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Appellate Court Date: 2019.07.25
13:27:26 -05'00'
In re Marriage of Burns, 2019 IL App (2d) 180715
Appellate Court In re MARRIAGE OF HEATHER BURNS, Petitioner-Appellant, and
Caption AUGUST LIFFERTH, Respondent-Appellee.
District & No. Second District
Docket No. 2-18-0715
Filed March 7, 2019
Decision Under Appeal from the Circuit Court of Du Page County, No. 12-D-2336;
Review the Hon. Robert E. Douglas, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Counsel on Paul J. Bargiel, of Paul J. Bargiel, P.C., of Chicago, for appellant.
Appeal
August Lifferth, of Indianapolis, Indiana, appellee pro se.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices McLaren and Spence concurred in the judgment and opinion.
OPINION
¶1 When petitioner, Heather Burns, and respondent, August Lifferth, divorced in 2014, the
court approved and entered the parties’ parenting agreement concerning their two sons. That
agreement granted sole care, custody, and control to Heather, subject to August’s visitation
and other terms under the agreement.1
¶2 On September 27, 2017, pursuant to section 610.5 of the Illinois Marriage and Dissolution
of Marriage Act (Act) (750 ILCS 5/610.5 (West 2016)), August petitioned to modify the
allocation of parental responsibilities and parenting time, alleging, in part, that his move to
Indianapolis constituted a substantial change in circumstances and requesting the majority of
parenting time and sole decision-making responsibilities. In response, Heather noted, in part,
that August had moved three years earlier, in 2014; that the move had been anticipated when
the agreement and dissolution judgment were entered; and, accordingly, that there had not
been a substantial change in circumstances since the judgment was entered.
¶3 The trial court appointed a guardian ad litem (GAL), Andrew Cores, and held a hearing on
the petition over a period of six days. Although Heather had the opportunity to cross-examine
Cores and testify as a rebuttal witness in August’s case-in-chief, she did not present her own
case. Specifically, at the close of August’s case, Heather moved for a directed finding under
section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2016)). The court
granted the motion “in part,” finding that there had been no substantial change in
circumstances affecting the overall welfare of the children and that, therefore, Heather would
retain her status under the parenting agreement as the parent with primary parental
responsibilities and decision-making powers. However, the court also found that the parties
had demonstrated a propensity for petty and inappropriate behavior, and therefore it modified
certain provisions of the agreement, including those concerning summer parenting time;
videoconferencing between August and the children; where the children would be exchanged
(sometimes in Indiana); August’s authority to arrange counseling for the children; holiday
parenting time; August’s parenting time during the school year; who would be permitted to
pick up and drop off the children; communication parameters and extracurricular guidelines;
transportation of the children; the use of (and decorum while using) family scheduling tools;
and expectations concerning scheduling changes.
¶4 Heather appeals. In sum, she argues that the court lacked the authority to modify the
parenting agreement when it found no substantial change in circumstances, when the
modifications were not minor, and when she did not have the opportunity to present a
case-in-chief. We agree. For the following reasons, we affirm the court’s finding of no
substantial change in circumstances (a finding that August has not appealed), but we vacate the
court’s modifications to the agreement.
¶5 I. BACKGROUND
¶6 As noted above, in 2017, August petitioned to modify the “allocation of parental
responsibilities and parenting time,” requesting that he be awarded the majority of parenting
time and sole decision-making responsibilities, as well as “any other further relief this court
1
We note that the agreement further provided that any modification of any of the provisions would
be effective only if made in writing and signed by the parties.
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deems equitable and just.” Heather’s response denied that August should be awarded the
majority of parenting time and that any change in parenting time or responsibilities should be
made, as the 2014 agreement was in the children’s best interests and there had been no
substantial change in circumstances warranting any change. Further, Heather asserted various
affirmative defenses and, therein, argued that the agreement was working for the parties. In her
prayer for relief, Heather requested that the court (1) find that no substantial change in
circumstances had occurred, (2) find that August had not shown that any modification was
necessary to serve the best interests of the children, and (3) dismiss the petition with prejudice.
