Opinion
NO. 5-16-0395
03-24-2017
In re P.M.S., Jr., and C.O.S., Minors (Phillip M. S., Sr., Petitioner-Appellant, v. Candace G. W., Respondent-Appellee).
NOTICE
Decision filed 03/24/17. 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 Jefferson County.
No. 14-F-79
Honorable Timothy R. Neubauer, Judge, presiding.
JUSTICE CHAPMAN delivered the judgment of the court.
Justices Welch and Barberis concurred in the judgment.
ORDER
¶ 1 Held: Court's order awarding primary parenting time to the mother was not against the manifest weight of the evidence even though the 11-year-old twins said that they wanted to live with their father and the guardian ad litem recommended that the court consider changing primary parenting time to the father.
¶ 2 The parties to this appeal lived together on and off for a period of five or six years, but never married. During that time, the mother gave birth to twins. After the parties separated, they agreed to a division of parenting time. Pursuant to that agreement, the twins lived primarily with the mother, but spent every weekend with the father. A few
years after they separated, the father filed a petition under the Illinois Parentage Act. The court allocated primary parenting time and significant decision-making responsibility to the mother. The father appeals, arguing that this decision was against the manifest weight of the evidence. We affirm.
¶ 3 The twins at the center of this custody dispute were born on June 21, 2005. The boy, P.M.S., Jr. (P.M.S.), was diagnosed with attention deficit hyperactivity disorder (ADHD). He required medication for this disorder, although he did not always want to take it. The girl, C.O.S., was diagnosed with hemihypertrophy, a condition which can cause one side of her body to grow faster than the other, and torticollis, a condition which causes the tightening of her neck muscles. She was monitored yearly for the hemihypertrophy, but did not need any ongoing treatment. She went to physical therapy during the summer for the torticollis and was given exercises to do throughout the year. At the time the hearing in this matter took place, the children were 11 years old, P.M.S. was going into fifth grade, and C.O.S. was going into sixth grade. C.O.S. was in special education classes. The mother attended conferences at her school to discuss her yearly individual education plans (IEPs). Parental awareness concerning the twins' medical and educational needs is one of the issues in this dispute.
¶ 4 As we mentioned earlier, the twins' parents lived together but did not marry. During the time they lived together, they lived in Carbondale, Murphysboro, and Marion. After they separated, the children continued to reside primarily with their mother. The father and most of the twins' extended family members lived in Carbondale. The mother
lived an hour's drive away in Mt. Vernon. The mother had two older daughters, 19-year-old Alyssa and 14-year-old Nolena. The father had no other children.
¶ 5 On July 30, 2014, the father filed a petition to establish parentage and to determine custody, visitation, and child support. We note that due to a subsequent amendment to the Illinois Marriage and Dissolution of Marriage Act, the terms "custody" and "visitation" have been replaced with the terms "parenting time" and "parental responsibility." The parties have used the new terms in their briefs, and we will use them here. In his initial petition, the father asked the court to "set a consistent schedule of parenting time." Although he did not request that the children's primary residence be changed, he did request additional parenting time during the summer. On May 12, 2015, the father filed an amended petition. In the amended petition, he asked that the children live primarily with him, alleging that the children had stated that they wanted to live with their father.
¶ 6 On September 15, 2015, the court entered a temporary order giving the father parenting time every weekend from 6 p.m. Friday until 6 p.m. Sunday. The parties submitted the matter to mediation, but did not reach an agreement.
¶ 7 The court appointed a guardian ad litem (GAL) to represent the interests of the twins. She filed an initial report and two supplemental reports with the court in June and July of 2016. The supplemental reports were filed because the GAL spoke to some witnesses after she filed her initial report. In her initial report, the GAL noted that because the mother recently purchased a new home, the children would go to a new school regardless of which parent was awarded primary parenting time. She noted that
the twins had good relationships with their older sisters and with their grandparents and relatives on both sides of their family. She also noted that they had good relationships with both their mother's boyfriend, Derrick, and their father's girlfriend, Chris.
