In Re Marriage of L.R.

559 N.E.2d 779, 202 Ill. App. 3d 69, 147 Ill. Dec. 439, 1990 Ill. App. LEXIS 1105
CourtAppellate Court of Illinois
DecidedJuly 27, 1990
Docket1-87-3554, 1-88-3118 cons.
StatusPublished
Cited by8 cases

This text of 559 N.E.2d 779 (In Re Marriage of L.R.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of L.R., 559 N.E.2d 779, 202 Ill. App. 3d 69, 147 Ill. Dec. 439, 1990 Ill. App. LEXIS 1105 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

I

Petitioner L.R. (father) 1 and respondent A.L. (mother) were married on December 19, 1981; H.R. (daughter), their only child, was born on August 1, 1982; their marriage was dissolved on June 29, 1984. Mother was granted custody of daughter, and father was granted reasonable visitation rights. This appeal arises from a dispute concerning his exercise of those rights. Specifically, father has appealed from an order entered by the circuit court, which abated his visitation with daughter, on the basis of a finding that he sexually abused her. He has also appealed from the circuit court’s order directing him to pay mother’s attorney fees. For the following reasons, we reverse the order abating visitation, reverse the order awarding attorney fees, and remand for further proceedings.

II

On November 11, 1985, mother filed a petition to abate father’s visitation with daughter, alleging that he sexually abused her. Shortly thereafter, father filed a petition for a rule to show cause, seeking to enforce his visitation rights. A hearing began on June 22, 1987, and extended over the course of 10 days. For the purpose of clarity, we shall recite the relevant facts in the order in which events transpired, although the witnesses did not testify in that order. Parenthetically, we note that father’s failure to file a table of contents for the voluminous record — contrary to Supreme Court Rule 342(a) (107 Ill. 2d R. 342(a))—did not assist us in resolving this appeal.

Mother testified that she had a conversation with daughter on October 29, 1985, in the kitchen of their home, around 7:30 p.m. No one else heard the conversation. According to mother:

“We were eating some kind of nuts, and [daughter] suddenly got off her high chair. She sat down on the floor spreading her legs, and she proceeded to take her clothes off. At that moment, I asked her, Why do you take your clothes off?’ She said, T am going to show to you and tell you what my Papa does to me.’ I said, ‘Tell me. Do not take your clothes off.’ She said he is asking her to sit on the cold bathroom floor with her legs spread out. Then, she stood up, came towards me with her back facing me, and she came between my legs. I was sitting on the chair. She bent herself down, and she show that he is putting something in her poopa (phonetic), and he does something in her pee-pee. Also, he was squeezing her legs when he was doing this. She said it hurt her, and she startfed] crying, but he start pulling her hair, and she said the more she cried, the more he pulled her hair to prevent her from crying. She said she was calling, ‘Mommy, Mommy, Mommy, but you didn’t come.’ *** I told [daughter], ‘[Daughter], I was too far for me to hear you calling me. That is why I couldn’t hear you.’ *** [Daughter] sort of finished the conversation by saying, ‘Make sure that you will not do those things to me.’ ”

Mother then explained that daughter called her father “papa,” that she called the rectum “poopa,” and that she called the vagina “pee-pee.”

Mother testified that she and daughter had another conversation later that same evening, about 9 p.m., in the bathroom. N.L. (sister), mother’s child by a different marriage, was present for this conversation. According to mother:

“When I was giving her a bath, [daughter] said that when her Papa was putting something in her poopa, it hurt her very much, and T was calling you, and you didn’t come.’ And I explained to her that I was too far away from her. *** Then, she sat down on the edge of the bathtub, and she lifted one of her legs, and she showed that with her fingers, that Papa does something in her pee-pee like this.”

Father’s attorney objected to both statements on the grounds of the hearsay rule, and the circuit court reserved its ruling.

The day after hearing the alleged statements, mother took daughter to her pediatrician, Dr. Korach, for a previously scheduled appointment. Apparently, mother did not discuss these alleged incidents with Dr. Korach, and he did not give daughter a vaginal examination. Later that day, mother called a child abuse hotline. On November 1, 1985, she met with Marilyn Michaelparker of the Illinois Department of Children and Family Services (DCFS). Mother then took daughter to Mount Sinai Hospital, where she was examined by Dr. Joyce Smith. The next day, mother spoke with Detective Silverberg of the Skokie police department. According to the DCFS report, no criminal proceedings were initiated against father because the police believed that daughter, who was three years old at the time, would not make a good witness.

On cross-examination, mother admitted that when daughter was making the supposed statements to her, the child was “sort of calm.” Mother also conceded that she never returned to Mount Sinai to have daughter admitted for a more thorough examination, contrary to Dr. Smith’s advice. Mother admitted that she secretly listened to father’s telephone conversations with daughter, when he called the child. And mother conceded that her own mother, T.L. (maternal grandmother), told daughter that father did bad things to her.

Maternal grandmother testified through an interpreter, who was conversant in the Polish and Russian languages. According to maternal grandmother, she and daughter had a conversation in October of 1985, which was the child’s first week of school. This conversation took place in maternal grandmother’s home, after school. No one else was present. Daughter referred to two secrets, but she only told maternal grandmother one secret at that time. The first secret concerned father's negative statements about maternal grandmother, sister, and mother. Maternal grandmother testified that daughter told her the second secret during the last week of October 1985. Like the first conversation, the second conversation took place at her home, after school, with no one else present. According to maternal grandmother:

“I asked her — [daughter], ‘where do you want to talk, in which room?’ She said in the bathroom. *** [Daughter] said not to tell — not to say anything and not to ask her questions. She wanted me to sit on the toilet seat. *** She started to take off all her clothes. *** Then, she sat on the naked floor. I asked [daughter], ‘Why are you sitting on the naked floor naked?’ [Daughter] said, T want to show you why I have been sick so often.’ Once again, she said, ‘Grandma, don't say anything. I will show you what was next.’ She stood up from the floor, turned her back and said, ‘Grandma, hug me closely.’ She bent a little and showed me how Papa put a stick in her bottom. She started to cry. She said that while she was crying her Papa told her to stop crying and was pulling her hair. ‘Grandma, it hurt a lot.’ T didn’t want him to do it. I asked him not to do it; but, he was still doing it.’ *** Her father answered, ‘A good father should do things like that, put a stick in your bottom.’ *** She cried very much. She was white as a sheet of paper. She was cold as a piece of ice. She was hanging on her neck. She clang [sic] to her neck; and, she couldn’t take her weight off her. I didn’t know what to do with her. I got scared and terrified.”

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Bluebook (online)
559 N.E.2d 779, 202 Ill. App. 3d 69, 147 Ill. Dec. 439, 1990 Ill. App. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-lr-illappct-1990.