Opinion
NO. 4-17-0751
02-27-2018
In re MARRIAGE OF FREIMAN (Jodi Freiman, Petitioner-Appellee, and Jonathan Freiman, Respondent-Appellant).
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 Circuit Court of Champaign County
No. 15D4
Honorable Randall B. Rosenbaum, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court.
Presiding Justice Harris and Justice Turner concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed, concluding (1) the trial court's decisions with respect to decision-making authority and parenting time were not against the manifest weight of the evidence or an abuse of discretion, and (2) sanctions were not appropriate under the facts of this case.
¶ 2 In June 2015, the trial court finalized the divorce between then petitioner, Jonathan Freiman, and then respondent, Jodi Freiman. As part of their joint-parenting agreement, the parents received equal parenting time with their two children: La. F (born January 10, 2008) and Li. F. (born December 29, 2009). In January 2016, Jodi filed a motion to modify the parties' joint parental responsibilities after Jonathan moved to a town 50 miles away.
¶ 3 In June 2017, after considering the factors set forth under sections 602.5(c) and 602.7(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602.5(c), 602.7(b) (West 2016)), the trial court entered an order granting Jodi (1) primary decision-making
authority over the children's education, religion, and medical needs (750 ILCS 5/602.5(c) (West 2016)); and (2) the majority of parenting time (750 ILCS 5/602.7(b) (West 2016)).
¶ 4 Jonathan appeals, asserting the trial court (1) gave too much weight to the limited guardian ad litem's opinion, and (2) failed to properly weigh the factors under sections 602.5(c) and 602.7(b) of the Act. Arguing Jonathan's appeal is meritless, Jodi requests sanction under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). We affirm but decline Jodi's request for sanctions.
¶ 5 I. BACKGROUND
¶ 6 A. Dissolution Proceedings
¶ 7 In January 2015, Jonathan filed a petition for dissolution of marriage from Jodi. In June 2015, the trial court entered a judgment for dissolution of marriage. As part of the marital settlement agreement, the parties received equal parenting time with their minor children. Under the joint-parenting agreement, generally, Jonathan had parenting time with the children from Saturday through Wednesday morning, and Jodi had joint-parenting time from Wednesday through Saturday morning. The parties alternated custody on Sundays.
¶ 8 B. Motion To Modify Joint-Custody Agreement
¶ 9 In January 2016, Jodi filed a motion to modify the joint-custody agreement. Jodi explained, at the time of the dissolution of marriage, the parties both resided in Mahomet, Illinois. However, in July 2015, immediately after the trial court entered its judgment, Jonathan moved into his girlfriend's—later, his fiancée's—residence in Westville, Illinois, approximately 50 miles away. Due to Jonathan's move, Jodi asserted the joint-parenting plan was untenable. She therefore requested the children primarily reside with her in Mahomet and that she be granted significant decision-making responsibilities and parenting time.
¶ 10 Jonathan filed a response in February 2016 admitting that the current custody arrangement was untenable and recommended that he be granted the majority of the parenting time. Jonathan also requested the trial court appoint a limited guardian ad litem (LGAL).
¶ 11 1. LGAL's Report
¶ 12 In February 2016, the trial court entered an order appointing Barbra Webber as the LGAL. In August 2016, Webber filed her report.
¶ 13 In making her recommendation, Webber interviewed the parties, their paramours, the children, counseling notes regarding the children, and letters from various other individuals, such as Li. F.'s basketball coach, the school's physical education and music teacher, and friends of Jodi. Webber then considered the best-interest factors set forth in section 602.5(c) and 602.7(b) of the Act (750 ILCS 5/602.5(c), 602.7(b) (West 2016)).
¶ 14 Under section 602.5(c), with respect to the children's wishes, Webber believed the children preferred to stay with Jodi. She noted the children enjoyed their school and friends in Mahomet, while they did not know anyone in Westville and felt uncomfortable sharing their feelings with Jonathan.
¶ 15 The children were well-adjusted in Mahomet, where they attended school, engaged in extracurricular activities, and played with friends. Jodi was also active in the school's parent-teacher organization and served as a room mother. At Jodi's house, the children had their own rooms, whereas they shared a bedroom at Jonathan's house. At Jonathan's house, the children played video games and engaged in outdoor activities. However, they had no friends and knew only their prospective stepsiblings. Thus, Webber found the children were best adjusted to Mahomet, which favored Jodi.
¶ 16 With respect to the physical and mental health of all individuals involved, Webber found this factor also favored Jodi. Jodi and the children attended counseling regularly. However, the children were reluctant to discuss Jonathan's upcoming marriage to his fiancée, Linda Atwood, and the addition of Jonathan's and Linda's new baby to the family. The children reported difficulty sharing their father with Linda's children, and they believed the new family prevented him from attending their extracurricular activities. Webber noted Jonathan lacked insight into the effect of his new family on the children, as he thought the children were happy in their new, complete family.
¶ 17 Because Jonathan and Jodi could not get along well enough to make joint decisions—such as by fashioning a new parenting schedule, agreeing on the children's activities, or deciding which school the children should attend—Webber did not recommend joint parental decision-making.
¶ 18 In examining the extent to which the parents previously engaged in significant decision-making as to the children and their current course of conduct with respect to decision-making, Webber found those factors weighed in Jodi's favor. Prior to the divorce, both parties engaged in the decision-making. However, after Jonathan's move to Westville, Jodi made the day-to-day decisions, registered the children for school, and scheduled doctor's appointments. However, Webber noted both parents genuinely desired decision-making authority for the children.
