In re Marriage of White

2022 IL App (3d) 200543-U

• Court: Appellate Court of Illinois
• Decided: February 1, 2022
• Docket: 3-20-0543
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 200543-U

Order filed February 1, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, ELI WHITE, ) Will County, Illinois. ) Petitioner-Appellee, ) ) Appeal No. 3-20-0543 and ) Circuit No. 16-D-214 ) SARAH N. WHITE, ) ) Honorable Elizabeth Hoskins Dow, Respondent-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Holdridge and McDade concurred in the judgment.

ORDER

¶1 Held: (1) The circuit court did not abuse its discretion in denying respondent’s motion in limine seeking to prevent the testimony of the parenting coordinator and guardian ad litem. (2) The order modifying the custody arrangement was not against the manifest weight of the evidence.

¶2 Petitioner, Eli White, and respondent, Sarah N. White, had one child during their marriage,

C.W., born in November 2014. The circuit court ordered a judgment of dissolution of marriage in

December 2016. Incorporated within the dissolution judgment is a parenting plan and allocation of parental responsibilities. Subsequent to Eli’s filing of a motion to modify the custodial

arrangement in February 2019, the court appointed a guardian ad litem (GAL) and a therapist for

C.W., as well as a coparenting therapist for Eli and Sarah. The court later appointed the co-

parenting therapist as the parenting coordinator. Eli and Sarah executed agreed orders allowing the

GAL and coparenting therapist access to C.W.’s therapist and the corresponding records. Prior to

the hearing on the motion to modify, Sarah filed a motion in limine asking the court to bar the

testimony of the GAL and the parenting coordinator on the basis that the parenting coordinator

had been the parenting therapist, and both the parenting coordinator and the GAL spoke with

C.W.’s therapist and reviewed the therapist’s records in violation of section 607.6(d) of the Illinois

Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607.6 (d) (West 2020)). The court

denied the motion and following the hearing modified the custody arrangement. Sarah appeals.

We affirm.

¶3 I. BACKGROUND

¶4 During the parties’ marriage, they had one child C.W. The circuit court entered an order of

dissolution of marriage containing a parenting plan and an allocation of parental responsibilities

in December 2016. In February 2019, Eli filed a “Motion to Modify Designation of Parent with a

Majority of Parenting Time and Other Relief,” as well as a motion seeking the appointment of a

GAL. The circuit court appointed Emily Shaughnessy as the GAL for C.W. The court held a

hearing on Eli’s motion.

¶5 Counsel for Eli called Sarah to testify. Sarah testified on numerous topics, including the

difficulties she and Eli experienced while coparenting and the “tantrums” C.W. would have when

required to go to Eli’s house. The court intervened in the direct examination at one point to ask

Sarah why she was advocating for a right of first refusal that would result in more transitions

-2- facilitating the possibility of more “tantrums.” Sarah stated that the child wanted to spend the extra

time with her. Sarah’s testimony continued until the court stopped the proceedings and asked

counsel for both sides to meet in the hallway. Upon returning, the court made recommendations

concerning therapy and parenting time such as temporarily removing the right of first refusal. The

court then continued the hearing to a later date.

¶6 A few days after continuing the hearing, the court entered an agreed order temporarily

revising the parenting plan. Under the temporary schedule, the parties enjoyed alternating

weekends and rotated custody of the child every other day. The right of first refusal was eliminated.

The circuit court appointed Whitney McDaniel as coparenting therapist. The court also appointed

Jennifer Planning as the therapist for C.W. The court subsequently appointed McDaniel as the

parenting coordinator.

¶7 In total, there are three agreed orders of note. The August 30, 2019, agreed order provided

that “Parties shall execute necessary consents for [GAL] to have access to [Planning] and her

records[,]” and that “Planning will have consent to communicate with [McDaniel], parties to

execute necessary authorizations.” The October 24, 2019, agreed order provided that “The parties

shall execute necessary consents for [GAL] to have access to [Planning] and her records.

