Opinion
NO. 5-14-0166
09-11-2014
In re MARRIAGE OF BRANDI A., Petitioner-Appellee, and MICAH A., Respondent-Appellant.
NOTICE
Decision filed 09/11/14. The text of this decision may be changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Williamson County.
No. 08-D-372
Honorable Brian D. Lewis, Judge, presiding.
PRESIDING JUSTICE WELCH delivered the judgment of the court.
Justices Goldenhersh and Schwann concurred in the judgment.
ORDER
¶ 1 Held: The trial court's denial of the father's petition to modify custody was not against the manifest weight of the evidence or an abuse of discretion where the father had failed to present clear and convincing evidence that there had been a substantial change of circumstances that necessitated a change of custody.
¶ 2 The respondent, Micah A., appeals the judgment entered by the circuit court of Williamson County denying his petition to modify custody of the parties' two minor children, C.A. and N.A. For the reasons which follow, we affirm the decision of the circuit court.
¶ 3 Micah A. and the petitioner, Brandi A., were married on June 29, 2002. They had two children, C.A., born December 12, 2001, and N.A., born November 11, 2005. The parties were divorced in October 2008 and entered into a marital settlement agreement in which Brandi was awarded sole custody of the minor children and Micah was awarded visitation.
¶ 4 On December 1, 2010, Micah filed a petition to modify custody, visitation, and support. The sole issue on appeal concerns the modification of custody. In the petition, Micah alleged that N.A. has a genetic disorder known as Prader-Willi syndrome, which resulted in abnormalities with the spine and delay in muscle growth and development. The petition argued that Brandi had determined that surgery was necessary for N.A. for treatment of his condition and that N.A. had surgery with Brandi's consent, but without Micah's knowledge.
¶ 5 The petition also alleged that because of his medical condition, N.A. would require specialized education and testing to determine the most effective method of teaching for him and that Brandi had refused to speak with Micah regarding N.A.'s education and refused to allow Micah to assist with N.A.'s educational development. The petition alleged that N.A.'s physical therapist indicated in June 2010 that N.A. should have been fitted for a "Theratogs suit" to assist with muscle development and proper alignment of his legs and that Brandi did not obtain the suit or allow N.A. to be fitted for the suit. The petition further alleged that Brandi failed and refused to keep Micah informed about report cards, teacher conferences, or any other academic information concerning C.A. Micah requested custody of the minor children "each Monday through
Friday so that he may assist [N.A.] with physical therapy" and that Brandi be awarded "liberal visitation" with the minor children as determined by the court.
¶ 6 The following evidence was adduced at the March 2013 hearing on the petition. Micah testified that he lived in Johnston City, Illinois, and has been married to Dawn A. for approximately three years. He has been employed as an area manager for a food distribution company for approximately seven years. N.A., who was seven years old at the time of the hearing, was diagnosed with Prader-Willi syndrome at approximately two weeks old. Micah explained that this disorder affected N.A.'s metabolism, which caused him to gain weight easier than a normal person and would require him to expend more energy to lose weight. The condition caused N.A. to experience a chronic feeling of hunger that often led to excessive eating. N.A. also experienced some cognitive delays associated with the condition.
¶ 7 Micah explained that N.A. has low muscle tone, which caused his hips, knees, and ankles to be turned "in and out," and scoliosis, a condition that manifested itself when he was two years old. N.A. also has a 75-degree curve in his spine, and he recently had surgery in which a "grow rod" was inserted near his spine to correct the curve. Micah believed that a more conservative approach to N.A.'s medical condition should have been taken before surgery was considered, explaining that a person is "married" to the grow rod "for life" because N.A. will require multiple surgeries throughout his childhood to replace and stretch the rod. In his late-teen years, after N.A. has finished growing, the rods will have to be removed and his spine will need to be fused "into one long bone."
¶ 8 Micah testified that the course of action for N.A.'s condition for approximately
three years before the surgery was myofascial physical therapy, which was handled by a physical therapist in Cape Girardeau, Missouri. He explained that the therapy was used to stimulate and build the muscles around the spine in an effort to correct the curve. Dawn was also taking N.A. to a physical therapist in Tennessee, who performed more intensive therapy. Additionally, N.A. was supposed to do daily therapy at home for 20 to 25 minutes. Micah believed that N.A. would have to do physical therapy for the foreseeable future. Micah testified that Dawn was certified in pediatric myofascial therapy and has a background in special education. In addition to his physical problems, N.A. experienced cognitive delays from his condition. Micah explained that N.A. had a remarkable memory, but had difficulty processing word meanings, which affected his ability to read and complete math problems.