¶ 19 In considering the children's needs, Webber found that factor favored Jodi. Webber noted the children needed stability after going through the divorce with their parents. School personnel wrote that the children often seemed disheveled and tired on days Jonathan transported them to school from Westville. Webber determined the children had stability in
Mahomet, whereas Westville was a new town with a new family that resulted in a significant amount of change and chaos in a short period.
¶ 20 In examining the parties' willingness to foster a close and continuing relationship with the other parent, Webber found the factor favored Jodi. While both parents listed each other's strengths as love for their children, Webber found Jonathan's statement that he wanted Jodi to be an active participant in the children's lives to be insincere, as he repeatedly referred to her as the children's "bio mom" rather than simply as "mom."
¶ 21 Webber then considered the factors set forth in section 602.7(b) of the Act in analyzing the best interest of the children with respect to parenting time. Both parents genuinely sought more parenting time; however, Webber found it was clear the children preferred to stay in Mahomet with their mother. Due to Jonathan's move to Westville, Jodi made more of the day-to-day decisions for the children, which favored Jodi as being the primary caregiver.
¶ 22 Webber observed the children to be closely bonded to and comfortable sharing their concerns with Jodi. While the children loved Jonathan, they missed his presence at extracurricular activities and were uncomfortable sharing their concerns with him. Because of their inconsistent relationship with Jonathan, Webber found Jodi had a stronger relationship with the children.
¶ 23 In considering the children's adjustment to the home, school, and community, Webber noted the children were established with school, friends, and activities in Mahomet. The school was well-rated and the children had their own rooms at Jodi's home. Conversely, the children were unfamiliar with Westville, having no connections outside Jonathan's new family. The children also shared a bedroom at Jonathan's house despite being of opposite genders. Webber found this factor favored Jodi.
¶ 24 In this portion of the report, Webber again noted the children were in counseling, but were still uncomfortable discussing Jonathan's new family. Jonathan repeatedly referred to Jodi as "bio mom," and the children believed Jonathan could not attend their activities because of his new family. Webber again found Jonathan lacked insight into the effect of his recent life decisions on his children.
¶ 25 As noted previously in the report, Webber determined the children needed stability that Jodi could provide. Splitting their time between two homes was not accomplishing the goal, especially with so many changes regarding Jonathan's new family. The children appeared at school tired and disheveled on days they stayed with Jonathan. Webber believed the distance was too great for the children to continue commuting from Westville for school.
¶ 26 In examining the parties' willingness to put their children's needs above their own, Webber noted "Jonathan worries first about Jonathan" and did not appreciate the effect his decisions had on the children and how much they missed seeing him at their activities. Jodi, on the other hand, placed the children's interests first by volunteering at school, scheduling play dates, and enrolling the children in various activities.
¶ 27 After weighing the best-interest factors, Webber recommended the court grant Jodi primary parenting decision-making authority with respect to the children's education, health, religion, and activities. Webber further suggested Jodi have primary custody, with Jonathan having parenting time every other weekend and every Wednesday evening.
¶ 28 2. Temporary Parenting Plan
¶ 29 In August 2016, the trial court entered a temporary order allocating parenting time and responsibilities, granting Jodi primary caretaking and parenting time, as well as decision
making authority. The court ordered Jonathan to receive parenting time every other weekend and every Wednesday.
¶ 30 3. Dr. Osgood's Evaluation
¶ 31 In August 2016, Jonathan asked for an evaluation by a licensed clinical psychologist regarding the allocation of parenting time and responsibilities. The trial court appointed Dr. Osgood, a licensed clinical psychologist, as the court's expert. In February 2017, after conducting interviews with the parties, the children, and others, Dr. Osgood filed her report. According to Jonathan's witness disclosure, Dr. Osgood intended to testify consistently with her report.
¶ 32 In her report, Dr. Osgood noted both children enjoyed spending time with both parents, but missed the split-week parenting schedule due to the decreased time with Jonathan. As a result, La. F. was experiencing sadness, anger, and loneliness, and Li. F.'s grades were lower than usual. Both Jodi and Jonathan had child-friendly homes where the children were happy and relaxed.
¶ 33 Due to the children's increased stress, Dr. Osgood recommended parenting time return to a split-week schedule, with Jonathan having the children from Monday until Wednesday morning, and Jodi having the children from Wednesday evening through Friday. The parties would alternate weekends. Dr. Osgood further recommended that each parent have decision-making authority during their respective parenting times. Additionally, Dr. Osgood suggested the children engage in extracurricular activities only during the summer to cut down on the children's stress levels.
¶ 34 C. Hearing on the Motion To Modify the Joint-Custody Agreement
¶ 35 Jodi's motion to modify the joint-custody agreement was originally scheduled for hearing in February 2017. However, due to Dr. Osgood filing her evaluation shortly before the hearing date, Jodi requested a continuance to review the report. The hearing was rescheduled for May 2017, where the trial court heard the following evidence.
