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In re Marriage of Wendy L.D.

Court of Appeals of Illinois, First District, Sixth Division

February 10, 2017

In re Marriage of WENDY L.D., n/k/a WENDY L.S., Petitioner-Appellant, and GEORGE T.D. III, Respondent-Appellee.

         Appeal from the Circuit Court of Cook County, No. 08-D-010469; the Hon. Naomi Schuster, Judge, presiding.

          Grund & Leavitt, P.C., of Chicago (Marvin J. Leavitt, David C. Adams, and Jody Meyer Yazici, of counsel), for appellant.

          George T.D. III, appellee pro se.

          CUNNINGHAM JUSTICE delivered the judgment of the court, with opinion, Justices Rochford and Delort concurred in the judgment and opinion.



         ¶ 1 Petitioner-Appellant Wendy L.D., n/k/a Wendy L.S. (Wendy), appeals from the December 31, 2015 order awarding custody of the parties' children to respondent-appellee George T.D. III (George). For the following reasons, we affirm the ruling of the circuit court of Cook County.

         ¶ 2 BACKGROUND

         ¶ 3 The parties were married in 2001. The parties had three children (the children): G.D., born in October 2002; R.D., born in November 2003; and B.D., born in August 2006. Notably, all three of the children have been found to have emotional problems. Further, both R.D. and B.D. have a record of behavioral problems and have been diagnosed with disruptive mood dysregulation disorder and oppositional defiant disorder, respectively.

         ¶ 4 Wendy filed for divorce in 2008. On September 28, 2010, the circuit court entered a custody judgment awarding Wendy sole custody of the children (the custody judgment). The custody judgment provided that the children's primary residence would be with Wendy, but granted George parenting time each Tuesday afternoon through Wednesday morning, as well as alternating weekends.

         ¶ 5 A "summer vacation time" provision of the custody judgment specified that each parent would have at least two uninterrupted weeks of time with the children during their summer recess from school, and that, if there was an extra week or more of summer recess in which the children were not enrolled in camp, such days would be split evenly between George and Wendy.

         ¶ 6 The custody judgment recited that the parties agreed to "consult with each other concerning major health and education matters with a view to arriving at a harmonious policy" but that, if they were unable to reach an agreement, Wendy shall have ultimate decision-making authority. The judgment specified that both parents were permitted to attend the children's regular medical appointments and that Wendy was to use her best efforts to inform George of medical appointments in advance.

         ¶ 7 The custody judgment acknowledged Wendy's intent for the children to attend North Shore Country Day School (NSCD), a private school, and specified that both parents had the right to attend school-related events. In a separate provision, the parties agreed to confer about "any disciplinary or behavioral problems *** with the goal of maintaining a united front to the children in matters of discipline."

         ¶ 8 The custody judgment also provided that "Each parent shall encourage the children to have a warm and loving relationship with the other parent." The parties agreed not to disparage the other parent to the children or to "attempt to curry favor with the children to the detriment of the other parent."

         ¶ 9 The parties agreed that the children would be raised in accordance with George's Roman Catholic faith, but specified that they would not be required to participate in religious activities during Wendy's parenting time except for certain one-time events, such as confirmation.

         ¶ 10 The parties were divorced in October 2010 in an order that incorporated the custody judgment.

         ¶ 11 In October 2011, the court entered an "Agreed Order Amending and Supplementing Custody Agreement" (the October 2011 order), which modified the custody judgment provisions concerning parenting time during summer vacation. The October 2011 order specified that, in the event that the children's summer vacation included an extra week or more when the children were not in camp, George "shall have the first half of any extra full week or more and Wendy shall have the second half" and that "the exchange between the parties shall occur at 12:00 p.m. if there are an odd number of days or 5:30 p.m. *** if there is an even number of days, such that each party receives an equal allocation of time." The October 2011 order also added that "Wendy shall have the children in all years from the day that school lets out until 9:00 a.m. on the Saturday following the dismissal of school for summer recess." The October 2011 order otherwise provided that "All other terms and provisions of the September 2010 Custody Agreement shall remain in full force and effect."

         ¶ 12 In October 2012, George filed a petition to modify the custody judgment pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act), claiming that changed circumstances warranted a modification of the custody judgment to award him sole custody. See 750 ILCS 5/610 (West 2014). George's petition claimed that since the custody judgment, Wendy had engaged in "increasingly bizarre and erratic" behavior and "a relentless campaign to alienate the children" from George.

         ¶ 13 Among other acts, George claimed that on three occasions in 2012, Wendy had made false allegations of abuse against him, leading to unnecessary investigations by police and the Illinois Department of Children and Family Services (DCFS). Although each DCFS investigation was deemed to be "unfounded, " George claimed Wendy had misrepresented these DCFS investigations to the children's medical personnel and teachers. George also claimed Wendy had repeatedly made "bizarre and unnecessary calls" to police that caused mental anguish to the children and disrupted his parenting time.

         ¶ 14 George also claimed Wendy had refused to communicate with him regarding the scheduling of medical appointments, school meetings, and other activities, and had requested that medical providers not allow George to attend medical appointments. The petition also alleged that Wendy refused to participate in family therapy, against the recommendation of the children's school.

         ¶ 15 George's petition further claimed that the changed circumstances of the children supported custody modification, insofar as all three children now suffered "emotional problems, " and that R.D. and B.D. had behavioral problems, which had led to R.D.'s expulsion from NSCD in 2011. The petition sought sole custody, claiming Wendy's animosity toward George prevented her from encouraging a close relationship between the children and their father.

