Opinion
No. 1-12-2478 No. 1-12-2962
2013-10-10
AMY HARRIS, Plaintiff-Appellant, v. ANTOINE AVERY, Defendant-Appellee.
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
Cook County.
No. 07 D 80133
Honorable
Martha A. Mills,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Fitzgerald Smith and Epstein concurred in the judgment.
ORDER
¶ 1 Held: Trial court's decision to transfer primary residential custody of the minor child to the biological father was not against the manifest weight of the evidence, and the trial court did not abuse its discretion in denying the biological mother's motion to reconsider that decision. ¶ 2 Respondent, Amy H., pro se, appeals from an order of the circuit court of Cook County which, inter alia, transferred primary residential custody of the minor child, M.A., to petitioner, Antoine A., pro se, (No. 1-12-2478), and the order denying her motion to reconsider (No. 1-12-2962). Amy's separate notices of appeal from these rulings have been consolidated for review. In this court, Amy contends that the transfer of primary residential custody was against the manifest weight of the evidence and that the denial of her motion to reconsider was erroneous because there was new evidence that would have changed the outcome of the case. ¶ 3 The common-law record filed on appeal shows that Amy gave birth to M.A. on October 11, 2002, when she was 18 years old, unmarried and a ward of the State. Antoine's paternity of M.A. was established in 2007, and sole custody was granted to Amy in 2008. ¶ 4 On May 1, 2012, Antoine filed a petition to modify custody of M.A., alleging that a material and substantial change in circumstances had occurred and that it was in the best interest of M.A. to be in his sole custody. Following a hearing, the trial court entered a final custody judgment of joint custody and naming Antoine as the primary residential custodian of M.A. In its written order, entered on August 13, 2012, the trial court stated that it had considered the testimony of the parties and witnesses, determined their credibility, and reviewed the exhibits admitted into evidence. The trial court noted that although Amy had sole custody of M.A., "possession of the child, without benefit of the court, has been back and forth" and, in October 2010, Amy took M.A. out of school and moved to Pontiac, Illinois, "for a better life" and "to get away from [Antoine] and his family." The trial court noted Antoine's testimony that M.A. was not in school from October 2010 to January 2011 and that he did not learn of M.A. and Amy's whereabouts in Pontiac until March 2011. The trial court noted the testimony of Chrissy Ball, the mother of a child who was M.A.'s friend, that she saw Antoine and M.A. "nearly every day in connection with school," but then Amy "pulled [M.A.] out of school in the middle of her first grade year." ¶ 5 The trial court considered that Antoine now has two years of college and has been living and working the same job for the past 2½ years in Blue Island, Illinois, where he has the support of his mother and two brothers. The trial court also considered that Antoine is involved in M.A.'s schooling and extracurricular activities, including attending church with Antoine's mother. The trial court noted that Antoine picks M.A. up from school, helps with her homework, provides for her clothes and school supplies, and they play at the park and attend family gatherings on holidays. ¶ 6 In making its custody decision, the trial court delineated and applied the statutory best interest factors enumerated in section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602(a) (West 2012)), stating in pertinent part:
"[Antoine] testified that he would be willing to have joint custody with [Amy], but wanted to be the residential parent. [Amy] would like sole legal custody. Given [Amy's] lack of a family, the court understands why custody would be particularly important to her. On the other hand, joint custody would give her not only the child, but also a family if she were willing occasionally to join in on events of [M.A.'s] life that everyone would want to celebrate, such as special achievements or occasions, graduations, etc.¶ 7 On August 20, 2012, Amy, pro se, filed a motion to reconsider arguing, inter alia, that there allegedly exists newly discovered evidence of fraud, that, presumptively, [M.A.'s] wishes were not taken into consideration, and that it would be hard for [Amy] to live without [M.A.]. The trial court denied the motion to reconsider. ¶ 8 On appeal, Amy contends that the August 13, 2012, final custody judgment order, which transferred primary residential custody of M.A. to Antoine, was against the manifest weight of the evidence and that the denial of her motion to reconsider that transfer was erroneous where there was new evidence that would have changed the outcome of the case. ¶ 9 Initially, we note that Amy did not file a record of the proceedings or a bystander's report with this court as required by Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005), and that she has failed to comply with the supreme court rules governing appellate briefs as required by Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013). However, considering the nature of this case and because the trial court's written final custody judgment sheds considerable light on its reasons for transferring primary residential custody of M.A. to Antoine, we believe the record is sufficient for us to review the trial court's alleged errors. In re Marriage of Epting, 2012 IL App (1st) 113727, ¶¶ 36-37. ¶ 10 In custody determinations, the primary consideration is the best interest of the child. In re Parentage of J.W., 2013 IL 114817, ¶ 41. The trial court has broad discretion in determining custody, and its judgment is accorded great deference because the trial court is in a better position to observe the parties and assess the credibility of the witnesses. In re Marriage of Spent, 342 Ill. App. 3d 643, 652 (2003). Accordingly, we will not disturb a