¶ 8 The GAL observed that both parents were able to support the children financially, and both lived in homes that were clean and safe. She noted that the mother lived in a "very nice home" with a pool, a fenced yard, and a bedroom for each child, while the father lived in a two-bedroom rental house where the children had to share a bedroom. She further noted, however, that the father intended to find a larger home if awarded primary parenting time. The GAL noted in her report that both parents engaged in activities with the twins, but the father-who was with the twins on weekends-did more with them.
¶ 9 The report summarized the GAL's discussions with various witnesses. The twins' maternal grandmother, Donna Wright, told her that the mother was the "responsible parent" while the father was the "fun parent." (We note that Donna Wright is not the mother's biological mother. She is the paternal grandmother of the mother's oldest daughter, Alyssa, and has acted as a mother to the mother and a grandmother to all of her children.) Prentiss W., the mother's estranged husband, was involved in a custody battle with the mother over their daughter, Nolena. He indicated that he intended to foster the relationship between Nolena and the twins if he was given primary parenting time for Nolena. In addition, Prentiss expressed concerns about the mother's temper, pointing to an incident where she got into a physical altercation with her adult daughter, Alyssa, in front of Nolena and the twins. Derrick, the mother's boyfriend, told the GAL that the
twins have said that their father spoke ill of their mother to them, while he had never heard the mother disparage the father to the twins. He reported that the twins often acted out after returning from weekend visits with their father. The GAL noted in her report that this observation was also confirmed by the twins' teachers.
¶ 10 The GAL recommended that the court consider changing primary parenting time to the father. She made this recommendation largely because the children seemed more relaxed and less guarded when she observed them in the presence of their father than when she observed them in the presence of their mother. She expressed concerns that both parents were speaking disparagingly of each other in front of the twins.
¶ 11 In the first supplemental report, the GAL summarized her interviews with two additional witnesses-the mother's oldest daughter, Alyssa, and Deanna Childers, a therapist the father took the children to see. Alyssa believed that the twins should be allowed to live wherever they would be happy, but she felt they were better off remaining with their mother. She told the GAL that she heard the father speak disparagingly of the mother to the children, but had not heard the mother say anything bad about the father to them. She also noted that the twins exhibited unruly behavior after returning from weekend visits with their father. She stated that the twins sometimes exaggerated situations and that C.O.S. did not think that she could love both parents.
¶ 12 Deanna Childers observed the twins during 5 to 10 counseling sessions and obtained background information about them from their father. She told the GAL that the twins told her they felt safer with their father, but they did not offer specific reasons for this. The GAL concluded her supplemental report by noting that she remained
concerned that both parents were speaking negatively about each other to the twins. In addition, she was concerned that both parents might be coaching the twins about what to say. She stated that her recommendation regarding parenting time remained unchanged.
¶ 13 In a second supplemental report, the GAL described an additional interview with the twins and her interview with Carmel Brown, a therapist who met with both the mother and the twins. The twins told the GAL they were afraid that their father would not let them see their mother on weekends if they lived with him because this is what their mother told them would happen. Carmel Brown indicated that the twins told her they wanted to live with their father because he was "more fun" than their mother. She stated that there was no indication of any abuse or neglect of the children by their mother. The GAL concluded that both parents continued to disparage each other to the children.
¶ 14 In August 2016, the court held a hearing in the matter and conducted an in camera interview with the twins. The record contains a transcript of the court's interview with the twins. However, no court reporter was available to transcribe the hearing. Thus, the record contains only a bystander's report prepared by the judge.
¶ 15 The court summarized the testimony of witnesses as follows. The mother testified that she lived with Nolena and the twins. Her boyfriend of two years, Derrick Gradford, had his own home, but he spent most of his time with her and the twins. Her oldest daughter, Alyssa, lived with Donna Wright. The mother further testified that she worked as a certified nursing assistant four nights a week from 11 p.m. to 7 a.m. Wednesday through Saturday. She explained that Derrick usually stayed with the twins overnight while she worked. She arrived home from work in time to get the twins ready for school
and then slept while they were in school. She testified that on days when the children were not in school, they slept late, which allowed her to sleep until they woke up.
¶ 16 Asked her concerns about the children living with their father, the mother stated that he was not as involved in their lives previously. She explained that he did not attend IEP conferences for C.O.S. even though she informed him of when they were scheduled; he did not attend C.O.S.'s school band concerts; and he did not take the twins to doctor appointments. She also testified that she was concerned that the father used drugs in his home and that his girlfriend, Chris, once sent a threatening text message to Alyssa. In addition, she testified that the father did not give P.M.S. his ADHD medication on weekends.
