Opinion
NO. 5-17-0159
09-13-2017
In re PARENTAGE OF V.P. (Victoria A., Petitioner-Appellee, v. Fernando P., Respondent-Appellant).
NOTICE
Decision filed 09/13/17. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County.
No. 15-F-1052
Honorable Julia R. Gomric, Judge, presiding.
JUSTICE CHAPMAN delivered the judgment of the court.
Presiding Justice Moore and Justice Overstreet concurred in the judgment.
ORDER
¶ 1 Held: The circuit court's denial of a motion to modify parental decision making and parenting time is affirmed, where the movant failed to prove that a modification was necessary to serve the child's best interests.
¶ 2 The respondent, Fernando P. (Fernando), appeals from the St. Clair County circuit court's denial of his motion to modify a prior judgment allocating parental decision making and parenting time. As a result of that denial, the petitioner, Victoria A. (Victoria), retains significant decision-making responsibilities and a majority of the
parenting time. For the following reasons, this court affirms the judgment of the circuit court.
¶ 3 BACKGROUND
¶ 4 Victoria and Fernando were never married. They lived together for two or three years. During those years, Victoria gave birth to their only child together, a boy named V.P., who was born on August 11, 2004. After Victoria and Fernando broke up, V.P. resided with Victoria, an arrangement that has continued through the years, but Fernando always has been an important part of V.P.'s life. Both parents resided in the greater Chicago area until March 2012, when Victoria moved to O'Fallon in St. Clair County for a better job, taking V.P. with her. Since March 2012, Victoria and V.P. have resided in O'Fallon, and Fernando, still residing in the Chicago area, has spent less time with V.P. The record on appeal makes clear that both Victoria and Fernando love V.P., want what is best for him, and strive to be good parents. Sadly, relations between Victoria and Fernando are frequently contentious, and their discord has taken an emotional toll on V.P.
¶ 5 The court case began in Kendall County in May 2006, when Victoria filed a petition under the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2004)). The legislature has since repealed the Illinois Parentage Act of 1984 and has replaced it with the Illinois Parentage Act of 2015 (Pub. Act 99-85 (eff. Jan. 1, 2016) (adding 750 ILCS 46/101 et seq.)). Fernando acknowledged that he is V.P.'s father. The case was transferred from Kendall County to Cook County in November 2008, and was transferred to St. Clair County in April 2015. Ever since the establishment of parentage, this case
has followed a tortuous path, with many motions and show-cause petitions concerning visitation and child support.
¶ 6 On May 18, 2011, the Cook County circuit court entered a written "custody judgment" awarding sole custody of V.P. to Victoria and granting Fernando liberal visitation rights. The court found that joint custody was inappropriate in light of the parents' inability or unwillingness to work together in parenting V.P., an unwillingness evidenced in part by the many motions, etc., that had been filed in the case. The court noted that Fernando had claimed that Victoria's new paramour, Juan Carlos Avalos (Juan Carlos), posed a danger to V.P., but the court found "insufficient evidence" of any danger. On this point, the court made reference to a domestic relations evaluation that had been prepared by the circuit court's forensic clinical services, a home study that had been conducted by the Cook County Department of Supportive Services, and the child's representative, who had been appointed by the court. The court noted that these written reports and the child's representative all had recommended "unrestricted parenting time" at Victoria's residence, despite the presence of Juan Carlos.
¶ 7 As previously noted, in March 2012 Victoria moved away from the Chicago area and took up residence in O'Fallon, along with V.P., her paramour Juan Carlos, and her two children by Juan Carlos. Shortly after Victoria's move to O'Fallon, Fernando filed in the Cook County circuit court a motion to transfer custody of V.P. to him. Subsequently, and over the objection of Victoria, the circuit court appointed Dr. Michael Fields, an independent psychologist, to conduct an evaluation focused on whether the move to O'Fallon had "endangered" V.P.
