NOTICE 2019 IL App (5th) 180559-U NOTICE Decision filed 11/08/19. The This order was filed under text of this decision may be NO. 5-18-0559 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
ROBERT H. and MADONNA H., ) Appeal from the ) Circuit Court of Petitioners, ) Madison County. ) v. ) No. 16-F-111 ) ANDREA ABBOTT H., ) ) Respondent-Appellee ) Honorable ) Martin J. Mengarelli, (Robert H., Petitioner-Appellant). ) Judge, presiding. ________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court. Presiding Justice Overstreet and Justice Moore concurred in the judgment.
ORDER
¶1 Held: The trial court’s denial of the grandfather’s petition for visitation with his deceased son’s minor children is affirmed where the court’s finding that the mother was not unreasonable in denying him unsupervised visitation was not against the manifest weight of the evidence and where the grandfather failed to rebut the presumption that the mother’s decision regarding visitation did not result in harm to the minor children’s physical, mental, or emotional health. Also, as we find that a reasonable, prudent attorney would not have pursued an appeal in this case, we award the mother sanctions under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) and remand the cause to the trial court for a determination on the amount of sanctions.
¶2 The petitioner, Robert H., the paternal grandfather of minor children Audrey H. and
Annalynn H., appeals the order entered by the circuit court of Madison County denying his 1 petition for grandparent visitation pursuant to section 602.9 of the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/602.9 (West 2016)). On appeal, the
petitioner argues that the trial court’s order was against the manifest weight of the evidence.
For the following reasons, we affirm and remand the matter to the trial court for a
determination on the amount of sanctions that should be awarded to the respondent.
¶3 I. BACKGROUND
¶4 The respondent, Andrea H., is the biological mother of Audrey H., born November
10, 2009, and Annalynn H., born September 4, 2013. Sean H., who was married to Andrea,
was the children’s biological father. The petitioner was his father. In 2014, a petition to
dissolve the marriage of the respondent and Sean was filed. On September 22, 2015, during
the pendency of the dissolution proceedings, Sean passed away. On March 4, 2016, the
petitioner and his wife, Madonna H., 1 filed a petition seeking visitation with their
grandchildren, pursuant to section 602.9(c)(1) of the Act (id. § 602.9(c)(1)), commonly
referred to as the grandparent visitation statute. The petition asserted that the respondent
had unreasonably denied them visitation with the minor children, which had caused the
children undue mental and emotional harm. The petition further asserted that it was in the
children’s best interests that the paternal grandparents be awarded reasonable visitation and
electronic communication.
¶5 On June 27, 2016, the trial court held a hearing on the grandparents’ petition for
temporary relief (the petition is not included as part of the record on appeal). It appears
1 During the pendency of these proceedings in the trial court, Madonna passed away. Thus, although Madonna was initially named as a petitioner in this case, Robert is the only petitioner involved in the appeal. 2 that the hearing went longer than expected, but a second day was never scheduled, so the
temporary relief hearing was never concluded. The petitioner testified as follows at this
hearing. He testified that he was a public-school teacher for 32 years but that he was
currently retired. After Sean and the respondent separated, but before Sean died, the
petitioner saw his grandchildren every Wednesday night. He also saw them occasionally
on holidays and during other family events. While Sean and the respondent were together,
the petitioner typically only saw the children during family functions or holidays, and these
visits usually occurred at the children’s house. He never had overnight visits with the
children. He desired to continue his relationship with his grandchildren, but since his son
died, he had not been given visitation with the children without the respondent being
present. However, he acknowledged that, after Sean died, the respondent had arranged for
him to have contact with the children as long as she was there.
¶6 On June 22, 2018, the trial court held a hearing on the petitioner’s petition for
grandparent visitation. The following testimony was presented. The respondent testified
that Audrey was eight years old and that Annalynn was four years old. Between December
1, 2016, and June 22, 2018, the children had seen their grandfather one time when they all
went to lunch in the summer of 2017. The respondent explained that she had not heard
from the petitioner since that lunch, and she never offered him additional time with the
children. She also explained that, although she was present at that lunch, she sat at a
different table with her boyfriend. She testified that Audrey suffered from allergies and
asthma, and Annalynn suffered from passing-out syndrome. Although she believed that it
was important for the children to have a relationship with their grandparents, she did not 3 want the children to be unsupervised with the petitioner. She explained that she was
concerned about his health and his ability to take care of Audrey if she experienced an
asthma attack, or Annalynn if she experienced a fainting spell while in his care. She further
explained that while Annalynn was being potty trained, she wanted to be the person with
Annalynn in the bathroom. At the time of the hearing, Annalynn was almost potty trained.
She also explained that the petitioner had dogs in his house, and Audrey was allergic to
long-haired dogs. She acknowledged that there were no restrictions on her parents seeing
the children even though they have one dog and her father, who was 75 years old, has a
pacemaker.