¶ 17 The mother testified that the children learned about this litigation from their father. In addition, she testified that he ignored her in front of the children. She believed this showed them that he hated her. The mother further testified that the children often refused to talk to her when they returned from weekends with their father, and sometimes their behavior did not return to normal until Tuesdays. She testified that she allowed the twins' father to call them whenever he wanted to talk to them. She admitted, however, that the twins did not have their own cell phones. She testified that she told him to call Nolena's phone to talk to the twins. The mother acknowledged that in the past she had left discipline up to the father. She further acknowledged that she did not send P.M.S.'s glasses with him on weekends.
¶ 18 The mother acknowledged there was a period of three to four weeks when she did not bring the twins to the meeting point for weekend visits with their father because she
did not have a vehicle. She explained that she asked the father to pick the children up from her home, but he did not do so.
¶ 19 The father testified that he worked from 7 a.m. to 2:30 p.m. as a courier. He had no other children and did not live with anyone other than the twins. He testified that if given primary parenting time, he would have help caring for them from his mother and sister. He further testified that they would be in an after-school care program until he came home from work. (We note that the record does not indicate what time the twins would get home from either of the two schools they might attend.)
¶ 20 The father did not believe the twins had a good relationship with their mother. He testified that he felt it was better for them to live with him for several reasons. He explained that his work schedule allowed him to be home with them more than the mother's schedule; the twins' other family members lived closer to him than to the mother; he provided them with more structure and engaged in more activities with them; and the mother denied him access to the twins after he filed this case. In addition, he believed that the mother "let" the children's school hold P.M.S. back a year, something he would not have allowed; and he wanted the twins to participate in team sports, an opportunity he believed they were not getting while living with their mother.
¶ 21 The father admitted that he did not give P.M.S. his medication, but he explained that this was because the mother did not send it with him. The father also admitted that he did not attend IEP conferences at the school, but he stated that he communicated with teachers by email and telephone. He also testified that he did not believe C.O.S. needed to be in special education anymore. He admitted that he did not take the twins to doctor
appointments in the past, even when he lived with them and their mother. He blamed the mother for not telling him what doctors the twins saw or when their appointments were. He admitted that he did not attend C.O.S.'s school band concerts and other events involving the children. He explained that he did not feel comfortable attending these events because the mother was also there.
¶ 22 Julieann Archibold is the twins' paternal grandmother. She testified that she was very close to the twins and saw them every weekend that they were with their father. She testified that if the twins lived with their father, she could take care of them in the mornings and get them to school.
¶ 23 Alyssa Blackman, the twins' 19-year-old sister, testified that she had no concerns over the ability of either parent to raise the twins. She noted that although the twins' father was not her biological father, she called him "Dad" and occasionally saw the twins at his house. She testified that he attempted to tell her what to say to the GAL and urged her not to tell the GAL about his girlfriend, Chris.
¶ 24 Donna Wright testified that she had a very close relationship with the twins, who called her "Granny." She testified that the twins' mother has never prevented the twins from seeing their father. She believed the mother was afraid to provide the twins with sufficient discipline due to the pending custody case, but this was her only concern about the mother's parenting.
¶ 25 Derrick Gradford testified that he had been dating the twins' mother for two years and had no concerns about her parenting ability. He noted that he had four children of his
own. He testified that the twins usually seemed "distant" or "very quiet" upon returning from weekends with their father.
¶ 26 A few additional witnesses testified that the twins' mother was a good mother and that the twins seemed happy and well-adjusted. The mother's sister testified that she and her children had a close relationship with the twins. Donna Wright's daughter, Shirley, testified that she considered the twins' mother a sister and that she had a close relationship with the twins.
¶ 27 During the in camera interview, the twins both told the judge that they got along well with both of their parents. Asked if their mother was a good mom, C.O.S. said, "Yes." Both twins also told the judge that they liked both Derrick and Chris. The court asked the twins if there was a difference between living with their mother and living with their father. C.O.S. replied, "Not really. But except [sic] for Nolena won't be living with us." The judge asked, "Do you like Nolena?" C.O.S. replied, "She's mean but I like her."
