McClelland v. McClelland

595 N.E.2d 1131, 231 Ill. App. 3d 214, 172 Ill. Dec. 461, 1992 Ill. App. LEXIS 895
CourtAppellate Court of Illinois
DecidedJune 8, 1992
Docket1-90-0489
StatusPublished
Cited by8 cases

This text of 595 N.E.2d 1131 (McClelland v. McClelland) 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
McClelland v. McClelland, 595 N.E.2d 1131, 231 Ill. App. 3d 214, 172 Ill. Dec. 461, 1992 Ill. App. LEXIS 895 (Ill. Ct. App. 1992).

Opinion

JUSTICE MANNING

delivered the opinion of the court:

Petitioner, Judith Palmer McClelland (hereafter Judith), appeals from an adverse order granting the petition of respondent, Donald K. McClelland (hereafter Donald), changing sole physical custody of their son, Marc, to him. The issues raised on appeal are:

(1) Whether the trial court’s custody modification order entered pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (hereafter Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) was proper;
(2) Whether the trial court’s evidentiary rulings and other complained-of conduct of the trial judge deprived Judith of a fair trial; and
(3) Whether the trial court properly apportioned the fees for the guardian ad litem for Marc pursuant to the statutory requirements of sections 506 and 508 of the Act. Ill. Rev. Stat. 1987, ch. 40, pars. 506, 508.

Background

Judith and Donald were married on August 26, 1977, and their only child, Marc, was born on September 22, 1981. The marriage was dissolved on March 7, 1986, and pursuant to the marital settlement agreement incorporated therein, the parties agreed to legal joint custody of Marc, with Judith having physical custody and Donald having liberal visitation rights.

On April 29, 1986, Judith filed an emergency petition for modification of custody and visitation and for other relief, alleging that Marc had been sexually abused by his father. Donald retained legal counsel, who immediately filed a response to Judith’s petition and an emergency petition on Donald’s behalf for an order of visitation. Counsel also advised Donald to contact Dr. Nahman Greenberg about conducting an examination of Marc. Meanwhile, Judith placed Marc in the Mt. Sinai Pediatric Ecology Unit for a five-day sexual abuse evaluation. However, that same day, when Donald learned about Marc’s hospitalization, he contacted his attorney and Dr. Greenberg and arranged to have Marc discharged on May 6, 1986, prior to the completion of the medical evaluation.

On May 9, 1986, Judith appeared in court on an emergency motion requesting Marc’s readmittance to Mt. Sinai to complete the evaluation, and without prejudice to Donald’s rights to a hearing, the court temporarily terminated his visitation rights. At the suggestion of counsel, the trial court also ordered the parties to contact Dr. Greenberg regarding an in-patient evaluation of Marc.

Dr. Greenberg was appointed pursuant to section 604 of the Act to conduct an independent evaluation of Marc relative to sexual abuse. He conducted a mental examination and in his report of September 30, 1986, finding no evidence of sexual abuse, thereby recommended that Marc have access to both parties. Dr. Greenberg commenced treating Marc as a private patient sometime during the late summer or the fall of 1986.

On July 15, 1986, Judge Aaron Jaffe granted Judith’s motion appointing Dr. Elva Poznanski, chief of child psychiatry at Rush-Presbyterian Hospital, to do a mental evaluation of Marc. In her report, Dr. Poznanski concluded the child had been abused by his father. Also, on July 15, 1986, the trial court appointed David Stein as attorney for Marc.

In the interim, discovery was conducted and several pleadings were filed, which included petitions by Donald for visitation and a petition seeking the selection of a therapist for Marc. The trial court ordered therapy for Marc in July 1986 and appointed Dr. Robert Bussell as his therapist.

Sometime in July 1987 Judith reported to Dr. Bussell and Marc’s treating physician, Dr. Alan Ravitz, that Marc had become suicidal. As a consequence, Marc was hospitalized at Chicago Lake Shore Hospital from July 1987 through April 1988.

Dr. Ravitz diagnosed Marc as having post-traumatic stress disorders of an uncertain origin. He was unable to determine if Marc had been sexually abused but found that Marc was fearful of his father for unspecified reasons, that Marc exhibited very strange behavior during hospitalization, and that Marc definitely had dissociative tendencies.

Judith’s April 29, 1986, petition to terminate joint custody and restrict visitation rights finally was set to proceed to trial on May 9, 1988. However, on that date, the matter was continued. An agreed order was presented to the court on June 17, 1988. The parties agreed, in part: (1) to terminate the joint custody provision; (2) that Judith was granted sole custody; and (3) that Marc was to be allowed visitation, supervised or unsupervised, as determined by Dr. Ravitz; and (4) that Marc would enter treatment with psychologist Perry Meyers.

Thereafter, Donald sought to modify the agreed order by filing a petition on October 13, 1988, to establish visitation and supplemental and amended petitions in 1989 for modification of restricted visitation and transfer of custody. In preparation for the modification proceeding, Donald retained Dr. Ner Littner as an expert pursuant to Supreme Court Rule 215(a) (134 Ill. 2d R. 215(a)). Dr. Littner, who was allowed to conduct mental examinations of Judith and Marc, filed an affidavit in support of Donald’s petition for modification, stating that Judith suffered from paranoid schizophrenia and delusion. He further averred that Judith’s psychotic disturbance was a direct cause of Marc’s psychiatric hospitalization at Lake Shore Hospital.

The hearing on modification of custody commenced on October 12, 1989. In the following weeks, after hearing from several doctors, hospitals, agencies, the parties themselves, and conducting two in camera interviews of Marc, the trial court proceeded to award custody to Donald. Thereafter, on January 19, 1990, the trial court entered its “corrected order” which consisted of a 40-page opinion of summary of facts, findings of fact, and conclusions. On January 23, 1990, Judith’s motion for reconsideration was heard and denied. David Stein, the guardian ad litem who represented Marc, filed a petition for attorney fees, which was heard on March 12, 1990. The trial court ordered Judith to pay two-thirds of $17,422 in fees and Donald the remaining one-third.

Judith contends that modification of custody by the trial court is against the manifest weight of the evidence and that Donald failed to meet the “endangerment” requirement of section 610(a). We disagree.

Section 610 in its entirety provides:

“Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.

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Cite This Page — Counsel Stack

Bluebook (online)
595 N.E.2d 1131, 231 Ill. App. 3d 214, 172 Ill. Dec. 461, 1992 Ill. App. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclelland-v-mcclelland-illappct-1992.