The court then appointed Cores as GAL and held the hearing on August’s petition. August
represented himself, while Heather, an attorney, was represented by counsel.
¶7 Cores testified that his appointment had not required a written report but that he had
informed the parties of his recommendations before the hearing. Cores recommended that the
children stay in Illinois with Heather but that the parties implement certain changes to the
parenting agreement. Heather had agreed to all but three of his recommendations, specifically,
(1) that the parties meet halfway, in Indiana, to exchange the children after their time with
August, (2) that August and the children videoconference three times weekly, and (3) that
August arrange individual and family counseling for the children in Indiana. On all three
topics, Heather e-mailed Cores that she disagreed and that she planned to present contrary
testimony and other evidence to support her position.
¶8 August conducted the direct examination of Heather. At one point during the examination,
Heather’s attorney asked the court for a break to speak with Heather and possibly August about
resolving the case. She noted that, although Heather had three primary objections to Cores’s
recommendations, Heather might be willing to make some concessions on those. The court
allowed the time. August, however, interjected, “I’m not going to be in agreement with this.”
Accordingly, the hearing continued.
¶9 Heather testified to her positions concerning Cores’s recommendations. As to exchanges,
she stated, “I had made it abundantly clear that I believed that August should be responsible for
the pick-ups for two very good reasons.” She explained that August had been working only
part time, while she worked full time, and that meeting halfway, as opposed to a curbside
drop-off, would require interaction between the parties. Heather testified that she would not
mind if August designated his wife or another responsible party to exchange the children and
that she wanted the same option. As to summer parenting time, Heather suggested that she
agreed with part of Cores’s recommendation. Specifically, she explained that the parties
currently each had 21 days with the children in the summer, but that Cores had recommended
four periods of 7 days (and one period of 10 days). Heather stated that they had already planned
for summer 2018, so any changes to summer parenting time should start in 2019. Further:
“I think in the picking of the days it’s already been indicated that we almost have
half of the summer, however, a lot of visits August is able to schedule uninterrupted in
[10] days and 14 days[,] rather than a week on week off. I am not—I am comfortable
with the recommendations that Attorney Cores made having to do with adding
additional days for the [7] days plus the [10], however, I think that—but I also think
that should apply to me as well ***.”
¶ 10 In addition, Heather noted that, with certain qualifiers, she generally agreed that August
could take one of the children for an evaluation on possible occupational therapy. Heather also
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testified that she would like to see August and the children videoconference three times per
week, within certain parameters.
¶ 11 As previously noted, at the close of August’s case, Heather moved for a directed finding.
She argued that August had not shown that there had been “a substantial change of
circumstances to warrant a change in allocation of parenting time or the boys[’] primary
residence.” (Emphasis added.) She further noted that Cores had recommended that Heather
remain the primary parent. Where she disagreed with Cores’s recommendations, “Heather set
out her strong and reasonable arguments in her [exhibit] of why[,] particularly on the
transportation should not be modified and on the other issues were slight tweaking of his
recommendations.” She noted that, when Cores recommended that Heather drive halfway to
exchange the children, he was not aware that August was working only part time. In
conclusion, Heather requested that the court enter a directed finding in her favor and “adopt
Attorney Cores’s recommendations as made in the minor modifications by Heather in the three
issues she presented in her [exhibit].”
¶ 12 The court granted Heather’s motion “in part,” finding that August failed to prove a
substantial change in circumstances that affected the overall welfare of the children. However,
noting that “the parties in this case have demonstrated a propensity for petty, vindictive and
selfish behavior on a level far beyond what is normally seen by this court and, in an effort to
curb such behavior,” the court elected to adopt certain of Cores’s recommendations and to
make additional modifications in parenting time. Those modifications touched upon
recommendations to which Heather objected and intended to present contrary evidence.