trial court's decision to modify the terms of a custody order unless it is against the manifest weight of the evidence or constitutes an abuse of discretion. In re Marriage of Debra N. and Michael S., 2013 IL App (1st) 122145, ¶ 45. In determining whether a judgment is contrary to the manifest weight of the evidence, we consider the evidence in the light most favorable to the appellee, and where the evidence permits multiple reasonable inferences, we will accept those inferences that support the trial court's order. In re Marriage of Bates, 212 Ill. 2d 489, 516 (2004). ¶ 11 Here, the written order transferring primary residential custody of M.A. to Antoine reflects the trial court's recognition and careful application of the statutory best interest factors in finding that "stability for [M.A.] will be greater with [Antoine] than with [Amy]. See In re Marriage of Means, 329 Ill. App. 3d 392, 397 (2002) (Section 610 of the Act applies to joint custody cases). "Stability for the child is a major consideration both with an initial award of custody under section 602 of the Act (750 ILCS 5/602 (West 1992)) and with a modification of custody under section 610 of the Act (750 ILCS 5/610 (West 1992))." In re Marriage of Wycoff, 266 Ill. App. 3d 408, 409-10 (1994). ¶ 12 In deciding that primary residential custody of M.A. with Antoine would foster a more stable environment, the trial court noted that M.A. "is benefitting from the friends and family she has while staying with [Antoine] and appears, by all accounts, to be well adjusted to home, school and community." The trial court stated that Antoine has two years of college and has been living and working the same job for the past 2½ years in Blue Island, where he has family support. The trial court also stated that Antoine is involved in M.A.'s schooling and extracurricular activities, including church and family gatherings. Considering the evidence in the light most favorable to Antoine, we cannot say that this decision regarding primary residential custody was against the manifest weight of the evidence. In re Marriage of McGillicuddy and Hare, 315 Ill. App. 3d 939, 944 (2000). ¶ 13 Notwithstanding, as grounds for disturbing the trial court's decision, Amy relies on the fact that the trial court entered an order, dated January 21, 2010, reaffirming the 2008 order granting her sole legal custody of M.A. as proof that Antoine made false statements about not knowing where she and M.A. lived in Pontiac. Aside from this conclusory argument, our examination of the trial court's order, which is included in the common law record, reveals that the 2008 order was reaffirmed "as it is partially illegible," and for no other reason. ¶ 14 Amy further maintains that the testimony of Antoine and Chrissy "can be proven fraudulent" based on "documents the trial [court] should have considered," namely, M.A.'s school records and letters from the school principal, youth pastor, family and friends. These documents, which Amy states are in her possession, also form the basis for her contention that the trial court erred in denying her motion to reconsider. However, Amy has failed to direct our attention to where in the common-law record, if at all, any of these documents can be found. See Prairie Rivers Network v. Illinois Pollution Control Board, 335 Ill. App. 3d 391, 408 (2002) (an appellant may not make a point by stating it without proper citation and argument). ¶ 15 As noted by the trial court, it is in the best interest of M.A. that she not be bounced back and forth from one parent to another (In re Marriage of Gustavson, 247 Ill. App. 3d 797, 802 (1993)), and Amy does not, nor can she, claim that she could not have produced these documents at the hearing on Antoine's petition to modify custody. Her ancillary assertion that Antoine defrauded the court for his personal gain and was $900 in arrears on his child support is equally unavailing. Under these circumstances, we cannot say that the trial court abused its discretion in denying Amy's motion to reconsider. In re Marriage of Wolff, 355 Ill. App. 3d 403, 409 (2005). ¶ 16 For the reasons stated, we affirm the orders of the circuit court of Cook County which, inter alia, transferred primary residential custody of M.A., to Antoine and denied Amy's motion to reconsider that decision in consolidated appeal number 1-12-2962. ¶ 17 Affirmed.
The wishes of the child are unknown except as expressed by other witnesses. It appears that [M.A.] is adjusted to school and doing well. She is benefitting from the friends and family she has while staying with [Antoine] and appears, by all accounts, to be well adjusted to home, school and community.
There are no health problems which are relevant here.
Although there have been allegations of physical abuse or threats thereof, they do not appear significant at this time. It does appear, both by witnesses, and the court's own observations, that [Amy] has a temper that is close to the surface. It is difficult to tell what [Antoine's] temperament is outside of court.
Both parents claim to want the other to have a meaningful relationship to [M.A.]. Their history of facilitating and encouraging it, however, is spotty. [Amy's] removing the child and not telling anyone where she or the child was and then, in effect, saying that was alright because 'no one needed to know,' stands as confirmation that she does not attach great importance to [Antoine] seeing and having contact with [M.A.].
It is clear that stability for [M.A.] will be greater with [Antoine] than with [Amy]. [Antoine] has indicated a willingness to encourage a relationship between [M.A.] and [Amy]. The court finds that it is in the best interest of [M.A.] to be in the residential custody of [Antoine].
The court finds that the parties have the ability to cooperate effectively and consistently in matters that directly affect the joint parenting of [M.A.], even if
they do not have such ability at the present time on other matters. The court will enter a modified joint custody order."