¶ 36 1. Webber
¶ 37 Webber testified she conducted her last interview in June 2016 and filed her report in August 2016. At the time, the parties were still following the joint-parenting agreement with split-week visitation. She testified consistently with her written report. In making her recommendation, Webber noted that Jonathan's move to Westville had a significant impact, as Jodi assumed the day-to-day decision-making authority for the children and maintained consistency in the children's activities. Webber found Jonathan's decision to move 50 miles away from the children within 30 days of signing the joint-parenting agreement struck her as selfish and lacking in consideration for the children.
¶ 38 Webber pointed out that Jonathan's only tie to Westville was his fiancée, Linda. He frequently referred to Jodi as "bio mom," which indicated to Webber that Jonathan viewed Jodi as a less-than-equal parent. Webber was left with the impression that Jonathan would attempt to "replace" Jodi with Linda as the children's mother figure.
¶ 39 Webber opined joint parenting was no longer feasible, as the parties began to argue over the children's activities after Jonathan moved to Westville. Jonathan also proposed transferring the children to Westville, which Webber found to demonstrate a lack of appreciation for the impact such a change would have on the children following such a drastic family change.
¶ 40 2. Dr. Osgood
¶ 41 Dr. Osgood testified her opinion changed since filing her report. After filing her report, Jonathan sent her more information because of concern about La. F.'s grades recently dropping. Jonathan also provided information on an incident with Jodi that happened on Valentine's Day. According to Jonathan, he asked Jodi if he could have parenting time with the children after school, as he was already at the school for a holiday party. Jonathan said Jodi refused, even though the children were scheduled to attend after-school care. Dr. Osgood said this exchange made her question Jodi's cooperation and willingness to foster the children's relationship with Jonathan. She was also concerned that Jodi responded angrily whenever Jonathan requested additional time with the children.
¶ 42 Dr. Osgood testified she was not under the impression that Jonathan saw Jodi as a lesser parent and never heard him refer to Jodi as "bio mom." Although both parents were under stress, Dr. Osgood found no evidence to support a clinical diagnosis of mental illness. However, Dr. Osgood believed recent behavioral and emotional issues with La. F. resulted from his decreased time with Jonathan.
¶ 43 Dr. Osgood also expressed her concern over the children's extracurricular activities. In part, she was concerned that Jodi prioritized the activities over Jonathan's time with the children. According to information Jonathan provided after the report, Jodi registered the children for baseball in Mahomet without informing Jonathan or offering to let Jonathan transport La. F. to his games instead of Jodi's paramour, Nathan. Dr. Osgood also highlighted an incident where Jodi refused to let the children play in a soccer championship game in Westville because it was not held during Jonathan's time. According to Jonathan, Li. F. called him crying about not playing.
¶ 44 Despite recommending equal parenting time in her report, Dr. Osgood stated she now recommended the children relocate to Westville and Westville schools, with Jonathan having decision-making authority, because Jodi was not supporting the children's relationship with Jonathan. She still recommended equal parenting time. Dr. Osgood supported Jonathan as the residential parent because, when he had half of the parenting time, the children performed well in school and he supported their academics. She also believed Jonathan would be fair and not schedule activities to conflict with Jodi's time. As a bonus, Dr. Osgood noted the children would no longer require after-school care because Linda was a stay-at-home mother.
¶ 45 On cross-examination, Dr. Osgood acknowledged she would not be surprised to learn Jonathan typically declined Wednesday night visitation, and agreed it would be in the children's best interest to exercise the visitation. She also conceded it would have been in the children's best interest for Jonathan to remain in Mahomet, rather than moving to Westville within weeks of entering into the July 2015 joint-parenting agreement.
¶ 46 3. Jodi Freiman
¶ 47 Jodi testified she was a medical assistant at Carle Foundation Hospital in Champaign, where she worked from 8 a.m. to 5 p.m. on Mondays through Fridays. Prior to that, Jodi worked at a restaurant that afforded her flexible hours, and she only worked when the children were at school or with Jonathan. Due to the hours of her current job, Jodi testified she utilized a before-and-after-school program at the children's school. The children would attend the program about 30 minutes before school started and for just over 2 hours after school. Nathan, Jodi's paramour, would occasionally pick up her children as he was picking up his own, but he never watched the children after school. She rented an apartment that allowed the children their own rooms.
¶ 48 As to her relationship with Nathan, Jodi testified she and the children spent time with Nathan four times per week, as he had children of similar ages as hers. The families spent the night at one another's homes about once a weekend.
¶ 49 In the early years of their marriage, the parties lived in Florida. However, they decided to relocate to central Illinois to be closer to their families. Jodi explained she and Jonathan chose Mahomet schools for their children after researching the best districts near Champaign, Illinois, where Jonathan had obtained a job.
¶ 50 After the trial court entered the temporary order granting Jodi parenting time throughout the week and Jonathan parenting time on Wednesday evenings and alternate weekends, Jonathan sought only two Wednesday night visits. Jodi did not attempt to impede his visits; he chose not to utilize that time. Jodi testified the temporary order provided less confusion and more consistency that she hoped to maintain. Throughout the year, the children's grades improved. In fact, Li. F.'s report card reflected top grades.
¶ 51 As for the children's activities, the children engaged in sports every season, with some of the sports having Wednesday night practices. Jodi said her children are her world. According to Jodi, the children were well-adjusted to Mahomet, where they had friends and frequent play dates. However, Jonathan frequently requested the children move to Westville to live with him, Linda, their newborn child, and Linda's two children.