¶ 13 For example, the parenting agreement required August to bring the children to Heather’s
house after his weekend visitation, but the court ordered that “[e]xchanges shall take place at
the Rensselaer Police Station, 122 S. Van Rennselaer St., Rennselaer, IN.” Further, the court
modified the agreement so that August’s wife or another responsible adult designated by
August may pick up and drop off the children, and August’s wife would be added to the school
pickup list. Heather also was allowed to designate another responsible adult. In addition:
“Transportation: AUGUST shall continue to do all transportation to and from his
parenting time. At such time as AUGUST is working in the capacity as a full-time
employee, which shall be defined as one place of employment where AUGUST is
scheduled and works at least 32 hours per week, the parties shall meet half way for
pickup and drop off for AUGUST’s every other weekend parenting time only. Pickup
and drop off shall be at a well-lit public venue or police station at the halfway point
between the party’s [sic] respective residences. The pick-up and drop-off time shall be
adjusted according to AUGUST’s work schedule and the time involved for
transportation to and from mid-point.” (Emphasis added.)
¶ 14 Further, the parenting agreement provided that, during the summer, both parties would
have up to three weeks of out-of-town vacation time with the children, taking up to one week at
a time until the youngest child reached age six, after which they could take up to two weeks at
a time. The parties would notify each other of their respective requests for summer parenting
time and alternate years of “first choice.” The court modified this provision so that the parties
would receive summer parenting time on alternating weeks, starting immediately from the end
of the school year. Upon giving Heather 30 days’ advance notice, August would be allowed to
extend one of his alternating weeks to 10 days.
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¶ 15 As to communication with the children, the parenting agreement generally provided for
reasonable communication, such as a call between 7 and 7:30 p.m. and, if the children were
unavailable, a return call within 24 hours. The court struck this provision entirely and replaced
it with six detailed paragraphs, allowing August to videoconference with the children via
Skype three times per week, on Monday, Wednesday, and Thursday, between 6:30 and 7:30
p.m. Further, the children could elect to end the calls early, extend them, or, if reasonable,
make additional calls; however, “by way of example only, if one of the children is being
disciplined or having a disagreement with the parent in possession of the child, the parent in
possession is NOT expected to permit the child to call the other parent.” Further, “if August is
unavailable on any single date scheduled for Skype there is no requirement for Heather to keep
calling back and the next opportunity for August’s Skype call will be the next Monday,
Wednesday, or Thursday per the foregoing schedule.”
¶ 16 Finally, the parenting agreement essentially required Heather to inform August regarding
the children’s healthcare providers and to share with him all relevant healthcare and related
information. The court, however, provided that August may schedule individual and/or family
counseling for the children in Indianapolis and may take one of the children for an evaluation
of his walking and for possible occupational therapy; however, the evaluations would include
input from Heather, and any treatment would take place in the Chicago area, as directed by
Heather. Heather appeals.
¶ 17 II. ANALYSIS
¶ 18 Before turning to the merits of this appeal, we address the timeliness of our decision. This
case is designated as “accelerated” pursuant to Illinois Supreme Court Rule 311 (eff. July 1,
2018) because it involves a matter affecting the best interests of children. Rule 311(a)(5)
provides, in relevant part, that “[e]xcept for good cause shown, the appellate court shall issue
its decision within 150 days after the filing of the notice of appeal.” Ill. S. Ct. R. 311(a)(5) (eff.
July 1, 2018). In this case, Heather filed her notice of appeal on September 5, 2018, and the
150-day period to issue our decision expired on February 2, 2019. However, we granted both
parties’ requests for extensions of time to file their opening briefs, as well as Heather’s request
for an extension of time to file her reply brief. As a result, briefing in this case was not
completed until late December 2018. As such, we find good cause for issuing our decision after
the 150-day deadline. See In re Marriage of Wanstreet, 364 Ill. App. 3d 729, 732-33 (2006)
(noting that granting parties’ requests for extensions of time to file their briefs allowed the
parties the opportunity to develop and present their positions).2
¶ 19 Heather raises four overarching, related arguments on appeal. First, she contends that, once
the trial court determined that August failed to establish a substantial change in circumstances
affecting the children’s overall welfare and granted her motion for a directed finding on that
point, the case should have terminated. She contends that the trial court thereafter lacked the
authority to modify the parenting agreement.
