Appendix — Cooney v. Orlando (No. 08-44)

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APPENDIX A

STATE OF ILLINOIS IN THE CIRCUIT COURT

OF THE 17TH JUDICIAL CIRCUIT COUNTY

OF WINNEBAGO

[Filed 9/18/01]

No. 93 D 1332

IN RE THE MARRIAGE OF: DEBORAH A. ORLANDO,

Plaintiff,

Wi

LORENZO ORLANDO,

Defendant.

JUDGMENT ON REMAINING ISSUES

THIS CAUSE having previously come before the

Court for hearing on the Petition for Dissolution of

Marriage and Response thereto, both parties being

present in open Court and by through their respec-

tive attorneys, ALEX ABATE for the plaintiff and

DANIEL J. CAIN, for the defendant, the Court being

fully advised in the premises hereby finds and orders

as follows:

1. This Court has jurisdiction of the parties and

the subject matter hereof.

2. The parties have previously been awarded a

Judgment for Dissolution of their Marriage and the

marriage has been dissolved by entry of a Judgment

for Dissolution of Marriage Order on June 15, 1998.

2a

3. The plaintiff resides in Chicago, Illinois, and

is employed full time as a registered nurse.

4. The defendant resides in Rockford, Illinois

and is employed full time at IMTA Inc.

5. Two children were born as a result of the

marriage, namely, Christopher born on September

22, 1989 and Jonathan born on December 29, 1991.

6. The parties hereto have previously entered

into a joint parenting agreement, which agreement is

made a part of this Judgment on Remaining Issues.

7. Each of the parties are barred from receiving

maintenance, each from the other.

8. The defendant shall pay the sum of $600.00

per month to plaintiff pursuant to a Notice of With-

holding as and for child support. The defendant is not

required to contribute to private school tuition ex-

penses for the minor children.

9. The Court finds that it was not clear from the

evidence presented in Court that there was an

arrearage in child support, and therefore, the Court

does not strike an arrearage in child support.

10. The defendant shall continue to cover the

minor children on his group health insurance plan,

and if available to the plaintiff, the plaintiff shall

cover the children under health/dental programs

as secondary coverage. Any uncovered health care

expense for the minor children shall be equally

divided between the parties hereto.

11. Each party is allowed to claim one child as a

dependent for income tax purposes, with the plaintiff

claiming Christopher and the defendant claiming

Jonathan. Such Order shall be in effect for the year

2000 and subsequent years.

3a

12. With respect to the division of marital

assets, the parties are awarded the following assets:

A) The plaintiff shall receive as her assets

any personalty in her possession, her vehicles subject

to any indebtedness thereon, and any retirement

benefits in her name only.

B) The defendant shall receive as his assets

any personalty in his possession, his jeep subject to

the indebtedness thereon and the former marital

residence.

C) The plaintiff shall by quit-claim deed

transfer any and all interest she has in the parties

former marital residence to the defendant within

thirty days of the entry of this Order.

D) The defendant shall be specifically

responsible for the following debts against the home:

the first mortgage, the Aldoni judgment, the Orlando

judgment, and 1/2 of the Wietrzykowski judgment.

Once the defendant pays his 1/2 of the principal and

interest of the Wietrzykowski judgment, said lien

shall be released from the realty.

E) The defendant shall further receive any

retirement benefits in his name (this is in con-

sideration for the personalty which the plaintiff

removed from the marital residence which included

the defendant’s non-marital property as set forth

in defendant’s exhibit I previously admitted into

evidence)

F) The defendant shall receive the dissi-

pated funds which were given to his parents from the

Nicolosi escrow account.

G) Other than as heretofore indicated the

parties are further ordered to be solely responsible

4a

for any debts in their individual names and to hold

the other party harmless on the collection of same.

Such debts being incurred subsequent to their sepa-

ration in 1994.

H) Each of the parties shall be responsible

to pay for his or her own attorney’s fees,

WHEREFORE, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED AS FOLLOWS that

the provisions of Paragraph 1 through 12 (A-H) above

are hereby the Order of this Court, and the Court

specifically reserves jurisdiction to ensure the en-

forcement of this Judgment Order.

Dated: 9/18/2001 Enter: Ils

JUDGE STEVEN NORDQUIST

DANIEL J. CAIN #3

SREENAN & CAIN, P.C.

Attorney for the Defendant

321 W. State St., Suite 803

Rockford, IL 61101

(815) 962-5490

5a

STATE OF ILLINOIS CIRCUIT COURT

SEVENTEENTH JUDICIAL CIRCUIT

[LOGO] FILED June 20, 2007

WINNEBAGO COUNTY COURTHOUSE

400 WEST STATE STREET

ROCKFORD, [LLINOIS 61101

PHONE (815) 319- 4803 * FAX (815) 963-2755

JOHN R. TRUITT

Associate Judge

Attorney Anne M. Vecchio Attorney Janet Fuenty

Sreenan & Cain 519 Main

321 West State Street, P.O. Box 368

Suite 700 Pecatonica, IL 61063

Rockford, IL 61101 Attorney Stanley Kaplan

Attorney David Mokotoff 500 Skokie Blvd.

426 Park Avenue East Northbrook. IL 60062

Highland Park, IL 60035

IN RE: THE MARRIAGE OF

DEBORAH ORLANDO COONEY, f/k/a ORLANDO

and

LORENZO ORLANDO

Case No. 1993 D 1332

6a

MEMORANDUM OF DECISION

Counsel:

INTRODUCTION

This case came on for hearing which commenced

June 4, 2007 on the Counter-Petition for Change of

Custody filed by the Respondent, Lorenzo Orlando.

This Counter-Petition was filed November 19, 2001.

When the judgement for dissolution of marriage was

entered, sole custody of the parties’ two minor

children was awarded to Petitioner, Deborah Orlando

Cooney. More than two years had elapsed from

the time the judgement order awarded Petitioner

sole custody and the filing of Respondent’s Counter-

Petition for Change of Custody. By court order dated

June 15, 2005, pursuant to an Emergency Motion

to Modify Custody, custody was transferred to the

Respondent, Lorenzo Orlando. Custody of the two

minor children has been with the Respondent, Lorenzo

Orlando, since the entry of that order, June 15, 2005.

The parties two minor children are Christopher

Orlando who will be eighteen years of age in Septem-

ber, 2007 and Jonathan Orlando who will be sixteen

years of age in December, 2007.

CUSTODY MODIFICATION

The court has considered the testimony of the

witnesses, all exhibits which were offered and admit-

ted into evidence and those pleadings for which the

Court was asked to take judicial notice.

In considering the testimony of the witnesses, the

Court can evaluate the temperament, personalities

and demeanor of the witnesses. The Court found

the Respondent, Lorenzo Orlando, to be a credible

witness. He appeared through the Court’s observa-

7a

tions to testify truthfully. The Court found the Peti-

tioner, Deborah Orlando Cooney, to be less credible.

Her answers were often evasive and she appeared

defensive. The Court found Petitioner’s father, Dr.

Raymond Wietrzykowski, to not be a credible wit-

ness. One illustration of this point was his testimony

regarding his reason for stopping at the Logli

Supermarket on East State Street in Rockford. (A

convenient pit stop and good salad bar). There was no

Court Order prohibiting Dr. Wietrzykowski from

contacting the parties minor children at those times

he stopped at Logli’s Supermarket. The more credible

explanation would have been that he, in fact, stopped

at Logli’s Supermarket for the purpose of visiting

Christopher. The Court found all other witnesses to

be credible and that they testified to the best of their

knowledge and belief.

The Respondent, Lorenzo Orlando bears the bur-

den of proving by clear and convincing evidence that

a change has occurred in the circumstances of the

child or his custodian and that the modification is

necessary to serve the best interest of the children.

The Court must first determine whether a change of

circumstances exists as to warrant a review of the

best interest issue. The Court does find that such

a change of circumstances has been established.

Specifically, both parties have remarried and Peti-

tioner Deborah Orlando Cooney has a child with her

present husband. The parties’ minor children are now

nearly eighteen years of age (Christopher) and fifteen

and one half years of age (Jonathan). There is

evidence that the Co-Parenting Agreement entered

into between the parties on June 8, 1999 has not

been complied with specifically with regard to certain

provisions dealing with the areas of education, medi-

cal and health care and visitation as will be more

8a

fully discussed below. Finally, subsequent to the

original judgement order granting sole custody to

Petitioner, custody was transferred to Respondent by

Court Order dated June 15, 2005 which further

provided that Petitioner was to have no contact or

visitation with one of the parties minor children,

Jonathan Orlando, until further Order of the Court.

The Court having determined that there has been a

change in circumstances since the prior judgement

must next evaluate whether a modification is neces-

sary to serve the best interest of the children. The

Court has considered all relevant factors, including

those statutory factors set for in 750 ILCS 5/602.

As is often the case, the preference or the wishes of

the parents as to custody is of little assistance to the

Court. Each party wants to have custody of their

minor children.

As to the wishes of the children as to their custo-

dian, both Christopher Orlando and Jonathan Orlando

were interviewed separately pursuant to 750 ILCS

5/604. All counsel and a court reporter were present

for those interviews. The Court found both boys to

be forthright, open and honest. Both boys were

unequivocal in their preference and their desire to

continue living with their father, the Respondent as

their custodian. The Court believes their desire to

continue to reside with their father is based upon

reasons related to their best interest, including the

following:

The boys stated that they now had a good family

and a good relationship with their father; that

they felt safe; that life was now normal; that life

when they were living with their mother was the

opposite; that they were achieving good grades in

9a

school and that they were involved in activities

at school, including sports; and that it would be

insane to return their mother as custodian after

years of abuse and neglect. Jonathon readily

admitted in his interview that he got bad grades

when he was residing with his mother.

Christopher said that when he was living with

his mother he was at every hospital and he

thought he was going to die.

Based upon the boys’ ages, maturity, and a sound

basis for reasons for their desire to continue to reside

with their father as their custodian, the Court gives

serious weight to this factor.

As to the interaction and the interrelationship of

the boys with their parents, siblings and any others

who significantly affect the boys best interest, there

was evidence that the boys engage in a number of

activities with their father and his spouse including

biking, bowling, hunting and scuba. There was

evidence that the boys have a close relationship with

their father and the boys felt that they could go to

their father to talk. There was also evidence that the

boys have a good relationship with Respondent’s

spouse, Laurie Orlando as well as Respondent’s

parents, the boys paternal grandparents whom they

see on a frequent basis. Lorenzo Orlando readily

admitted that he was neglectful of the boys when

they were young and that his conduct was inap-

propriate. The Petitioner discussed her interaction

and her interrelationship with the boys, which she

described as relatively close. She discussed a typical

day when she had sole custody of the boys including

school, eating together as a family, making sure that

homework was done, reading and talking. She also

discussed the relationship between the boys and her

ANa

parents, their maternal grandparents, as very good

and included activities of boating, camping trips and

talking in general. There was no evidence adduced as

to the interaction and the interrelationship between

the boys and the Petitioner’s present spouse, Edward

Cooney. However there was evidence that their

exited a good relationship between the boys and their

step-sister, the daughter of the Petitioner with her

present spouse.

Regarding the children’s adjustment to their home,

school and community, the Court finds that the boys

have adjusted very well to their home and school

since the transfer of custody on June 15, 2005. While

Jonathon had some problems related to conduct and

demerits during the first year after the transfer of

custody, the 2005 -2006 school year, he seems to be

doing very well in school this year. As previously

mentioned, he is involved in sports and has obtained

awards related to football. The Court further finds

that Christopher is doing well in school since the

time custody was transferred on June 15, 2005 with

hardly any absences from school. He is also involved

in extra-curricular activities including track. The

boys adjustment in the home with their father has

previously been discussed in considering an earlier

factor.

As to the mental and physical health of all in-

dividualz involved, there was a tremendous amount

of evidence presented at the time of trial on that

subject. Both boys continue to counsel with Mr. Brian

Klaung, a clinical social worker. He has also coun-

seled with Lorenzo Orlando and his wife in family

sessions. Mr. Brian Klaung testified that in his

opinion the boys would be at risk if custody is

returned to Petitioner, their mother. Specifically, he

Ilo

sia

testified his concerns include Christiopher feigning

illness and that Jonathon would become enraged,

act out and end up in the criminal justice system.

Much was made throughout the trial as to whether

Christopher’s ailments were real or perceived by him

and/or perceived by his mother, the Petitioner.

The Court does not believe it necessary to determine

from the testimony whether, in fact, Munchausen’s or

Munchausen’s Syndrome by Proxy exits in making its

custody determination. Dr. Jaffee and Dr. Rossiter

are in disagreement on that point. However, the

Court will note that it is significant that Chris-

topher’s doctor and hospital visits have decreased

dramatically since the time custody was transferred

to his father on June 15, 2005. It is also significant to

this Court that when Petitioner disagreed or took

exception to a doctor’s diagnoses as to a medical

condition of Christopher, she would seek out and

consult other doctors. This situation occurred a num-

ber of times. Both boys appeared to this Court to be

happy and healthy at the present time in their

present situation.

As to physical violence or threat of physical vio-

lence by the children’s potential custodian, their was

evidence presented at trial regarding an incident

between the Respondent and the Petitioner’s present

spouse, Edward Cooney. The Court would point out

that this single incident involving Edward Cooney

wherein Respondent is alleged to have grabbed Mr.

Edward Cooney by the throat is remote in time and

the Court places little significance on that incident.

There were also allegations from Petitioner that dur-

ing the course of the marriage, Respondent was often

times verbally abusive toward her. Again, that verbal

abuse is remote in time, when the parties were still

married before 1999.

12a

As to the occurrence of any on going abuse, there

was evidence that the Respondent illegally taped

phone conversations with the Petitioner. He was

subsequently charged and plead guilty to a criminal

offense of attempt eavesdropping. While that is a fact

considered by the Court, it is not given significant

weight as it pertains to the best interest of the

children. There was also evidence that at the time

of the incident between the Respondent and Mr.

Edward Cooney, the Respondent had an Order of

Protection against him. That fact is considered by the

Court but not given significant weight as to the best

interest of the children.

As to the willingness and ability of each parent to

facilitate and encourage a close and continuing rela-

tionship between the other parent and the children,

there was little or no evidence produced at trial as

to the willingness and ability of the Respondent,

Lorenzo Orlando, to facilitate and encourage a close

and continucus relationship between the Petitioner

and the boys. There is credible evidence before the

Court that Petitioner, when she was the sole cus-

todian, unreasonably denied or attempted to deny

visitation and frustrated visitation between the boys

and the Respondent, Lorenzo Orlando. One example

illustrating this point is the incident wherein Peti-

tioner obtained an Order of Protection against the

Respondent in Cook County on June 4, 2004, two

days after the Court in Winnebago County entered an

Order setting forth a summer visitation schedule on

June 2, 2004. There is evidence in the record that

Petitioner failed to comply with the co-parenting

agreement beyond the visitation issues. Competent

testimony was presented that she, as the custodial

parent, did not promptly transmit to the Respondent

information regarding the boys school activities, in-

13a

cluding paren! teacher meetings. When asked by her

Counsel whether Respondent was advised of medical

treatment rendered to the boys, specifically Christo-

pher, Petitioner’s answer was that he would get the

EOB’ s. Later she testified that she always notified

the Respondent of the boy’s medical treatment. The

Court does not find that testimony credible in light of

the fact that Respondent testified that he was not

familiar with the names of the boys medical doctors,

specifically their family doctor. There is also evidence

in the record that the Petitioner alienated or at-

tempted to alienate the boys from their father, the

Respondent. One such incident involved an accusa-

tion by Petitioner that the Respondent had attempted

to poison or kill Christopher. There is no doubt in

this Court’s mind that if custody was returned to her,

the Petitioner would not facilitate or encourage a

close and continuing relationship between the boys

and the Respondent. In fact, she would do just the

opposite.

Basea upon all of the evidence in this case, the

Court finds that it is in the best interest of Christo-

pher Orlando and Jonathon Orlando that permanent

custody be modified and the Court grants the

Counter-Petition for Change of Custody. The physical

custody of the children is awarded to the Respondent,

Lorenzo Orlando.

VISITATION

As previously set forth, the Court conducted an

interview of both boys in chambers separately, with

all counsel and a court reporter present. During the

course of that interview, the Court ascertained the

wishes as to Christopher and Jonathan as to visita-

tion. Specifically, Christepher and Jonathan were

asked of their wishes as to visitation with their

l4a

mother if custody remained with their father. Again,

both boys appeared to be open and honest with the

Court. They did not appear the Court to be under any

duress or stress. There was no indication to this

Court that they had been coached or threatened in

any way, shape or form. Both boys answered un-

equivocally that they did not want to see. their

mother.

A non-custodial parent is entitled to reasonable

visitation rights unless the Court finds that visitation

would endanger seriously the child’s physical, men-

tal, moral or emotional health. Mr. Brian Klaung

testified that visitation should not occur between the

boys and their mother until her delusional disorder is

resolved. He testified that would require intensive

psychotherapy with an expert in the area of delu-

sional disorders which could take months or years.

He further testified that the effect of any contact

between the children and their mother without the

Petitioner receiving the necessary treatment would

include continued efforts on the part of the Petitioner

to alienate the boys from their father, the Respon-

dent. The Court believes that Petitioner would use

visitation to attempt to alienate the boys from their

father and that such conduct on the part of the

Petitioner would endanger seriously the boys’ mental

and emotional health. Furthermore, in Mr. Klaung’s

opinion, contact with their mother would impair the

treatment which the boys continue to receive. The

Court believes that any impairment to the treatment

which the boys continue to receive would endanger

seriously their mental and emotional health. Mr.