[Planning] shall have consent to communicate with [McDaniel] and the [GAL].” The March 16,

2020, agreed order provided that “Each party is ordered to ensure that the Parenting Coordinator

may meet and/or confer with the children or their therapist at reasonable times and places, as the

Parenting Coordinator deems appropriate.” Further, that “any conversations with or materials

provided to the Parenting Coordinator are not deemed to be confidential. The Parenting

Coordinator may be called to testify at hearing, deposition and/or trial.” In sum, Eli and Sarah

entered a number of agreed orders allowing the GAL to have access to McDaniel and her records,

-3- as well as allowing the GAL and McDaniel to have access to Planning and her records and allowing

McDaniel to testify.

¶8 In the interim, Eli filed a petition to enforce the parenting schedule recommendation of the

parenting coordinator. The coordinator recommended a “2-2-5” schedule where Eli would have

the child on Monday and Tuesday and Sarah would have the child on Wednesday and Thursday.

The parties exchanged every other weekend from Friday after school until Monday at drop-off at

the school. The court granted Eli’s motion and modified the parenting time accordingly.

¶9 In July 2020, Sarah filed a motion in limine arguing that the testimony of the GAL and

McDaniel should be barred. Sarah relied on section 607.6(d) of the Act that stated, “All counseling

sessions shall be confidential. The communications in counseling shall not be used in any manner

in litigation nor relied upon by any expert appointed by the court or retained by any party.” 750

ILCS 5/607.6(d) (West 2020). The court denied the motion in limine finding that Sarah waived the

challenge based on the prior agreed orders.

¶ 10 The hearing resumed in September 2020. The GAL testified that in her discussions with

C.W.’s therapist concerning his best interests, the “tremendous” amount of back and forth between

the households in the previous parenting plans and the negative impact it had on the child was a

paramount concern. Due to the structure of the initial parenting plan, the child did not have lengthy

periods of time where he was at one home. The GAL believed that the parties were unable to

sufficiently work together to make a right of first refusal work. The GAL recommended the

schedule that was currently in place: Monday, Tuesday with Eli; Wednesday, Thursday with Sarah;

alternating weekends; and no right of first refusal.

¶ 11 McDaniel testified that she is licensed as a clinical professional counselor. Her role in this

case initially began as a coparenting therapist, tasked with improving communication among the

-4- parties and reaching an understanding on parenting time. McDaniel’s progress in resolving those

issues was minimal. The parties became frustrated causing McDaniel to ask for permission to

contact the parties’ attorneys and the GAL to find a path through the impasse.

¶ 12 She believed the transition to a parenting coordinator was necessary because “the parties

were going in circles.” As a parenting coordinator, she could make recommendations. She

discussed transitioning from parenting therapist to parenting coordinator with the parties and they

both agreed to that change. While acting as parenting coordinator, she, again, received permission

to reach out to the parties’ attorneys due to an impasse on the parenting schedule. As a result of

the conversation between the attorneys and the GAL, she collaborated with the child’s therapist

regarding transitions and made recommendations to the parties on the parenting time schedule.

McDaniel recommended the parenting schedule that was currently in place. Her goal was to

minimize transitions as that was the main complaint from the parties, as well as a major concern

of the child’s therapist.

¶ 13 Sarah testified that she lived in her current residence for the past 10 years and C.W. has

always resided in her home. She and C.W. share a close relationship and he struggles being away

from her. Sarah wanted each parent to attend school functions. She sets and keeps the medical

appointments for C.W. She also wanted a right of first refusal during the summer because she does

not work summers, C.W. is extremely close to her, and he prefers to spend time in her care. She

previously enjoyed the right of first refusal with C.W. and the child enjoyed the extra time with

her. Sarah requested that the two-week extended parenting time during the summer be non-

consecutive as C.W. struggles while away from her for too long. As opposed to her previous

testimony, C.W. no longer struggled with transitions between the parent’s residences.

