their two children. The trial court further found that Iris and Steven shared possession of their younger son, but that Iris' parenting time with their older son was temporarily unequal. Finally, the trial court found that Steven earns approximately $150, 000 per year, while Iris earns less than $10, 000 per year. Based on those findings, and after reviewing the parties' financial disclosure statements, the trial court ordered Steven to pay Iris $600 per month for child support and ordered that Steven was solely responsible for all of the children's uninsured medical expenses.

¶ 2 On this appeal, Steven argues: (1) that the trial court did not have the authority under Section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/505 (West 2010)) to order a custodial parent to pay child support to a noncustodial parent and (2) that even if the trial court did have authority to order Steven, the custodial parent, to pay child support to Iris, the noncustodial parent, the trial court abused its discretion in ordering him to pay child support to Iris and pay for all uncovered medical expenses.

¶ 3 For the following reasons, we reverse the trial court's decision and remand the cause to the trial court.

¶ 4 BACKGROUND

¶ 5 On June 23, 2004, Iris filed a petition for dissolution of marriage from Steven based on irreconcilable differences. The petition alleged that Iris and Steven were lawfully married on October 17, 1993, and had two sons during the marriage, ages six and four at the time of the filing of the petition. On July 21, 2004, Iris filed petitions for maintenance and child support. As an exhibit to her petition for maintenance, Iris attached a disclosure statement pursuant to circuit court of Cook County rule 13.3.1 (13.3.1 disclosure statement) (Cook Co. Cir. Ct. R. 13.3.1 (Jan. 1, 2003)), itemizing her assets and expenses as of June 25, 2004. The statement included "children's expenses" of $2, 040 per month, comprised of expenses for clothing, grooming, education, medical, allowance, child-care, babysitters, clubs or summer camps, vacation, entertainment, and other activities.

¶ 6 On July 25, 2005, the trial court entered a judgment for dissolution of marriage, incorporating the parties' marital settlement agreement and joint parenting agreement. Pursuant to the marital settlement agreement, the trial court ordered Steven to pay Iris nonreviewable unallocated maintenance and support of $4, 000 per month for 42 months, ending in January 2009; after 42 months, child support would be calculated in accordance with section 505 of the Act. The trial court further ordered that Steven would be responsible for providing medical insurance for the two children; any medical expenses not covered by insurance would be split equally between Steven and Iris. In the joint parenting agreement, the parties agreed to joint care, custody, control and education of both their children and agreed that the children would primarily reside with Iris.

¶ 7 On November 3, 2008, Steven filed a petition for an emergency modification of custody, describing several occasions where Iris had verbally or physically attacked Steven's current wife, Jennifer Turk, with one incident resulting in a pending criminal charge against Iris. The petition sought: (1) temporary custody of the children; (2) a modification of the judgment for dissolution of marriage granting Steven sole custody of the children; and (3) a termination of his child support obligation, with the issue of support either being reserved or modified so that Iris paid Steven child support. The emergency petition was continued several times and a child's representative was appointed.

¶ 8 On November 26, 2008, the trial court entered a custody/visitation injunction order that enjoined any third party, namely, Jennifer, from discussing any past litigation between Steven and Iris. The order further indicated that all communication regarding parenting time and visitation time must be done between Steven and Iris, and that Iris and Jennifer should have no contact with one another at any time.

¶ 9 On December 8, 2008, Steven filed a petition to terminate maintenance and for setting of child support. In the petition, Steven claimed that the 42-month period of unallocated maintenance and child support would expire on January 25, 2009, and it was necessary to terminate the maintenance and set a child support amount.

¶ 10 On January 6, 2009, Iris filed a petition for interim and prospective attorney fees, arguing that Steven should be ordered to pay her attorney fees. Attached to the petition was an updated 13.3.1 disclosure statement, itemizing Iris' assets and expenses as of December 11, 2008. According to the disclosure statement, Iris had monthly children's expenses of $740, comprised of expenses for clothing, grooming, education, extracurricular activities, clubs or summer camps, and entertainment.

¶ 11 On September 1, 2009, Iris filed an emergency petition to immediately terminate or restrict visitation by Steven and Jennifer, claiming that Steven and Jennifer had been violating the injunction order "in such a manner as to constitute a serious endangerment of the children so as to require the immediate termination of all visitation" between Steven, Jennifer, and the children. In the alternative, Iris requested that Steven and Jennifer not be permitted unsupervised visitation with the children. On September 29, 2009, Jennifer was added as an additional party respondent to the proceedings. On November 2, 2009, Iris filed an emergency petition to immediately terminate or restrict visitation by Jennifer, claiming that, while Steven's conduct had been resolved, Jennifer was still speaking negatively to the children about Iris.

¶ 12 On November 3, 2009, the children's representative filed a motion for a custody evaluator pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West 2008)), claiming that the issues involved in the case were sufficiently serious, complicated, and undetermined such that it was appropriate for the trial court to seek the advice of a professional in order to assist the court in properly determining what would be in the children's best interest. On February 18, 2010, the trial court granted the children's representative's motion, and Dr. Mary Gardner was appointed as a section 604(b) custody evaluator. On March 4, 2010, the trial court ordered Steven to pay 75% and Iris to pay 25% of Dr. Gardner's retainer.

¶ 13 On May 26, 2010, Iris filed a petition for modification of the judgment for dissolution of marriage, seeking sole custody of the children.

¶ 14 On October 22, 2010, [1] the trial court granted Steven's emergency petition for temporary custody of the children, ordering both children to be in the physical custody of Steven until the parties came before the court again on November 1, 2010. After a hearing on November 1, 2010, the trial court awarded Steven temporary physical custody of both children, ordered that Iris have supervised visitation and reduced the amount of child support Steven owed Iris from $2, 388 per month to $1, 600 per month. On November 10, 2010, the court modified Iris' visitation: Iris was permitted to resume unsupervised visits with her younger child and would have dinner visits with her older child every week at a public place.

ΒΆ 15 On January 10, 2011, Steven filed a petition for termination of child support, claiming that his custody of the children constituted a material and substantial change in circumstances necessitating a termination of child support. In her response to the petition, Iris argued that the order only granted Steven temporary custody of the children and did not modify parenting time with the children. Iris also argued that Steven should pay her child support for their younger child, since they shared essentially equal parenting time; Iris acknowledged that, temporarily and not pursuant to court order, Steven had almost exclusive parenting time with their older child. Additionally, Iris' petition included an "affirmative request for modification, " requesting that Steven be held responsible for all out-of-pocket health care expenses, rather than having the expenses split equally. ...


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