¶7 The respondent also acknowledged that the children went to daycare while she was
at work, and Audrey has had one fainting event at daycare. Even if the petitioner became
certified as a daycare provider, she still would not want him to have unsupervised visitation
with the children. She had babysitters watch the children when needed, and she trained
them on how to deal with the children’s health issues.
¶8 During her marriage with Sean, even though they all lived in the same town, the
paternal grandparents never babysat the children unsupervised, and the children never
stayed overnight with them. She explained that this was a joint decision made by her and
Sean. The paternal grandparents would see the children no more than eight times per year.
After her youngest daughter was born, there was less contact between the grandparents and
the children. However, the respondent explained that she never kept the children from
seeing them.
4 ¶9 After Sean died, the respondent took the children to their grandparents’ house every
week for two months. She explained that this was more time with the children than they
had before Sean’s death. She eventually stopped the visitations because Audrey was
having difficulty after her father’s death, and her counselor realized that the visitations
were hard on Audrey because her father’s death “was kind of being thrown into her face
with pictures and memories and things” at her grandparents’ house. The counselor advised
that the children have visitation with the grandparents once per month in a public place so
that it would be easier on Audrey. Between March 2016 and November 2016, the
respondent allowed the petitioner to see the children on approximately three occasions; the
visits occurred in a public place. The respondent explained that it was her intention to
allow the petitioner visitations with the children; she just did not want a court to dictate the
terms of that visitation. She believed that it was reasonable for grandparents who were not
regularly involved in their grandchildren’s lives to see their grandchildren for 12 hours per
year. She did not know how much contact the children had with their paternal grandparents
while her divorce from Sean was pending.
¶ 10 The respondent acknowledged that the children’s paternal grandparents were named
as beneficiaries on Sean’s life insurance policy, and she discovered this approximately two
weeks after his death. She acknowledged that she was disappointed for her children’s sake
that she was not named as a beneficiary on the life insurance policy as she wanted the
money to be invested for the children’s college. However, she did not prevent the
grandparents from seeing her children after she found out about the insurance.
5 ¶ 11 The respondent further acknowledged that Audrey was no longer in counseling and
that both children were doing well, receiving good grades, and were involved in
extracurricular activities. She explained that she would be fine with the petitioner having
once-a-month visitation with the children if she was present.
¶ 12 Michelle H., Sean H.’s sister-in-law, testified that she would like to see the children
more, that she had not seen them since Easter, and that she saw the children about two to
three times per week when Sean was alive and going through his divorce with the
respondent but that the frequency of the contact changed once he died. She explained that
it was very difficult to see the children before Sean and the respondent separated because,
during the holidays, Sean and the respondent always went to the paternal grandparents’
house at different times from the rest of the family. She acknowledged that she never
babysat for the children while Sean was alive.
¶ 13 Kevin H., Sean’s brother, testified that, prior to Sean and the respondent separating,
he only saw the children occasionally, when Sean brought them to his house or his parents’
house. After they separated, he saw the children more frequently. After Sean’s death, he
contacted the respondent a couple of times to set up a lunch with the children; she was
agreeable to scheduling a lunch the first time, but the second time, she did not respond to
his request. He also testified about an occasion where he approached the children at a
parade, and the respondent held them back from hugging him. When one of them started
crying, she told a nearby police officer that he needed to get Kevin away from her. He
acknowledged that there was a different occasion where he ran into the children and the
6 respondent while at a restaurant with his wife and father, and she let the children approach
them and visit with them for a few minutes.
¶ 14 The petitioner’s counsel did not call the petitioner as a witness at this hearing. After
testimony, the petitioner’s counsel requested that he be given once-a-month visitation and
time around the holidays without the respondent being present. When questioned by the
trial court as to why the petitioner did not want the respondent present during the
visitations, counsel responded that it limited the amount of time that the petitioner spent
with the children, the respondent’s presence hindered the petitioner’s interaction with the
children, and she was a negative presence during the visitations.
¶ 15 On July 19, 2018, the trial court entered an order denying the petitioner’s petition
for grandparent visitation. In the order, the court found that there had been no unreasonable
denial of visitation on the part of the respondent. The court explained that, given the
children’s health issues, the petitioner’s age, and the counselor’s recommendation, it was
reasonable for the respondent to want to be present during the petitioner’s visitations with
the children. The court found that there was absolutely no evidence presented that the
respondent had interfered with the visitation and that the petitioner’s only reason for
requesting the respondent not be present was simply that he did not want her there.
Moreover, the court concluded that, even if it were to find that the respondent had
unreasonably denied visitation, there was no evidence presented that showed that this
denial caused the children any undue mental, physical, or emotional harm. The petitioner
appeals the denial of his visitation petition.