¶ 9 Micah testified that N.A. was currently a tiger cub in the Johnston City cub scouts and that Micah was the den leader. He testified that C.A. also participated in cub scouts in Johnston City and was involved in soccer. He explained that C.A. had expressed interest in playing basketball through a church league in West Frankfort and Micah had signed him up to play. However, Brandi had signed him up to play basketball through a church league in Herrin. Micah and Brandi were unable to reach an agreement as to where C.A. would play basketball, and C.A. ultimately decided that he did not want to play basketball. Micah testified that C.A. wants to spend more time with him, and they enjoy camping, fishing, and working on projects for their home and cub scouts. C.A. and N.A. also spend time traveling with Micah and Dawn to her family home near the Wisconsin Dells.
¶ 10 Micah testified that C.A. and N.A. would attend Johnston City School District if he was given custody during the week. C.A. had attended kindergarten through third grade at this school and had friends there. Micah testified that C.A. referred to Micah's house as "home" and Brandi's house as "Michael's house." Michael was Brandi's boyfriend. Micah explained that he felt that C.A.'s "comfort zone" was with him in Johnston City because the majority of C.A.'s friends were there and "[t]hat's where [C.A] wants to be." He doubted that C.A. had "bonded very well" with Brandi's boyfriend and indicated that he did not know how comfortable C.A. was with "that relationship." He testified that N.A. also had friends in Johnston City. He expressed concern that N.A. would never be able to live independently because of his inability to control his eating and that N.A.'s condition was a life-long commitment. He explained that the children were much younger at the time of the divorce, N.A. was almost three and C.A. was six, and that they are now evolving, with their own distinct personalities.
¶ 11 Dawn, who was employed as a teacher for the Centralia City school district, testified that she regularly assists N.A. with his physical therapy program at home and also works with him on academics. She explained that she has a great relationship with both N.A. and C.A. and that C.A. has a "phenomenal relationship" with his father. She testified that she has been prevented from having any contact with Williamson County special education concerning N.A. She expressed concern that C.A. appeared "very stressed" mentally and has started asking "less often to do things," which she believed was caused by him being "afraid of what reactions" he would get. She explained that she has "often had to watch the disappointment on his face" when it was Micah's weekend
and his mother would not go to a sporting event because Micah was also attending. Dawn testified that it was in the best interests of N.A. and C.A. for them to reside with her and Micah because they provide an environment of structure, love, and support and they believe in being proactive with regard to academics, therapy, and community involvement.
¶ 12 Brandi testified that she lived in Marion, Illinois, with her boyfriend Michael, who also has two children. She has been in a relationship with Michael for approximately three years. She has been employed as a nurse for over 10 years. Her current place of employment is only 20 minutes from home, and she works "normal daytime hours." Brandi explained that Michael and N.A. "get along very well" and have bonded, but that C.A. had not bonded with Michael as easily and was instead more withdrawn with Michael. She believed that C.A. was withdrawn because he was divided about having a good relationship with another "father figure" and did not want to upset his father. She believed that C.A. was happy living in Marion and testified that N.A has not expressed any preference as to his living situation.
¶ 13 Brandi explained that she did not know that C.A. was signed up to play basketball in West Frankfort when she signed him up in Marion. She did not want him playing basketball in West Frankfort because it was too far from home, and she felt that it was important for C.A. to participate in activities that were closer to his school district so he could make new friends in his school. She believed that C.A. was loyal to his friends in West Frankfort and that loyalty prevented him from participating in activities in Marion. She believed that Micah was trying to maintain a connection between the children and
Johnston City "to downplay Marion" and that he did not support the children participating in activities in Marion, which caused C.A. to have divided loyalties. She testified that she closely monitors N.A.'s caloric intake and packs his school lunches to make sure that he has the appropriate amount of calories while at school. She takes N.A. to a dietician in St. Louis approximately every six months. She also takes him to his doctor and physical therapy appointments during the week.