¶ 52 When asked about Dr. Osgood's newly disclosed opinion, Jodi testified Dr. Osgood made no contact with her after filing her February 2017 report. She only learned of Dr. Osgood's new opinion during the hearing.
¶ 53 4. Linda Atwood
¶ 54 Linda testified she was Jonathan's fiancée. They began dating in May 2015 and made the decision to move in together in July 2015. Jonathan moved in with her around August 2015, and they had been living together for nearly two years. Linda described Jonathan as the primary caregiver for the children, as he would spend time with them, help with homework, attend church, prepare meals, and get the children ready for bed. She said she and Jonathan were "100%" the primary caregivers for the children. According to Linda, the children were always sad when it was time to leave
¶ 55 Linda described an incident involving Jodi that occurred during a January 2016 basketball game. Linda and Jonathan wanted to take the children to a monster truck rally, but La. F. had basketball pictures he did not want to miss. When Jonathan asked him to choose between the two, Jodi intervened in front of the children and in public, berating them for making him choose. As a result, La. F. was very upset. Linda described another incident in September or October 2015, when Jodi accepted an invitation to Jonathan's home. During that visit, Jodi lectured Jonathan and Linda about how to raise the children while in the presence of the children.
¶ 56 Linda highlighted the importance of a stable home environment and routines, explaining that the children did not need to engage in so many activities. Rather, she advocated for the children to stay home. She also testified the children would not require after-school care in Westville because she was home in the afternoons. However, Linda acknowledged she worked full-time from home in a private office and employed a nanny to watch her children when she worked. Linda conceded it was not imperative that she live in Westville because she could work from home, but she thought it would be "silly" to move closer to Jodi when Linda's family lived near Westville. Although Linda expressed a willingness to spend time with the
children in Mahomet, she believed the children should move to Westville, where they would have more stability.
¶ 57 According to Linda, she would encourage the children's relationship with Jodi and ensure she received ample parenting time. Linda said she had never heard Jonathan use the phrase "bio mom" to describe Jodi. At her home, La. F. and Li. F. shared a bedroom by choice, despite being of opposite genders. Linda admitted Jonathan did not exercise his Wednesday evening visitation because he needed to spend time with their newborn child. Instead, he would have lunch with the children on Wednesdays. She believed Jonathan should spend equal time with La. F. and Li. F. and his family in Westville.
¶ 58 Linda pointed out that Webber never visited her home and only engaged in a brief interview when completing her report, whereas Dr. Osgood visited their home and engaged in a longer interview.
¶ 59 5. Jonathan
¶ 60 Jonathan testified he works at the University of Illinois from 8:30 a.m. through 4:30 p.m., Monday through Friday, but his hours were flexible. Prior to the divorce, Jonathan would get the children up and ready for school, Jodi would pick them up after school, and then Jonathan would give them baths, prepare dinner, assist with homework, and get the children to bed.
¶ 61 Once Jonathan moved to Westville, however, the parties had difficulty with the joint-parenting agreement. Jonathan attempted to schedule monthly meetings with Jodi, but she would not show up. Instead, she wanted to talk about parenting issues in front of the children. Jonathan recalled a November 2015 incident where Jodi berated him in public and in front of the
children for having La. F. choose between attending a monster truck rally or basketball pictures. However, at the time, the children were generally happy, with good grades and success in sports.
¶ 62 The parties soon began disagreeing over the children's activities because Jodi would sign them up without consulting him, even though he was often responsible for transporting them to and from activities. For example, although the parties agreed not to sign the children up for soccer in fall 2016, Jodi signed them up anyway. When Linda had complications with her pregnancy in spring 2016, Jonathan could no longer continue transporting the children or attending their games.
¶ 63 After the trial court entered the temporary order granting Jodi primary parenting responsibilities in August 2016, he noticed a change in the children. They were more emotional and could not understand why they had so little time with him. La. F.'s standardized testing scores dropped from the 96th percentile to the 60th percentile. He fell behind on his reading and failed to complete his homework. The children were often tardy for school when Jodi transported them. Jodi changed jobs, which meant the children were enrolled in a before-and-after-school program. Jodi refused to let him take the children after school, even though they are in an after-school program.
¶ 64 Jonathan testified, when he had the children, they would build forts, play sports, attend church, and engage in everyday routines and family time. He volunteered for school activities, had lunch weekly with the children, and attended parent-teacher conferences, whereas Jodi spent no time at the school during the week.
¶ 65 Jonathan testified he had concerns about Jodi's mental health throughout their marriage. In March 2015, he discovered her crying in a fetal position. He noticed she received
unknown medications in the mail in November 2014. There were also numerous occasions when she failed to pick up the children on time.
¶ 66 Jonathan asked the trial court to let the children move to Westville, where Jonathan would have the decision-making authority and would be the residential parent. He said his life was more stable than Jodi's, as she rented her apartment, had a boyfriend, and gave the children no time to relax. In fact, he said it has always been in the children's best interest to be with him. He encouraged Jodi to move to Westville to exercise her visitation with the children. He acknowledged the children had been inside Westville schools one time, and that was to watch a school performance.
¶ 67 Jonathan acknowledged his children engaged in numerous activities during the marriage, including gymnastics, soccer, and baseball, and he had no problem with it. However, he thought the activities should be curbed because their grades were suffering. He admitted forgoing his Wednesday evening visitation because he thought the children would be better served by staying home and doing their homework and getting to bed early. Instead, he had lunch with the children on Wednesdays.