7 ¶ 16 II. ANALYSIS
¶ 17 Under the grandparent visitation statute, a grandparent is allowed to file a petition
for visitation with the minor child where there has been a unreasonable denial of visitation
by a parent, the denial has caused the child undue mental, physical, or emotional harm, and
at least one of the conditions listed in subsections (c)(1)(A)-(E) exists. 750 ILCS
5/602.9(b)(3), (c)(1) (West 2016). The conditions listed in subsections (c)(1)(A)-(E) limits
a petition for grandparent visitation to situations where there was some breakdown of the
traditional nuclear family, such as a divorce, death, incompetency, or incarceration of one
of the child’s parents. Id. § 602.9(c)(1)(A)-(E). There is a rebuttable presumption that a
fit parent’s actions and decisions regarding grandparent visitation are not harmful to the
child’s mental, physical, or emotional health. Id. § 602.9(b)(4). This presumption is the
“embodiment of the fundamental right of parents to make decisions concerning the care,
custody, and control of their children which is protected by the fourteenth amendment.”
Flynn v. Henkel, 227 Ill. 2d 176, 181 (2007). 2 Thus, section 602.9 places the burden on
the grandparent to prove that the parent’s decisions regarding visitation times are harmful
to the child’s mental, physical, or emotional health. 750 ILCS 5/602.9(b)(3), (c)(1) (West
2016); Flynn, 227 Ill. 2d at 181. Neither a denial of an opportunity for grandparent
visitation nor the fact that the child may never know a grandparent who loved him is
considered harm sufficient to rebut the presumption that a fit parent’s denial of a
2 The relevant grandparent visitation statute at issue in Flynn was 750 ILCS 5/607 (West 2006). That version of the statute was subsequently repealed and 750 ILCS 5/602.9 (West 2016) was the version of the grandparent visitation statute that was in effect at the time of these proceedings. 8 grandparent’s visitation is not harmful to the child’s mental, physical, or emotional health.
Flynn, 227 Ill. 2d at 184.
¶ 18 In determining whether to grant visitation, the trial court should consider the
following statutory factors: (1) the child’s wishes; (2) the child’s mental and physical
health; (3) the grandparent’s mental and physical health; (4) the length and quality of the
prior relationship between the child and the grandparent; (5) the good faith of the party
filing the petition; (6) the good faith of the party denying visitation; (7) the quantity of the
visitation time requested and the potential adverse impact that visitation would have on the
child’s customary activities; (8) any other fact that establishes that the loss of the
relationship between petitioner and the child is likely to unduly harm the child’s mental,
physical, or emotional health; and (9) whether visitation can be structured in a way to
minimize the child’s exposure to conflicts between the adults. 750 ILCS 5/602.9(b)(5)
(West 2016). Further, section 602.9(c)(2) instructs that the court should also consider the
following: (1) whether the child has resided with the grandparent for at least 6 consecutive
months with or without a parent present; (2) whether the child had frequent and regular
contact or visitation with the grandparent for at least 12 consecutive months; and
(3) whether the grandparent was a primary caretaker of the child for a period of not less
than 6 consecutive months within the 24-month period immediately preceding the
commencement of the proceedings. Id. § 609.2(c)(2).
¶ 19 A trial court’s determination that a grandparent has failed to overcome the section
602.9 presumption will not be disturbed on review unless it is contrary to the manifest
weight of the evidence. Flynn, 227 Ill. 2d at 181. A court’s decision is contrary to the 9 manifest weight of the evidence when the opposite conclusion is clearly evident or where
the court’s findings are unreasonable, arbitrary, and not based on any of the evidence. In re
Anaya R., 2012 IL App (1st) 121101, ¶ 50. The reason for this deferential standard is that
the trial court, having observed the witnesses and heard their testimony, is in the best
position to make credibility determinations. Id.
¶ 20 Here, the trial court considered the relevant section 602.9 factors and made the
following findings. Regarding the first factor, the children’s wishes as to visitation, the
court noted that there was no evidence presented as to whether the children wanted
unsupervised visitation with the petitioner. As for the second factor, the children’s mental
and physical health, testimony was presented concerning the minor children’s health
problems, which included allergies, asthma, and passing-out syndrome. The respondent
testified that she was concerned that the youngest child would suffer a fainting spell while
in the unsupervised care of the petitioner. There was also unrebutted testimony that the
children’s counselor recommended, shortly after the father’s death, that the children only
see their grandparents once a month in a public place. This was recommended because the
oldest child was struggling with reminders of her father’s death. Concerning the third
factor, the grandparent’s mental and physical health, testimony was presented by both
parties about the petitioner’s age, health, and ability to care for the minor children. The
petitioner was 74 years old at the time of the June 2016 hearing, and he testified that he
was a relatively healthy 74-year-old person even though he recently had a heart procedure
(rotoblation).