-5- ¶ 14 Eli testified that he lives with his current wife and their two children. He works from 7 a.m.

until 3:30 p.m. during the school year and from 6 a.m. until 2:30 p.m. in the summer, but his

schedule is flexible as long as he is able to work eight hours during the day. Eli testified that he

accepted the current schedule that both the GAL and parenting coordinator recommended. He

believed that the schedule should also be used during the summer months because “there has been

a plethora of back and forth throughout his life, and he does not do well with it.” When asked about

C.W.’s tantrums as described by Sarah, Eli stated, “I have no clue what [Sarah] is talking about.”

Eli generally denied the existence of C.W.’s behavioral issues as described by Sarah. He also stated

that Sarah never spoke with him about the alleged tantrums. Eli wanted C.W. to be able to attend

the birthday celebrations of his siblings. When asked about whether he thought there should be a

right of first refusal, Eli did not believe it would be appropriate as “[i]t causes problems.”

¶ 15 The circuit court entered an order permanently modifying the custody arrangement. Of

note, the order permanently removed the right of first refusal; continued Eli’s mid-week parenting

time with C.W. from Monday after school until Wednesday morning; required C.W. to attend

“Significant Family Events and Celebrations;” required Eli and Sarah to alternate volunteer

opportunities at C.W.’s school; and made the parties’ two-week extended parenting time non-

consecutive.

¶ 16 Sarah appeals.

¶ 17 II. ANALYSIS

¶ 18 Sarah argues that the lower court erred in denying her motion in limine. She also argues

that the decision modifying the custody arrangement was against the manifest weight of the

evidence.

¶ 19 A. Motion in Limine

-6- ¶ 20 “ ‘Generally, evidentiary motions, such as motions in limine, are directed to the trial court’s

discretion, and reviewing courts will not disturb a trial court’s evidentiary ruling absent an abuse

of discretion.’ ” People v. Way, 2017 IL 120023, ¶ 18 (quoting People v. Harvey, 211 Ill. 2d 368,

392 (2004)). To the extent the ruling on a motion in limine finds its basis in an interpretation of

law, our review is de novo. Id. We may affirm for any reason apparent from the record, regardless

of the lower court’s reasoning. People v. Tondini, 2019 IL App (3d) 170370, ¶ 25.

¶ 21 Sarah contends that the plain language of section 607.6(d) of the Act (750 ILCS 5/607.6(d)

(West 2020)) prevents waiver of confidentiality in counseling sessions and prohibits information

gleaned from C.W.’s therapist and McDaniel as the coparenting therapist to be used at trial. The

statute allows a court, under certain circumstances, to order individual counseling for the child,

family counseling for one or more of the parties and the child, or parental education for one or

more of the parties. Id. § 607.6(a). The statute also provides that “[a]ll counseling sessions shall

be confidential” and “shall not be used in any manner in litigation nor relied upon by any expert

appointed by the court or retained by any party.[1]” Id. § 607.6(d).

¶ 22 Sarah disagrees with the lower court’s finding that she waived a challenge to the

complained of error via the agreed orders wherein she unambiguously allowed the transfer of

information between C.W.’s therapist, the coparenting therapist, the parenting coordinator, and the

GAL. She argues that since her counsel objected to the testimony of the GAL and McDaniel prior

to the hearing, the invited error doctrine has no application.