¶ 8 In May 2013, Dr. Fields submitted to the Cook County circuit court a 35-page "endangerment evaluation" that focused on V.P.'s social and emotional well-being and on whether V.P. faced "emotional endangerment" as a result of the move to O'Fallon. At the time of this evaluation, V.P. was eight years old. Dr. Fields concluded, based upon his psychological testing of V.P., that V.P. was experiencing significant stress. A likely source of this stress, Dr. Fields opined, was the physical distance between Victoria and Fernando, which greatly complicated visitation. Dr. Fields recommended, inter alia, continued therapy for V.P., therapy for Fernando and for Juan Carlos, and a detailed visitation schedule for Fernando. The evaluation was far from all negative. For example, Dr. Fields noted that V.P. seemed very comfortable with each parent during play-times that Dr. Fields had arranged for the purpose of observation.
¶ 9 The Cook County circuit court never ruled on Fernando's motion to transfer custody to him. In December 2014, Victoria filed a petition to transfer the case to St. Clair County, where she had been living for two years and nine months. As previously mentioned, the case was transferred to St. Clair County circuit court in April 2015.
¶ 10 In January 2016, in St. Clair County circuit court, Fernando filed a motion to modify custody due to Victoria's alleged failure to cooperate on visitation. Fernanado also filed a motion requesting an in camera interview of V.P., as well as a motion asking the court to "rule" on the endangerment evaluation submitted by Dr. Fields. In March 2016, Fernando filed a motion to change custody due to alleged neglect of V.P. Victoria opposed any change in custody.
¶ 11 On March 22, 2017, the circuit court held a hearing on Fernando's pending motions, including the motion to modify custody. At the start of the hearing, the court mentioned Fernando's motion to conduct an in camera interview with V.P.; the court took that motion under advisement until it had heard some evidence. Fernando began his own testimony by drawing the court's attention to certain comments in Dr. Fields' endangerment evaluation from May 2013. The court noted that the report was part of the record, and that the court had read "every word" of it. The court told Fernando that it would "take the report for what it is," and that Fernando did not need to describe or interpret the report for the court.
¶ 12 Fernando testified that V.P., age 12 at the time of the hearing, was introverted and emotionally "shut down," and that he consistently declined to tell Fernando "how he feels." In 2012, while V.P. was visiting Fernando, V.P. had "fake tattoos all over his body." Fernando was concerned about the fake tattoos, and he took a photograph of them. Fernando became "really concerned" when V.P. posed for the photo like a "wanna-be gang member," especially in light of the endangerment evaluation's statement that Victoria's paramour might have been associated with gangs. Fernando testified that Victoria did not have any family near O'Fallon; her family and Fernando's own family all lived in the Chicago area. Fernando stated that if V.P. lived with him in the Chicago area, he would make sure that Fernando visited with these relatives from both families, and he felt that this interaction with family would benefit V.P. Fernando further testified that he worked full-time as a courier for Federal Express, but if V.P. lived with him, he would switch to part-time work, so as to allow for plenty of time with V.P. In the midst
of his testimony, Fernando attempted to show the court "documentation" concerning Juan Carlos' "criminal record," but the court refused to look at the "documentation" after determining that it was something other than a certified copy of a conviction.
¶ 13 Victoria testified that V.P. had lived with her for his entire life and that she maintained a loving home for him. She and V.P. had been to counseling, and communication between them was excellent. In O'Fallon, she lived in a four-bedroom house, and V.P. had his own bedroom. Her paramour, Juan Carlos, lived in the house, and he too loved and communicated with V.P. Her two children by Juan Carlos, a six-year-old girl and a nine-year-old boy, also lived in the house; they were sister and brother to V.P., and they looked up to him. Victoria further testified that V.P. was enrolled in the O'Fallon school district, which she described as one of the "top ten" districts in Illinois. Victoria proffered V.P.'s report cards from third grade to seventh grade, his grade at the time of the hearing. Grades for the third quarter of seventh grade included A's, B's, and C's, including an A in art, a B- in math and a C+ in literature. Victoria worked 8 to 11 hours per day, 5 days per week, including Sundays and some Saturdays, while Juan Carlos worked 2 or 3 days per week, from 6 a.m. to 2 p.m. According to Victoria, either she or Juan Carlos was always at home when V.P. returned from school; no after-school care was needed. Victoria also testified that V.P. had many friends at school and in his neighborhood. In answer to a question from Fernando, Victoria stated that the reason for V.P.'s noninvolvement in extracurricular activities was that he needed to focus on improving his grades.