Klaung also testified that he wouldn’t recommend

supervised visitation because, in his opinion, no

person could supervise visitation adequately, given

the level of severity of abuse that has occurred

15a

between the Petitioner and her children. From all the

evidence presented in this case the Court finds that

visitation at this time between the Petitioner and her

children would endanger seriously the children’s

mental and emotional health. Visitation is denied

until such time as the Petitioner successfully under-

goes intensive psychotherapy and the boys have

progressed in their counseling or treatment to the

point that visitation would not seriously endanger

their mental or emotional health.

CONCLUSION

The Court will prepare an Order Granting Respon-

dent’s Counter-Petition for Change of Custody which

will incorporate this Decision as the Order of the

Court. The Order will also release the transcripts of

the minor interviews which were previously ordered

sealed.

Sincerely,

ES

John R. Truitt

Associate Judge

17th Judicial Circuit

16a

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT

WINNEBAGO COUNTY

[Filed 6/20/07]

Case No. 1993 D 1332

IN RE: THE MARRIAGE OF DEBORAH ORLANDO COONEY,

A/K/A ORLANDO

and

LORENZO ORLANDO

ORDER

This matter came on for hearing on Respondent’s

Counter Petition for Change of Custody from June 4,

2007 through June 14, 2007, Petitioner, Deborah

Orlando Cooney present throughout the hearing

with counsel Attorney David Mokotoff and Attorney

Stanley Kaplan, Respondent Lorenzo Orlando pre-

sent and with counsel, Attorney Anne Vecchio and

Attorney Janet Fuenty present as the child repre-

sentative.

NOW THEREFORE, IT IS ORDERED,

ADJUDGED AND DECREED AS FOLLOWS:

1. Respondent’s Counter-Petition for Change of

Custody is heard and granted.

2. That the Decision of this Court dated June

20, 2007 is incorporated as the Order of the

Court.

17a

3. That the transcripts of the interviews of

Christopher Orlando and Jonathan Orlando

previously ordered sealed, shall be released.

DATE: 6-20-07 ENTERED: //s

John R. Truitt,

Associate Judge

18a

APPEAL TO THE APPELLATE COURT FROM THE

CIRCUIT COURT OF WINNEBAGO COUNTY,

ILLINOIS DOMESTIC RELATIONS DIVISION

[Filed 7/31/2007]

No: 93D1332

IN RE: THE MARRIAGE OF DEBORAH ORLANDO COONEY

Petitioner,

Vv.

LORENZO ORLANDO

Respondent.

NOTICE OF APPEAL

Petitioner, Deborah Orlando Cooney, by and

through her undersigned attorney, Stanley F.

Kaplan, of Stanley F. Kaplan, P.C. hereby appeals to

the Appellate Court of Illinois, Second District, from

the order entered on July 26, 2007, in the Circuit

Court of Winnebago County, Illinois, Judge John R.

Truitt presiding, denying the Petitioner’s motion for

rehearing and reconsideration of the order entered

on the 20th day of June, 2007, granting the petition

of Lorenzo Orlando for custody of the two minor

children.

Dated: July 30, 2007

STANLEY F’. KAPLAN

Attorney for Deborah Orlando Cooney

500 Skokie Blvd., Suite 350

Northbrook, Illinois 60062

847-849-4800

Atty Code: 6318

19a

APPENDIX B

THIS APPEAL INVOLVES A QUESTION OF

CHILD CUSTODY, ADOPTION, TERMINATION

OF PARENTAL RIGHTS OR OTHER MATTER

AFFECTING THE BEST INTERESTS OF A CHILD

IN THE APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

[Filed September 25, 2007]

No. 2-07-0758

IN RE: THE MARRIAGE OF DEBORAH ORLANDO COONEY,

F/K/A ORLANDO,

Petitioner-Appellant,

and

LORENZO ORLANDO,

Respondent-Appellee.

On Appeal from the Circuit Court of

Winnebago County, Illinois

Domestic Relations Division, 93 D 1332

The Honorable John R. Truitt, Judge Presiding

Judgment entered June 20, 2007

Order Denying Post-Trial Motion entered July 26, 2007

Notice of Appeal filed July 31, 2007

20a

BRIEF OF PETITIONER-APPELLANT

Thomas A. Zimmerman, Jr.

Hugh J. Green

Zimmerman Law Offices, P.C.

100 West Monroe Street

Suite 1300

Chicago, I]linois 60603

(312) 440-0020

Counsel for Petitioner-Appellant

ORAL ARGUMENT REQUESTED

2la

THIS APPEAL INVOLVES A QUESTION OF

CHILD CUSTODY, ADOPTION TERMINATION

OF PARENTAL RIGHTS OR OTHER MATTER

AFFECTING THE BEST INTERESTS OF A CHILD

IN THE APPELLATE COURT OF ILLINOIS

SECOND JUDICIAL DISTRICT

[Filed 9/25/07]

—-- ee

No. 2-07-0758

IN RE: THE MARRIAGE OF DEBORAH ORLANDO COONEY,

F/K/A ORLANDO,

Petitioner-Appellant,

and

LORENZO ORLANDO,

Respondent-Appellee.

On Appeal from the Circuit Court of

Winnebago County, [llinois

Domestic Relations Division, 93 D 1332

The Honorable John R. Truitt, Judge Presiding

Judgment entered June 20, 2007

Order Denying Post-Trial Motion entered July 26, 2007

Notice of Appeal filed July 31, 2007

BRIEF OF PETITIONER-APPELLANT

22a

POINTS AND AUTHORITIES

PAGE (S)

EAs Ge Te Re wieretecensssceseseceovesccescoevess

ISSUES PRESENTED FOR REVIEW ...............

JURISDICTIONAL STATEMENT. .....................

Illinois Supreme Court Rule 303.....................

STATEMENT OF FACTS .......ccccscsccsssessccccssssseees

_ TI SEN NE

ics siccscsendenisedisubeuuseensbe

ye FS + | on

Ee N 7-9, 12

IID sndcneincctsccecenitvassnisiactvercnesntines 7

aia iticiisnsennsttdccintesinetinaanitinibmieniioaens 13

I. LORENZO’S COUNTER-PETITION

FOR CHANGE OF CUSTODY IS A

NULLITY.

Fe ED vitienstesericiecicinngdeciveveumnetiniouns 13-14

Fischer v. Senior Living Properties, LLC 329

Ill.App.3d 551 (4th Dist. 2002)..................00 13-14

Il. THE CIRCUIT COURT ERRED IN

ENTERING AN EMERGENCY

ORDER OF PROTECTION AGAINST

DEBORAH, AND IN REPEATEDLY

EXTENDING THE EMERGENCY

ORDER.

A. The Right to Raise Children is

Constitutionally Protected.

NI nourwwowiwn -&

Troxel v. Granville 530 U.S. 57 (2000)................... 14

23a

Stanley v. Illinois, 405 U.S. 645 (1972)........... 14-15

Meyer v. Nebraska, 262 U.S. 390 (1923) ........ 14-15

Skinner v. Oklahoma, 316 U.S. 535 (1942)............ 15

May v. Anderson, 345 U.S. 528 (1953) ................... 15

Griswold v. Connecticut, 381 U.S. 479 (1965)........ 15

In re George O. 314 Ill.App.3d 1044 (2000) ........... 15

B. The Circuit Court Erred in the

Issuance of the Emergency Order of

Protection on June 15, 2005, Without

a Showing of Good Cause.

1. Statutory Requirements for the

Issuance of an Emergency Order

of Protection.

ibis ccdcvcdenueshdecohusedssdnenesecnanten 15

Fe EE ixeuincccececcesssvessvenscctuccqecsesecovens 15

ee ID cna secansccsocsesvencncevatavcsnaceseseses 15

In re Marriage of Fischer 228 Ill.App.3d 482

(QI mcieentinn Siscealannlnea a eintaislidainiidiaipitinens 15

2. The Circuit Court Erroneously

Issued the Emergency Order of

Protection on June 15, 2005, in

Violation of Illinois Statutory

Requirements.

ee I ated desc ccscycasshnsseneeredvenvbecsosscecenyess 16

C. The Circuit Court Erred in Repeat-

edly Extending the Emergency Order

of Protection Against Deborah With-

out a Motion or Hearing, After It

Had Expired, and Not “in Open

RINNE deh sninh cic bschscagisisinosiaonidetineuresdanstes

24a

1. Statutory Requirements for

Extending an Emergency Order of

Protection.

Fe ea ET oi iniesiccsiconiceroisdantnsdecteneeoteiecopabeoniones 16

Fe BE ike fa ciiciconctn sds natcbindanindblactnvniaevadionl 16

2. The Circuit Court Erroneously

Extended the Emergency Order of

Protection, in Violation of Illinois

Statutory Requirements.

Se CEA rican nntannntintigseencmcvrnnvivinnns 17

D. The’ Circuit Court Committed

Procedural Due Process Violations in

Issuing and Extending the

Emergency Order of Protection.

Lyon v. Department of Children and Family

Services, 209 111.2d 264 (2004)... ee. 18

Matthews v. Eldridge, 424 U.S. 319 (1976)............ 18

E. The Erroneous’ Entry of the

Emergency Order of Protection, and

the Erroneous Extensions of the

Order, Tainted the Outcome of the

Ford v. Marteness 368 Ill.App.3d 172 (4th

ea: Te ccceaninsislaiastacsiveccuunnacedenibadiaaiialana lta ntnea dais 18

Ill. THE CIRCUIT COURT ERRED IN

TRANSFERRING CUSTODY OF THE

PARTIES’ MINOR CHILDREN TO

LORENZO

A. Statutory Requirements for Granting

a Change of Custody.

| EE ene ITO LIE IE TT 20

25a

IE i... de necahssnnntaedandonaniiinonaseiliapeoaciiaabaee 20

ID icnicklscsiaievcecmmnmiormasishenbasineneaae 20

ND ses tiessnisscasensicesacinnssoxaeceesaeienmeenian 20

Fe I crib acctenighesecamlsteretanncnsoniies 20

B. The Circuit Court Erroneously

Granted the Emergency Petition for

Change in Custody, in Violation of

Illinois Statutory Requirements.

1. The Circuit Court Errea in

Entering a No Contact Order

Denying Deborah Any Contact or

Visitation with Her Two Minor

Children, Without Affording

Deborah a Hearing.

Be Se I teinbniteertechicornaan vemtnnen 21

2. The Circuit Court Erred in

Entering an Order Granting

Lorenzo’s Emergency Petition to

Modify Custody Without the

Requisite Findings to Support

Such an Order.

Se SRI NS -itenitbtidindacidanedthnialasaiinecabeniineen 21

3. The Circuit Court Erred in

Failing to Provide to Deborah the

Investigator’s Report at Least 10

Days Prior to the Custody

“Hearing” (on June 15, 2005).

I ukacninendcicccccommcieniadibaeendaaehinnin 21-22

ee ITS iriinncirasccsntsensmnuelansceccumsinmbe 21-22

26a

C. The Circuit Court Committed Consti-

tutioma! Procedural Due Process

Viola*‘ons in Granting an Emergency

Change in Custody of the Parties’

Children.

Lyon v. Department of Children and Family

Services, 209 I1].2d 272 (2004) ............... ee 22-23

Matthews v. Eldridge, 424 U.S. 333 0.0.0.0...

D. The Erroneous Entry of che

Emergency Order Changing Custody

and Barring Deborah From Any

Contact With Her Children Tainted

the Outcome of the Trial .......... Repaeecrero 23

IV. THE CIRCUIT COURT APPLIED THE

WRONG STANDARD AT TRIAL CON-

CERNING CUSTODY.

TOO TRA Bie eR ickctsicitibcaciesieeb tae

Williams v. Staples, 208 I1l.2d 480 (2004) .............

A. The Standard for a Change in

Custody Within Two Years of the

Last Custody Judgment is Clear and

Convincing Evidence of Serious

Endangerment to the Child.

THO TAA GR cissinscesicninsanitincmaeaamad

B. The Circuit Court Erred by Applying

the Wrong Standard.

i | 24-

TED TEAS GID viccccrevensevesscesnetenninliaaailaanaan

V. THE CIRCUIT COURT ABUSED

ITS DISCRETION IN GRANTING

LORENZO’S COUNTER-PETITION

FOR CHANGE OF CUSTODY.

27a

In re Marriage of Batchelor, 89 Ill.App.3d

a is ons sire dumnzinpgoduokeuubsunan 26

In re Marriage of Gordon, 233 I1l.App.3d 617

I oes ovwieene¥ctapssacsnonvaunanduueduvdessntnees 26

Naylor v. Kindred, 250 Ill.App.3d 997 (4th

iia scssklonskctersuncipelieisceuaaouauenauanreisn 26

EERE a eR EE RE oC 26

In re Marriage of Valliere, 275 Ill.App.3d

SERED BIUUE. BOD)... oc cecevesoseenssconnersececoes 26-27

A. There Was No Clear and Convincing

Evidence of a Change in

Circumstances.

i ie lest ncanaaniales 28

In re Marriage of Cesaretti, 203 Ill.App.3d

NU, BONED ooo csi cnnenoncadevuiesecesenscstocewondevns 28

In re Marriage of Valliere, 275 Ill.App.3d

I, BID i. scira vntrnncs dcbivian cswiains vonteaconenion 28

Herron v. Herron, 74 Ill.App.3d 748 (1st

i a le hat aaah al 28

SSE A rene eee ae aan aeeee ee 28-29

B. There Was No Clear and Convincing

Evidence That Modification of

Custody Was in the Best Interests of

the Children.

Lloyd v. Lloyd, 92 Ill.App.3d 124 (1980) .........0..... 29

In re Marriage of Stuart, 141 Ill.App.3d 314

a ia. is nis igiuesoaccotrvealoedanmiigenncanansireel 30

In re Marriage of Gustayson, 247 I)l.App.3d

I I ois gscsrncinnicnccuiipaviiesbiceutnnselaseeaiiakacese 30

28a

In re Marriage of Batchelor, 89 Ill.App.3d

Fe te Mec Fs anion sSeoeeicdndcarsesch cece

People v. Dizney, 26 Ill.App.3d 45 (2d Dist.

VI. THE CIRCUIT COURT ABUSED ITS

DISCRETION IN ENTERING

JUDGMENT DENYING DEBORAH

ANY VISITATION WHATSOEVER OF

THE PARTIES’ MINOR CHILDREN.

In re Marriage of Diehl, 221 Ill.App.3d 410

Ce ID ind eich stil nciaseSdlanteadecnaibentaneenevens

In re Marriage of Anderson, 130 II].App.3d

I i es kane

FT ides asivesishnss dtexisesentemiatibecniisceaan

Fi IE Siitesisicbd ekcsusbecantavredasseemawebiicdn

AU See I Es iicsrincsicreeviecnrtensansonenvbackeguirmtppeviienicns

In re Marriage of Neat, 101 Ill.App.3d 1046

(20 Ts ee Sti icrrarans ain 33-

A. As a Clinical Social Worker,

Lorenzo’s Controlled Expert Witness

Brian Klaung was Not Qualified to

Render a Diagnosis of Mental Illness

Under Illinois Law, Much Less to

Overrule the Findings of More

Eminently Qualified Medical

Professionals.

Snelson v. Kamm, 204 Ill 2d 1 (2003) .......... eee

Ne I rasscnicisitnce sks ctsaipecineietionsesdainmpesseksplaeouniag

ID ie sicésnir cai oncadirekturcvansncstauunvasiade otuedabeae

People v. Caffey, 205 Ill 2d 52 (2001) ........ ce.

29a

People v. Armstrong, 186 I11.2d 130 (1998) 35

3 RANT ene PICEA p LONER See Te 35

BE BE eiseniiikecstisserraivessesatencomncinmats 35-36

PN hai ckes cae ds 0k Sevlniseincsnivsespacibiiantvcmusniaall 35

a IE cha: shsninshcmancagavagieniwisuareakesines 36

People v. Kastman, 335 Ill.App.3d 87 (2d

| EES ier rer ores meer eiten ork eee nee el ene 36

68 Illinois Administrative Code §1470(a)(1) ......... 37

I iia ssh ccaada biancneuuideiegscabees wadaiknbeiiil 37

a IN IR chitin ccdknchsd anc hantadaninceaicesldcse wanes 37

B. Assuming, arguendo, that the Circuit

Court did Not Abuse Its Discretion in

Admitting the Improper Opinion

Testimony of Brian Klaung, Its

Heavy Reliance on His Opinions

Render Its Decision Erroneous.

Bd. Of Educ. Of Community High Sch. Dist.

No. 218 v. Vill. Of Robbins, 327 [ll.App.3d

Le RG RRO rom IT ea Os sr 38

In re Marriage of Neat, 101 Ill.App.3d 1046

Ee I iinet etc cede ssenaacnctanace 39

VII. THE CIRCUIT COURT ERRED IN

DENYING DEBORAH’S MOTION FOR

VOLUNTARY DISMISSAL.

Fe re I wins nett ens incicimniereciencintebiniennnnes 40

In re Marriage of Manns, 222 Ill.App.3d 338

CN SID Siisihccicssiccccuseiacidscceecaiebeaniamanouianieonte 40-41

Rohr by Rohr v. Knaus, 153 Ill.App.3d 1013

GE Is BPSD Siscnsaietstucsnicsspacdaaicacnivemaremanereotialt 41

30a

City of Palos Heights v. Village of Worth, 29

Ill. App.3d 746 (1st Dist. 1975) ...........-e.0s0-se----

Morrison v. Wagner, 305 Ill.App.3d 885 (4th

ii taberientniiniancedsenninmincersccotesccoeres

In re Marriage of Mostow, 95 Ill.App.3d 915

i a iaiecihcpiceidinsinncwncensarseovesenecones

VIII. THE CIRCUIT COURT ERRED IN

DENYING DEBORAH’S MOTIONS

TO TRANSFER VENUE TO COOK

COUNTY. |

A. The Circuit Court Erred In Failing

To Transfer This Matter to Cook

County Where a Prior Filed Action

Was Pending.