1 While this case was pending on appeal, the legislature amended section 5/607(d) of the Act providing that “[c]ounseling ordered under this Section is subject to the Mental Health and Developmental Disabilities Confidentiality Act and the federal Health Insurance Portability and Accountability Act of 1996.” Pub. Act 102-349, § 5 (eff. Aug. 13, 2021) (amending 750 ILCS 5/607.6). -7- ¶ 23 Eli responds that section 607.6(d) of the Act (id. § 607.6(d)) conflicts with Illinois Supreme

Court Rule 907 (eff. Mar. 8, 2016). Pursuant to the separation of powers principle, the supreme

court rule controls and the lower court properly allowed the GAL to testify. Eli also directs this

court’s attention to The Illinois Health and Developmental Disability Confidentiality Act (740

ILCS 110/4(a)(5) (West 2020)) that allows the parents of a minor child under 12 to provide

materials concerning the child to third parties. Next, Eli argues that any error committed in the

lower court was invited error pursuant to the agreed orders. Finally, he argues that any error below

was harmless as the information gained from the child’s therapist was also procured directly from

the child or the parties and Sarah experienced no prejudice.

¶ 24 The lower court did not err in denying Sarah’s motion in limine. We need not engage in

statutory construction nor consider whether the restrictions set forth in the statute run afoul of the

separation of powers principle. Rather, we find that Sarah invited the error she complains of on

appeal. Therefore, she is barred from pointing to those errors as a basis for relief.

¶ 25 The rule of invited error, also described as acquiescence or estoppel, is a procedural default

whereby a party cannot complain of error that the party induced the court to make or to which that

party consented. Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL

110012, ¶ 33; In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). The rationale behind this

doctrine is that it would be manifestly unfair to allow a party a second bite at the apple on the basis

of error that the party injected into the proceedings. Id.

¶ 26 A review of the agreed orders in this matter evidence that Sarah agreed to the

communications and sharing of documents between the GAL, C.W.’s therapist, and parenting

coordinator. The agreed orders are specific and unambiguous concerning the consent of the parties

for these court-appointed individuals to collaborate. Further, the parties explicitly agreed that

-8- McDaniel could be called to testify. McDaniel’s testimony reveals that the parties agreed that she

should transition from a coparenting therapist to a parenting coordinator in this matter.

¶ 27 Pointing to People v. Cox, 2017 IL App (1st) 151536, ¶ 74, Sarah claims that the invited

error doctrine is inapplicable because of the motion in limine challenging the testimony prior to

the hearing. This claim is unpersuasive. As laid out, all of the individuals appointed by the court

were aware that Eli and Sarah consented to communication and document sharing among the

individuals. They acted accordingly. With this permission, the GAL in this case performed her

mandated function as the eyes and ears of the court and sought out all relevant documents and

information relating to the best interest of C.W. See In re Marriage of Virgin, 2021 IL App (3d)

190650, ¶ 51; see also Ill. S. Ct. R. 907 (eff. Mar. 8, 2016) (noting a GAL “shall also take whatever

reasonable steps are necessary to obtain all information pertaining to issues affecting the

child, including interviewing family members and others possessing special knowledge of the

child’s circumstances”). McDaniel, with the same permission, sought out information from the

child’s therapist. McDaniel received the blessing of the parties to become the parenting

coordinator. Eli and Sarah agreed months beforehand that McDaniel would be available to testify

at the hearing.

¶ 28 Once the agreed orders were entered and the court-appointed GAL and parenting

coordinator began performing their functions with the permissions granted by the parties, the bell

could not be un-rung. For Sarah to argue before the hearing, months after the agreed orders, that

the GAL and parenting coordinator were barred from testifying fails to render the invited error

doctrine inapplicable. Additionally, Sarah testified, before the hearing was continued, that she had

no objection to Planning speaking to McDaniel. The lower court properly found Sarah waived her

argument on this point.

-9- ¶ 29 Even in the absence of the agreed orders, any error in allowing the GAL to testify after

communicating with the child’s therapist and McDaniel following her previous role as coparenting

therapist was harmless error. See Lindroth v. Walgreen Co., 407 Ill. 121, 136 (1950) (“A judgment

will not be reversed for error unless it appears such error affected the outcome below.”). The

information gleaned from the child’s therapist that the GAL pointed to as shaping her opinions and

recommendations revolved around the fact that the child did not do well with transitions and that

the back forth between households was detrimental. This was a fact known to all and expressed to

the GAL by the parties, as well as the child. The parties told McDaniel that the back forth was

detrimental and even without her time as coparenting therapist would have identified that

transitions were an issue. McDaniel’s testimony revolved around the parties’ inability to reach

agreements regarding the parenting schedule and was essentially the same as the GAL’s. Any error

was harmless.