¶ 28 The twins each stated that they felt safe at the homes of both of their parents. They indicated that they spent time with their oldest sister, Alyssa, while they were at their mother's house. They told the judge that the school they would attend if they lived with their mother was close to her home, but that the school they would attend if they lived with their father was further from his home. They told the judge that they could ride their bicycles to the school; however, C.O.S. was already participating in track at the new school they would attend if they remained with their mother.
¶ 29 Asked again the difference between living with their mother and living with their father, both children again indicated that there was no real difference. They explained,
however, that sometimes their mother yelled at them. C.O.S. said that their mother yelled at them when P.M.S. was "bad." They told the judge that their father did not yell at them. They further noted that their mother had spanked them in the past, but C.O.S. stated that this was a long time ago. Asked why they wanted to live with their father, both twins explained that they wanted to spend more time with him. The judge told the children that it was up to the court, not the parents, to decide where they would live. He also told them that both of their parents were good parents who loved them very much.
¶ 30 On August 18, 2016, the court entered a written order adopting the mother's proposed allocation of parental responsibilities and schedule of parenting time. The order gave the mother sole responsibility for significant decisions concerning the twins' education, health care, religious upbringing, and extracurricular activities. It provided that each parent was to be responsible for nonsignificant decisions during their own parenting time with the children. The order provided that the father would have parenting time every other weekend from 6 p.m. on Fridays to 5 p.m. on Sundays and every Wednesday from the time the twins finished school until 8 p.m. Each parent was to have three one-week periods of uninterrupted parenting time during the summer. The order also set out a holiday schedule. This appeal followed.
¶ 31 The father argues that the court's ruling was against the manifest weight of the evidence. He challenges both the court's decision to award primary parenting time to the mother and its decision to give the mother responsibility for significant decisions about the children's education, health care, religion, and extracurricular activities. We first consider parenting time. The father asserts that most of the statutory factors weigh in
favor of awarding primary parenting time to him, that the court overlooked the wishes of the children and the recommendation of the GAL, and that the court "inexplicably took away half of the parenting time" the father had previously. We are not persuaded.
¶ 32 As the courts of this state have long recognized, the best interest of the child is the primary consideration in all decisions affecting children, including the allocation of parenting time. In re Parentage of J.W., 2013 IL 114817, ¶ 41. Trial courts have broad discretion to determine the most appropriate allocation of parenting time. Because the trial court is in a better position than this court to assess the credibility of witnesses and determine the best interest of the child, its decision must be accorded great deference. In re Marriage of Debra N., 2013 IL App (1st) 122145, ¶ 45. Thus, on appeal, we will not overturn the decision of the trial court unless the court abuses its considerable discretion or its decision is against the manifest weight of the evidence. In reviewing the court's ruling, we view the evidence in the light most favorable to the appellee. Id. Moreover, it is not our role to assess the credibility of witnesses or reweigh the evidence. We may not reverse the court's decision merely because a different conclusion was possible. In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513 (1992).
¶ 33 In cases under the Illinois Parentage Act, decisions concerning parenting time are governed by the best-interest factors set forth in the Illinois Marriage and Dissolution of Marriage Act. In re Parentage of J.W., 2013 IL 114817, ¶ 38. Section 602.7 of that Act includes a nonexclusive list of factors courts should consider in determining the best interests of the children involved. 750 ILCS 5/602.7(b) (West 2016).
¶ 34 The first of these factors are the wishes of the parents (750 ILCS 5/602.7(b)(1) (West 2016)) and the wishes of the children (750 ILCS 5/602.7(b)(2) (West 2016)). Here, both parents wanted the majority of parenting time allocated to them, and the twins stated that they wanted to live with their father. The father argues that the court should have considered the children's wishes. We note that there is no indication that the court ignored the twins' expressed wishes even though it ultimately determined that it was in their best interest to continue living with their mother. The court did not explicitly state which factors it considered relevant or how much weight it gave each factor; however, the court did state in its order that it considered all relevant factors. Moreover, the court specifically questioned the children concerning the differences between living with their mother and living with their father. We may therefore presume that the court considered the twins' wishes. This, of course, does not mean that the court was required to agree with the twins. See In re Marriage of Wycoff, 266 Ill. App. 3d 408, 414 (1994).