Zurich Ins. Co. v. Baxter Int'l Inc., 173 Il.2d

ee liidnbaciainernimiesswcscieweninncicecsenee

In re Marriage of Snider, 305 Ill.App.3d 697

i iiiiilactichccdatecenciieseeacasssencenenovonens

In re Marriage of Leopando, 6 111 2d 114

Se ieisiieencicicmierinncesveesarensasees

In re Marriage of Duff, 223 Ill.App.3d 889

EE

B. The Circuit Court Erred In Denying

Deborah’s Motion to Transfer this

Matter to Cook County Under Forum

Non Conveiens.

1. The Circuit Court Erred In

Denying Deborah’s Motion to

Transfer Venue Based Upon the

Parties’ Changed Circumstances.

Dawdy v. Union Pac. R. R. Co., 207 I[1l.2d

EEE

3la

W.R. Grace & Co. v. Beker Industries. Inc.,

128 Ill.App.3d 215 (1st Dist. 1984) .............. 45-46

Eads _ v. Consolidated Rail Corp. 365

TH AO.B8 TS CIBE Dist. BOGS) «..00...cccccecsccccccosesseee 45

2. The Circuit Court Erred In

Denying Deborah’s Motion to

Transfer Venue To Cook County,

Pursuant to Section 750 ILCS

5/512(b).

pera cispicictnuinssessvescnnsssincseocserescesess 46

In re Marriage of Pavelcik, 138 Ill.App.3d

Se BU irscscasscciicsscccccsecrsesscersess 46-47

C. The Circuit Court Erred In Failing

To Transfer This Matter to Cook

County, Pursuant to 735 ILCS 5/2-

1001.5.

De I a vscdicccessuevessenvenssesessnvsssseossrscess 47

Gouker v. Winnebago County Bd. Of Sup’rs.,

Be NG Dy vvnce ssc cevessasdavenccsensdscrccscceseaceses 47

In re Marriage of Cummins, 106 Ill.App.3d_ -

a os iiavcanssunetcsvetcenstcuvescsesess 48

Rosewood Corp. v. Transamerica Ins. Co., 57

ec caivcdecsunbarabedbcssvecavivessoncees 48

Joseph v. Joseph, 15 Ill.App.3d 714(ist Dist.

gnc fa dee ev bkeseviencvaavensesesere 48

Palmisano v. Connell, 179 Ill.App.3d 1089

eee Vi phsiieilensanvuusivvvdvievesctvonsnesses 48

Sansonetti v. Archer Laundry, Inc., 44

Ill.App.3d 789 (1st Dist. 1976) ................cccceeeeees 48

ee dik cckcbabpuaswiruerssssevasessres sees 49

32a

NATURE OF THE CASE

Petitioner-Appellant Deborah Orlando Cooney

(“Deborah”) and MRespondent-Appellee Lorenzo

Orlando (“Lorenzo”) were once married to each other.

This matter arises out of the parties’ divorce

proceedings. In 1993, Deborah filed a Petition for

Dissolution of Marriage in Winnebago County,

Illinois; thus, initiating the underlying matter. In

1997, Deborah filed a Petition for Dissolution of

Marriage in Cook County, and pursuant to an

impending motion for voluntary dismissal of the

underlying matter in Winnebago County (which was

granted). Thereafter, Lorenzo filed a Counter-

Petition for Dissolution of Marriage in the dismissed

underlying matter, and a Motion to Reconsider the

circuit court’s grant of Deborah’s voluntary dismissal.

The circuit court reconsidered its order, denied

Deborah’s Motion for Voluntary Dismissal, and

reinstated the matter. Thereafter, Deborah filed

various motions to transfer the matter to the Cook

County, but the circuit court denied transfer and

Deborah withdrew the Cook County divorce petition.

Judgment for Dissolution of Marriage (dissolving

the bonds of marriage) was entered in the underlying

matter in 1998, with all remaining issues reserved.

Temporary sole custody of the parties’ two minor

children was awarded to Deborah in 1999, pursuant

to a co-parenting agreement. On September 18, 2001,

judgment on permanent custody and the remaining

financial issues was entered by the circuit court. That

judgment was timely appealed.

While the judgment was on appeal, without leave

of court Lorenzo filed a Counter-Petition for Change

of Custody. The Counter-Petition was filed in

November 2001, approximately 2 months after the

33a

custody judgment. The appeal was subsequently

withdrawn.

In 2004, the circuit court appointed an investigator

to assist in its determination of custody. On June 15,

2005, Lorenzo filed a Petition for an Order of Pro-

tection against Deborah, and an Emergency Petition

for Change in Custody. That day, without notice or

hearing, the circuit court entered an Emergency

Order of Protection against Deborah (“EOP”), and an

emergency order modifying custody and awarding

custody of the parties’ minor children to Lorenzo.

Deborah filed motions to reconsider and vacate the

EOP and emergency order modifying custody. Those

motions were denied, and Deborah appealed the

denial of her motions. The appeal was dismissed for

lack of jurisdiction.

From June 2005 to December 2006, the circuit

court entered 30 orders extending the EOP. In

December 2006, the circuit court dismissed the

Petition for an Order of Protection, and vacated the

EOP entered June 15, 2005, but the court simultane-

ously entered an order banning Deborah from having

any contact with her boys.

Following a lengthy trial, on June 20, 2007 the

circuit court entered an order and Memorandum of

Decision (“MOD”) granting Lorenzo’s Counter-Peti-

tion for Change of Custody; thus, modifying

permanent child custody such that Lorenzo now has

sole custody of the minor children. In that order, the

circuit court also denied Deborah any visitation

whatsoever with her two minor children. Deborah’s

post-trial motion was denied, and this appeal

followed.

34a

ISSUES PRESENTED FOR REVIEW

Whether Lorenzo’s Counter-Petition for Change of

Custody is a nullity.

Whether the circuit court erred in granting

Lorenzo’s Petition for an Order of Protection and

entering an EOP against Deborah.

Whether the circuit court erred in repeatedly ex-

tending the EOP against Deborah.

Whether the circuit court erred in granting

Lorenzo’s Emergency Petition to Modify Custody and

entering an Emergency Order transferring custody of

the parties’ minor children to Lorenzo.

Whether the circuit court applied the wrong

standard at trial concerning custody. Whether the

circuit court’s findings at trial concerning custody

were against the manifest weight of the evidence.

Whether the circuit court abused its discretion in

entering judgment denying Deborah any visitation

whatsoever with the parties’ minor children.

Whether the circuit court erred in denying

. Deborah’s Motion for Voluntary Dismissal.

Whether the circuit court erred in denying

Deborah’s motions to transfer venue to Cook County.

JURISDICTIONAL STATEMENT

This Court has jurisdiction under Supreme Court

Rule 303. On June 20, 2007, the circuit court entered

judgment modifying permanent custody of the par-

ties’ minor children, and denying Deborah any

visitation whatsoever with the children. On July 17,

2007, Deborah timely filed her post-trial motion. On

July 26, 2007, the circuit court entered an order

35a

denying Deborah’s post-trial motion. On July 31,

2007, Deborah timely filed her notice of appeal.

STATEMENT OF FACTS

Deborah and Lorenzo were united in marriage in

1987 in Chicago, where they initially resided. How-

ever, Lorenzo’s job required the family to relocate to

Rockford sometime in 1989. Two children were born

to the marriage: Christopher on September 22, 1989,

and Jonathan on December 29, 1991. (Resp. Ex. 2,

p. 3)

Deborah filed a Petition for Dissolution of Marriage

in Winnebago County on November 17, 1993. (Vol. 1

of 6, R. C000001) The parties had separated in 1993

when Deborah discovered that Lorenzo was having

an affair with a young woman. (Resp. Ex. 2, p.3)

Lorenzo admitted that he had seriously neglected

Deborah and the boys during the years they lived

together. He attributed that conduct to his Italian

background. (Resp. Ex. 2, p. 6)

Shortly after their separation, Deborah began a

relationship with another person, Edward Cooney

(“Edward”). Deborah and Edward had a child

together, Caitlin, born in 1997. Deborah and Edward

subsequently married in 1999. Over the years,

Lorenzo went from one serious relationship to

another: Deborah Steffen in 1993 and 1994, Linda

Koeller between 1995 and 2000, and finally with his

present wife, Laurie, whom he married in 2002.

(Resp. Ex. 2, p. 3)

Throughout all this time, from the birth of their

children until the Emergency Orders entered by

Judge Nordquist on June 15, 2005 (Vol. 2 of 3,

R.0000467, R.0000481), Deborah was the primary

caretaker of the children. (Resp. Ex. 2, p. 3) Pursuant

36a

to the EOP entered on that day. (Vol. 2 of 3, R.

C000467), Deborah has had absolutely no contact

with her children (Tr. R. 002166-002167)—-not even

supervised visitation—up to and after Judge Truitt’s

MOD (Vol. 5 of 5, R. C001009) granting Lorenzo’s

Counter-Petition for a Change of Custody which had

been filed on November 19, 2001. (Vol. 6 of 6, R.

C000987)

On June 15, 1998, in agreed upon bifurcated

fashion, and based on Deborah’s Petition, the circuit

court granted dissolution of marriage, respecting the

bonds themselves, without addressing other issues

such as custody, maintenance and property distribu-

tion. (Vol. 5 of 6, R. C000876) Prior to that, on

September 17, 1997, Deborah filed a Motion to

Voluntarily Dismiss her Petition for Dissolution in

Winnebago County. (Vol. 4 of 6, R. C000640) At that

time she had been living with the children in Cook

County since 1996. (Tr. R002124). The Motion was

granted on September 18, 1997. (See, Para. 1 of

Stipulation of the Parties, filed in this Appeal). In

anticipation of that ruling, Deborah filed a Petition

for Dissolution in Cook County on September 15,

1997. (Vol. 1 of 3, R. CO00229; see also Cook County

Petition, contained in Appellant’s Supplemental

Record). Attorneys for the parties filed appearances

in that action pending in Cook County. (Vol. 5 of 6,-R.

C000798).

On September 22, 1997, Lorenzo filed a Counter-

Petition for Dissolution in Winnebago County (Vol. 4

of 6, R. C000643) while Deborah’s previously filed

Petition was still pending in Cook County. On

October 1, 1997, Lorenzo filed a Motion to Reconsider

the circuit court’s grant of the voluntary dismissal.

(Vol. 4 of 6, ROOO698). On November 24, 1997, the

37a

circuit court reconsidered its prior order granting the

voluntary dismissal, and denied Deborah’s Motion for

Voluntary Dismissal. (See, Par. 2 Stipulation of the

Parties, filed in this Appeal, and undated Order

attached thereto).

On November 25, 1997, Deborah filed her Motion

to Transfer Venue to Cook County for forum non

conveniens. (Vol. 5 of 6, R. C000797) Deborah

followed this up with a renewed Motion to Transfer

(Vol. 1 of 3, R. C000157, C000177). However the

circuit court denied transfer to Cook County. (Vol. 1

of 3, R. C000241). Deborah ultimately withdrew her

petition for dissolution pending in Cook County.

In early 1994, Judge Grubb, pursuant to 750 ILCS

5/604(b), appointed Thomas Dudgeon, Ph.D., a

clinical psychologist, to conduct a custody evaluation

and to advise the court (Tr. RO00187). Dr. Dudgeon’s

custody report was submitted on July 25, 1996. (Tr.

R000187). His recommendation was that Deborah

should be awarded sole custody of the children with

appropriate visitation for Lorenzo. (Tr. RO00227).

Previously, on January 26, 1996, Judge Grubb had

conducted an in camera interview with Christopher

who was then six years old. (Tx. RO00050-59). In

camera interviews with both boys, scheduled for June

17 and 18, 1998, were cancelled by Judge Nordquist.

(Vol. 5 of 6, R. C000875). On June 8, 1999, Judge

Nordquist, when the matter came on for status on

custody, entered an order granting Deborah

temporary sole custody of the boys subject to an

attached co-parenting agreement of the parties. (Vol.

6 of 6, R. C000926). The coparenting agreement

between the parties accompanied the order. (Vol. 6 of

6, R. C000918). On September 18, 2001, Judge

Nordquist issued the final judgment on permanent

38a

custody and the remaining issues in the case, which,

inter alia, incorporated the co-parenting agreement

and granted permanent custody of the children to

Deborah. (Vol. 6 of 6, R. CO000978). Deborah timely

filed a Notice of Appeal of that judgment. (Vol. 6 of 6,

R. C000981).

Prior to the Judgment for Dissolution in 1998 (Vol.

5 of 6, R. C000876) and the execution of the co-

parenting agreement in 1999 (Vol. 6 of 6, R.

C000198), matters had not proceeded smoothly

between the parties. There were numerous court

appearances dealing not only with custody and

visitation but also with property matters, mainte-

nance and attorney’s fees. In his testimony, Lorenzo

admitted to grabbing Edward by the neck sometime

back in 1992 or 1993, while at Deborah’s home to

pick up the boys. (Tr. RO002656, RO02739-41) Lorenzo

also admitted to trying to intimidate Edward by

threats and harassing phone calls. (Resp. Ex. 2, p. 6).

In 1994, Deborah charged Lorenzo with choking her

and trying to push her out of his truck. He was

acquitted of the charges by a jury when the State

failed to prove them beyond a reasonable doubt.

(Resp. Ex. 2, p. 6). And, on March 23, 1998, Lorenzo

plead guilty to attempted eavesdropping on Deborah,

a misdemeanor. Pursuant to plea negotiations, the

charge had been dropped from the felony crime of

eavesdropping for which he had been indicted. (Tr.

R000169-178).

Deborah filed a Petition for Removal, pursuant to

750 ILCS 5/609, in order to move to Ohio with the

boys. (Vol. 6 of 6, R. C000983). On November 19,

2001, Lorenzo filed his Response to the Petition for

Removal and, without leave of court, a Counter-

Petition for Change of Custody. (Vol. 6 of 6, R.

39a

C000987). For a few years prior to that time, a

reasonably stable schedule had evolved for the boys’

visitation with Lorenzo in Rockford. This had oc-

curred despite ongoing conflict between Deborah and

Lorenzo over various matters especially those involv-

ing financial disputes. (Resp. Ex. 2, p. 3). Deborah’s

Petition for Removal was ultimately denied by the

circuit court on August 29, 2002 (Vol. 1 of 3, R.

C000037), pursuant to its Memorandum of Decision

filed on August 5, 2002. (Vol. 1 of 3, R. C000029).

However, Lorenzo’s Counter-Petition for Change of

Custody remained pending.

On October 17, 2002, Ms. Kathryn Bischoff, Esq.,

was appointed by the circuit court to act as the

children’s representative, pursuant to 750 ILCS

5/506(a)(3). (Vol 1 of 3, R. CO00052). Ms. Bischoff was

present for the in camera interview with Christopher

on July 9, 2004. In that interview, Christopher

painted a very negative picture of his relationship

with his father. (Tr. RO00551, et. seq.). However,

Christopher was interviewed again on June 5, 2007

with Ms. Janet Fuenty (Ms. Bischoffs successor

child’s representative) being present. After a passage

of two years without having any contact with his

mother, Christopher now painted a very negative

picture of his relationship with Deborah. (Tr.

R002338, et. seq.).

On September 23, 2004, Lyle H. Rossiter, Jr., M.D.,

a forensic psychiatrist, was appointed by the circuit

court to do an “evaluation,” pursuant to 750 ILCS

5/605. (Vol. 2 of 3, R. C000375). The court order

specifically states that “the standards set forth under

Section 750 ILCS 5/605 apply to this order.” (Vol. 2 of

3, R. C000376). That statute speaks of an “investiga-

tion and report, concerning custodial arrangements

40a

for the child” which could be done by a child welfare

agency approved by the Department of Children and

Family Services. (See, Section 5/605(a)). This would

seem to contemplate what is often referred to as a

“home study.”

Dr. Rossiter submitted a report dated June 10,

2005. The report was submitted into evidence at

trial as “Resp. E.. 2” (Tr. R002123). In that report,

Dr. Rossiter made findings, conclusions, and recom-

mendations. He found, in part, that Christopher had

nothing good to say about his father and, by contrast,

Christopher could not say enough positive about his

mother. (Resp. Ex. 2, pp. 8-9). In perhaps further con-

trast, Dr. Rossiter had nothing good to say about

Deborah, enumerating 44 instances of what he per-

ceived to be her shortcomings. (Resp. Ex. 2, pp. 11-

13). With respect to Lorenzo, Dr. Rossiter found that,

despite his earlier history, Lorenzo had “emerged” in

1995 and the years since then, and that he has at-

tempted to repair his personal shortcomings through

devotion to the boys and by giving them as much love

and attention as he could. (Resp. Ex. 2, pp. 6-7). He

concluded, in part, that Deborah and her parents

should immediately seek individual and family

psychiatric evaluations for delusional disorder,

Munchausen’s-by-proxy syndrome and _. parental

alienation syndrome. (Resp. Ex. 2, p. 32). He recom-

mended that temporary custody of the boys should

be awarded to Lorenzo, and that visitation with

Christopher by Deborah and her parents should

initially be brief, closely supervised, and subject to

Christopher’s attending psychiatrist’s recommenda-

tions. (Resp. Ex. 2, pp. 31-32).

On June 14, 2005, the report was submitted to the

circuit court and the attorneys for the parties

4la

through Ms. Bischoff. On that day, the circuit court

issued a protective order that the lawyers were not to

release a copy of or any information concerning Dr.

Rossiter’s report to their clients. (Vol. 2 of 3, R.

