In Re Marriage of Campbell

633 N.E.2d 797, 261 Ill. App. 3d 483, 199 Ill. Dec. 1
Appellate Court of Illinois·Decided December 28, 1993·No. 1-90-3546·Published·Cited by 11 cases

Opinion

JUSTICE HARTMAN

delivered the opinion of the court:

Petitioner, Donald Campbell (Donald), appeals various court orders resulting from the dissolution of his marriage to respondent, Andrea Provenzano Campbell (Andrea). He presents as issues for review whether (1) the awards of attorney fees are contrary to law; (2) the child visitation provisions are against the manifest weight of the evidence; and (3) the order that he pay a percentage of his income as child support, rather than a precise amount, is contrary to law.

Donald and Andrea have a daughter, Ashleigh, who was born on August 21, 1984, prior to the couple’s marriage. Donald and Andrea had discontinued their relationship prior to Ashleigh’s birth, and Donald had no contact with Andrea or Ashleigh until March 1987, when the couple reunited. Donald and Andrea were married on August 1, 1987. Andrea and Ashleigh took up residence in Donald’s home. Donald filed a petition for dissolution of marriage on December 2, 1987.

On March 17, 1988, Donald filed his first motion for leave to sell the residence, claiming it was nonmarital property and that he could not afford to maintain it since he and Andrea were living separate and apart. That same day, Andrea filed both her response to the petition for dissolution and a petition for an order of protection alleging physical and verbal abuse by Donald. Donald’s answer denied the alleged abuse.

A series of agreed orders was entered. Andrea was granted an order of protection, exclusive possession of the residence, and temporary custody of Ashleigh; Donald was granted unsupervised visitation with Ashleigh from 10 a.m. to 6 p.m. on certain, specified dates. The order of protection was entered by agreement and without a finding of abuse.

On May 17, Donald moved to set a visitation schedule with Ashleigh. Andrea’s response claimed that Donald had shown no interest in Ashleigh before their marriage, failed to take proper care of Ashleigh, and had adversely impacted Ashleigh’s behavior. On July 14, appellee Paul Shuldiner filed his additional appearance on behalf of Donald. The same day the court granted Donald’s motion to sell the residence.

At a hearing on July 27, Andrea testified that Donald slammed doors in a fit of anger, nearly missing Ashleigh’s face; threw a toy baseball bat towards the floor hitting Ashleigh; masturbated in the marital bedroom after Andrea put Ashleigh in their bed to sleep; and handled and jiggled his penis in Ashleigh’s presence. Andrea intended never to allow overnight visitation between Donald and Ashleigh, but did not intend to prevent other extended visitation. In explaining why she felt overnight visitation was inappropriate, Andrea did not mention a fear of abuse. Donald testified and denied Andrea’s allegations.

On July 28, the court, noting Andrea’s uncorroborated allegations of abuse, set a visitation schedule granting Donald supervised overnight visitation with Ashleigh twice each month and unsupervised evening visitation with Ashleigh once each week.

Andrea moved for clarification of the court’s order that the residence be sold. Donald filed an answer and moved for possession of the residence asserting that Andrea was obstructing realtors in their efforts to sell it. Donald also filed a rule to show cause petition alleging that Andrea had verbally and physically harassed him and had failed to comply with the visitation schedule. The court entered a more specific order regarding the sale of the residence. After several motions were filed and two additional hearings were held, the court found Andrea in contempt for violating the visitation order and placed her on six months’ probation.

Donald filed several additional motions claiming that Andrea was preventing the sale of the residence.

On May 11, 1989, Andrea filed a petition for removal from the State of Illinois, requesting that she be allowed to return to Massachusetts with Ashleigh, where they could reside with Andrea’s parents as they had done prior to the marriage. The petition offered Donald a specific schedule of visitation including certain holidays and three weeks each summer as well as visitation with Ashleigh in Massachusetts as agreed upon by the parties. The circuit court granted Andrea temporary permission to return to Massachusetts with Ashleigh.

On June 6, the court ordered Andrea to vacate the residence during specified times each week so that realtors could sell the home. A violation would cause an immediate order to issue that she permanently vacate the home.

At an ex parte hearing on June 7, an unidentified person representing the Department of Children and Family Services (DCFS) requested that Donald’s visitation with Ashleigh be terminated immediately because a felony warrant had been issued for his arrest for sexually abusing Ashleigh. That same day, Andrea filed an emergency petition to terminate visitation, alleging that (1) Andrea had taken Ashleigh to the child’s regular pediatrician, who examined her and found her to have an enlarged clitoris and rectum; (2) Evanston Hospital made further examinations and contacted DCFS about the possibility of sexual abuse; and (3) DCFS and the Evanston police department conducted a joint investigation which resulted in the felony warrant being issued for Donald’s arrest.

On June 9, Donald told the court he had conducted emergency discovery and was in possession of (1) the notes of Ashleigh’s pediatrician, which stated that her clitoris and rectum were normal; (2) a record from Evanston Hospital which indicated that no examination of Ashleigh was conducted there; and (3) the felony warrant issued for Donald’s arrest, which was for child pornography and not sexual abuse.

Andrea subsequently modified her petition to terminate visitation and alleged that after she showed Ashleigh’s pediatrician nude pictures of Ashleigh, he discussed with her the ease of entry into the child’s rectum and periodic episodes of an enlarged clitoris, and referred her to Evanston Hospital.

On June 20, a new attorney appeared for Donald replacing Shuldiner. Subsequently, Shuldiner filed a motion for fees which sought $7,688.59 for services rendered in "divorce and criminal” matters.

On October 26, Donald’s counsel informed the court that the criminal charges against Donald had been dropped with a finding of no probable cause.

On February 7, 1990, trial commenced with Donald being represented by appellees Leonard T. Timpone and William R. Jacobs. Andrea testified that she and then five-year-old Ashleigh were living in Massachusetts with her parents pursuant to the court’s temporary order. After Ashleigh’s birth until 1987, Donald had no contact with Andrea or Ashleigh. Andrea had sent Donald a birth announcement in 1984. Andrea had no objection to Donald visiting with Ashleigh as long as it was in Massachusetts with a court-appointed supervisor and was not overnight. She would not allow Ashleigh to visit in Chicago until she became eight or nine years old.

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In Re Marriage of Campbell, 633 N.E.2d 797, 261 Ill. App. 3d 483, 199 Ill. Dec. 1 (Ill. Ct. App. 1993).

633 N.E.2d 797 (In Re Marriage of Campbell) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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