         ¶ 16 In March 2013, the court appointed Dr. Louis Kraus to conduct an evaluation of the family pursuant to section 604(b) of the Act (750 ILCS 5/604(b) (West 2012)). Over several months, Dr. Kraus conducted numerous interviews with George, Wendy, and the children, as well as various other medical professionals and school personnel.

         ¶ 17 Dr. Kraus completed his evaluation over a year later, in a report dated May 22, 2014 (the May 2014 report). Dr. Kraus noted this was the longest it had taken him to complete an evaluation, as he had reviewed "the most voluminous amount of information ever given to me for an evaluation."

         ¶ 18 The May 2014 report detailed a history of abuse allegations by Wendy against George, occurring both before and after the 2008 divorce and 2010 custody judgment, none of which could be substantiated. According to the May 2014 report, Wendy claimed that George "had been physically and emotionally abusive to the children and to her" during the marriage and that she was fearful of George. Wendy reported to Dr. Kraus several incidents of threatening behavior by George in the months leading up to her filing for divorce in October 2008, including claims that he attempted to hit her with a car in August 2008. She claimed that in December 2008, George had pointed a box cutter at her and "angrily thrust the blade" through a sofa, in the presence of the children. George denied these acts and told Dr. Kraus that Wendy's behavior in the time period was "paranoid."

         ¶ 19 In January 2009, George was served with an ex parte order of protection. The order of protection was withdrawn on January 27, 2009. According to the May 2014 report, Wendy told Dr. Kraus that she agreed to withdraw the order of protection based on George's representation that he would stay away from her. According to George, the order of protection had been withdrawn during a hearing at the urging of the court, as the court presiding over the matter found Wendy's allegations to be "absurd." George claimed that the order of protection was not based on any actual threat by him, but that Wendy simply wanted to force him to leave the marital home.

         ¶ 20 Over several years, on a number of occasions, Wendy's allegations of abuse led to investigations by police or DCFS, none of which resulted in findings of wrongdoing by George. For example, in February 2, 2009, "there was an event where [R.D.] was kicking the front seat of the car and that George reported pushing his leg down, although [R.D.] said he had hit his leg. Wendy described this as a sprained knee and that R.D. was unable to walk." Dr. Kraus's May 2014 report noted that police and medical records from the incident indicated that (contrary to Wendy's claim), R.D. had no sign of injury and was able to walk. The May 2014 report also states that the DCFS investigator "noted in her report that [Wendy] had lied to her."

         ¶ 21 On another occasion, in April 2012, a DCFS investigation was prompted by an incident where Wendy "walked into [R.D.'s] school saying that [R.D.] had a horrible weekend with his father." According to DCFS, the school principal reported that R.D. "mentioned something happened with [George] during visitation but the special education teacher does not believe that [R.D.] is being truthful, " since R.D. "was using [Wendy's] language and did not seem authentic."

         ¶ 22 Dr. Kraus's May 2014 report emphasized that, although there were numerous other alleged incidents, "there are no DCFS findings other than unfounded, only allegations which were not supported." The May 2014 report states: "The allegations of abuse have stemmed now for years. When one attempts to actually substantiate these *** there really is not clear support of what [Wendy] is saying."

         ¶ 23 Apart from the allegations of abuse, the May 2014 report describes numerous conflicts after the October 2010 dissolution of marriage, including conflict over Wendy's alleged efforts to exclude George from meetings with the children's teachers and medical professionals. George reported that Wendy did not consistently let him know when appointments were scheduled, or that she scheduled appointments at times when she knew he would be working.

         ¶ 24 This issue was highlighted by R.D. and B.D.'s mental health issues and related behavioral difficulties, such as refusing to go to school, throwing tantrums, swearing, and threatening school personnel. These problems led to R.D. being removed from NSCD in December 2011. B.D.'s behavioral issues subsequently led to Wendy's decision to remove him from NSCD in January 2014. As of May 2014, both R.D. and B.D. went to North Shore Academy (NSA), a public special education school for students with emotional and behavioral problems.

         ¶ 25 The May 2014 report found that Wendy had requested George's exclusion on at least one occasion. In January 2012, following his removal from NSCD, R.D. was admitted in a "day hospital setting" at Alexian Brothers Behavioral Health Hospital (Alexian Brothers). The record includes an Alexian Brothers form completed by Wendy in January 2012, in which she blamed R.D.'s behavioral problems on his "bad relationship with his father" and averred that George's "parenting style is authoritarian which has been hard on [R.D.] physically and psychologically." In that form, Wendy also reported to Alexian Brothers that George's "behavior has also been very tough on his mom who was granted a protective order against him."

         ¶ 26 A June 2012 affidavit from an administrator at Alexian Brothers stated that George had been excluded from group therapy sessions at Alexian Brothers, at Wendy's request. Dr. Kraus's May 2014 report opined that Wendy had "use[d] the argument that she was fearful of [George] as a way to keep him away from medical and psychological services for the children."

         ¶ 27 The May 2014 report also noted conflicts arising from Wendy's resistance to begin family therapy or to locate additional individual therapists for the children. In April 2013 (approximately six months after filing his petition to change custody), George filed a petition for family therapy, which had been offered by NSA. The court eventually entered an order on August 1, 2014, appointing Michael Wagrowski, a therapist at NSA, to provide family therapy. Although Wagrowski worked with R.D. and B.D. individually, the family therapy did not occur. Dr. Kraus's subsequent October 2014 ...

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