¶ 35 The expressed preference of a child is a factor to be considered in allocating parenting time, but Illinois courts have cautioned against placing too much weight on this factor. See, e.g., In re Marriage of Hefer, 282 Ill. App. 3d 73, 76-77 (1996). This is because making the child's preference a determining factor could place pressure on a child to choose between parents. Id. at 76. It might also give parents an incentive to manipulate or pressure the children. Id. at 77; see also In re Marriage of Wycoff, 266 Ill. App. 3d at 414 (warning trial courts to be alert for such situations). As we have discussed, both of these problems were implicated in this case.
¶ 36 In addition, courts should not give much weight to a child's preference if the child wants to live with one parent because that parent is more permissive than the other or allows the child to stop doing homework. In re Marriage of Wycoff, 266 Ill. App. 3d at 414. Here, one of the twins' therapists opined that they wanted to live with their father because he was more fun-something that may have been true simply because he was the parent they lived with on weekends when they are not in school. The twins were unable to articulate anything that made living with him better than living with their mother. We do not believe consideration of the twins' desire to live with their father required the court to reach a different conclusion than it did.
¶ 37 The next two factors concern the amount of time each parent spent caring for the children in the 24 months prior to filing the petition (750 ILCS 5/602.7(b)(3) (West 2016)) and any prior agreements or "course of conduct" between the parents relating to care of the children (750 ILCS 5/602.7(b)(4) (West 2016)). As discussed earlier, the parties previously agreed that the children would reside primarily with the mother, and the evidence overwhelmingly showed that she spent more time than the father taking care of them. The evidence also showed that the mother took on most of the responsibility for the children's schooling and medical needs. Pointing to the "course of conduct" language, the father emphasizes evidence that the parties had difficulty communicating and evidence that the mother spoke negatively about him. He appears to argue that this "course of conduct" demonstrated that he was the more appropriate caregiver. We disagree. Although there was conflicting evidence, most evidence showed that both
parents spoke negatively to the children about each other and that both were responsible for their deteriorating relationship.
¶ 38 Moreover, these two factors reflect the importance of promoting stability in a child's life by considering which parent has been the children's primary caregiver. In re Marriage of Hefer, 282 Ill. App. 3d at 77. Evidence that the parties disparage each other or are unable to communicate with each other is better addressed to other best-interest factors. See 750 ILCS 5/602.7(b)(9) (West 2016) (ability of the parties to cooperate with each other); 750 ILCS 5/602.7(b)(13) (West 2016) (willingness of each parent to foster a relationship between the children and the other parent). Here, the parties' prior course of conduct comported with their informal agreement that the mother would act as the children's primary caregiver.
¶ 39 The father correctly points out, however, that while stability for children is often achieved through continuity in their main caregiver, in some circumstances, stability is best achieved by moving children "from a home where there is turmoil to one where there is quiet." In re Marriage of Wycoff, 266 Ill. App. 3d at 409-10. He argues that he provides a more stable and structured environment. In support of this contention, he points to evidence that the mother had two short-term relationships between the end of her relationship with him and the beginning of her relationship with Derrick. He also complains that the mother works nights, leaving the children to be "raised by" Donna Wright and Derrick Gradford, while the father's work schedule allows him to be home when the children are not in school. We disagree. The evidence showed that both parents had been involved with their current partners for two years and that the children
got along well with both. The evidence also showed that if primary parenting time were switched to the father, he would have to rely on others to help him care for the twins in the morning and when they came home from school. The evidence supports the court's apparent finding that stability would be promoted by allowing the mother to continue to provide most of the twins' care.
¶ 40 The next factor is the children's interaction and relationships with their parents, siblings, and any other individuals who might significantly affect their best interests. 750 ILCS 5/602.7(b)(5) (West 2016). As the father acknowledges, the twins have good relationships with all of their extended family members. The next factor is their adjustment to their home, school, and community. 750 ILCS 5/602.7(b)(6) (West 2016). As the father acknowledges, the twins are well-adjusted to both homes. In addition, they will attend a new school regardless of which parent has primary parenting time.