¶ 68 Jonathan conceded the children's report cards from the 2016 to 2017 school year reflected no tardies for the children, and their grades were largely improved. Although Jonathan testified he supported counseling for the children, he acknowledged an exchange with Jodi where he refused counseling as unnecessary, and recommended the children attend church instead.
¶ 69 6. Jennifer Russell
¶ 70 Jennifer Russell testified she was Jodi's stepmother and Jonathan's supervisor. When Jodi and Jonathan relocated from Florida, she helped them plan for the move, and they specifically chose Mahomet school district for their children.
¶ 71 Russell testified she allowed Jonathan—and all of her employees—a flexible work schedule that allowed Jonathan to spend extended lunch periods with the children. She noted on days Jonathan transported the children from Westville, he was frequently late for work.
¶ 72 Russell requested that Jodi remain as the primary caregiver, as she always put the children first and had a close relationship with the children. According to Russell, Jodi accepted a lower paying job at the hospital so she would be more available for the children. Russell pointed out that Jodi had provided stability for the children and that the children were accustomed to the Mahomet community.
¶ 73 7. Julie Watkins
¶ 74 Julie Watkins, Jodi's biological mother, testified she lived in Chicago, but saw the family several times a month. She described the children's relationship with Jodi as "awesome" and said the children tell Jodi everything. When Jodi and Jonathan relocated from Florida, she helped them plan for the move, and they specifically chose Mahomet school district for their children.
¶ 75 Watkins observed improvements in the children once Jodi had primary parental responsibilities. She noted the children were Jodi's top priority. At the same time, she advocated for Jonathan to receive ample parenting time. She suggested that Jodi have primary care during the school year, with Jonathan having parenting time one evening a week and alternate weekends, then swapping the parenting schedule during the summer.
¶ 76 8. Trial Court's Order
¶ 77 In June 2017, the trial court entered a lengthy written order. The court summarized the evidence presented during the hearing and made numerous factual findings, which will be detailed below.
¶ 78 After analyzing the evidence and sections 602.5(c) and 602.7(b) of the Act, the court found it was in the best interest of the children to grant Jodi the majority of parenting time. During the school year, Jodi would have parenting time during the week, but Jonathan could visit the children for lunch on any day, and have after-school visitation until 5:30 p.m. twice a week. The parties would alternate weekends. During the summer, the parties would have the children on alternating weeks. Jodi also received decision-making authority regarding the children's education, religious, and medical needs, but the court ordered joint decision-making authority with respect to the children's activities.
¶ 79 D. Motions To Reconsider
¶ 80 In July 2017, Jonathan filed a motion to reconsider the trial court's order, asserting, generally, the court's findings were against the manifest weight of the evidence and relied too heavily on Webber's report. The following month, Jonathan filed a second motion to reconsider citing new evidence that Jodi had returned to her old job and sometimes worked nights. Following a hearing, the court denied both motions.
¶ 81 This appeal followed.
¶ 82 II. ANALYSIS
¶ 83 On appeal, Jonathan argues the trial court (1) gave too much weight to the LGAL's opinion, and (2) failed to properly weigh the factors under sections 602.5(c) and 602.7(b) of the Act (750 ILCS 5/602.5(c), 602.7(b) (West 2016)). Jodi argues that Jonathan's appeal is meritless and requests sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994).
¶ 84 Before we reach the merits, we note, Jodi argues we should find Jonathan's arguments forfeited because he cites no cases in support of his position and foists the burden of
argument and research on this court. See In re Marriage of Baumgartner, 237 Ill. 2d 468, 474-75, 930 N.E.2d 1024, 1027 (2010) (the appellate court is not "a depository in which the appealing party may dump the burden of argument and research."). However, to the extent any of these issues may be forfeited, forfeiture is a limitation on the parties, not this court, and we may overlook forfeiture where necessary to obtain a just result. Wilson v. Humana Hospital, 399 Ill. App. 3d 751, 757, 926 N.E.2d 821, 827-28 (2010). Thus, even if Jonathan's brief is imperfect, we will consider the merits of this appeal.
¶ 85 In reviewing the trial court's decision regarding the modification of parenting time, we will reverse only if the court's decision is against the manifest weight of the evidence or an abuse of discretion. In re Marriage of Smithson, 407 Ill. App. 3d 597, 600, 943 N.E.2d 1169, 1171 (2011). In examining the custody order, we note the trial court is given substantial deference due to its superior position to weigh the credibility of the witnesses and evaluate the evidence. In re Marriage of Bates, 212 Ill. 2d 489, 516, 819 N.E.2d 714, 728 (2004). We now turn to the arguments on appeal.
¶ 86 A. Expert Testimony
¶ 87 Jonathan first asserts the trial court improperly weighed Webber's testimony more favorably than the testimony of Dr. Osgood.
¶ 88 Under section 604.10(b) of the Act, the trial court may appoint an expert witness to evaluate the children's best interest and provide a recommendation to the court. 750 ILCS 5/604.10(b) (West 2016). The expert's opinion must be based on a reasonable degree of certainty. See, e.g., Soto v. Gaytan, 313 Ill. App. 3d 137, 147, 728 N.E.2d 1126, 1133 (2000). However, the court makes the ultimate decision as to the best interest of the children and is therefore not bound by its expert's recommendation. In re Marriage of Stopher, 328 Ill. App. 3d
1037, 1041, 767 N.E.2d 925, 929 (2002); see also In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628, 880 N.E.2d 537, 547 (2007).