¶ 14 Ron Cinto, Victoria's stepfather since her birth, testified that during his visits with Victoria, Juan Carlos, V.P., and Victoria's two other children, he always observed a loving home. Cinto also testified that Fernando always treated him respectfully, and he never observed anything "inappropriate" during times when V.P. was transferred from one parent to another in connection with visitation.
¶ 15 At the end of the hearing, the court denied Fernando's motion to interview V.P. in camera, lamented Fernando and Victoria's inability to cooperate with each other, and denied Fernando's motion to modify custody. In a written order entered the same day, the court stated that it construed Fernando's motion to modify custody as "a motion to modify parental decision making and parenting time," and it denied that motion. The court found that Fernando had failed to establish that a modification was in V.P.'s best interests, though he had established a change in circumstances, i.e., Victoria's move from the Chicago area to O'Fallon. The court also ordered the parties to participate in mediation for the purpose of crafting a "parenting time schedule" appropriate for parents who live far from each other. (In its written order, the court used the terms that are used in the amended version of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2016)), which went into effect on January 1, 2016. This court, too, uses the new terms-"significant decision-making responsibilities" and "parenting time"-in the analysis section of this order.)
¶ 16 Fernando perfected this appeal from the circuit court's judgment.
¶ 17 ANALYSIS
¶ 18 This court has jurisdiction to consider this appeal under Supreme Court Rule 304(b)(6), which allows for appeal from a "custody or allocation of parental responsibilities judgment," and from the modification of such a judgment, entered pursuant to the Marriage Act or the Illinois Parentage Act of 2015 (750 ILCS 46/101 et seq. (West 2016)). Ill. S. Ct. R. 304(b)(6) (eff. Mar. 8, 2016).
¶ 19 In this court, Fernando has proceeded pro se, as he did throughout the proceedings in the circuit court. In his appellant's brief, he has presented four issues, viz.: (1) the circuit court failed to consider the "endangerment evaluation"; (2) the circuit court failed to consider Juan Carlos' "domestic battery record"; (3) the circuit court failed to consider Fernando's motion to interview V.P. in camera; and (4) the circuit court failed to rule on several motions and petitions alleging neglect and malicious conduct.
¶ 20 This court must comment on Fernando's brief. The content of an appellant's brief is governed by Supreme Court Rule 341(h) (eff. Feb. 6, 2013). Every appellant, even a pro se appellant, must comply with the requirements of Rule 341(h). Biggs v. Spader, 411 Ill. 42, 44-46 (1951), cert. denied, 343 U.S. 956 (1952). From all appearances, Fernando did not even make a good-faith effort to comply with those requirements. The brief lacks anything that could properly be called a statement of facts, and it lacks any reference to any page of the record on appeal, in violation of Rule 341(h)(6) (eff. Feb. 6, 2013). The brief does not include any suggestion of a standard of review, in violation of Rule 341(h)(3) (eff. Feb. 6, 2013). Furthermore, the entire argument consists of only a few sentences and does not include a single citation to any authority or to pages of the
record, in violation of Rule 341(h)(7) (eff. Feb. 6, 2013). See also Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993) (under Rule 341(h)(7), a reviewing court is entitled to have issues clearly defined, with "cohesive arguments" presented and pertinent authority cited). Due to the lack of reasoned argument and citation to authority, Fernando has forfeited appellate review of his arguments. See Vancura v. Katris, 238 Ill. 2d 352, 369-70 (2010). Indeed, this court would be justified in striking Fernando's brief and dismissing this appeal, given that the brief lacks any substantial conformity to the supreme court rules governing the contents of briefs and thus hinders appellate review. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶ 15. Nevertheless, given the important subject matter of this case, namely, custody of a child, this court will consider this appeal.