C000463). As part of that same order, the circuit

court compelled the parties and the children to

appear in court on June 15, 2005, without any expla-

nation for the mandate. (Vol. 2 of 3, R. C000463).

On June 15, 2005, Lorenzo filed his Petition for an

Order of Protection (Vol. 2 of 3, R. C000464) and his

Emergency Petition for Change of Custody. (Vol. 2 of

3, R. C000478) Both Petitions were ostensibly based

on Dr. Rossiter’s report. In fact, the Emergency

Petition for Change of Custody refers to the findings,

conclusions and recommendations set forth in Dr.

Rossiter’s report. (Vol. 2 of 3, R. C000478). On June

15, 2005, the parties were then provided copies of the

report that they were to read while in court.

Deborah’s attorney objected on the basis of not

receiving 10 days notice pursuant to Section 5/605,

and that Deborah was being denied her statutory

right to cross-examine the witness. (Tr. RO00648).

The circuit court did not examine the Petitioner

(Lorenzo) under oath or affirmation nor make the

minimum required findings, as required by Section

5/605. The court simply referred to Dr. Rossiter’s

report which has “very serious and disturbing

conclusions and recommendations which I accept.”

(Tr. ROOQ0654). The circuit court then granted the

Petition and ordered the preparation of the EOP

itself. (Vol. 2 of 3, R. CO000467). When reminded that

he had not addressed the Emergency Petition for a

Change in Custody, the circuit court simply granted

the Emergency Petition without further ado. (Tr.

RO00659; Vol. 2 of 3, R. C000481) Suddenly, Deborah,

42a

who was the primary caregiver of her children since

their births, was now a non-custodial parent without

any visitation rights. Both orders were continued to

June 29, 2005. (Vol. 2 of 3, R. C000481-482).

Thirty extensions of the Emergency Order of

Protection were entered between June 29, 2005 and

December 12, 2006. On September 29, 2005, the

circuit court addressed Deborah’s Motion for a Re-

hearing and Reconsideration, filed on July 5, 2005,

(Vol. 3 of 3, R. C000513). Deborah’s attorney ques-

tioned how the extensions were being granted

without motions being filed, and whether the

extensions were really granted “in open court.” (Tr.

R000752). He argued that on one particular day,

August 23, 2005, the order extending the EOP recited

that all the parties were present in open court

when neither he nor his client were there—he was

attending a funeral in Chicago. (Tr. R000690).

Lorenzo’s attorney argued that he did not need a

motion to extend (Tr. RO00746), and that it did not

matter if the EOP was not extended in open court

(Tr. ROO0746). The children’s representative, Ms.

Bischoff, argued that it was permissible for the

circuit court to extend an Order of Protection on its

own initiative. (Tr. RO000722-733) The circuit court

denied Deborah’s motion to vacate the EOP. (Vol. 3 of

3, R. C000551)

Ultimately, on December 12, 2006, the circuit court

dismissed Lorenzo’s Petition for an Order of

Protection and vacated the EOP. (Vol. 2 of 5, R.

C000393). However, on that day the circuit court

simultaneously entered a “no contact” order barring

Deborah from having any contact with her boys. (Vol.

2 of 5, R. CO000295)

43a

At the custody proceedings before Judge Truitt

held on June 6, 2007, Lorenzo presented the

testimony of Brian D. Klaung, LCSW (“Klaung”). (Tr.

R002592). Over Deborah’s objection, Klaung, a

licensed clinical social worker, was allowed to testify

and render opinions as an expert. (Tr. R002408,

R002427) Klaung had been hired by Lorenzo on June

23, 2005 to provide counseling to Christopher and

Jonathan, shortly after the circuit court’s June 15,

2005 emergency orders. (Tr. RO02430). On June 23,

2005, Klaung spoke with Lorenzo and his then wife

who provided Klaung with a copy of Dr. Rossiter’s

report, as well copies of the divorce decree, and the

EOP, and their chronology of medical treatment and

various incidents that occurred from 1993 to the

present. (Tr. RO02435). On June 26, 2007, Klaung

met with the boys. Based on those two meetings, and

without yet having read Dr. Rossiter’s report, Klaung

came to the conclusion that Deborah should have no

contact with her children. (Tr. RO02480-2481). Dur-

ing the entire two years of his involvement with this

case, Klaung has never contacted or attempted to

interview Deborah, because “she was not my client.”

(Tr. ROO2534).

Klaung testified that he was “convinced with a

complete degree of certainty” that the “parental

alienation syndrome” as well as “Munchausen

syndrome by proxy” had occurred with Deborah, and

that a delusional disorder had resulted in Deborah.

(Tr. RO02436, RO0O2438-39) Klaung further testified

that he was “convinced within a reasonable degree of

medical certainty” that Deborah and her parents

were “delusional.” (Tr. R002451).

Klaung recommended that the boys’ have no con-

tact with their mother until she had undergone

44a

intensive psychotherapy, referencing Dr. Rossiter’s

report. (Tr. RO002508). When shown that Dr. Ros-

siter’s report recommended supervised visits, Klaung

admitted that he misinterpreted the report. (Tr.

R002509). However, he still did not agree with Dr.

Rossiter’s recommendation for supervised visitation.

(Tr. ROO2541). Klaung stood by his opinion that there

should not even be supervised visitation, because in

his opinion there was no person who possessed the

skills to supervise, due to the severity of the abuse

that has occurred. (Tr. R002443-2444).

Klaung never spoke with Dr. Rossiter (Tr.

R002487), nor Christopher’s treating physician, Dr.

Husain (Tr. RO002505), or Christopher’s treating psy-

chiatrist, Dr. Goslawski (Tr. R002506). Klaung

had only taken six hours of courses on ethics (Tr.

R002411) and cone course on the parental alienation

syndrome (PAS). (Jr. RO02412). He had not taken

any courses on Munchausen’s. (Tr. R002487). He was

unaware of a parenting skills test called ASPECT,

and thought it was a pain tolerance test. (Tr.

R002536). When asked whether the MMPI-II was one

of the top tests in the field of psychology, he

answered, “I’m not qualified. I am not a clinical

psychologist.” (Tr. RO002484).

In the circuit court’s MOD, Judge Truitt essentially

adopted all of the opinions of Klaung, and ordered

sole custody to Lorenzo with no contact (not even

supervised visitation), for Deborah. (Vol. 5 of 5, R.

C001009).

Judge Truitt applied the standard of “change in

circumstances and the best interest of a child,” rather

than the standard of “serious endangerment to the

child’s physical mental, moral or emotional health.”

(Vol. 5 of 5, R. CO01010).

45a

At trial, Dr. Rossiter testified substantially in

conformity with his report of June 10, 2005. He con-

cluded Deborah and her parents were afflicted with a

delusional disorder, parent alienation syndrome, and

Munchausen’s-by-proxy syndrome. While arriving at

the conclusions regarding Munchausen’s, Dr. Rossiter

admitted that he had only dealt with one or two such

cases.

Dr. Allen M. Jaffee, Psy.D., Professor of Psychiatry

at Northwestern University for the last 25 years, also

testified. He had administered the MMPI-II test to

Deborah in October of 2006. (Tr. RO03120) According

to Jaffee, the MMPI-II was a most reliable test for

psychological assessment. (Tr. RO03114)

While Rossiter’s appointment as a Section 5/605

investigator authorized him to have psychological

tests performed on the parties or children to explain

why the testing was performed or not performed, Dr.

Rossiter did not do so, explaining at trial that he did

not think it was necessary. He thought that the

MMPI-II test was a test of 350 or maybe 250

questions (Tr. RO003115) and that a person could be

coached to achieve better results. (Jr. RO03116)

Dr. Jaffee testified to the contrary, that the MMPI-

II was a test of 567 questions and never had as few as

only 350 (Tr. R003115), and that coaching could not

affect the results. (Jr. ROO3115) One of the scales

looks specifically for an indication of Munchausen’s

indicated by an elevated score. Deborah’s scere was

not elevated. (Tr. RO003136)

When asked about the ASPECT test, Dr. Rossiter

had only a general idea of what it was. (Tr. RO02855)

Dr. Jaffee explained that ASPECT was the Ackerman

Schoendorf Parenting Effectiveness for Custody Test

46a

that he administered to Deborah. (r. R003153). In the

field of psychiatry, ASPECT is considered very reli-

able. (Tr. RO003156-003157). The results for Deborah

were at a high level in terms of her ability to parent.

(Jr. ROO3157).

Dr. Rossiter spent no time with Deborah’s father

and only “some period of time” with Deborah’s

mother but concluded that all three had delusional

beliefs. (r. RO028292830) Dr. Jaffe thought that Dr.

Rossiter’s arriving at that conclusion after a 30

minute conversation was outrageous. (Jr. R003143)

Dr Husain was a treating internist of Christopher

for a year and a half prior to the time that Dr.

Rossiter completed his report, but Dr. Rossiter never

spoke to him. (Tr. RO002814-2815)

Dr. Goslawski was Christopher’s psychiatrist for a

year and a half prior to the time that Dr. Rossiter

completed his report (Tr. RO002817), but Dr. Rossiter

never spoke to him, either. (Tr. ROO2820)

ARGUMENT

I. LORENZO’S) COUNTER-PETITION FOR

CHANGE OF CUSTODY IS A NULLITY.

Lorenzo’s Counter-Petition for Change of Custody

is a nullity, as it was filed without leave of court

within 2 years »f the custody judgment, in violation

of 750 ILCS 5/610(a). The determination of the

validity and legal sufficiency of a pleading is re-

viewed de novo. Fischer v. Senior Living Properties,

LLC, 329 Tl.App.3d 551, 560 (4th Dist. 2002)

On September 18, 2001, judgment on permanent

custody and the remaining financial issues was

entered by the circuit court (Vol. 6 of 6, R. C000978).

Specifically, the judgment stated: “6. The parties

47a

hereto have previously entered into a joint parenting

agreement, which agreement is made a part of this

Judgment on Remaining Issues.” (Vol. 6 of 6, R.

C000978). That judgment was timely appealed (Vol. 6

of 6, R. C000981).

While the judgment was on appeal, on November

19, 2001 without leave of court Lorenzo filed a

Counter-Petition for Change of Custody (Vol. 6 of 6,

R. C000987). The Counter-Petition was filed within

two years of the custody judgment (it was filed ap-

proximately two months after the custody judgment).

750 ILCS 5/610(a) states:

Unless by stipulation of the parties or except as

provided in subsection (a-5), no motion to modify a

custody judgment may be made earlier than 2 years

after its date, unless the court permits it to be

made on the basis of affidavits that there is reason

to believe the child’s present environment may

endanger seriously his physical, mentai, moral or

emotional health. (emphasis supplied)

Lorenzo violated Section 5/610(a) by failing to

obtain leave of court to file his Counter-Petition for

Change of Custody. There is no court order per-

mitting the filing of his Counter-Petition. Similar to

filing an amended complaint without leave of court,

filing a pleading requiring court permission is also a

nullity. See Fischer, 329 Ill.App.3d at 560 (amended

complaint filed without leave of court is a nullity).

In 2007, the circuit court conducted a trial based on

Lorenzo's Counter-Petition. Specifically, the circuit

court’s MOD recites: “This came on for hearing which

commenced June 4, 2007 on the Counter-Petition for

Change of Custody filed by the Respondent Lorenzo

Orlando. This Counter-Petition was filed November

48a

19, 2001.” (Vol. 5 of 5, R. C001009) Following the

trial, the circuit court entered judgment modifying

permanent custody based on Lorenzo’s void Counter-

Petition. (Vol. 5 of 5, R. C001015)

Because Lorenzo failed to obtain leave of court to

file his Counter-Petition, it is a nullity and because

there was no operative pleading on file upon which

the circuit court could hold a trial. Accordingly, this

Court should reverse and vacate the circuit court’s

MOD, and remand this cause for further proceedings.

Il. THE CIRCUIT COURT ERRED IN

ENTERING AN EMERGENCY ORDER OF

PROTECTION AGAINST DEBORAH, AND IN

REPEATEDLY EXTENDING THE EMER-

GENCY ORDER.

The circuit court erred in entering an Order of

Protection against Deborah on June 15, 2005 without

a showing of good cause, and in repeatedly extending

the EOP between June 2005 and December 2006

without a motion, without a hearing, not “in open

court,” and after it had expired.

A. The Right to Raise Children is Con-

stitutionally Protected.

Courts in the United States frequently emphasized

the importance of the family. “The liberty interest. . .

of parents in the care, custody, and control of their

children is perhaps the oldest of the fundamental

liberty interests recognized by this Court.” Troxel v.

Granville, 530 U.S. 57, 65 (2000). The right to

conceive and to raise children has been deemed

“essential,” Stanley v. Illinois, 405 U.S. 645, 651

(1972), citing Meyer v. Nebraska, 262 U.S. 390, 399

(1923) and has been deemed a “basic civil right of

49a

man.” Stanley, 405 U.S. at 651, citing Skinner v.

Oklahoma, 316 U.S. 535, 541 (1942).

The rights to conceive and raise children have been

considered “(r)ights far more precious than property

rights.” Stanley, 405 U.S. at 651, citing May uv.

Anderson, 345 U.S. 528, 533 (1953). “The integrity

of the family unit has found protection in the

Due Process Clause of the Fourteenth Amendment

(Meyer, 262 U.S. at 399), the Equal Protection Clause

of the Fourteenth Amendment, (Skinner 316 U.S.

at 541), and the Ninth Amendment (Griswold uv.

Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J.,

concurring)).” Stanley, 405 U.S. at 651.

The issue of whether a person’s procedural due

process rights were violated is reviewed de novo, as

the allegations involve only questions of law. In re

George, 314 Ill.App.3d 1044, 1046 (3rd Dist. 2000).

B. The Circuit Court Erred in the Issuance

of the Emergency Order of Protection on

June 15, 2005, Without a Showing of Good

Cause.

1. Statutory Requirements for the Issuance

of an Emergency Order of Protection.

In order to issue an emergency order of protection,

750 ILCS 60/214(a) requires that the circuit court

must first find that abuse has been committed

against the petitioner or the child on whose behalf

the petition is brought. The circuit court must make

written findings of fact, pursuant to Section 60/

214(c)(3). In the case of an emergency order, in lieu of

written findings the circuit court may, upon

affirmation or questioning of the petitioner,

decide that the averments are sufficient to warrant

the issuance of such an order. 750 ILCS 60/214(c) (4).

50a

A trial court’s exercise of discretion in issuing an

order of protection or denying a request for an order

of protection will not be overturned absent a clear

abuse of discretion. Jn re Marriage of Fischer, 228

Ill.App.3d 482, 489 (4th Dist. 1992).

2. The Circuit Court Erroneously Issued

the Emergency Order of Protection on

June 15, 2005, in Violation of Illinois

Statutory Requirements.

On June 15, 2005, the circuit court issued the EOP.

(Vol. 2 of 3, R. C000467) The EOP was issued based

on Lorenzo’s Petition for an Order of Protection (Vol.

2 of 3, R. C000464),

The circuit court violated Illinois statutory require-

ments when it issued the EOP, as the circuit court

failed to make the requisite findings under 750 ILCS

60/214(c). Section 60/214(c) requires that “the court

shall make its findings in an official record or in

writing.” However, the circuit court made no such

findings in this case, in violation of Illinois statutory

requirements.

The foregoing demonstrates that the circuit court

erroneously issued an EOP against Deborah on June

15, 2005, in violation of Illinois statutory require-

ments.

C. The Circuit Court Erred in Repeatedly

Extending the Emergency Order of

Protection Against Deborah Without a

Motion or Hearing, After It Had Expired,

and Not “in Open Court.”

1. Statutory Requirements for Extending

an Emergency Order of Protection.

An emergency order of protection may be issued for

as long as 21 days, under 750 ILCS 60/220(a)(1), at

5la

which point it may be extended on the basis of the

petitioner’s motion if uncontested and “in open court.”

750 ILCS 60/220(e). The statute requires that the

extension must be made in open court so that the

respondent has an opportunity to be heard and con-

test the extension of an emergency order. 750 ILCS

60/220(e).

2. The Circuit Court Erroneously Extended

the Emergency Order of Protection in

Violation of Illinois Statutory Require-

ments.

The EOP was extended 30 times. (Vol. 3 of 3, R.

C000532, C000533, C000534, C000548, C000550,

C000583; Vol. 1 of 5, R. CO00039, CO00050, C000052,

C000055, C000065, C000066, C000071, C000085,

C000103, C000111, C000121, C000131, C000232,

C000233; Vol. 2 of 5, R. C000274, CO00288, CO000295,

C000317, C000323, C0003832, C000337, C000340,

C000342, C000369.) On December 12, 2006, the EOP

was vacated, and Lorenzo’s Petition for an Order of

Protection was dismissed (Vol. 2 of 5, R. C000393).

These continuous extensions wure made without

any motions by Lorenzo, in violation of the statutory

requirements of Section 60/220(e). On one occasion,

the EOP was extended after it had expired. On

October 13, 2005, the EOP was extended to December

7, 2005, well-beyond its statutory limit of 21 days

(Vol. 3 of 3, R. CQ00583). It expired on November 3,

2005. However, 55 days later, on December 7, 2005

the circuit court extended the EOP (Vol. 1 of 5, R.

C000039). In this instance, the circuit court errone-

ously extended the EOP after it had terminated.

Moreover, the EOP was extended without a hear-

ing and not “in open court.” The extensions on August

52a

23, 2005 and September 2, 2005 were particularly

egregious, as the court docket indicates that a hear-

ing took place on August 23, 2005, and that Deborah

was served “in open court” on September 2, 2005;

however, neither event took place (Vol. 3 of 3, R.