2
We note that, on October 17, 2018, August moved to strike “non-record” exhibits Heather had
allegedly filed and, on November 1, 2018, this court ordered the motion taken with the case. We hereby
deny August’s motion, as it does not specify which exhibits he wants stricken. In any event, we will
disregard any improper exhibits.
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¶ 20 Second, Heather argues that the court lacked the authority to sua sponte modify the
allocation of parental responsibilities. She contends that the primary relief August sought was
the majority of parenting time and sole decision-making responsibilities. Heather urges that,
although the court decided that issue, and not in August’s favor, it did not then conclude the
matter. Rather, it “elected” to make significant modifications to the parenting agreement that
August did not request. Heather argues that, where August’s pleading did not request the
modifications, the court improperly acted sua sponte.
¶ 21 Third, Heather argues that the court denied her due process by modifying the allocation of
parental responsibilities without allowing her to first put on a case-in-chief. She contends that,
as the petition did not request the modifications entered, she lacked notice of them. In addition,
she asserts that the court should not have entered the modifications without first ruling on her
pending petitions for rules to show cause relating to August’s character and propensity to
violate court orders.
¶ 22 Fourth, although Heather concedes that a court may modify a parenting agreement without
a showing of changed circumstances, she asserts that it may do so only if certain conditions are
satisfied and that, here, they were not. Specifically, she asserts that the modifications (1) did
not reflect the actual arrangement under which the children had been receiving care, without
parental objection, for the six months prior to the filing of the petition, (2) did not constitute a
minor modification of the parenting agreement, (3) were not necessary to modify an agreement
that the court would not have approved had it been aware of the circumstances at the time, and
(4) were not agreed to by the parties. See 750 ILCS 5/610.5(e) (West 2016).
¶ 23 August argues that the modifications were proper, because his petition requested “any
other and further relief this court deems equitable and just.” In addition, he notes that Cores
was appointed to represent the children’s best interests, that the parties agreed to all but a few
of Cores’s recommendations, and that the court had valid reasons for making the
modifications, having found specifically that the parties had demonstrated a propensity for
poor behavior. August claims that, having agreed to most of Cores’s recommendations,
Heather is now experiencing a form of “buyer’s remorse.” August further asserts that, because
Heather retained primary parental responsibilities and decision-making powers, and agreed to
most of the modifications, the modifications were both minor and “agreed” to, as required by
section 610.5(e) of the Act. August asserts that the modifications reflected the children’s best
interests.
¶ 24 We agree with Heather that the court erred. We note first that, in general, in a nonjury case
when a court grants a directed finding based upon the failure to establish a prima facie case, we
review the court’s decision de novo. See, e.g., Hedrich v. Mack, 2015 IL App (2d) 141126,
¶¶ 8-10. Further, in general, “[t]he standard of review for modification of a child-custody order
after a dissolution judgment becomes final is whether the modification is against the manifest
weight of the evidence or an abuse of discretion.” In re Marriage of Kading, 150 Ill. App. 3d
623, 631 (1986). However, a court abuses its discretion when its decision is based upon a
misapplication of law. See, e.g., Macknin v. Macknin, 404 Ill. App. 3d 520, 530 (2010).
¶ 25 August’s petition was brought pursuant to section 610.5 of the Act, which provides, in
relevant part:
“[T]he court shall modify a parenting plan or allocation judgment when necessary to
serve the child’s best interests if the court finds, by a preponderance of the evidence,
that on the basis of facts that have arisen since the entry of the existing parenting plan
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or allocation judgment or were not anticipated therein, a substantial change has
occurred in the circumstances of the child or of either parent and that a modification is
necessary to serve the child’s best interests.” 750 ILCS 5/610.5(c) (West 2016).