10 ¶ 21 As for the fourth factor, the length and quality of the prior relationship between the
minor children and the grandparent, testimony was presented that, prior to the divorce
proceedings, the petitioner’s contact with the children was limited to holidays and special
occasions and was always in the presence of the respondent or the children’s father. After
the divorce was filed, the contact was more frequent, but still occurred in the presence of
the father. The petitioner never had unsupervised visits with the children. With regard to
the fifth factor, the good faith of the party filing the petition, the trial court did not question
the good faith of the petitioner’s request for visitation. As for the sixth factor, the good
faith of the person denying visitation, the evidence showed that the respondent allowed the
petitioner to see the children after Sean’s death and was willing to continue once-a-month
visitation if she was present. The court found that the respondent’s wish to be present
during the visits was not motivated by ill will and that it was consistent with the history of
the petitioner’s contact with the children while the respondent and Sean lived together.
¶ 22 Regarding the seventh factor, the quantity of the visitation time requested and the
potential adverse impact that visitation would have on the children’s customary activities,
the trial court found that the petitioner’s request for visitation outside of the respondent’s
presence was not consistent with the children’s contact with the petitioner during the
respondent and Sean’s marriage. As for the eighth factor, any other fact that establishes
that the loss of the relationship between the petitioner and the minor children was likely to
unduly harm the children’s mental, physical, or emotional health, the court found that there
was no competent evidence presented on this factor. Concerning the ninth factor, whether
visitation could be structured in a way to minimize the children’s exposure to conflicts 11 between the adults, the court made no finding. As for the factors identified in section
602.9(c)(2), the court found that the children did not reside with the petitioner for at least
6 consecutive months with or without a parent present, the children did not have frequent
and regular contact or visitation with the petitioner for at least 12 consecutive months, and
the petitioner was not the primary caretaker of the minor children for a period of 6
consecutive months within the 24-month period immediately preceding the
commencement of this action.
¶ 23 After carefully reviewing the record, we conclude that the trial court’s finding that
the respondent was not unreasonable in denying the petitioner unsupervised visitation with
the minor children following the death of their father was not against the manifest weight
of the evidence. The respondent testified that she was willing to allow the petitioner
visitation time with the minor children. She merely wanted the visitation to be in her
presence because she was concerned that the petitioner would not be able to adequately
care for the children due to his age and the children’s health problems. Moreover, the
children’s counselor recommended once-a-month visitations in a public place, there was
no evidence presented that the respondent interfered in the petitioner’s visitation while she
was present, and the petitioner never had unsupervised visitation with the minor children
before his son’s death. We also find that the trial court’s conclusion that the petitioner
failed to rebut the presumption that the respondent’s decision regarding visitation did not
result in harm to the minor children’s physical, mental, or emotional health, was not against
the manifest weight of the evidence. The petitioner presented no direct evidence that any
denial of visitation harmed the children. As established in Flynn, the denial of an 12 opportunity for grandparent visitation, by itself, is not sufficient harm that will rebut the
presumption that a fit parent’s denial of grandparent’s visitation is not harmful to the
child’s mental, physical, or emotional harm. Flynn, 227 Ill. 2d at 184. Accordingly, we
affirm the trial court’s denial of the petitioner’s petition for grandparent visitation.
¶ 24 Having concluded that the trial court correctly denied the petitioner’s petition for
grandparent visitation, we now turn to the respondent’s request for an award of sanctions.
The respondent contends that sanctions are warranted under Illinois Supreme Court Rule
375(b) (eff. Feb. 1, 1994), which permits sanctions if an appeal is frivolous, not taken in
good faith, or is taken for an improper purpose. An appeal is frivolous where a reasonable,
prudent attorney acting in good faith would not have brought it. Edwards v. City of Henry,
385 Ill. App. 3d 1026, 1039 (2008). Appropriate sanctions under Rule 375(b) include an
order to pay the other party’s damages, the reasonable costs of the appeal or other action,
and any other expenses necessarily incurred by the filing of the appeal or other action,
which includes reasonable attorney fees. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Here, the
respondent argues that she is entitled to sanctions because the petitioner’s appeal was
frivolous in that he did not present any evidence of actual harm to the children.
¶ 25 In view of the lack of evidence upon which to argue that the denial of unsupervised
visitation constituted actual harm to the minor children, we find that a reasonable and
prudent attorney would not have pursued an appeal in this case. Thus, we find that
sanctions, which include the reasonable costs incurred by the filing of this appeal as well
as attorney fees, should be imposed on the petitioner for filing a frivolous appeal. We
remand to the trial court to determine the amount of those sanctions. 13 ¶ 26 III. CONCLUSION
¶ 27 For the foregoing reasons, the judgment of the circuit court of Madison County is
affirmed and the cause is remanded for further proceedings consistent with this decision.
¶ 28 Affirmed and remanded.