C000541-542). In Deborah’s verified Motion to Vacate

Order of Protection, filed September 14, 2005,

Deborah’s counsel stated: “Neither Deborah Orlando

Cooney nor her counsel were served in open court

with a copy of the order. . . [t}]here was no hearing

held on August 23, 2005, and . . . the attorney for the

petitioner was not in court due to .. . having to

attend a funeral. .. .” (Vol. 3 of 3, R. C000541-542).

This was one of multiple petitions filed by Deborah

seeking to vacate the EOP (Vol. 3 of 3, R. C000515,

C000541, C000555; Vol. 1 of 5, R. C000011).

D. The Circuit Court Committed Procedural

Due Process Violations in Issuing and

Extending the Emergency Order of

Protection.

“Procedural due process claims question the con-

stitutionality of the procedures used to deny a per-

son’s life, liberty, or property.” Lyon v. Department of

Children and Family Services, 209 Ill.2d 264, 272

(2004). “The due process clause requires that the

opportunity to be heard occur ‘at a meaningful time

and in a meaningful matter.” Lyon 209 I11.2d at 277,

citing Matthews v. Eldridge, 424 U.S. 319, 333 (1976).

Deborah was denied her fundamental right to raise

her children when her children were taken from her

pursuant to the EOP, as (a) she was never given a

hearing despite the countless extensions of the EOP,

(b) the EOP was extended 30 times without any

motion from Lorenzo, (c) the EOP was extended one

time after it had already expired, and (d) the EOP

53a

was extended sua sponte and not “in open court”

This was a clear violation of Deborah’s constitutional

rights to procedural due process.

E. The Erroneous Entry of the Emergency

Order of Protection, and the Erroneous

Extensions of the Order, Tainted the

Outcome of the Trial.

It is axiomatic that lack of contact between the

non-custodial parent and child can lead to alienation

of the non-custodial parent, just as reasonable visita-

tion schedule is necessary to foster the child’s

relationship with the non-custodial parent. See e.g.

Ford v. Marteness, 368 [ll.App.3d 172, 178 (4th Dist.

2006). In the case at bar, not only did this occur, but

it tainted the testimony of the minor children, and

ultimately the trial.

When initially interviewed by the court on July 9,

2004, Christopher Orlando gave a very negative

picture of his relationship with his father, including

allegations of abuse and coercion. Christopher testi-

fied that Lorenzo tried to kill him (Tr. R000551); that

he did not want to have a relationship with Lorenzo,

as he would “end up dead” (Tr. RO00555); and that he

would not spend any more time with Lorenzo, even

if the court ordered him to do so (Tr. R000556).

Christopher further testified that Lorenzo told him

what to say to Katherine Bischoff, and if he did not

make those statements “there will be consequences.”

(Tr. ROOO560) Specifically, Lorenzo threatened that

he would “go after [Christopher’s] family and friends”

if Christopher did not tell Ms. Bischoff the things

Lorenzo wanted him to say. (Tr. RO000561)

However, when interviewed again on June 5, 2007,

after being denied contact from Deborah for two

54a

years, Christopher’s opinions had radically changed

such that he now wanted to remain with Lorenzo (Tr.

R002338-2339, R002355)

Over that three year period, the last two in which

Christopher had no contact with Deborah, he went

from not wanting to stay with Lorenzo (who wanted

to kill him) to miraculously wanting to stay with

Lorenzo. This unreliable information, brought out

after years of Christopher’s alienation from his

mother, was relied upon heavily in the MOD, and

obviously tainted the decision.

While in Deborah’s custody, prior to be being

assigned to Lorenzo in 2005, the boys had been in the

middle of and had witnessed countless arguments

between their patents. During the time they lived

with Lorenzo after entry of the EOP barring Deborah

from contact, things naturally seemed very peaceful.

It is understandable that by the time they testified

at trial, the boys had grown comfortable with their

“normal” environment with Lorenzo.

Accordingly, this Court should reverse and vacate

the circuit court’s orders granting and extending the

EOP, reverse and vacate the MOD, and remand this

cause for further proceedings.

Ill. THE CIRCUIT COURT ERRED IN TRANS-

FERRING CUSTODY OF THE PARTIES’

MINOR CHILDREN TO LORENZO.

The circuit court erred in entering an emergency

order modifying custody and transferring custody of

the children to Lorenzo on June 15, 2005, without

the requisite findings to support such an order,

without providing: Deborah the investigator’s report

10 days prior to the “hearing,” and without providing

Deborah a hearing on custody.

55a

A. Statutory Requirements for Granting a

Change of Custody

750 ILCS 603(a) provides, in pertinent part: The

court may award temporary custody under the

standards of Section 602 and the standards and

procedures of Section 602.1, after a hearing, or, if

there is no objection, solely on the basis of the

affidavits.

Under 750 ILCS 5/605(a), the circuit court may

appoint an investigator to assist in its determination

of custody. Pursuant to Section 5/605(c), the inves-

tigator must file a report and make it available to all

parties at least 10 days prior to any hearing on

custody, along with any underlying data and reports

used in its compilation. Section 5/605(c) also requires

that the responding party be given the opportunity

at the hearing to cross-examine the investigator on

his methods and findings. Section 5/605(c) explicitly

states that “[al party may not waive his right of

cross-examination prior to the hearing.”

Under 750 ILCS 5/610(a), the circuit court may

modify a previous custody arrangement provided there

is reason to believe the child’s present environment

may eadanger seriously his physical, mental, moral,

or emctiona! health.

B. The Circuit Court Erroneously Granted the

Emergency Petition for Change in Custody,

in Violation of Illinois Statutory Require-

ments.

On September 18, 7001, judgment on permanent

custody and the remaining financial issues was

entered by the circuit court (Vol. 6 of 6, R. C000978).

The custody judgment granted permanent sole cus-

tody o° the parties’ minor children to Deborah.

56a

1. The Circuit Court Erred in Entering a

No Contact Order Denying Deborah

Any Contact or Visitation with Her Two

Minor Children, Without Affording

Deborah a Hearing.

Section 5/607(a) provides, in pertinent part:

A parent not granted custody of the child is entitled

to reasonable visitation rights unless the court finds,

after a hearing, that visitation would endanger seri-

ously the child’s physical, mental, moral or emotional

health. 750 ILCS 5/607(a).

The circuit court violated Illinois statutory require-

ments when it issued the emergency order granting a

change in custody on June 15, 2005, with no

visitation, as the emergency order was issued without

affording Deborah a hearing.

2. The Circuit Court Erred in Entering an

Order GrantingLorenzo’s Emergency

Petition to Modify Custody Without the

Requisite Findings to Support Such an

Order.

750 ILCS 5/610(b) provides in pertinent part:

The court shall not modify a prior custody judg-

ment 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 . . . and that the modification is necessary

to serve the best interest of the child.

The circuit court violated Illinois statutory require-

ments when it issued the emergency order granting a

change in custody on June 15, 2005, as the circuit

57a

court failed to make the requisite findings to support

the entry of such an extraordinary order.

3. The Circuit Court Erred in Failing to

Provide to Deborah the Investigator’s

Report at Least 10 Days Prior to the

Custody “Hearing” on June 15, 2005.

On September 23, 2004, the circuit court entered

an order appointing Lyle Rossiter, M.D. as an

investigator to assist in its determination of custody

(Vol. 2 of 3, R. C000375). Dr. Rossiter was appointed

pursuant to 750 ILCS 5/605(a). Section 5/605(c)

requires that the investigator make available to

counsel any underlying reports, data or diagnostic

reports, and that the investigator’s report be mailed

to counsel at least 10 days prior to the hearing on

custody.

However, in violation of the statutory require-

ments, Dr. Rossiter did not make his report, nor the

underlying materials available to Deborah 10 days

before the purported “hearing” on custody. Rather,

Deborah’s attorney first saw Dr. Rossiter’s report on

June 14, 2005 (the day before the custody “hearing”),

and the circuit court entered a “gag order” restrain-

ing Deborah’s attorney from discussing Dr. Rossiter’s

report with Deborah. (Vol. 2 of 3, R. C000463)

Additionally, on June 14, 2005, the circuit court

entered an order compelling Deborah to appear in

court with her children the next day, without any

explanation of the reason for the mandate. (Vol. 2 of

3, R. C000463)

Deborah was not allowed to prepare for nor

participate in a fair “hearing” to determine her rights

to custody of her children. Instead, Deborah appeared

in court with her children the next day as ordered,

58a

without knowing why, and she was sandbagged with

a Section 5/605(a) investigator’s report and denied

her statutory right to examine the investigator’s

underlying materials and cross-examine the inves-

tigator, in violation of Section 5/506(c). As noted

above, Section 5/605(c) explicitly states that

Deborah’s right to cross-examine the investigator

cannot be waived.

Thus, the circuit court violated Illinois statutory

requirements when it issued the emergency order

granting a change in custody on June 15, 2005, as the

circuit court failed to provide Deborah with the

requisite 10-day notice, and denied Deborah her

statutory right to cross-examine the investigator.

C. The Circuit Court Committed Procedural

Due Process Violations in Granting al

Emergency Change in Custody of the

Parties’ Children.

As set forth above: “Procedural due process claims

question the constitutionality of the procedures used

to deny a person’s life, liberty, or property.” Lyon, 209

Ill.2d at 272.

“The due process clause requires that the opportu-

nity to be heard occur ‘at a meaningful time and in a

meaningful matter.” Lyon 209 IIl.2d at 277, citing

Matthews, 424 U'S. at 333.

Deborah was denied her fundamental right to raise

her children when her children were taken from her

pursuant to the emergency order changing custody of

her children to Lorenzo and pursuant to the order

that she have absolutely no contact with her children,

as she was never provided with the investigator's

report and underlying data, she was denied her

statutory right to cross-examine the investigator, she

59a

never received a hearing, and the circuit court failed

to make the requisite findings to support the order.

D. The Erroneous Entry of the Emergency

Order Changing Custody and Barring

Deborah From Any Contact With Her

Chiidren Tainted the Outcome of the Trial.

The erroneous entry of the order granting the

emergency order changing custody and _ barring

Deborah from any contact with her children tainted

the outcome of the trial for the same reasons that the

entry of the EOP and extensions thereof tainted the

trial as set forth in Section II (E) above. Deborah will

not restate them again here.

Accordingly, this Court should reverse and vacate

the circuit court’s emergency order changing custody

and barring Deborah from having any contact with

her children, reverse and vacate the circuit court’s

MOD, and remand this cause for further proceedings.

IV. THE CIRCUIT COURT APPLIED THE

WRONG STANDARD AT TRIAL CON-

CERNING CUSTODY.

The circuit court applied the wrong standard at

trial concerning custody, as the court erroneously

applied the “best interests of the children” standard

rather than the proper “serious endangerment to the

children” standard required by 750 ILLS 5/610. The

question of whether the circuit court applied the

correct legal standard is a pure question of law that

is reviewed de novo. Williams v. Staples, 208 I1l.2d

480, 487 (2004).

60a

A. The Standard for a Change in Custody

Within Two Years of the Last Custody

Judgment is Clear and Convincing Evi-

dence of Serious Endangerment to the

Child.

750 ILCS 5/610(a), re ;arding modification of

custody, provides, in pertinent part:

Unless by stipulation of the parties...no motion to

modify a custody judgment may be made earlier

than 2 years after its date, unless the court

permits it to be made on the basis of affidavits

that there is reason to believe the child’s present

environment may endanger seriously his physi-

cal, mental, moral or emotional health.

As set forth above, on September 18, 2001 judg-

ment on permanent custody and the remaining

financial issues was entered by the circuit court (Vol.

6 of 6, R. C000978). Two months later, on November

19, 2001, Lorenzo filed a Counter-Petition for Change

of Custody (Vol. 6 of 6, R. C000987). The Counter-

Petition was filed within two years of the custody

judgment. In the absence of allegations by affidavit

that the children’s health was seriously endangered,

the Counter-Petition was improper under Section

5/610(a).

B. The Circuit Court Erred by Applying the

Wrong Standard.

In Lorenzo’s Counter-Petition, he makes only one

conclusory allegation regarding the health of the

children, which simply traces the statute: “The

physical, mental, and emotional well being of the

parties minor children will be seriously jeopardized

if the children remain in the custody of the respon-

dent.” (Vol. 6 of 6, R. C000988) However, Lorenzo

6la

does not allege any behavior of Deborah that would

be tantamount to “dangerous.” Although Lorenzo

alleged that circumstances have changed, changed

circumstances are not enough to justify-a change in

custody within two years of a custody judgment

under Section 5/610(a).

In the MOD, the circuit court applied the incorrect

standard: that the petitioner “bears the burden of

proving by clear and convincing evidence that a

change has occurred in the circumstances of the

child. . .” (Vol. 5 of 5, C001008). This is the more

lenient standard to apply under Section 5/610(b) only

if the petition had been filed more than two years

after the judgment awarding custody to Deborah.

The circuit court erroneously believed that perma-

nent custody was awarded to Deborah in the Judg-

ment for Dissolution of Marriage entered in June 15,

1998 (Vol. 5 of 6, C000876). Specifically, in the MOD,

the circuit court stated: “when the judgment for

dissolution of marriage was entered, sole custody of

the parties’ two minor children was awarded to

[pletitioner, Deborah Orlando Cooney.” (Vol. 5 of 5, R.

C001009). However, the Judgment for Dissolution of

Marriage simply dissolved the marriage, and makes

no mention or provision regarding custody. (Vol. 5 of

6, R. C000876).

Because Lorenzo’s Counter-Petition to change cus-

tody was filed within two years of the judgment

awarding permanent custody of the children to

Deborah, the correct standard is set forth in Section

5/610(a), to wit: “that there is reason to believe the

child’s present environment may endanger seriously

his physical, mental, moral or emotional health.” 750

ILCS 5/610(a).

62a

In the MOD, the circuit court never found that the

evidence clearly and convincingly showed that the

“children’s present environment may endanger seri-

ously their physical, mental, moral or emotional

health,” as required by Section 5/610(a). Thus, the

circuit court’s findings were against the manifest

weight of the evidence as to the “serious endanger-

ment” standard that the circuit court was required to

apply. Accordingly, This Court should reverse and

vacate the circuit court’s MOD, and remand this

cause for further proceedings.

V. THE CIRCUIT COURT ABUSED ITS

DISCRETION IN GRANTING LORENZO’S

COUNTER-PETITION FOR CHANGE OF

CUSTODY.

Even assuming that the circuit court did not utilize

the incorrect standard to modify custody under

Section 610, transfer of permanent custody to

Lorenzo was not justified because he failed to present

clear and convincing evidence that this was in the

children’s best interests due to a change of

circumstances.

A judgment of the circuit court in custody matters

will not be set aside unless it is shown that there was

an abuse of discretion. Jn re Marriage of Batchelor, 89

Ill.App.3d 781, 783 (3rd Dist. 1980). An abuse of

discretion is shown when the judgment of the trial

court is found to be palpably erroneous, contrary to

the manifest weight of the evidence or manifestly

unjust. Jd.

However, a modification of custody is a “drastic

action.” In re Marriage of Gordon, 233 Ill.App.3d 617,

664 (1St Dist. 1992). In addressing a trial court’s

modification of custody, there is a presumption in

63a

favor of the custodial parent. Naylor v. Kindred, 250

Ill.App.3d 997, 1004-05 (4th Dist. 1993).

The MOD stated that Lorenzo had the burden of

proving by clear and convincing evidence that a

change had occurred in the circumstances of the child

or his custodian and that the modification is

necessary to serve the best interests of the children.

(Vol. 5 of 5, R. CO01010). This would be the correct

standard, under Section 5/610(b), assuming arguendo

that Lorenzo’s Counter-Pctition had been filed be-

yond two-years after the judgment awarding Deborah

permanent custody of the children.

Every presumption is indulged in the validity of

the custody provisions in the divorce decree and, if

custody provisions are to be changed in the post-

decree proceedings, the burden of proof is on the

moving party to show why the change should be

made. In re Marriage of Valliere, 275 Ill.App.3d 1095,

1100 (5th Dist. 1995). The trial court’s judicial Dis-

cretion is limited to pleadings and proof pertaining to

a change in circumstances that affect, adversely, the

best interests of the child sufficient to warrant the

modification of the decree. The court’s discretion,

although great, is limited by the requirements

contained in Section 5/610. Valliere, 275 Ill.App.3d at

1100.

The trial court’s discretion in this case should have

cen limited to the allegations in Lorenzo’s November

2001 Counter-Petition that was finally heard by the

circuit court at trial commencing June 4, 2007. The

circuit court’s consideration in its MOD of not only

the spurious allegations of Deborah’s mental illness,

but all the other vast ranging topics explored at

trial and incorporated in the Decision was wholly

improper. See Valliere, 275 Ill.App.3d at 1100.

64a

The scope of evidence considered at the trial was,

at best, akin to an initial custody determination. It

was in reality more synonymous to a modification

hearing whereby Deborah erroneously carried the

burden to justify the reversion of her parental cus-

tody and visitation rights, notwithstanding that the

burden squarely remained on Lorenzo to prove by

clear and convincing evidence that transfer of

permanent custody to him was justified.

A. There Was No Clear and Convincing

Evidence of a Change in Circumstances.

The circuit court found that a change in circum-

stances had been established, in that: “Specifically,

both parties have remarried and Petitioner Deborah

Orlando Cooney has a child with her present hus-

band.” (Vol. 5 of 5, R. CO01010). Of course this was

true in 2007, but not when the Counter-Petition was

filed. Deborah had remarried and had a child with

her husband, Edward, by 2001 when the Counter-

Petition was filed. However, Lorenzo did not remarry

until 2002. Further, at the time of trial the boys were

nearly 18 years of age (Christopher) and 15 1/2 years

of age Jonathan).