¶ 30 Sarah also points to In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, that in

turn states “[p]arents ‘are not at liberty to make agreements which affect the interests of their

children without obtaining the approval of the court.’ ” Id. ¶ 36 (quoting In re Marriage of Ingram,

259 Ill. App. 3d 685, 689 (1994)). Iqbal is of little use in this matter, as the consents at issue were

in agreed orders approved by the court. Accordingly, the lower court did not err.

¶ 31 B. Modification

¶ 32 Sarah goes on to argue the court’s order (1) prohibiting Eli and Sarah to attend the same

events at C.W.’s school; (2) making the parties’ two-week extended parenting time non-

consecutive; (3) granting Eli mid-week parenting time with C.W. from Monday after school until

Wednesday morning; (4) removing the right of first refusal; and (5) requiring C.W. to attend

“Significant Family Events and Celebrations” are against the manifest weight of the evidence. She

- 10 - also contends the lower court should have drawn an adverse inference against Eli owing to the fact

his current wife failed to testify at the hearing.

¶ 33 We review custody modification judgments to determine whether the modification is

against the manifest weight of the evidence. In re Marriage of Bates, 212 Ill. 2d 489, 516 (2004).

A custody determination is afforded great deference as the trial court is in the best position to make

credibility determinations, as well as determine the best interests of the child. In re Custody of

Sussenbach, 108 Ill. 2d 489, 499 (1985). In reviewing whether a judgment is contrary to the

manifest weight of the evidence, we view the evidence in the light most favorable to the appellee.

Bates, 212 Ill. 2d at 516. Where the evidence permits multiple inferences, we will accept those that

support the lower court’s order. Id.

¶ 34 The manifest weight of the evidence supports the lower court’s order. We first dispose of

Sarah’s claim of error regarding the lower court’s prohibition on her attendance at school events

when Eli is present. A review of the modification order reveals no such requirement.

¶ 35 Next, Sarah asserts the court erred in making the two-week extended parenting time non-

consecutive. This claim is as equally befuddling as the previous assertion of error, in light of the

following discourse during the hearing below:

“MICHAEL CHIERO: [(Sarah’s Attorney)] And in terms of the

weeks, the extended parenting time weeks that you have mentioned to the

[c]ourt, you mentioned two weeks, do you believe the weeks should be

consecutive or non consecutive.

SARAH WHITE: Non consecutive.

CHIERO: And why do you believe non consecutive weeks should

be appropriate?

- 11 - SARAH: Just the length of time. I mean, 14 days is a long time.”

This portion of the record is cited by Sarah in her briefing as support for the contention that the

lower court erred.

¶ 36 Aside from being disingenuous, Sarah’s argument on this point demands the application of

judicial estoppel. See Seymour v. Collins, 2015 IL 118432, ¶ 36 (noting the recognized purpose of

judicial estoppel is to protect the integrity of the judicial process by preventing parties from

deliberately changing positions according to the exigencies of the moment).

¶ 37 Sarah also argues the lower court erred by refusing to end Eli’s midweek parenting time

on Tuesday evenings. The GAL testified that she supported a “fifty-fifty” parenting schedule. She

interviewed C.W. prior to the hearing and noted the child was doing “really well” with the new

schedule, and that C.W. “loves” the schedule that the court ultimately implemented. The GAL

recommended the parenting plan that was implemented. McDaniel also recommended the

parenting plan that was implemented. There is no evidence supporting the argument that the court’s

order of Tuesday visitation for Eli is against the manifest weight of the evidence.