¶ 14 Brandi testified that on one occasion, she did not go to C.A.'s soccer game because Micah was present, explaining that she felt there was "a lot of tension" between her and Micah and that she was concerned that the children could sense that tension. She explained that N.A. did have a "Theratogs suit" before his surgery, but she did not believe that the suit was helping his condition and he did not like the suit and would take it off while at school. She made the decision for N.A. to have back surgery after obtaining a second opinion. She did not consult with Micah about the surgery, but she did notify him as to when the surgery was scheduled. She did not have "sit-down" therapy sessions with N.A. at home, but she incorporated "stretches in his arms and his legs" on almost a daily basis, which was approved by the physical therapist.
¶ 15 At the conclusion of the hearing, the trial court made the following observations before entering its order on Micah's petition: the parties had entered into a marital settlement agreement, which granted sole custody and care to Brandi, and that agreement had not been modified; Micah did not have joint parenting rights, such as input on medical, religious, or school decisions; and Brandi had every right to make decisions concerning where the children went to school and the treatment of N.A.'s medical
condition. The court further stated as follows with regard to joint parenting: "I am not in the position where I can impose a joint parenting agreement on the parties. No one has asked me to do that, first of all. Secondly, it's quite clear that you guys don't communicate very well, so I cannot do that."
¶ 16 Thereafter, the court entered an order denying Micah's petition for modification of custody. The court again noted that Brandi, as sole custodian, had every right to make decisions concerning N.A.'s medical treatment and educational development without consulting Micah. The court found that Micah's allegations concerning the decisions and lack of inclusion by Brandi were "not well taken." The court noted that N.A.'s medical condition was known to Micah at the time that he consented to give Brandi sole custody and that all other decisions made by Brandi, who was a registered nurse, were made under "her purview as sole custodian and were made in what she clearly felt were [N.A.'s] best interest." Although the court noted that Micah was a "model father," who clearly loved his children and wanted the best for them, it noted that "there really [was] not much, if any, evidence of change of circumstance, especially regarding [N.A.] to justify a change of custody." The court opined that the only real change of circumstance, from the date the judgment was entered, was that Micah had remarried and Brandi was living with her boyfriend. Citing In re Marriage of Fuesting, 228 Ill. App. 3d 339 (1992), the court noted that a custodial mother's cohabitation with her fiancée was insufficient grounds for modification without showing that the child's welfare was affected. Accordingly, the court found that Micah had not met his burden of proof to modify custody of N.A.
¶ 17 The trial court further noted that Micah had indicated that he did not seek to separate N.A. and C.A. It determined that the only real change of circumstance for C.A. was that he was now going to school in Marion as opposed to Johnston City, where his father resided. The court noted that it was "clear" that C.A. and Micah would prefer that C.A. go to school in Johnston City; however, it concluded that C.A. was doing well in school and that the decision as to where C.A. went to school was his mother's. Accordingly, the court found that Micah did not meet his burden of proof to justify a change of custody with regard to C.A.
¶ 18 On July 9, 2013, Micah filed a motion to reconsider arguing, inter alia, that a substantial change in circumstance had occurred since the judgment was entered in that N.A.'s medical condition had "greatly worsened." In his motion, Micah requested that he be "allowed [j]oint [p]arenting regarding the children's medical health and treatment"; informed concerning the children's medical health and treatment, doctor's appointments, and medications; allowed access to the children's medical records: allowed to attend parent-teacher conferences, receive the children's report cards, given access to the children's extracurricular activities, and informed of special events involving the children while at school; and allowed to discuss with N.A.'s teachers and the school's cafeteria director the nutritional information N.A. requires and to receive information from the school regarding lunches. Micah requested primary physical custody of the minor children subject to Brandi's right to reasonable visitation.
¶ 19 Thereafter, the trial court denied Micah's motion to reconsider, but ordered Brandi to regularly and fully inform Micah concerning the medical, social, and educational status
of the minor children and provide Micah with copies of all pertinent documents, such as medical reports, medical bills, school report cards, concerning the children's health and development. Micah appeals, arguing that the trial court erred in denying his petition to modify custody and erred by failing to consider joint custody.