The MOD also noted: “Finally, subsequent to the

original “judgment order granting sole custody to the

Petitioner, custody was transferred to Respondent by

Court Order dated June 15, 2005, which further

provided that Petitioner was to have no contact or

visitation with one of the parties minor children,

Jonathan Orlando, until further Order of the Court.”

(Vol. 5 of 5, R. CO01010).

However, the circuit court failed to note that, in

addition to the court order of June 15, 2005

prohibiting Deborah from contact or visitation with

65a

Jonathan, there was simultaneously entered on that

day the EOP which prohibited any contact with

either boy, and the EOP was extended 30 times until

finally being vacated on December 12, 2006. How-

ever, the day it was vacated, the circuit court also

entered an order amending the emergency order

changing custody (entered June 15, 2005), such that

Deborah could have no contact with either boy or

additional family members.

As argued earlier in this brief, the two orders

entered on June 15, 2005—the EOP and emergency

order changing custody and prohibiting Deborah from

contact or visitation with Jonathan—were errone-

ously and unconstitutionally entered.

The legislative intent of Section 5/610 of the

Marriage Act is to make custody arrangements as

permanent as possible. In re Marriage of Cesaretti,

203 Ill.App.3d 347, 353-54 (2nd Dist. 1990). A trial

judgment may not make an order “temporary” in

order to circumvent the stringent standards of

Section 5/610(b), especially where, as here, all the

other issues in the case were resolved. A trial judge

has no authority to continue a temporary custody

order indefinitely at his or her discretion to avoid

either making a difficult decision or to avoid the

requirements of Section 5/610. Jd. at 354; accord,

Valiere, 275 Ill.App.3d at 1101; Herron v. Herron, 74

Ill.App.3d 748, 753-54 (1st Dist. 1979) (holding that

the judge may not retain custody disposition, making

one custody disposition after another, by designating

them “temporary”).

The circuit court apparently failed to give any

weight to the impact of those two unconstitutionally

granted orders on the entire family scene that the

court was viewing at the trial in 2007. To the

66a

contrary, the court utilized this circumstance of its

own creation to Lorenzo’s benefit in deeming it a

“changed circumstance” under Section 5/610(b). Such

changed circumstances as existing at the time of trial

would be akin to the fruit, as it were, of an illegal

“stop” in Deborah’s contact with her children, and

undercuts the legislative intent that custody modi-

fication should be difficult to achieve.

B. There Was No Clear and Convincing

Evidence That Modification of Custody Was

in the Best Interests of the Children.

In determining the best interests of a child, the

court must consider the particular facts and circum-

stances of each case. Lloyd v. Lloyd, 92 Ill.App.3d

124, 126 (1980).

Admittedly, in the past, both boys had been in the

middle of and had observed almost countless squab-

bles between their parents with resulting court pro-

ceedings concerning visitation and other matters.

However, during the two year period from the entry

of the emergency orders (on June 15, 2005) to the

time of trial in June 2007, they did not observe any

squabbles between their parents because they did not

see or have any contact with their mother who had

been their primary caregiver since their births. It is

understandable that, at the time of trial, the boys felt

that their current life with their father was somehow

“norma!.”

Lorenzo has admitted to physical violence, harass-

ment, and being inattentive towards Deborah and his

children over an extended period. (Tr. R002654-2659)

Lorenzo admittedly engaged in at least one extra-

marital affair leading up to the dissolution of his

marriage to Deborah, which he attributed to “stereo-

67a

typical roles” for husband and wife per his 2005

interview with Dr. Rossiter. (Resp. Ex. 2, p. 6)

Lorenzo has, in other words, shown many tangible

manifestations of instability himself.

The circuit court was not acting within its

discretion to simply overlook these facts and focus

instead solely on Deborah’s alleged deficiencies. The

court further ignored the likelihood that Lorenzo’s

abusive behavior and indiscretions may have con-

tributed to any shortcomings Deborah might have.

See In re Marriage of Stuart, 141 Ill.App.3d 314, 318

(5th Dist. 1990) (court excused the mother’s “emo-

tional, even hot—tempered” demeanor and awarded

her permanent custody even though she drove car

into back of the husband’s truck, where the hus-

band’s misconduct had precipitated the incident); In

re Marriage of Gustayson, 247 Ill.App.3d 797, 801-

802 (4th Dist. 1993) (holding that although the

mother’s suicide attempt may have presented con-

cerns about the child’s welfare, the trial court

properly considered the fact that the suicide attempt

was prompted by the wrongful conduct of the non-

custodian father).

Consistent with its casually brushing aside all

concerns about Lorenzo’s darker aspects, the circuit

court also failed to consider how the abrupt change of

custody to him may have permitted Lorenzo to

influence the boys’ testimony unjustly. See In re

Marriage of Batchelor, 89 Ill.App.3d 781, 785 (3rd

Dist. 1980) (sons’ statements that they preferred to

stay with their father, given shortly after their stay

with father for three months over the summer had

ended, were held insufficient to modify custody

judgment to transfer custody from mother to father);

see also People v. Dizney, 26 Ill.App.3d 45, 49 (2nd

68a

Dist. 1975) (finding that trial court correctly deter-

mined that custodial defendants had contributed to

the alienation of the children from parents, and that

extending the separation would foster the alienation).

With respect to the best interest factor of inter-

action and interrelationship of the children with

their parents, this was a one-way street—leading to

Lorenzo. Pursuant to court order, the children had no

contact with their mother for the two years preceding

the trial. There was no opportunity to build on or

develop or, perhaps, even change the relationships

Deborah had with her children for the first 16

(Christopher) and 13 1/2 years (Jonathan) of their

lives. In contrast to the present situation whereby

Lorenzo’s tactics have burned all bridges between

Deborah and the children due to the “no contact”

orders, the evidence showed that when Deborah had

custody she would attempt to extend Lorenzo extra or

make-up visitation, or switch scheduled visitation, to

accommodate his schedule. (Tr. RO002641-2653)

Regarding the children’s adjustment to their home,

school and community, the circuit court points out

that for the most part they seem to be doing well in

the second year after their custody was transferred to

Lorenzo. The court relied on the fact that Jonathan is

playing football and Christopher is running track.

(Vol. 5 of 5, R. C001011). Yet, this appears to be no

different from when they were living with their

mother: Jonathan was also playing football and

Christopher was playing soccer. (Tr. R000507-566).

The court also turns a blind eye to the fact that

Jonathon admittedly received numerous demerits in

school, and evidence was presented that he may have

been close to expulsion in 2006, while he was in

Lorenzo’s custody. (Tr. RO02605-2608)

69a

With respect to the mental and physical health of

the individuals involved, the circuit court relied heav-

ily on the testimony of clinical social worker Brian

Klaung who, as explained below, was simply unquali-

fied to clinically diagnose mental illness or opine as

to recommended treatment. Deborah conversely pre-

sented the testimony of professor of psychology and

licensed clinical psychologist Dr. Alan F. Jaffe. Dr.

Jaffe opined that Deborah’s results on comprehensive

standardized tests indicated that she was not men-

tally ill (on the renowned Minnesota Multiphasic

Personality Inventory test, or “MMPI-II”), and, in

fact, Deborah’s test results presented a psychological

profile consistent with the traits necessary for suc-

cessful parenting (on the Ackerman Schoendorf

Parenting Effectiveness for Custody Test or

“ASPECT”). (See Tr. R003114; ROO3153-3157)

Conversely, the circuit court put much stock in the

testimony of Lorenzo, going so far, for instance, as to

discredit Deborah’s testimony entirely as to whether

she advised him of the boys’ medical treatment sim-

ply because Lorenzo may have contradicted her when

he claimed “he could not remember” their doctors’

names. (Vol. 5 of 5, R. C001013) The court altogether

fails to give any indication that Lorenzo’s self-serving

statements might be less than the gospel truth, and

expressly disregards Lorenzo’s recent criminal] charge

of felony eavesdropping and guilty plea to attempted

eavesdropping that is hardly representative of frank

and truthful character. (Vol. 5 of 5, R. C001012)

Indeed, Lorenzo denied taping Deborah’s conversa-

tions despite the evidence to the contrary. (Tr.

RO02656) Such credibility determinations by the

circuit court undercut Lorenzo’s burden to provide

clear and convincing evidence to warrant transfer of

permanent custody.

70a

Accordingly, this court should reverse the circuit

courts MOD, and remand this case for further

proceedings.

VI. THE CIRCUIT COURT ABUSED ITS

DISCRETION IN ENTERING JUDGMENT

DENYING DEBORAH ANY VISITATION

WHATSOEVER OF THE PARTIES’ MINOR

CHILDREN.

The circuit court abused its discretion by denying

visitation to Deborah based primarily on the im-

proper and unsubstantiated “medical” diagnosis of

Brian Klaung, in contradiction to the findings of

appropriate medical professionals.

The appellate court reviews the trial court’s

resolution of visitation issues for an abuse of dis-

cretion, or to correct a manifest injustice that has

been done to the child or the parent. In re Marriage of

Diehl, 221 Ill.App.3d 410, 429 (2nd Dist. 1991); In re

Marriage of Anderson, 130 Ill.App.3d 684, 688 (2nd

Dist. 1985).

Two years passed between the circuit court’s initial

unjustified order of June 15, 2005 granting Lorenzo’s

Emergency Petition for Change of Custody (sending

Christopher and Jonathon abruptly to the custody of

Lorenzo), and the circuit court’s MOD of June 20,

2007 formally denying Deborah visitation. In the two-

year interim, Deborah was denied her parental! right

of visitation by virtue of the concurrently entered

EOP, which was extended a seemingly unprece-

dented 30 times without affording Deborah a hear-

ing.

Deborah’s parental right to visitation at last came

before the circuit court in the context of the trial

commencing June 4, 2007, on Lorenzo’s Counter-

7la

Petition for Change of Custody (Vol. 5 of 5, R.

C001009) The relevant standard for evaluating

Deborah’s non custodial parental right to visitation is

governed by Section 5/607 of the Illinois Marriage

and Dissolution of Marriage Act (the “Marriage Act”).

750 ILCS 5/607.

Section 5/607(a) of the Marriage Act states the

general rule: “(a) [a] parent not granted custody of

the child is entitled to reasonable visitation rights

unless the court finds, after a hearing, that visitation

would endanger seriously the child’s physical, men-

tal, moral or emotional health.”

Likewise, Section 5/607(c) provides the rule for

requests to modify a pre-existing visitation order: “(c)

The court may modify an order granting or denying

visitation rights whenever modification would serve

the best interests of the child; but the court shall not

restrict a parent’s visitation rights unless it finds

that the visitation would endanger seriously the

child’s physical, mental, moral or emotional health.”

The serious endangerment standard embodied in

Sections 5/607(a) and 5/607(c) of the Marriage Act is

“onerous, stringent and rigorous.” See eg., In re

Marriage of Diehl, 221 Ill.App.3d 410, 429 (2nd Dist.

1991) (citations omitted). The legislative history

states that this more onerous standard was delib-

erately chosen to indicate its stringency when

compared to the “best interest” standard. In re

Marriage of Neat, 101 Ill.App.3d 1046, 1048 (lst.

Dist. 1981).

Only extreme circumstances permit courts to

deprive a parent of visitation altogether inasmuch as

“parents have a natural or inherent right of access to

their children, and because . . . sound public policy

72a

encourages the maintenance of strong family rela-

tionships, even in post-divorce situations.” Neat, 101

Ill.App.3d at 1048. Liberal visitation is therefore the

rule, while restricted visitation is the exception. Jd.

The custodial parent bears the burden to prove that

the preponderance of the evidence shows visitation

with the non-custodial parent would in fact seriously

endanger the child. Jd.

In the underlying case, the circuit court unequivo-

cally abused its discretion in denying Deborah her

parental right of visitation indefinitely, based pri-

marily on the biased and improper opinion testimony

rendered by Lorenzo’s unqualified controlled expert

witness, social worker Brian Klaung. This likewise

represented a manifest injustice done to Deborah and

the children inasmuch as the circuit court’s precipi-

tous determination to reverse its prior custody deter-

mination (by the previous court appointed evaluator,

Dr. Thomas Dudgeon; at Tr. R000227) took the

children from their primary caretaker who had raised

and cared for them since birth.

The circuit court’s MOD indefinitely denying visita-

tion to Deborah, rested upon the circuit court’s

adoption of the opinion rendered by Klaung that

Deborah’s visitation with the boys would seriously

endanger the children’s health. (Vol. 5 of 5, R.

C001013-1014)

A. As a Clinical Social Worker, Lorenzo’s

Controlled Expert Witness Brian Klaung

was Not Qualified to Render a Diagnosis of

Mental Illness Under Illinois Law, Much

Less to Overrule the Findings of More

Eminently Qualified Medical Professionals.

73a

The standard of review for admission of expert

testimony is abuse of discretion. Snelson v. Kamm,

204 I1).2d 1, 33 (2003).

The fields of clinical social work and clinical

psychology are functionally and legally distinct under

Illinois law.

The practice of clinical social work is governed and

regulated pursuant to the Clinical Social Work and

Social Work Practice Act, 225 ILCS 20/1, et seq. (the

“Social Work Act”), which defines the actual practice

of clinical social work, as follows:

3. Definitions:

mK kK OK

5. “Clinical social work practice” means the

providing of mental health services for the

evaluation, treatment, and prevention of mental

and emotional disorders in individuals, families

and groups based on knowledge and theory of

psychosocial development, behavior, psychopa-

thology, unconscious motivation, interpersonal

relationships, and environmental stress.

225 ILCS 20/3(5).

The permitted scope of professional services that a

clinical social worker may offer, by definition, does

not extend to the actual diagnosis of any mental or

physical ailments.

Indeed, in People v. Caffey, the Illinois Supreme

Court upheld the trial court’s determination that a

licensed clinical social worker could not render any

testimony that appeared to be a diagnosis of mental

illness, because he was not a psychiatrist. 205 IIl.2d

52, 125-26 (2001); see also People v. Armstrong, 186

T]l.2d 1380, 150-52, (1998) (upholding similar limita-

74a

tions that a licensed clinical social worker is pre-

cluded from offering testimony concerning a

diagnosis, as any such testimony should be excluded

as being beyond his expertise and _ unreliable

evidence).

The independent assessment and classification of

mental, emotional, behavioral or related disorders

and conditions is instead the province of clinical

psychologists. The practice of clinical psychology is

governed and regulated under the Clinical Psycholo-

gist Licensing Act, 225 ILCS 15/1, et seq. (the

“Clinical Psychologist Act”), which defines the actual

practice of clinical psychology as follows:

2. Definitions.

* K F

5) “Clinical psychology” means the independent

evaluation, classification and treatment of

mental, emotional, behavioral or nervous

disorders or conditions, . . . .The practice of

clinical psychology includes. . . the use of psycho-

logical and neuro-psychological testing, assess-

ment,. .. 225 ILCS 15/2(5) (emphasis supplied).

The necessity of limiting the testimony and ser-

vices rendered by clinical social workers in pro-

ceedings addressing the parent-child relationship is

clearly shown via the express language of the

Adoption Act, 750 ILCS 50/1, et seg. The Adoption Act

defiles certain grounds upon which a parent may

be found unfit—including claims of mental illness

analogous to those upheld by the circuit court against |

Deborah—as follows:

1. Definitions.

75a

p) Inability to discharge parental responsibilities

supported by competent evidence from a psychia-

trist, licensed clinical social worker, or clinical

psychologist of mental impairment, mental

illness or mental retardation as defined in Sec-

tion 1-116 of the Mental Health and Devel-

opmental Disabilities Code, or developmental

disability as defined in Section 1-106 of that

Code, and there is sufficient justification to

believe that the inability to discharge parental

responsibilities shall extend beyond a reasonable

time period. However, this subdivision (p)

shall not be construed so as to permit a

licensed clinical social worker conduct

any medical diagnosis to determine mental

illness or mental impairment.

750 ILCS 50/1(D)(p) (emphasis supplied)

Where a determination must be made on a matter

directly impacting the continued relationship be-

tween parent and child, the fundamental interests at

stake demand nothing less than that the court

consider only the most reliable expert testimony. The

Adoption Act reflects the reality that licensed clinical

social workers are simply unqualified to diagnose

mental illness or impairment. See also, People v.

Kastman, 335 Ill.App.3d 87, 94-98 (2nd Dist. 2002)

(the court explains the many distinctions between

psychologists and social workers, and holds that the

occupational title of clinical social worker falls within

the larger occupational category of “sociologist”).

Klaung himself admits that he is not qualified to

provide even a simple answer concerning the nature

of a basic clinical psychological test, the MMPI-II.

When asked his opinion regarding the validity of the

76a

test, he flat out states that: “I’m not qualified. I am

not a clinical psychologist.” (Tr. R002483-2484)

The Illinois Administrative Code governing appli-

cation of the Social Work Act provides that the

Department of Financial and Professional Regulation

may “suspend or revoke a license . . . or take other

disciplinary action” based upon unethical, unauthor-

ized or unprofessional conduct, which is interpreted

to include: “1) Practicing or offering to practice

beyond one’s competency (for example, providing

services and techniques for which one is not qualified

by education, training or experience).” 68 Ill. Adm.

Code 5 1470.96(a) (1)

The Illinois Medical Practice Act, 225 ILCS 60/1, et

seq. (the “Medical Practice Act”), likewise provides, in

relevant part:

550. Any person practices medicine in all of its

branches or treats human ailments without the

assistance of drugs or operative surgery include-

ing, but not limited to, treatment or diagnosis of

any physical or mental ailments or conditions

including, but not limited to, deformities, dis-

eases, disorders or injuries without a valid

license under the laws of this State shall be

sentenced as provided in Section 59.