¶ 26 Thus, the court has the authority to modify a parenting plan or allocation judgment
pursuant to section 610.5(c) of the Act if (1) a substantial change has occurred since the
existing parenting plan or allocation judgment was entered and (2) the modification is
necessary to serve the child’s best interests. Id.
¶ 27 Here, the court granted Heather’s motion, finding that August failed to prove a “significant
change in circumstances” that affected the “overall welfare of the children.” Thus, the court
found that August failed to establish both prerequisites for relief under his petition, i.e., a
prima facie case. That decision should have terminated the case. See 735 ILCS 5/2-1110 (West
2016) (“if the ruling on the motion is favorable to the defendant, a judgment dismissing the
action shall be entered” (emphasis added)). Indeed, the court’s ruling did terminate the case in
the sense that the hearing ended, and no further evidence was received. However, the ruling did
not “dismiss” or terminate the action in the sense that, despite finding that a prima facie case
was not established, the court nevertheless entered relief under the petition. This court has not
been presented with (or found) a case in which a court granted a motion for a directed finding
on the basis that the opponent failed to establish a substantial change in circumstances
warranting modification of an agreement, but nevertheless modified the agreement. We find
that the court’s granting a directed finding “in part” was improper.
¶ 28 Even if, theoretically, the court could have granted the motion in part by finding that,
although there was no substantial change in circumstances under section 610.5(c), the
modifications were justified under the factors in section 610.5(e), the court (1) neither stated
that the modifications were premised on those factors (2) nor would have been correct in doing
so. Section 610.5(e) states that:
“(e) The court may modify a parenting plan or allocation judgment without a
showing of changed circumstances if (i) the modification is in the child’s best interests;
and (ii) any of the following are proven as to the modification:
(1) the modification reflects the actual arrangement under which the child has
been receiving care, without parental objection, for the 6 months preceding the
filing of the petition for modification, provided that the arrangement is not the
result of a parent’s acquiescence resulting from circumstances that negated the
parent’s ability to give meaningful consent;
(2) the modification constitutes a minor modification in the parenting plan or
allocation judgment;
(3) the modification is necessary to modify an agreed parenting plan or
allocation judgment that the court would not have ordered or approved under
Section 602.5 or 602.7 had the court been aware of the circumstances at the time of
the order or approval; or
(4) the parties agree to the modification.” (Emphasis added.) 750 ILCS
5/610.5(e) (West 2016).
¶ 29 Factors one and three are not at issue here. August asserts that the modifications were
appropriate based upon factors two and four. However, as to factor two, the modifications were
not minor. A “minor” modification is “small” or “inconsequential.” See In re Marriage of
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O’Hare, 2017 IL App (4th) 170091, ¶ 27. We apply this provision narrowly, so as to comport
with the Act’s policy favoring the finality and continuity of parenting plans. Id. ¶ 28.
Accordingly, even if the court had expressed that it was making the modifications under
section 610.5(e)(2), which it did not, we would disagree. As noted, the court made numerous
modifications to the parenting agreement, including modifying summer parenting time and
requiring Heather to drive to Indiana for some exchanges. August asserts that Heather
conceded that Cores’s recommendations were “minor”; however, she actually stated only that
her own modifications to those recommendations were minor. She did not concede that the
recommended modifications to the agreement would be “minor,” especially as that term is
contemplated by section 610.5(e)(2).
