In Re Marriage of Willis

599 N.E.2d 179, 234 Ill. App. 3d 156, 174 Ill. Dec. 633, 1992 Ill. App. LEXIS 1445
CourtAppellate Court of Illinois
DecidedSeptember 3, 1992
Docket3-91-0241
StatusPublished
Cited by9 cases

This text of 599 N.E.2d 179 (In Re Marriage of Willis) 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 Willis, 599 N.E.2d 179, 234 Ill. App. 3d 156, 174 Ill. Dec. 633, 1992 Ill. App. LEXIS 1445 (Ill. Ct. App. 1992).

Opinion

JUSTICE HAASE

delivered the opinion of the court:

The petitioner father, Jerrold C. Willis, and the respondent mother, Ruth Ann Willis, had their marriage dissolved on July 18, 1989. The trial court awarded custody of the parties’ two minor children to Jerrold. Ruth Ann appeals from that custody determination.

The record shows that the parties were married in 1981. They had two minor children bom during the marriage, Joshua and Andrea. Jerrold also had a son from a prior marriage bom in 1973.

Jerrold introduced into evidence a day-in-the-life video. It depicted Jerrold, his two children, and Mace, during visitation pursuant to the trial court’s temporary custody order. Jerrold also introduced into evidence a videotape of Andrea shortly after she had been with Ruth Ann, in which Andrea stated that she hated Mace and would like to cut her head off.

At the time of the hearing on the custody petition, Jerrold was employed as a radiologist. His hours were from 8:30 a.m to 5 p.m., and he was on call approximately 17 weekends a year. In February of 1988, Jerrold told Ruth Ann that he wanted a divorce. At that time, Jerrold had a girlfriend, Debbie Mace. Thereafter, the parties separated.

After the parties’ separation, Ruth Ann attended an eating disorder clinic at St. Francis Hospital. There, Kay Kaufman and Dr. Eckerd evaluated her. A battery of tests indicated that Ruth Ann did not need psychiatric counseling for a personality disorder and did not have an eating disorder or anorexia. However, the tests indicated that she had a drive for thinness and mild to moderate depression. Kaufman met with Ruth Ann for five months. During that time, her lowest weight was 114 pounds, while her ideal weight was 123 pounds. It was Kaufman’s opinion that Ruth Ann did not have any problems that would effect her relationship with her children.

Dr. Ronald Krager testified that current research shows that weight loss below 15% indicates anorexia nervosa. Many anorexics fully recover and thereafter are effective in their work and homelife. Dr. Krager further noted that anorexics are often misdiagnosed as having personality disorders.

The parties agreed to select Dr. Richard Grant as an “unbiased medical professional” to psychologically evaluate the parties and help assist the court. Dr. Grant evaluated Ruth Ann and found that she exercised six hours a day during the marriage, and in order to do so, she had other people watch her children. Dr. Grant also reviewed Ruth Ann’s hospital records. Grant testified that although he had arrived at a psychiatric diagnosis of Ruth Ann, he did not put one in a written report. He opined that Ruth Ann was suffering from a long-term personality disorder that would not likely respond to treatment. He further stated that she was suffering from anorexia nervosa. Ruth Ann objected to that testimony, contending that since Dr. Grant’s written report did not indicate that he had made a diagnosis, he was not able to testify as an expert witness as to such diagnosis. The trial court overruled the objection. Dr. Grant concluded that Jerrold was more emotionally stable to care for the children and should be granted custody.

Dr. Leon Jackson testified about a Minnesota Multiphasic Personality Inventory (hereinafter referred to as MMPI) profile of Ruth Ann contained in her hospital records dated April 7, 1988. He also testified about what the mental condition would be of a person who had an MMPI like Ruth Ann’s. Ruth Ann objected to the testimony on the basis that Dr. Jackson was not presented under Supreme Court Rule 220 (134 Ill. 2d R. 220) as an expert witness who would give an opinion about her MMPI. Ruth Ann also pointed out that pursuant to an agreement by the parties, Dr. Jackson was an expert retained to represent Jerrold and the children, while she retained her own expert to examine her and the children. The court allowed Dr. Jackson to testify on rebuttal as to the MMPI and gave Ruth Ann’s attorney the opportunity to examine or depose Jackson prior to that testimony.

On appeal, Ruth Ann first argues that the trial court erred in allowing into evidence the day-in-the-life video. While she acknowledges that the Illinois Supreme Court recently held in Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873, that such evidence is admissible in the context of a personal injury case, she contends that a different rule should apply in a child custody proceeding. She maintains that the video distorted the procedure by which the trial judge may interview children in camera during the course of a custody proceeding.

Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that the trial court may interview a child in chambers to ascertain his wishes as to custody and visitation. (Ill. Rev. Stat. 1989, ch. 40, par. 604(a).) It has been held that there is no absolute right to present a child’s testimony during a custody proceeding, and, when that testimony is presented, it is left to the trial court’s discretion whether to receive it from the witness stand or in camera. (In re Marriage of Theeke (1981), 105 Ill. App. 3d 119, 433 N.E.2d 1311.) The scope of inquiry of an in camera interview is also a matter largely within the trial court’s discretion. See In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.

Section 604(a) of the Act further requires that counsel be present during the in-chambers interview unless otherwise agreed upon by the parties. (Ill. Rev. Stat. 1989, ch. 40, par. 604(a).) The right of counsel to be present given by section 604 is intended to assure fairness in the interview; the added protection afforded to the litigants by the presence of counsel permits the court to exercise considerable discretion in setting the scope of the interview in order to best determine the child’s intelligence, understanding, and basis for any preference for a custodian. Fohr v. Fohr (1979), 75 Ill. App. 3d 575, 394 N.E.2d 87.

Applying the above-mentioned principles, we find that the trial court erred in admitting the videotape into evidence. Cisarik v. Palos Community Hospital (1991), 144 Ill. 2d 339, 579 N.E.2d 873, does not apply here. In the context of a child custody proceeding, the legislature has specifically provided that children’s testimony be taken either in open court or by means of an in camera interview with the presence of counsel. This statutory framework demonstrates the legislature’s overriding concern for protecting the welfare of children. Accordingly, we disapprove of the practice of videotaping children. It is error for the court to allow it. Such a procedure is fraught with the potential for great abuse and damage to the lives of young children. We further find, however, that under the circumstances of the present case, the error in the admission of the videotape does not require reversal, since it did not adversely affect the outcome of the case.

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Cite This Page — Counsel Stack

Bluebook (online)
599 N.E.2d 179, 234 Ill. App. 3d 156, 174 Ill. Dec. 633, 1992 Ill. App. LEXIS 1445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-willis-illappct-1992.