¶ 21 Fernando first asserts that the circuit court failed to consider the "endangerment evaluation" authored by Dr. Fields. This assertion is patently incorrect. At the start of the March 2017 hearing, the court explicitly informed Fernando that it had read "every word" of the evaluation and would "take the report for what it is."
¶ 22 Second, Fernando asserts that the circuit court failed to consider Juan Carlos' "domestic battery record." At the hearing, Fernando attempted to proffer some type of "documentation" concerning Juan Carlos' "criminal record," but the court's inquiry revealed that Fernando did not have a certified copy of a conviction. Without doubt, a certified copy of a conviction is the usual, and by far the best, means of proving that a particular person has been convicted of a particular crime. This court cannot find that the circuit court abused its discretion by insisting on a certified copy of conviction. See, e.g.,
Frees v. Frees, 99 Ill. App. 2d 213, 219 (1968) (circuit court has broad discretion over the admission of evidence at a hearing on child custody).
¶ 23 Third, Fernando asserts that the circuit court failed to consider his motion for the court to interview V.P. in camera so as to determine V.P.'s wishes regarding custody. This assertion is clearly incorrect. The report of proceedings plainly shows that the circuit court considered and denied the motion. Whether a child should be interviewed in camera is a matter that lies within the considerable discretion of the circuit court. In re Marriage of Johnson, 245 Ill. App. 3d 545, 554 (1993). In child custody cases, there is a strong and compelling presumption in favor of the result reached by the circuit court, which is in a superior position to evaluate the evidence and to determine the best interests of the child. In re Marriage of Simmons, 221 Ill. App. 3d 89, 90 (1991). Fernando has not pointed to, and this court has not found, anything in the record that overcomes the presumption in favor of the court's decision not to interview V.P. in camera.
¶ 24 Fourth and finally, Fernando asserts that the circuit court failed to rule on several motions and petitions alleging neglect and malicious conduct. If there were any pending motions or petitions that the court did not rule on, Fernando should have sought rulings on them. Because he did not seek rulings on them, they are presumed abandoned. See, e.g., Mortgage Electronic Systems v. Gipson, 379 Ill. App. 3d 622, 628 (2008).
¶ 25 In addition, this court does not find any apparent error in the circuit court's denial of Fernando's motion to modify parental decision making and parenting time. In cases under the Illinois Parentage Act, any modification in the allocation of parental responsibilities or parenting time must be in accordance with the relevant factors
specified in the Marriage Act. 750 ILCS 46/808 (West 2016). Sections 602.5(c) and 602.7(b) of the Marriage Act include nonexhaustive lists of factors relevant to allocating significant decision-making responsibilities and parenting time, respectively. 750 ILCS 5/602.5(c), 602.7(b) (West 2016). A court may modify a prior judgment allocating responsibilities or parenting time only if the court finds, by a preponderance of the evidence, that "a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child's best interests." 750 ILCS 5/610.5(c) (West 2016).
¶ 26 Here, the evidence did not establish that a modification in parental responsibilities or primary parenting time was necessary to serve V.P.'s best interests. The evidence showed that V.P. has lived with Victoria his whole life, he lives in a loving home with two half-siblings, he is doing fairly well in school, and he has friends. The circuit court's denial of Fernando's motion is reasonable and understandable, and it must be affirmed. The record suggests that the biggest problem in V.P.'s life is the hostility between his mother and father. This court hopes, for V.P.'s sake, that this problem is solved soon.
¶ 27 For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.
¶ 28 Affirmed.