¶ 30 Next, the court’s order did not state that the parties had agreed to the modifications, as
required under section 610.5(e)(4) of the Act. We note that the parenting agreement provided
that any changes must be made in writing and signed by the parties; clearly, that did not happen
here and, therefore, there is no evidence of an “agreement” in that respect. As August notes,
however, the hearing transcripts are peppered with Heather’s “agreement” to various aspects
of Cores’s recommendations, which the court then adopted. Nevertheless, we conclude that the
context of those “agreements” suggests that they were unclear or, at best, conditional. For
example, Heather’s response and affirmative defenses to the petition argued primarily that the
petition should be dismissed for failing to establish a substantial change in circumstances and
that there should be no modifications to the agreement because the agreement was working for
the parties. As such, Heather’s “agreements” were conditioned on the court’s finding a
substantial change in circumstances. Heather did not clearly agree to any modifications to
summer parenting time or transportation/exchange locations. Indeed, she even expressed her
intent to present evidence disputing some of Cores’s recommendations. Thus, although
Heather’s counsel suggested the possibility of a settlement, that possibility did not come to
fruition, and there was no other evidence of a formal “agreement” between the parties.
¶ 31 Moreover, and moving into Heather’s final argument, we do not know what evidence, if
any, Heather ultimately might have presented to rebut the appropriateness of Cores’s
recommendations because the court entered the modifications without allowing Heather the
opportunity to present evidence. Although Heather frames the issue as a denial of the
opportunity to present a “case-in-chief,” a “case in chief” is usually defined as the phase of a
trial when the party with the burden of proof presents his or her evidence. See Black’s Law
Dictionary 216 (6th ed. 1991). Here, Heather was seeking the status quo and, thus, she did not
have the burden of proof, especially considering the trial court’s directed finding of no
substantial change in circumstances. In any event, we agree that due process was violated.
Specifically, although Heather was aware that August wanted parenting time modified, as to
the modifications ordered sua sponte by the court, Heather was not given notice and an
opportunity to be heard.
“An individual’s right to procedural due process is guaranteed by the United States
and Illinois Constitutions. See U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I,
§ 2. This right entitles an individual to ‘the opportunity to be heard at a meaningful time
and in a meaningful manner.’ In re D.W., 214 Ill. 2d 289, 316 (2005). ‘Due process is a
flexible concept’; not all circumstances call for the same type of procedure. People
ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009). However, the fundamental right
to the opportunity to be heard ‘ “has little reality or worth unless one is informed that
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the matter is pending.” ’ BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311,
¶ 28 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950)).” People v. Rucker, 2018 IL App (2d) 150855, ¶ 17.
¶ 32 In Rucker, there was a pleading that put Rucker on notice, but he was not given the
opportunity to be heard on it before judgment was entered. In this case, the trial court
effectively denied the only pleading pending before it. Thereafter, the court, sua sponte,
altered the parenting agreement, with neither a pending pleading giving Heather notice nor an
opportunity for either Heather or August to be heard. Without a pending pleading requiring a
response from Heather, it would have been an exercise in futility for her to present evidence or
argument in a “case-in-chief.”
¶ 33 In sum, for the aforementioned reasons, the trial court erred in modifying the parties’ 2014
parenting agreement. That is not to say that we are immune to the court’s frustration with the
parties’ petty and vindictive behavior or its well-intentioned attempt to streamline and assist
the parties’ parenting relationship to avoid conflict. We hope that any progress the parties
made in light of Cores’s recommendations or the court’s findings will not be lost as a result of
our decision. Indeed, the parties’ testimony reflects that, although a “legally binding”
agreement was not reached to warrant judicial modification of the parenting agreement under
the unique presentation of evidence here, a meeting of the minds might be possible such that
they can now, through mediation, written agreement, or otherwise, adopt and incorporate into
their parenting agreement those changes that are acceptable to both.
¶ 34 We note that, in his response brief, August requests that we remand the case to modify the
parenting agreement in various ways and to give him the opportunity for rebuttal questioning
of Cores. However, as August did not file a cross-appeal, he may not seek such relief. See, e.g.,
Lagen v. Balcor Co., 274 Ill. App. 3d 11, 14 (1995).
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed in
part and vacated in part.
¶ 37 Affirmed in part and vacated in part.
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