¶ 89 Jonathan argues Webber's testimony could not be based on any degree of certainty, as she did not provide the same in-depth investigation as Dr. Osgood, and her report was filed nearly a year prior to the hearing—before the trial court entered its temporary order providing Jodi the majority of parenting time. Although Jonathan makes much of Webber's report being filed nearly a year before the hearing, the delay following Webber's report resulted from Jonathan requesting the appointment of an expert witness to engage in further investigation. Regardless, the trial court took the significant time lapse into consideration.
¶ 90 The trial court found both Webber and Dr. Osgood credible even though they made different findings due to the significant changes in the case between the times Webber filed her report in August 2016 and Dr. Osgood testified regarding her opinion in May 2017. Despite the time lapse between Webber's LGAL report and the hearing, the court granted more weight to Webber for seven reasons.
¶ 91 First, the trial court found Webber ascertained the facts from the very beginning of the case, starting with a "blank slate," whereas Dr. Osgood was able to use Webber's report in forming her opinion. Second, the court noted a difference between Jonathan's interactions with the LGAL and Dr. Osgood. With Webber, Jonathan used the term "bio mom" to describe Jodi, and the court found it likely Jonathan chose not to use that word with Dr. Osgood after it reflected poorly upon him in Webber's report. This would demonstrate that he did not view Jodi as an equal parent, consistent with Webber's opinion. Third, although Webber did not review the children's grades and Dr. Osgood did, the court noted the children's grades improved
significantly by the end of the school year, rendering Dr. Osgood's opinion regarding the impact of parenting on the children's grades less persuasive.
¶ 92 Fourth, the trial court found Webber made a strong argument that Jonathan failed to consider the needs of his children—and instead was naive or selfish—when he moved to Westville shortly after signing the parenting agreement. The court observed Dr. Osgood ignored this pertinent fact in rendering her opinion. Fifth, the parties specifically chose Mahomet schools for their children and no one offered testimony to justify switching schools. Sixth, although Dr. Osgood stressed that the children could handle activities better in Westville and required no daycare, no evidence showed the children would handle activities better in Westville, and the evidence suggested the children might be under the care of a nanny after school.
¶ 93 Seventh, and most compelling, the trial court expressed concern that Dr. Osgood considered new information from Jonathan after filing her report that was apparently so significant that it changed her opinion; however, she did not follow up on any of the information with Jodi, nor did she tell Jodi about her change in opinion.
¶ 94 Because the trial court makes the ultimate decision as to the best interest of the children, the court was free to find Webber's opinion more persuasive than Dr. Osgood's opinion, even though a significant period of time had passed since Webber wrote her report. The court provided detailed findings supported by the record. Thus, the court's finding that Webber was more persuasive was neither against the manifest weight of the evidence nor an abuse of discretion.
¶ 95 B. Weighing the Factors
¶ 96 Jonathan next argues the trial court improperly weighed the factors with respect to decision-making under section 602.5(c) of the Act (750 ILCS 5/602.5(c) (West 2016)) and parenting time under section 602.7(b) of the Act (750 ILCS 5/602.7(b) (West 2016)).
¶ 97 1. Decision-Making Authority
¶ 98 Under section 602.5(c) of the Act, the trial court must consider the best interest of the children in allocating decision-making authority with respect to education, health, religion, and extracurricular activities. 750 ILCS 5/602.5(c) (West 2016). In determining the best interest of the children, the court shall consider:
"(1) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to decision-making;
(2) the child's adjustment to his or her home, school, and community;
(3) the mental and physical health of all individuals involved;
(4) the ability of the parents to cooperate to make decisions, or the level of conflict between the parties that may affect their ability to share decision-making;
(5) the level of each parent's participation in past significant decision-making with respect to the child;
(6) any prior agreement or course of conduct between the parents relating to decision-making with respect to the child;
(7) the wishes of the parents;
(8) the child's needs;
(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) whether a restriction on decision-making is appropriate under Section 603.10;
(11) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(12) the physical violence or threat of physical violence by the child's parent directed against the child;
(13) the occurrence of abuse against the child or other member of the child's household;
(14) whether one of the parents is a sex offender, and if so, the exact nature of the offense and what, if any, treatment in which the parent has successfully participated; and
(15) any other factor that the court expressly finds to be relevant." 750 ILCS 5/602.5(c) (West 2016).
¶ 99 Jonathan asserts the trial court improperly weighed these factors when it granted primary decision-making authority to Jodi for education, health, and religion. He does not challenge the court's order granting the parties joint decision-making authority over the children's activities. We review the court's order with respect to each of the factors set forth in
section 602.5(c). Subsections (c)(10), (12), (13), (14) are inapplicable to the present case, so we need not discuss them further.
¶ 100 In its order, the trial court noted neither child testified as to his or her wishes, and both parents sought sole decision-making authority over the children, so these factors favored neither party. 750 ILCS 5/602.5(c)(1), (c)(7) (West 2016). The court found the children's adjustment to their home, school, and community favored Jodi, as the children attended school and engaged in activities in Mahomet, their friends were in Mahomet, and their home was in Mahomet. 750 ILCS 5/602.5(c)(2) (West 2016). The record demonstrates the children may have struggled at the beginning of the 2016 school year, when the temporary order took effect. However, by the end of the school year, the children's grades improved significantly.