¶ 20 Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610(b) (West 2012)) governs the modification of child custody and provides as follows:
"The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child."
¶ 21 "This section reflects an underlying policy favoring the finality of child custody judgments and creating a presumption in favor of the present custody so as to promote stability and continuity in the child's custodial and environmental relationships." Fuesting, 228 Ill. App. 3d at 344. A change in circumstances, by itself, is not sufficient to justify a modification of custody. Id. Instead, the change in circumstances must affect the welfare of the child. Id. The court must look at the totality of the circumstances when determining whether there has been a change in circumstances. In re Marriage of Davis, 341 Ill. App. 3d 356, 359 (2003). "The court has broad discretion in making this
determination, and this court will afford great deference to the trial court's determination in recognition of that court's far superior position for evaluating the parents, child, and all other evidence." In re Marriage of Dobey, 258 Ill. App. 3d 874, 876 (1994). Accordingly, the trial court's determination will not be disturbed unless there is a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence. Fuesting, 228 Ill. App. 3d at 344.
¶ 22 Here, the trial court found that Micah had failed to present clear and convincing evidence that there had been a substantial change of circumstances that necessitated a change of custody. Micah claims that the following changes in circumstances had occurred and justified a change in custody: that Brandi has been unwilling to communicate with him regarding N.A.'s medical condition and education; that Brandi has been unwilling to allow him to be involved in N.A.'s educational development; that the manifestation of N.A.'s medical condition has physically affected N.A. and has resulted in cognitive delays; and that C.A. wants to be more involved with his father and live in Johnston City.
¶ 23 Micah and Brandi had entered into a marital settlement agreement, which awarded sole custody of the minor children to Brandi. Section 608(a) of the Act (750 ILCS 5/608(a) (West 2012)) provides that "[e]xcept as otherwise agreed by the parties in writing at the time of the custody judgment ***, the custodian may determine the child's upbringing, including but not limited to, his education, health care and religious training." There has been no modification of the marital settlement agreement since its entry. Accordingly, as sole custodian of the minor children, Brandi had every right to make
decisions concerning the children's health care and education. Micah testified that N.A. was diagnosed with Prader-Willi syndrome when he was two weeks old. The parties divorced when N.A. was almost three years old. The trial court found that N.A.'s medical condition was known to Micah at the time that he consented to give Brandi sole custody of the children. Micah explained that a child diagnosed with Prader-Willi syndrome would experience physical challenges as well as challenges socially and academically, which would progress with age. Micah was aware that the condition would progress and care for N.A. would become more involved and difficult as he aged, which would require constant attention and making informed decisions concerning medical treatment. Accordingly, we conclude that the trial court's decision that there was no change of circumstances with regard to N.A.'s condition was not against the manifest weight of the evidence or an abuse of discretion.
¶ 24 Also, with regard to C.A., the trial court concluded that the only real change of circumstance was that C.A. was now going to school in Marion and not Johnston City, where his father lives and where he had previously gone to school. The court noted that it was clear that C.A. and his father would prefer that C.A. go to school in Johnston City, but that he was doing well in school, and the decision as to where the children go to school is Brandi's. Accordingly, the court concluded that Micah did not meet his burden of proof to justify a change in custody. "Child custody matters are within the discretion of the trial court which has heard testimony of the witnesses and observed their demeanor and is in a better position to determine what is in the best interest of the child." Fuesting, 228 Ill. App. 3d at 344. After carefully reviewing the record, we cannot say that the trial
court's decision was against the manifest weight of the evidence or an abuse of discretion.
¶ 25 Furthermore, Micah argues that the trial court erred in failing to award him joint custody of the minor children. Although Micah did not request joint custody in his petition to modify custody, the court discussed the possibility of awarding joint custody after hearing the evidence presented. Specifically, the court stated that it was not in a position to impose joint custody on the parties as that had not been requested, but then stated that it would not award joint custody as the parties "don't communicate very well." As previously discussed, the trial court is in the best position to make this determination. The court carefully considered all of the evidence and made its decision based on the totality of the circumstances, and we cannot say that the court's order was against the manifest weight of the evidence or an abuse of its discretion.
¶ 26 For the foregoing reasons the judgment of the circuit court of Williamson County is hereby affirmed.
¶ 27 Affirmed.