225 ILCS 60/50

Klaung improperly “practiced medicine” in vio-

lation of the Medical Practice Act when he rendered

opinions at trial—“to a near degree of medical

certainty"—that Deborah and her parents were

delusional. Klaung also improperly made diagnoses

of “Parental Alienation Syndrome,” “Munchausen

Syndrome by Proxy,” and an unspecified “delusional

disorder” outside the area of his expertise, as follows:

77a

Q. With regard to the direct interviews and

the written histories from the children, what

information did you glean from that?

A. Well, I believed that three conditions were

operating simultaneously. J believe that—I was

convinced that parental alienation syndrome had

occurred. I believe that Munchausen syndrome

by proxy or as the DSM-IV TR calls it fictitious

disorder by proxy had occurred. And I believe

that a delusional disorder had been established

through the parent alienation syndrome.

(Tr. ROO2435-2436)

Q. Now, the three conditions that you saw

presented, would you say that those exist with a

reasonable degree of certainty?

A. I am convinced with a complete degree of

certainty.

(Tr. RO002438-2439)

Q. You indicated that prior to visitation being

ordered or occurring that you would want

evidence from a clinical professional that the

delusions had been resolved?

A. Correct.

Q. Whose delusions?

A. The mother’s and the grandparents.’

Q. Are you convinced within a reasonable

degree of medical certainty that they are

delusional? (emphasis supplied)

A. Yes.

(Tr. ROO2451)

B. Assuming, arguendo, that the Circuit Court

did Not Abuse Its Discretion in Admitting

the Improper Opinion Testimony of Bran

78a

Klaung, Its Heavy Reliance on His

Opinions Render Its Decision Erroneous.

Findings of fact following a bench trial are

reviewed under the manifest weight of the evidence

standard. Bd. of Educ. of Community High Sch. Dist.

No. 218 v. Vill. of Robbins, 327 Ill.App.3d 599, 606

(1st Dist. 2001).

Assuming, for the sake of argument, that the

circuit court acted within its discretion in permitting

Klaung’s improper medical opinion testimony in the

first place, any such “diagnosis” is fatally under-

mined, inter alia, by the fact that Klaung had never

met _or directly spoken to Deborah prior to his

testifying. Klaung readily admits this on direct

examination. (Tr. R002447)

In and of itself, the fact that Klaung failed to meet

with the subject of his purported diagnosis (i.e.

Deborah) simply further undermines his professional

expertise to render a clinical diagnosis of mental

illness in her. Klaung’s failure to meet. with Deborah,

however, does not merely reflect his general lack

of professional expertise in the area of clinical

psychology; it also underscores his complete lack

of professional objectivity. His testimony on cross-

examination reveals that his agenda was not to

present balanced, objective expert testimony but

merely to advocate for the position of his client

Lorenzo. When asked at trial why he did not bother

to speak with Deborah or her parents directly to

obtain a balanced perspective, Klaung responded

simply that “[s]he was not my client.” (Tr. R002534-

2535)

As Lorenzo’s own controlled expert witness,

Klaung’s bias in favor of Lorenzo was _ evident

79a

throughout his testimony and it skewed his entire

clinical methodology as shown above. Dr. Alan F.

Jaffe, who is a licensed clinical psychologist and

professor of psychiatry at Northwestern Medical

School, referred to this sori of skewed methodology as

a “confirmatory bias.” (Tr. RO003140)

The circuit court improperly admitted Klaung’s

opinion testimony over the repeated objections of

Deborah’s counsel (Tr. R002408-2554), finding: “[t]he

[clourt is going to find him qualified as an expert in

those areas he has testified to.” (Tr. R002554)

Klaung’s improper and unsubstantiated testimony

was insufficient to meet Lorenzo’s onerous burden to

prove that visitation would seriously endanger the

welfare of the children. Not even the court-appointed

investigator Dr. Rossiter recommended denying

Deborah visitation rights. (Resp. Ex. 2, p.32)

To the extent the trial judge merely relied on his

own observations, this also was insufficie.at to deny

Deborah custody. The primacy of the parent-child

relationship in the area of visitation rights must be

recognized over that of the personal observations of

the trial judge in the courtroom. Neat, 101 Ill.-App.3d

at 1048-1049.

Accordingly, this Court should reverse the MOD,

and remand the case for further proceedings.

Vil. THE CIRCUIT COURT ERRED IN

DENYING DEBORAH’S MOTION FOR

VOLUNTARY DISMISSAL.

The circuit court erred in denying Deborah’s

motion for voluntary dismissal on November 24,

1997, in violation of 735 ILCS 5/2-1009(a).

80a

Section 2-1009(a) provides, in pertinent part:

“The plaintiff may, at any time before trial or

hearing begins, upon notice to each party who

has appeared or each such party’s attorney, and

upon payment of costs, dismiss his or her action

or any part thereof as to any defendant, without

prejudice, by order filed in the cause.”

On September 17, 1997, Deborah filed a Motion to

Voluntarily Dismiss her petition for dissolution of

marriage. (Vol. 4 of 6, R. C000640). At the time, no

dispositive motions were pending, and no trial or

hearing had begun. On September 18, 1997, the

circuit court granted the motion for voluntary

dismissal (Vol. 4 of 6, R. C000642) (See also Par. 1 in

Stipulation of the Parties, in supplemental record on

appeal).

On October 1, 1997 Lorenzo filed a Motion to

Reconsider the circuit court’s grant of Deborah’s

voluntary dismissal (Vol. 4 of 6, R. C000698). On

November 24, 1997, the circuit court reconsidered its

order, denied Deborah’s motion for voluntary

dismissal, and reinstated the underlying matter (See,

Par. 2 in Stipulation of the Parties, and undated

order attached thereto, in the parties’ supplemental

record on appeal). On June 15, 1998, the Judgment

for Dissolution of Marriage was entered based on

Deborah’s Petition for Dissolution, not Lorenzo’s

Counter-Petition for Dissolution (Vol. 4 of 6, R.

C000643).

“A plaintiff has an absolute right to take a

voluntary dismissal unless...there exists a previously

filed motion, which, if ruled upon, could result in a

final disposition of the cause of action. . .” In re

Marriage of Manns, 222 lll.App.3d 338, 342 (5thDist.

8la

1991). “It has been broadly held that the voluntary

dismissal statute grants plaintiffs the absolute privi-

lege to dismiss regardless of motive.” Manns, 222

Ill.App.3d at 342, citing Rohr by Rohr v. Knaus, 153

M. App. 3d 1013, 1015 (5th Dist. 1987). The trial

court has no discretion in the matter to interfere with

the exercise of that right, nor can it condition any

terms on the dismissal. Manns, 222 Ill.App.3d at 342,

citing City of Palos Heights, 29 Ill.App.3d 746, 749

(1St Dist. 1975). Plaintiffs right, pursuant to Section

2-1009 of the Illinois Code of Civil Procedure, to

voluntary dismissal without prejudice prior to trial

is absolute and the court has no discretion to deny

the motion for dismissal in such a case. Morrison v.

Wagner, 305 Ill.App.3d 885, 887 (4th Dist. 1999),

therefore appellate review is de novo.

The case most factually similar to the instant case

is In re Marriage of Mostow, 95 Ill.App.3d 915 (15t

Dist 1981). In Mostow, the predecessor to Section 2-

1009(a), Rule 52 of the Civil Practice Act, with

identical language, was at issue. The plaintiff moved

for voluntary dismissal, and the defendant requested

that the court impose conditions on the dismissal.

One of the conditions the defendant wished included

was a provision that the plaintiff be barred from

seeking temporary maintenance. The defendant

argued that by moving to dismiss the petition for

dissolution of marriage, the plaintiff was waiving the

temporary maintenance she had been granted after a

hearing in the proceeding. The trial court refused to

impose the conditions, holding that no trial had

begun for the purposes of Section 52, because “the

hearing was on the preliminary issues of temporary

maintenance, support, and fees, and did not related

to the issues of the dissolution action itself which

petitioner sought to dismiss.” 95 Ill_App.3d at 917.

82a

The facts in the instant matter are virtually the

same as in Mostow. On October 6, 1995, Lorenzo filed

an Amended Petition to Terminate Maintenance (Vol.

2 of 6, R. C000341), amending his original Petition to

Terminate Maintenance, filed June 21, 1995. (Vol. 2

of 6, R. C000265) In both the original Petition and

Amended Petition, Lorenzo explicitly “prays this

Court enter an Order terminating the Defendant’s

obligation to pay temporary maintenance to the

Plaintiff.” (emphasis added) (Vol. 2 of 6, R. C000341,

R. C000265) Thus, like in Mostow, no trial or hearing

had yet begun in the underlying matter, and Deborah

was entitled to a voluntary dismissal as of right.

Accordingly, this Court should reverse and vacate

the circuit court’s order of November 24, 1997,

reverse and vacate all of the circuit court’s orders and

judgments entered after September 18, 1997, and

remand this cause for further proceedings.

VUl. THE CIRCUIT COURT ERRED IN

DENYING DEBORAH’S MOTIONS TO

TRANSFER VENUE TO COOK

COUNTY.

The circuit court erred in denying Deborah’s

motions to transfer the matter to Cook County, as

there was a previously filed action pending in Cook

County, the children and virtually all of the wit-

nesses resided in Cook County, and Deborah made a

showing of prejudice in the underlying matter.

On November 17, 1993, Deborah filed a Petition for

Dissolution of Marriage in the Circuit Court of

Winnebago County. (“Winnebago County Petition”).

(Vol. 1 of 6, R. CO000001). In anticipation of the volun-

tary dismissal of the Winnebago County Petition, on

September 15, 1997 Deborah filed a renewed Petition

83a

for Dissolution of Marriage in the Circuit Court of

Cook County (Court No. 97D 14208) (“Cook County

Petition”). (Vol. 1 of 3, R. C000229) (See also Cook

County Petition contained in Appellant’s supplemen-

tal record).

On September 18, 1997, the circuit court granted

Deborah’s Motion to Dismiss the Winnebago County

Petition. (Vol. 4 of 6, R C000642; see also, Para. 1 in

the Stipulation of the Parties, and Stipulation to

Supplement the Record (“Stipulation of the Parties’)

filed in this appeal). At that time, the Cook County

Petition was the only operative pleading on file

relative to the dissolution of marriage of Deborah and

Lorenzo.

However, on September 22, 1997, without leave of

Court, Lorenzo filed a Counter-Petition for Dissolu-

tion of Marriage in Winnebago County. (Vol. 4 of 6, R.

C000643). On November 24, 1997, the circuit court

reconsidered its order of dismissal and reinstated the

underlying matter. (See, Par. 2 in Stipulation of the

Parties and the undated order attached thereto).

In response, Deborah filed two motions to change

venue seeking to transfer this matter to Cook

County. (Vol. 5 ce 6, R. C000797; Vol. 1 of 3, R.

C000157, C00011/7). However, the circuit court de-

nied Debora’s motion, and her renewed motion, to

transfer venue. (Vol. 1 of 3, R C0000241).

A. The Circuit Court Erred In Failing To

Transfer This Matter to Cook County

Where a Prior Filed Action Was Pending.

A circuit court’s refusal to transfer a matter to

another venue where a previously filed case was

pending is reviewed for an abuse of discretion. Zurich

84a

Ins. Co. v. Baxter Intl Inc., 173 Ill.2d 235, 243-44

(1996)

A divorce proceeding is one cause of action. As this

Court has held:

A proceeding for dissolution of marriage is not

made up of separate causes of action. While

certain aspects of dissolution, i.e., property

settlement, maintenance, etc., are handled only

after the issue of grounds for dissolution is

concluded, this in no way divides a dissolution

proceeding into separate causes of action. .. A

petition for dissolution of marriage begets one

cause of action.

In re Marriage of Snider, 305 Ill.App.3d 697, 701 (2d

Dist. 1999).

Also the Illinois Supreme Court has held: “A peti-

tion for dissolution of marriage advances but a single

claim and that ancillary issues such as custody,

property disposition and support are separate issues

relating to that single claim.” Zn re Marriage of

Leopando, 96 III 2d 114, 119 (1983).

In this case, the circuit court erred in failing to

transfer the matter to Cook County where a prior

action was pending between the parties.

An illustrative case is In re Marriage of Duff, 223

[ll.App.3d 889 (3rd Dist. 1992). In Duff, the wife filed

a petition for dissolution of marriage in the Fayette

County circuit court. 233 Ill.App.3d at 890. Three

days later, the wife filed an amended petition for

dissolutios of marriage in the circuit court of Taze-

well County. Jd. at 891. The Tazewell County court

had a hearing on the wife’s amended petition and

entered an order directing the husband to pay child

85a

support. Id. Subsequently, the Tazewell County court

entered an order dissolving the parties’ marriage and

set a hearing on the remaining issues. Jd. at 892. The

husband moved to vacate the court’s orders, and the

Tazewell County court denied the husband’s motion.

Id.

On appeal, the husband argued that the Tazewell

County court lacked subject matter jurisdiction over

the matter. Jd. The Appellate Court (reversing) stated:

Under the circumstances, we believe that. sub-

ject matter jurisdiction remained with Fayette

County, and the Tazewell County court was

not authorized to assume jurisdiction over any

aspect of the cause except to transfer [the wife’s]

amended petition back to Fayette County. We

find that the orderly administration of justice,

this State’s legitimate interest in discouraging

forum shopping and the interest of the Fayette

County court in continuing jurisdiction over the

custody of the parties’ children are all factors

that weigh in favor of granting [the husband’s]

motion to vacate the Tazewell County orders

Id. at 895.

In this instance, Duff is applicable. The only

jurisdiction that the Winnebago County circuit court

retained, if any, over Lorenzo’s Counter-Petition was

to send this matter to Cook County, where Deborah’s

previously filed Petition for Dissolution of Marriage

was pending. The circuit court erred in denying

Deborah’s motion to transfer and her renewed motion.

Accordingly, this Court should reverse and remand

this matter, vacate all orders entered after Septem-

ber 18, 1997, and direct the lower court to transfer

the matter to Cook County.

86a

B. The Circuit Court Erred in Denying

Deborah’s Motion to Transfer this Matter

to Cook County Under Forum Non

Conveniens.

1. The Circuit Court Erred In Denying

Deborah’s Motion to Transfer Venue

Based Upon the Parties’ Changed

Circumstances.

A circuit court’s refusal to transfer a matter for

forum non conveniens is reviewed for an abuse of

discretion. Dawdy v. Union Pac. R. R. Co., 207 Ill.2d

167, 176-77 (2003).

On November 25, 1997, Deborah filed a Motion to

Transfer Venue to Cook County for Forum Non

Conveniens. (Vol. 5 of 6, R C000797) However, before

the circuit court ruled on the motion, Deborah

subsequently filed a renewed Motion to Transfer

Venue. (Vol. 1 of 3, R C000157, C000177). On Decem-

ber 11, 2003, The circuit court denied Deborah’s

requests for transfer. (Vol. 1 of 3 R C0000241).

However, the circuit court erred in denying transfer,

as there was a change of circumstances warranting

transfer of the matter.

Under Illinois law, with respect to ruling on a

change of venue pursuant to forum non conveniens, a

circuit court abuses its discretion when it fails to

transfer a matter upon a showing that the parties’

circumstances have changed. W.R. Grace & Co. v.

Beker Industries, Inc., 128 Ill.App.3d 215, 221 (1st

Dist. 1984); see also, Eads v. Consolidated Rail Corp.,

365 Ill.App.3d 19, 29-33 (1st Dist. 2006) (the court

abused its discretion when it denied a party’s forum

non conveninens motion because of changed circum-

stances).

87a

In this case, the circuit court abused its discretion

when it failed to transfer the matter as the parties’

circumstances had changed, and Cook County was

the more appropriate venue for this action. After

filing the Winnebago County Petition, Deborah and

her children moved to Chicago where she had

temporary custody of her children. (Vol. 5 of 6, R.

C000797). Second, Deborah’s two children were

enrolled and attending a school in Cook County. and

they participated in extra-curricular activities in

Cook County. (Vol. 5 of 6, R. C000797). Third, the

medical, educational, and counseling experts who

were able to transfer to another venue was proper,

the Appellate Court in Pavelcik enumerated the facts

which demonstrated that Missouri was the more

appropriate forum:

Here, the children had been living in Missouri for

over four years at the time the motion to transfer

was filed. Indeed, they had been residing there

for two and one half years at the time the

petition for modification of visitation was filed.

Obviously, any records of their schooling would

be found in Missouri, as would any medical

records for their care ... as likely will be any

friends. Information concerning these matters

will not merely be helpful to an intelligent

custody determination, but essential. The coales-

cence of these factors more than amply justifies

the trial court’s decision to defer to the courts of

Missouri on this matter. . .(citations omitted). It

is clear that the trial court was mindful of the

considerations enumerated in the UCCJA in

declining the exercise of jurisdiction over the

matter, and that the facts amply support its

88a

conclusion that Missouri was the most appropri-

ate forum to litigate any child custody matter.

138 Ill. App.3d at 1066.

In this instance, the circuit court abused its

discretion by refusing to transfer the matter to Cook

County, contrary to the best interests of Deborah’s

children. The facts, as set forth above, demonstrate

that transferring this matter to Cook County would

best serve judicial economy, and would have been in

the children’s best interests. Under the reasoning of

Pavelcik, the evidence weighed heavily in favor of

transfer to Cook County, and the circuit court abused

its discretion by denying Deborah’s request for

transfer of venue.

Accordingly, this Court must reverse and remand

this case, vacate all orders entered after December

11, 2003, and direct the circuit court to transfer the

matter to Cook County.

C. The Circuit Court Erred In Failing To

Transfer This Matter to Cook County,

Pursuant to 735 ILCS 5/2-1001.5.