¶ 38 Sarah also assigns error to the court’s removal of her right of first refusal. Sarah testified

that transitions were a problem. She claimed that C.W. would have violent tantrums when required

to go to Eli’s house. The lower court directly questioned Sarah that if these tantrums were the

result of transitions between households, then why would it be in the child’s best interest for there

to be a right of first refusal, thereby facilitating more violent tantrums? Sarah did not waiver in her

request for the right of first refusal, insisting it was in the child’s best interest to spend as much

time as possible with her. None of the other court-appointed individuals nor the father witnessed

these tantrums. After the continuance, Sarah testified that the tantrums had ceased. Eli testified

C.W. did not do well with all the back and forth that was taking place between the two households.

- 12 - The GAL testified that C.W. explained he did not like moving back and forth between households.

Further, the GAL did not believe the parties could make the right of first refusal work. C.W.’s

therapist expressed to the GAL that C.W. was “struggling” with moving between the households

on the frequent basis that the prior parenting plan required. McDaniel testified that the main

complaint from both parties revolved around exchanges of the child. As the circuit court pointed

out, due to the deleterious impact the transitions were having on the child, fewer exchanges are in

C.W.’s best interest. It is apparent the right of first refusal is not in C.W.’s best interests based on

the record.

¶ 39 Next, Sarah takes issue with the requirement that C.W. attend “special events” that may

interfere with her parenting time. While Sarah claims this portion of the order is error, she fails to

provide even a scintilla of support for this argument. She fails to point to portions of the record

that provide evidence this ruling is in opposition to the manifest weight. Sarah also fails to provide

citation to authority supporting her assertion. This court “is not a repository into which an appellant

may foist the burden of argument and research.” Ramos v. Kewanee Hospital, 2013 IL App (3d)

120001, ¶ 37. As a result, she has forfeited this argument. See Illinois Supreme Court Rule

341(h)(7) (eff. May 25, 2018) (stating appellant’s brief shall contain “[a]rgument, which shall

contain the contentions of the appellant and the reasons therefor, with citation of the authorities

and the pages of the record relied on.”).

¶ 40 Sarah directs this court’s attention to Virgin, 2021 IL App (3d) 190650, ¶ 45, for the

proposition that it is an abuse of discretion to award equal parenting time when the “parents have

too much animosity to cooperate.” Virgin offers Sarah no relief and is distinguishable from the

case at bar. In Virgin, the GAL testified that the case was one of the highest conflict cases he had

ever seen in his experience as a GAL and attorney. Id. ¶ 49. There were approximately six orders

- 13 - of protection, multiple Department of Children and Family Services investigations, criminal

proceedings, and mutual restraining orders. Id. The GAL in that case also described the

communication between the parties as unproductive. Id. The Virgin court found the GAL

testimony supported by the record. Id. Those facts cited above are absent from this matter. Further,

“where the record shows that the parties are reasonably loving and capable parents who are

sufficiently able to cooperate even though each party attempted to prove the other was less capable,

the 50/50 arrangement could be upheld.” (Emphasis in original.) Id. ¶ 47. Based on the record, we

believe Sarah and Eli are sufficiently able to cooperate to the extent that the current arrangement

is not error.

¶ 41 Finally, Sarah directs this court’s attention to In re Marriage of Quindry, 223 Ill. App. 3d

735 (1992), arguing the lower court should have assigned a negative inference against Eli because

he failed to call his new spouse to testify as to her interaction and relationship with C.W. We

disagree. The lower court was not required to draw this inference. Quindry stands for the

proposition that a lower court may draw this inference, not that it must. Furthermore, Quindry, is

distinguishable wherein that case the mother departed covertly from the marital home without

telling the father where the child could be reached. On appeal, error was not assigned to the trial

court for drawing an adverse inference from the mother’s new paramour’s failure to testify. The

facts here are different from those in Quindry. Moreover, this argument was not raised below.

¶ 42 Accordingly, the circuit court did not err.

¶ 43 III. CONCLUSION

¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 45 Affirmed.

- 14 -