In Re Marriage of Manhoff

880 N.E.2d 627, 377 Ill. App. 3d 671, 316 Ill. Dec. 891, 2007 Ill. App. LEXIS 1269
Appellate Court of Illinois·Decided December 5, 2007·No. 1-06-2762·Published·Cited by 1 cases

Opinion

PRESIDING JUSTICE QUINN

delivered the opinion of the court:

Respondent Dean Manhoff appeals from an order of the circuit court of Cook County denying his motion to strike and dismiss petitioner Cindy Manhoff s emergency motion to restrict visitation with the parties’ children and for a finding of visitation abuse. Respondent also appeals from an order of the circuit court denying his motion for reconsideration of a court order permitting him only supervised visitation with the parties’ children. On appeal, respondent contends that: (1) the circuit court lacked jurisdiction to conduct an emergency hearing where petitioner did not attach an affidavit to her petition as required by circuit court rules; (2) the circuit court erred in finding that respondent’s alleged actions constituted a substantial endangerment to the parties’ children; and (3) respondent was denied his rights to a fair trial and due process where he did not have the opportunity to present a defense at the emergency hearing. For the following reasons, we affirm.

Cindy and Dean were married on October 4, 1987, and the marriage was registered in Cook County, Illinois. Three children were born to the parties during the course of their marriage, namely: Jacob, born May 1, 1998; Zachary, born February 1, 2001; and Nicole, born May 5, 2002. On April 30, 2002, Cindy filed a petition for dissolution of marriage. On September 27, 2005, the circuit court entered a judgment for dissolution of marriage, which incorporated a marital settlement agreement and a parenting agreement executed by the parties. Pursuant to the parenting agreement, Cindy was awarded sole custody of the parties’ children with Dean having visitation with the children on alternating weekends and every Wednesday evening, telephone contact, and visitation on alternating holidays.

On June 14, 2006, Cindy filed an emergency petition to restrict visitation and for a finding of visitation abuse. In her petition, Cindy alleged that Dean engaged in misconduct relating to visitation with the parties’ children. Cindy alleged, inter alia, that on June 7, 2006, Cindy, the parties’ three children, Cindy’s boyfriend Alfred Weltmann, and the children’s nanny Joanne, were at Cindy’s home waiting for Dean to pick the children up for visitation. Pursuant to the judgment, Dean was to pick up and drop off the children curbside and was not to enter Cindy’s property. Cindy alleged that Dean arrived to pick up the children and Alfred heard Dean ask, “Why is he [Alfred] here? You don’t want him here do you? Why is he always here? He’s staring at me. He wants to hurt me. He wants to beat me up.” Jacob then walked back into the house and was crying. Dean motioned through the screen door for Alfred to come outside. Alfred declined and Dean said, “I just want to make sure you get it all taped. You’re probably taping this.” Dean then said, “I need drugs, do you have some you want to sell me? Is your son selling them yet?” Alfred responded by saying, “This is the reason that you and Cindy can’t be together” and Alfred closed the door. Dean continued speaking to Nicole and Zachary and told them, “Go ask him why he’s staring at me, go ask him? I want you to go ask him.” Cindy alleged that Nicole then came into the house, smiled uncomfortably at Alfred, did not say anything, then went outside again. Dean then asked Nicole, “Did he holler at you? I heard he hollers at you. He hollered at you right?” Jacob then went outside. Shortly thereafter, Dean yelled, “Where is Joanne? Send her out here!” Cindy alleged that Joanne was afraid and went into the kitchen. Dean continued to yell, “Send her out here!” Alfred then opened the door and told Dean that Joanne did not want anything to do with him. Dean then yelled, “No, it’s you! My kids want nothing to do with you! You’re a drug dealer! You don’t belong there! What are you doing there!” Alfred closed the door and Dean began calling the house from his cellular telephone. Dean continued to call the house for 20 minutes then left. Joanne was fearful and asked Alfred to follow her out of the house.

In her petition, Cindy also alleged that, later that day, Dean returned the children and engaged in further abusive behavior. Dean stood in front of Cindy’s home and yelled, “Where’s fat and sloppy? Your mom is going to get me in trouble again. I’m sure they are up to something again. They don’t want me to see you ever.” Dean told Jacob that Cindy and Alfred were taping him and directed Jacob to search bushes in front of the home for a tape recorder. Once inside the house, the children asked Cindy, “Why is dad going to be in trouble? Why does Alfred make faces at dad?” Cindy also alleged that on May 24, 2006, Zachary told her that Dean entered her home while she was away.

In response to Cindy’s petition, on June 14, 2006, Dean filed a motion to strike and dismiss Cindy’s emergency petition. In his motion, Dean alleged, inter alia, that because Cindy’s petition was verified, rather than supported by affidavit, it violated Cook County Circuit Court Rule 13.4(d)(ii)(B) (Cook Co. Cir. Ct. R. 13.4(d)(ii)(B) (eff. April 8, 2002)), which requires an affidavit for emergency motions filed in the circuit court. Dean also alleged that Cindy failed to plead that he “seriously endangered” the children.

Later that same day, June 14, 2006, the circuit court conducted an evidentiary hearing. The parties acknowledge that the court heard testimony from Cindy, Alfred, and Dean concerning the incident on June 7, 2006. The record does not contain a report of these proceedings. The circuit court entered an order in which the court found that Cindy and Alfred were more credible than Dean; that Dean was incredible; and that Dean made the statements alleged in Cindy’s petition and Dean had his children search for a tape recorder as alleged in Cindy’s petition. The court also found that Dean’s behavior was “not only disturbing but egregious and warrants a modification of the Joint Parenting Agreement,” and that Dean’s behavior is “a substantial endangerment” to the well-being of the parties’ three children. The court ordered that Dean shall have supervised visitation with a professional supervisor until further ordered by the court and that Dean shall be solely responsible for the cost of the supervisor. The court stated that this matter is “found to be an emergency” and that portions of Cindy’s pleading that related to incidents that occurred prior to the entry of the judgment for dissolution of marriage were stricken.

On June 30, 2006, Dean filed a motion to vacate the June 14, 2006, order or, in the alternative, a motion for retrial or modification. In his motion, Dean alleged that he had not been given sufficient notice of Cindy’s petition where he received it at 5 p.m. on the evening before the emergency hearing; that there was no expert testimony at the hearing; and that the testimony from Cindy and Alfred was incredible. On July 6, 2006, Dean filed an amended motion to vacate the June 14, 2006, order, in which he alleged that Cindy’s petition did not comply with Cook County Circuit Court Rule 13.4(d) (ii) and should be vacated.

On September 11, 2006, the circuit court entered an order which, inter alia, denied Dean’s amended motion to vacate the June 14, 2006, order or, in the alternative, a motion for retrial or modification. Dean filed a notice of appeal from the circuit court’s orders on June 14, 2006, and September 11, 2006.

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In Re Marriage of Manhoff, 880 N.E.2d 627, 377 Ill. App. 3d 671, 316 Ill. Dec. 891, 2007 Ill. App. LEXIS 1269 (Ill. Ct. App. 2007).

880 N.E.2d 627 (In Re Marriage of Manhoff) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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