¶ 101 The trial court found no indication of mental- or physical-health issues with either the parties or the children, so this factor did not favor either party. 750 ILCS 5/602.5(c)(3) (West 2016). Jonathan disagrees, asserting Jodi's behavior—crying in a fetal position and publicly berating Jonathan in front of the children—demonstrates she is not mentally or emotionally healthy. While the trial court noted Jodi's frustrated outburst in public was inappropriate, Dr. Osgood found, in her expert opinion as a licensed clinical psychologist, Jodi suffered from no mental illness. The court accepted this opinion and found Jodi's behavior was not unusual for someone going through divorce proceedings. Jonathan also argues the court failed to consider La. F.'s struggles with his emotional health, as reflected by outbursts of anger and underperforming on standardized testing, but, as the court noted, no one specifically testified La. F. suffered from mental- or physical-health issues.
¶ 102 The trial court noted the parties had some difficulty cooperating. 750 ILCS 5/602.5(c)(4) (West 2016). The court expressed concern that Jodi sometimes scheduled
activities during Jonathan's parenting time; however, the court noted Jonathan was not exercising his parenting time during those periods—typically Wednesday evenings—anyway. Thus, the court found this factor favored neither party. Additionally, due to the parents both having significant decision-making authority in the past, the court found subsection (c)(5) favored neither party. 750 ILCS 5/602.5(c)(5) (West 2016). Moreover, the court determined the prior course of conduct favored neither party because their course of conduct demonstrated ongoing issues. 750 ILCS 5/602.5(c)(6) (West 2016). For example, while Jonathan attempted to unilaterally renegotiate the terms of the temporary parenting order by requesting additional or different parenting times to suit his needs, Jodi disregarded his concerns over the schedule of extracurricular activities.
¶ 103 Jonathan argues the trial court should have placed more weight on Jodi's unwillingness to provide him extra parenting time. Specifically, he points to the day of the children's school Valentine's Day party, where he asked to spend time with the children after he attended the classroom party, but Jodi refused and required the children to attend after-school care instead. This particular incident was one of those disclosed by Jonathan after Dr. Osgood issued her initial report, which means only Jonathan's version of events was provided to the court. Thus, the court was within its authority to give little to no weight to the incident. Regardless, the court repeatedly took note of Jodi's inflexibility with respect to providing Jonathan with more parenting time and encouraged her to grant Jonathan additional time even though she was not required to by court order.
¶ 104 The trial court found the children's needs were being met. 750 ILCS 5/602.5(c)(8) (West 2016). The children were performing well academically, engaged in
activities, and had no medical needs. Thus, the court found this factor weighed in favor of neither party.
¶ 105 The distance and need for transportation between Mahomet and Westville caused some concern for the trial court. 750 ILCS 5/602.5(c)(9) (West 2016). The court noted Jonathan's residence in Westville—50 miles from Mahomet—caused significant difficulties between the parties. The court pointed out Jonathan made the decision to move, even knowing that such a move would clearly impact his ability to spend time with the children. Although Dr. Osgood's report indicated the children would not require a before-and-after-school program in Westville, Linda testified she employed a nanny to watch the baby, and sometimes her other children, while she worked in another room. Thus, the children would be in some manner of after-school care in either place. The court found Jonathan was not exercising his Wednesday night visits, but made up for it by having lunch with the children on Wednesdays. The court also noted, although in compliance with the court order, Jodi could be more flexible in occasionally allowing Jonathan time with the children after school. The court found this factor to be a close call but considered it to favor neither party.
¶ 106 When considering whether each parent fostered a close relationship between the children and the other parent, the trial court found in favor of Jonathan. 750 ILCS 5/602.5(c)(11) (West 2016). The court found it undisputed that Jodi attempted to lecture Jonathan and Linda in front of the children about their parenting skills, both in private at Jonathan's home and in public during a basketball game.
¶ 107 After considering the statutory factors, the trial court stated that it also considered other relevant factors, such as the parents' conduct. 750 ILCS 5/602.5(c)(15) (West 2016). The court noted Jodi and Jonathan could be good parents and cooperate at times, but both had also
engaged in some inappropriate conduct that concerned the court. Jonathan, out of self-interest, unilaterally changed the temporary parenting order by creating parenting time at lunch and not using his Wednesday evening parenting time. Jonathan criticized Jodi for following the temporary parenting order and criticized the court as "ridiculous" for not giving him overnight visitation during the week. The court also found he engaged in manipulative behavior, such as (1) calling Jodi "bio mom" to Webber, but after reading how the term impacted Webber's opinion, he refrained from using it with Dr. Osgood; (2) providing additional information to Dr. Osgood after she filed her report; and (3) signaling his willingness to let the children remain in Mahomet, but only if he was given equal parenting time.
¶ 108 As to Jodi, the trial court found she was inflexible regarding parenting time and unwilling to grant Jonathan additional time with the children on occasion. She also had public outbursts and was unable to contain her frustration with Jonathan in front of the children. The court was also concerned that Jodi scheduled the children for activities during Jonathan's parenting time.