¶ 41 The next two factors are the mental and physical health of all of the individuals involved (750 ILCS 5/602.7(b)(7) (West 2016)) and the needs of the children (750 ILCS 5/602.7(b)(8) (West 2016)). We note that the mother has been diagnosed with posttraumatic stress disorder, but there is nothing in the record concerning what if any impact this has on her parenting. The father acknowledges that both parents are able to meet the twins' physical needs, but he argues that he is better able than the mother to meet their emotional needs. In support of this contention, he points to testimony that P.M.S. frequently acted out, and he reiterates his assertion that the mother's home provided a hectic and unstructured environment for the children. We have already rejected the father's contention that the evidence showed that the mother provided a
hectic and unstructured home environment for the twins. In addition, we do not believe evidence that an 11-year-old boy with ADHD acts out proves that either parent is unable to meet his emotional needs.
¶ 42 The next factor is the ability of the parties to communicate and cooperate in raising the children. 750 ILCS 5/602.7(b)(9) (West 2016). Here, as we have discussed, this was a significant problem. However, it was a problem for both parents. Thus, this factor did not favor either party.
¶ 43 The next factor that is relevant to this case is the willingness and ability of each parent to place the needs of the children ahead of the parent's own needs. See 750 ILCS 5/602.7(b)(12) (West 2016). The father argues that the mother "placed her desire to work at night" over the needs of the children to be with her when they were home from school, and he again argues that he was able to provide the children with a more stable home life. There is no evidence in the record that the mother worked the night shift for selfish reasons. Moreover, as discussed previously, this shift allowed her to work while the children slept and sleep while the children were in school. In any case, all parents require child care from family members or babysitters at some point. Here, both parents were able to work schedules that allowed them to maximize their time with the children. The fact that they, like nearly all parents, had to rely on others to help care for the twins sometimes does not reflect poorly on their ability to care for the twins or put the twins' needs ahead of their own.
¶ 44 The last factor that is pertinent to this case is the willingness and ability of each parent to foster and encourage the children's relationship with the other parent. See 750
ILCS 5/602.7(b)(13) (West 2016). The father argues that this factor favors him, asserting that the mother spoke disparagingly of him to the twins but that he never spoke negatively about her to them. We disagree. There was evidence that both parents spoke negatively about the other to the twins. Considering all relevant factors, we cannot say the court's decision was against the manifest weight of the evidence.
¶ 45 The father further argues that the court abused its discretion in not following the recommendation of the GAL. We disagree. The trial court is the ultimate finder of fact and is not bound to follow the recommendations of a GAL or expert witness. See In re Marriage of Debra N., 2013 IL App (1st) 122145, ¶ 52. We also emphasize that although the GAL recommended a change in primary parenting time, she expressed concerns about both parents. In addition, while there was information in her reports that supported her recommendation, there was also information in the reports that supported the decision ultimately made by the trial court. The totality of the evidence presented supports the court's decision to allocate the majority of parenting time to the mother.
¶ 46 The father next argues that the court abused its discretion in reducing his parenting time to half of what he had before. We agree with the father that there was nothing in the record to support a drastic reduction in his parenting time. However, we do not believe the court's order did that. Although the schedule set forth in the order reduces the number of weekends he spends with the children during the school year, this is offset by the three weeks of uninterrupted parenting time allocated to him over the summer and the additional parenting time allocated to him on Wednesday afternoons and evenings during the school year. Although the new schedule does reduce the number of nights the twins
will sleep at their father's house, it gives him slightly more days to spend with the children than he had previously, including the Wednesday after-school time. Further, the new schedule accommodates his request to have three weeks of uninterrupted time with the twins during the summer while giving both parents the opportunity to spend time with the children on weekends during the school year. We find no abuse of discretion.
¶ 47 The father also challenges the court's decision to give the mother sole responsibility for making significant decisions about the children's education, health care, and religious upbringing. However, he offers no additional arguments in support of this contention. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (providing that points not argued in a party's brief are forfeited). Moreover, the undisputed evidence that the parties have difficulty communicating and cooperating with each other supports the court's decision to give one parent sole responsibility for making these decisions. Because the mother continues to have more parenting time than the father it was reasonable for the court to give her this responsibility. We find no abuse of discretion.
¶ 48 For the foregoing reasons, we affirm the order of the trial court.
¶ 49 Affirmed.