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In re Marriage of Tiballi

Supreme Court of Illinois

March 20, 2014

In re MARRIAGE OF ROBERT N. TIBALLI, Appellant, and SHEILA J. ILAGAN TIBALLI, Appellee

Judgments reversed and remanded with directions.

SYLLABUS

Fees of a professional evaluator in a custody matter should be allocated pursuant to the criteria provided by the statute under which he was appointed and are not court costs--order for one party to pay them as such held improper.

Timothy E. Weiler and Rory T. Weiler, of Weiler & Lengle, P.C., of St. Charles, for appellant.

Debra R. Antone, of Chicago, for appellee.

JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

THOMAS, JUSTICE.

Page 173

[¶1] The circuit court of Kane County dissolved the marriage of Robert N. Tiballi and Sheila J. Ilagan Tiballi on September 27, 2005. The judgment of dissolution awarded the parties joint legal custody of their daughter Francesca, but placed residential custody of the child with Sheila. On January 6, 2010, Robert filed a petition to modify custody, requesting that he be designated as Francesca's residential custodian. The circuit court appointed a psychologist to advise it in connection with the custody dispute pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/604(b) (West 2010)). Upon Sheila's motion, the court dismissed the petition and ordered Robert to pay as court

Page 174

costs the fees of the court-appointed psychologist. The appellate court affirmed, rejecting Robert's argument that the psychologist's fees were not " costs" within the meaning of section 2-1009(a) of the Code of Civil Procedure (735 ILCS 5/2-1009(a) (West 2010)) that must be assessed to him. We allowed Robert's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we reverse the judgment of the appellate court and remand the cause to the circuit court for an allocation of the fees based solely on the criteria set forth in section 604(b) of the Marriage Act.

[¶2] BACKGROUND

[¶3] Robert's custody petition alleged, inter alia, that Sheila consistently attempted to " minimize and interfere with [Robert's] parental rights," refused to discuss parenting issues involving the child, interfered with planned trips and vacations he had scheduled with the child, and would not agree to afford Robert any " extra parenting time." The petition further alleged that Sheila was verbally and physically abusive toward Francesca and that the child had expressed a desire to reside with Robert. On February 11, 2010, Sheila filed a response, denying the allegations and additionally asking that Robert be sanctioned pursuant to Supreme Court Rule 137 for, among other things, alleging that she had abused the child, when Robert knew that allegation was false.

[¶4] On March 8, 2010, Robert filed a motion requesting that a guardian ad litem (GAL) be appointed to represent Francesca. The circuit court granted the motion and appointed Attorney Susan Lonergan as GAL. The court further ordered the parties to each pay one-half of Lonergan's initial retainer fee within 10 days.

[¶5] On September 21, 2010, the court appointed Dr. Robert Shapiro to act as evaluator in the case and report his findings and recommendations to the court pursuant to section 604(b) of the Marriage Act. The parties were ordered to split the cost of the evaluation " without prejudice to ultimate allocation." The trial date of May 2, 2011, was rescheduled to September 13, 2011, to accommodate the time it would take Dr. Shapiro to complete his evaluation.

[¶6] Dr. Shapiro's final report of his evaluation was filed with the court on June 13, 2011, which was Francesca's fourteenth birthday. Dr. Shapiro interviewed the parties and Francesca on numerous occasions over a six-month period, he also spoke with other sources and conducted psychological examinations of the parties. His report noted that Robert was 52 years old and Sheila was 48 years old; Francesca was the only child of either party. Despite the fact that the original dissolution order awarded a " somewhat minimal standard of visitation" to Robert--alternating weekends and one night a week (not overnight)--Robert and Francesca have nonetheless maintained an " extremely close" relationship, participating in numerous activities, taking trips and visiting with extended family. Sheila and Francesca also have a close and loving relationship.

[¶7] The report found, however, that Sheila had not facilitated Francesca's relationship with her father. Sheila did not support extra time for father-daughter activities, but instead deferred to the initial custody decision made when Francesca was eight years old and refused to make any exceptions for extra time during visitation. Robert's claims that Sheila may have been physically or emotionally abusive were " not supported by the record." However, there was a level of tension that existed between ...


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