¶ 109 The trial court's written order clearly demonstrates careful consideration of every factor contained in section 602.5(c), and the court provided facts from the record supporting its decision as to each factor. Although Jonathan disagrees with the court's decision to award Jodi sole decision-making authority with respect to the children's education, religion, and medical needs, he has failed to establish the court's factual findings were against the manifest weight of the evidence or that the ultimate decision was an abuse of discretion.
¶ 110 2. Section 602.7 of the Act
¶ 111 Jonathan also argues the trial court improperly weighed the factors in section 602.7(b) of the Act in granting primary parenting time to Jodi. Under section 602.7(b) of the Act, the court must consider the following factors in determining the best interest of the children:
"(1) the wishes of each parent seeking parenting time;
(2) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to parenting time;
(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child's birth;
(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child's best interests;
(6) the child's adjustment to his or her home, school, and community;
(7) the mental and physical health of all individuals involved;
(8) the child's needs;
(9) the distance between the parents' residences, the cost and difficulty of transporting the child, each parent's and the child's daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) whether a restriction on parenting time is appropriate;
(11) the physical violence or threat of physical violence by the child's parent directed against the child or other member of the child's household;
(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(14) the occurrence of abuse against the child or other member of the child's household;
(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);
(16) the terms of a parent's military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
(17) any other factor that the court expressly finds to be relevant." 750 ILCS 5/602.7(b) (West 2016).
¶ 112 In reaching its decision, the trial court found both parents sought primary parenting time, and the children did not testify regarding their wishes. Accordingly, the court found those factors favored neither party. 750 ILCS 5/602.7(b)(1), (2) (West 2016).
¶ 113 In considering the amount of time each parent performed caretaking functions in the past 24 months, the court noted Jonathan had equal parenting time until August 2016. 750 ILCS 5/602.7(b)(3) (West 2016). After that, Jonathan rarely exercised his Wednesday evening visitation because he did not want to spend all of his time on homework and he wanted to spend time with his newborn. The court found this showed Jonathan's motivation to spend time with his children, but his willingness to disobey court orders when it suited him. Despite the recent decrease in Jonathan's parenting time, the court found this factor favored neither party. As noted previously, the court also found the parties' prior course of conduct and agreements favored neither party. 750 ILCS 5/602.7(b)(4) (West 2016); See supra ¶ 102.
¶ 114 The trial court found the children were bonded to both Jodi and Jonathan, as well as their respective families, which favored neither party. 750 ILCS 5/602.7(b)(5) (West 2016). Jonathan argues the court received little information about Jodi's paramour, Nathan, noting he was not called to testify about his role in the children's lives whereas Jonathan's fiancée, Linda, freely testified. Jonathan appears to argue Jodi was hiding information about Nathan, but he offers no further insight as to why Nathan's testimony was necessary or that the court emphasized the children's bond with Nathan in making its decision.
¶ 115 As noted above, the children were well-adjusted to their home, school, and community in Mahomet, their grades improved, they had several friends, and engaged in numerous community activities. 750 ILCS 5/602.7(b)(6) (West 2016); supra ¶ 100.
¶ 116 Again, as noted above, the trial court found no issues with the physical or mental health of the parents or children and determined the children's needs were being met. 750 ILCS 5/602.7(b)(7), (b)(8) (West 2016); See supra ¶ 101. The distance, however, remained an ongoing problem. 750 ILCS 5/602.7(b)(9) (West 2016); See supra ¶ 105. The court found any restriction on parenting time inappropriate, and there was no indication of physical violence or the presence of sex offenders around the children. 750 ILCS 5/602.7(b)(10), (b)(11), (b)(14), (b)(15) (West 2016). Neither parent served in the military. 750 ILCS 5/602.7(b)(16) (West 2016).
¶ 117 The trial court found it difficult to assess the willingness and ability of the parents to consider the children's needs ahead of their own. 750 ILCS 5/602.7(b)(12), (b)(13) (West 2016). While Jonathan disregarded the court's order for Wednesday night visits, he created his own schedule for Wednesday lunches with the children. The court noted Jonathan wanted to visit the children, but at his own convenience. At the same time, Jodi was inflexible in allowing Jonathan any extra parenting time and vented her frustrations in public in front of the children without considering the children's mental well-being. The court therefore found these factors favored neither party.
¶ 118 As with the analysis under section 602.5(c), the trial court carefully addressed every factor in section 602.7(b) and supported its decision with factual findings from the record. Again, although Jonathan disagrees with the trial court's decision to award the majority of
parenting time to Jodi, he has failed to establish the court's factual findings were against the manifest weight of the evidence or that the ultimate decision was an abuse of discretion.
¶ 119 C. Sanctions
¶ 120 Jodi requests sanctions in this matter under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994), asserting this appeal is frivolous and without merit. The imposition of sanctions is left to the reviewing court's discretion. Jaworski v. Skassa, 2017 IL App (2d) 160466, ¶ 18, 73 N.E.3d 13. Although Jonathan's appeal proved unsuccessful, we cannot conclude it is sanctionable. The issues raised by Jonathan are not devoid of arguable merit, and it does not appear the appeal was brought in bad faith in an attempt to harass, delay, or unnecessarily increase litigation costs. See id. ¶ 19; Ill. S. Ct. R 375(b) (eff. Feb. 1, 1994). We therefore decline to impose sanctions in this case.
¶ 121 III. CONCLUSION
¶ 122 Based on the foregoing, we affirm the trial court's judgment.
¶ 123 Affirmed.