A circuit court’s refusal to transfer a matter pur-

suant to this statute is reviewable for an abuse of

discretion. Gouker v. Winnebago County Bd. of Sup’rs,

37 Ill.2d 473, 475 (1967). On January 11, 2007,

Deborah petitioned to transfer venue to Cook County

pursuant to 735 ILCS 5/2-1001.5, arguing that she

would not receive a fair and impartial trial in front of

Judge John Truitt (Vol. 2 of 5, R. C000457-000486).

On January 29, 2007, the circuit court denied

Deborah’s motion. (Vol. 3 of 5, R. C000583). However,

under Illinois law, the circuit court erred in denying

Deborah’s petition and in failing to transfer the

matter to Cook County.

89a

Regarding a transfer of venue based upon pre-

judice, the trial judge has no discretion as to whether

the change will be granted if a proper and timely

petition is filed, and the judge cannot inquire as to

the truthfulness of the allegations of prejudice. In re

Marriage of Cummins, 106 Ill.App.3d 44, 47 (2d Dist.

1982), citing Rosewood Corp. v. Transamerica Ins.

Co., 57 Ill.2d 247, 251 (1974). The right to a change of

venue on account of the prejudice of a trial court is

absolute as long as statutory requirements are met.

Joseph v. Joseph, 15 Ill.App.3d 714, 718 (1st Dist.

1973). The motion need not specify the basis of

the charge of prejudice; a general allegation of

a suspicion of prejudice is sufficient. Palmisano

v. Connell, 179 Tll.App.3d 1089, 1095 (2d Dist.1989)

(only general allegations of prejudice are necessary

and the petitioner has an absolute right to a substitu-

tion of judges). Moreover, any order entered after an

improper denial of a change of venue is void. Cummins

106 Ill.App.3d at 47, citing Sansonetti v. Archer

Laundry, Inc., 44 Ill.App.3d 789, 798 (1st Dist. 1976).

Here, Deborah’s petition satisfied the requirements

to change venue under 735 ILCS 5/2-1001.5. (Vol. 2 of

5, R. C000457-486). Deborah alleged that she would

not receive a fair trial as a result of the circuit court

judge’s prejudice. Specifically, Deborah alleged pre-

judice, as the judge would be unable to appoint

a “neutral” Child Representative. (Vol. 2 of 5, R.

C000457). Furthermore, Deborah alleged that Judge

Truitt would be unable to handle matters such as

case management, appointing a Child Representa-

tive, and moving the matter towards a hearing in a

timely fashion. (Vol. 2 of 5, R. C000458). Deborah’s

Petition was supported by two (2) affidavits of resi-

dents of Winnebago County, as required by the

statute. (Vol. 2 of 5, R. C000462-463).

90a

Under express Illinois law, the circuit court had no

discretion in refusing to transfer the matter, as

Deborah’s petition fully satisfied the requirements

under the statute and provided specific allegations of

prejudice. Any subsequent orders entered by the

circuit court after its improper denial of transfer are

void. Accordingly, this Court must reverse and

remand the matter, vacate all orders entered after

January 29, 2007, and direct the circuit court to

transfer this matter to Cook County.

CONCLUSION

The foregoing demonstrates that the circuit court

erred in (a) allowing Lorenzo’s Counter-Petition for

Change of Custody; (b) granting Lorenzo’s Petition

for an Order of Protection and entering an Emer-

gency Order of Protection against Deborah; (c) re-

peatedly extending the Emergency Order of Protec-

tion against Deborah; (d) granting Lorenzo’s Emer-

gency Petition to Modify Custody and entering an

emergency order transferring custody of the parties’

minor children to Lorenzo; (e) applying the wrong

standard at trial concerning custody; (f) making

findings at trial concerning custody that were against

the manifest weight of the evidence; (g) abusing its

discretion in entering judgment denying Deborah any

visitation whatsoever of the parties’ minor children;

(h) denying Deborah’s Motion for Voluntary Dis-

missal; and (i) denying Deborah’s motions to transfer

venue to Cook County.

Accordingly, this Court should reverse and remand

for further proceedings.

9la

Respectfully submitted,

Petitioner-Appellant

DEBORAH ORLANDO COONEY,

By:/s/ .

Thomas A. Zimmerman, Jr.

Zimmerman Law Offices, P.C.

100 West Monroe Street,

Suite 1300

Chicago, Illinois 60603

(312) 440-0020

Counsel for Petitioner-Appellant

92a

APPENDIX C

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

[Filed Jan. 7, 2008]

No. 93-D-1332

IN RE MARRIAGE OF DEBORAH ORLANDO COONEY,

Petitioner-Appellant,

Vv.

LORENZO ORLANDO,

Respondent-Appellee.

RULE 23 ORDER

On October 19, 2001, the petitioner, Deborah Orlando

Cooney (Deborah), filed a postdissolution petition to

remove the parties’ two children to Ohio. On November

19, 2001, the respondent, Lorenzo Orlando (Lorenzo),

filed a response to that petition and a counterpetition

for change of custody. On June 20, 2007, the trial

court granted Lorenzo’s counterpetition. Deborah ap-

peals from this order and from interlocutory orders

entered during the pendency of the postdissolution

proceedings. We affirm in part, reverse in part, and

remand for additional proceedings consistent with

this order.

BACKGROUND

Deborah and Lorenzo were married in Chicago in

1987. In 1989 Lorenzo’s job required the parties to

move to Rockford. Two children were born to the mar-

93a

riage: Christopher, born on September 22, 1989, and

Jonathan, born on December 29, 1991. On November

17, 19938, Deborah filed a petition for dissolution of

smaisiage in Winncbhagoe County. On Fcbhruary 9, 1004,

a hearing was held at which findings were made as to

the grounds for dissolution of marriage and, the proofs

were closed on that issue. The trial court reserved

entry of judgment at that time until all other issues

had been resolved.

On June 21, 1995, Lorenzo filed a petition to termi-

nate temporary maintenance on the basis that Deborah

was living with another man on an ongoing conjugal

basis. A hearing was held on November 7, 1995. On

November 22, 1995, the trial court entered an order

that indicated Deborah knowingly and intentionally

waived her right to receive temporary and permanent

maintenance in open court. The trial court thus en-

tered an order that Deborah’s right to receive mainte-

nance from Lorenzo was “forever barred as of No-

vember 7, 1995.”

On November 17, 1997, Deborah filed a motion to

voluntarily dismiss her petition in Winnebago County.

On September 18, 1997, the trial court entered an

order allowing Lorenzo seven days to respond to the

motion to dismiss. Although the order did not so re-

flect, the parties stipulated that on September 18,

1997, the trial court granted the motion to voluntar-

ily dismiss. On September 25, 1997, Lorenzo sent a

letter brief to the trial court judge, which does not

indicate that it was filed in the circuit court, objecting

to Deborah’s motion to voluntarily dismiss. In that

letter, Lorenzo argued that there had already been

substantive orders, barring Deborah from receiving

maintenance and three separate petitions for con-

tempt citations against Deborah. On October 1, 1997,

94a

Lorenzo filed a motion to reconsider the trial court’s

order granting Deborah’s motion to voluntarily dismiss.

The parties stipulated to an undated order denying

the plaintiffs motion to voluntarily dismiss. Deborah

alleged that this order was entered on November 24,

1997.

On November 25, 1997, Deborah filed a motion to

transfer venue to Cook County for forum non

conveniens. The motion was not resolved at that time,

and proceedings in the dissolution case continued

without objection. On June 15, 1998, the trial court

entered a bifurcated judgment dissolving the parties’

marriage. Deborah remarried in 1999 and Lorenzo

remarried in 2002. On June 8, 1999, the trial court

entered an order granting Deborah temporary sole

custody of the boys subject to an attached co-parent-

ing agreement of the parties. On September 18, 2001,

the trial court entered an order resolving the remain-

ing issues in the dissolution case such as mainte-

nance, child support, and the distribution of marital

assets. Additionally, this order granted permanent

custody of the children to Deborah and incorporated

the co-parenting agreement. Deborah filed a notice of

appeal from this order. She later filed, and we

granted, her motion to dismiss the appeal. See In re

Marriage of Orlando, No. 2-01-1191, final order dated

April 16, 2002.

On October 19, 2001, Deborah filed a petition to

remove the children to Ohio where she and her new

husband had built a home. On November 19, 2001,

Lorenzo filed a response to the petition for removal

and a counterpetition for change of custody. On August

29, 2002, the trial court entered an order denying

Deborah’s petition to remove. Lorenzo’s counterpeti-

tion for change of custody remained pending.

95a

On October 17, 2002, Attorney Kathryn Bischoff was

appointed by the trial court to act as the children’s

representative, pursuant to section 506(a)(3) of the

Illinois Marriage and Dissolution of Marriage Act (the

Dissolution Act) (750 ILCS 5/506(a)(3) (West 2002)).

On June 27, 2003, Bischoff sent a letter to counsel for

the parties. In that letter, Bischoff indicated that she

reviewed the case file, interviewed the parties and

the children, and obtained information from collat-

eral sources. Based on her investigation, Bischoff con- —

cluded that both parties love their children but they

often let their animosity toward each other cloud

their judgment, resulting in decisions that were not

always in the best interest of the children. Bischoff

concluded that the children were constantly caught in

the middle of their parents incessant confrontations

and disagreements. Additionally, she stated:

“It is my opinion that [Lorenzo] has done a better

job of putting the best interests of the boys first,

whereas [Deborah] tends to look to the past and

history and takes personal affront with [Lorenzo’s]

attempts to have more time with his children.

Based on the foregoing, it is my opinion, that it is

in the best interests of the children that custody

be modified so they may reside with their father,

subject to visitation with their mother.”

On July 2, 2003, based on Bischoffs recommenda-

tion, Lorenzo filed a petition for temporary change of

custody. On October 28, 2003, Deborah filed a petition

for supervised visitation, indicating that Lorenzo had

knowingly given Christopher dairy products, to which

Christopher was allegedly allergic, causing him to be

hospitalized.

On November 20, 2003, Lorenzo filed a motion to

strike the plaintiffs November 25, 1997, motion for

96a

transfer of venue. Lorenzo pointed out that the pur-

suant to section 4, subparagraph q, of the June 8,

1999, co-parenting agreement, the parties agreed as

follows:

“k** post-judgment venue shall remain in Win-

nebago County, Illinois, unless otherwise agreed

to by [Lorenzo] as evidenced by a signed stipula-

tion.”

On November 25, 2003, Deborah filed a renewed mo-

tion to transfer venue to Cook County. In that mo-

tion, Deborah argued that pursuant to section 512(b)

of the Dissolution Act (750 ILCS 5/512(b) (West

2002)), the trial court may in its discretion transfer

matters involving a change in child custody to the ju-

dicial circuit where the minor or dependent child re-

sides. Deborah indicated that she and the children had

been residing in Cook County for many years and

that Cook County would be a much more convenient

forum for the children and the witnesses. On December

11, 2003, the tral court entered an order denying

Deborah’s motions to transfer venue.

On April 30, 2004, Deborah filed a motion requesting

that a custody evaluator be appointed pursuant to

section 605 of the Dissolution Act (750 ILCS 5/605

(West 2004)), “to investigate all relevant factors re-

garding custody of the minor children.” On Sep-

tember 23, 2004, the trial court, pursuant to section

605 of the Dissolution Act, appointed Dr. Lyle Ros-

siter, M.D., to conduct an independent evaluation and

make written recommendations concerning the custo-

dial arrangements for the minor children.

Dr. Rossiter submitted his written report to Bisch-

off on June 10, 2005. In that report, Dr. Rossiter

made findings, conclusions, and recommendations. Dr.

97a

Rossiter indicated that as part of his evaluation he

interviewed the parties and their children, Lorenzo’s

current wife, Deborah’s parents, and a number of

Deborah’s friends. Deborah’s current husband,

Edward Cooney, was not personally interviewed but

did complete a multimodal questionnaire. Addi-

tionally, Dr. Rossiter reviewed most but not all of

Christopher’s medical records; numerous motions,

petitions, memorandums and orders filed and issued in

this case; discovery depositions; e-mails between the

parties; records pertinent to Deborah’s and Lorenzo’s

financial situations; school records; and records of

various DCFS investigations of the Orlando family. Dr,

Rossiter’s report did not indicate that he performed

any psychological testing on Christopher or Deborah

in his “Summary of Ccz:clusions,” Dr. Rossiter

indicated that Christopher suffered from a delusional

disorder characterized by irrational beliefs that his

father was trying to harm or kill, him and that the

disorder, was induced as a result of intense emotional

pressure from his mother, Deborah, and his maternal

grandparents, Rose and Raymond Wietrzykowski.

Dr. Rossiter further concluded that Deborah also suf-

fered from a delusional disorder manifested by similar

missbeliefs that Lorenzo was trying to harm Christo-

pher. She also was delusionally convinced that Chris-

topher suffered from one or more severe systemic

medical disorders for which there was (a) no medical

evidence, and (b) extensive medical documentation to

the contrary. Dr. Rossiter further stated that:

“(Deborah’s] disorder has manifestted [sic] itself

in intense and sustuined hostility, manipulation,

and misrepresentation of medical and other facts,

lack of cooperation and mutuality in-custody and

visitation arrangements, deliberate falsification

98a

of the onset, nature, duration, and course of the

signs and symptoms of imagined disorders in

Christopher, and deliberately false reports of ma-

levolent actions by Lorenzo to various agencies

including medical doctors, school teachers or admin-

istrators, DCFS, and law enforcement authori-

ties.”

Dr. Rossiter explained that Deborah’s and Christo-

pher’s delusions were also held by Deborah’s parents,

who described Lorenzo as a sociopath who continued

to be a homicidal threat to Christopher and bent on

ruining the lives of Deborah and her parents.

To the contrary, Dr. Rossiter stated that his exami-

nation revealed that, despite earlier personality faults,

Lorenzo had become a dedicated and loving father

who had made strenuous efforts over the past nine

years to remedy his earlier neglect of the children

and to counter the destructive effects of. Deborah’s

household on Christopher and Jonathan. Dr. Rossiter

found that despite Lorenzo’s efforts; Deborah and her

parents had created an unusually toxic environment

in which Christopher had developed a delusional

disorder. Jonathan had also suffered serious but less

devastating harm in the environment, in which he

developed a “conduct disorder.”

Dr. Rossiter further opined that Deborah’s influences

resulted in a complete parental alienation syndrome

in which Christopher was so delusionally fearful of his

father that he refused to see him at all. Christopher’s

mental illness constituted a Munchausen’s-by-proxy

syndrome that resulted from the immense emotional

pressure put upon him by Deborah and her parents.

He believed that the actions of Deborah and her

parents toward Christopher formed a chronic pattern

99a

of mental and emotional child abuse reportable to the

proper authorities.

Dr. Rossiter recommended that Christopher and

Jonathan be placed in immediate temporary custody

of Lorenzo and ultimately in his permanent custody.

He also recommended that Christopher be immedi-

ately admitted to a nearby psychiatric hospital and

evaluated for a delusional disorder, parental alienation

syndrome, and Munchausen’s-by-proxy syndrome.

He further stated that, in order to interrupt the

dominant influence of Deborah and her parents on

Christopher, they should be prohibited from visiting

with him in the hospital. The hospitalization should

be construed as a transition process in preparation

for Christopher living with Lorenzo. Following Chris-

topher’s release from the hospital, Dr. Rossiter recom-

mended that visitation with Christopher by Deborah

and her parents be brief and closely supervised so

that no further delusional beliefs were shared with

Christopher. Dr. Rossiter also recommended that

Deborah and her parents seek immediate psychiatric

treatment. Finally, Dr. Rossiter warned that the type

of delusional disorders in this case carried an in-

creased risk for violence, including violence directed

toward the self, not just those perceived as the

villains. He believed that once Deborah and her

parents were aware of his opinions, that abduction of

the children was a possibility.

On June 14, 2005, Bischoff submitted Dr. Rossiter’s

report to the trial court and-to the parties’ attorneys.

On that day, the trial court issued a protective order

that the lawyers were not to release a copy of or any

information concerning Dr. Rossiter’s report to their

clients. The trial Court also compelled the parties and

100a

the children to appear in court June 15, 2005, with-

out any explanation for the mandate.

On June 15, 2005, the parties appeared in court and

were provided copies of Dr. Rossiter’s report which

they were permitted to read while in court. Lorenzo

filed a petition for an order of protection and an emer-

gency petition for temporary change of custody.

Deborah’s attorney objected on the basis that Deborah

had not received 10 days’ notice pursuant to section

605 of the Dissolution Act and was being denied her

constitutional right to cross-examine Dr. Rossiter.

The trial court marked Dr. Rossiter’s report as the

Court’s Exhibit No. 1 and admitted it into evidence.

No testimony or other evidence was taken. The trial

court stated:

“I find the report to be very thorough as it was

prepared by Dr. Rossiter, a very comprehensive

report, contains very serious and disturbing con-

clusions and recommendations; which I accept, and

based upon the report and your argument and

representations by counsel today I will grant an

emergency order of protection in favor of [Lorenzo],

against [Deborah], and will award to him the

temporary custody of the two children, ***, as

suggested by counsel.”

The trial court ordered that Christopher be brought

immediately to the hospital for psychological evalua-

tion. The trial court set the hearing on a plenary

order of protection for June 29, 2605. The trial court

clarified that it was granting both an emergency order

of protection and Lorenzo’s petition for temporary

change of custody, and that both were set for status

on June 29. An emergency order of protection was

entered on that day, indicating that Deborah was

denied visitation with Christopher and Jonathan. The

10la

trial court also entered an order on that date grant-

ing Lorenzo’s emergency petition for temporary change

of custody. That order indicated that visitation with

Jonathan was denied and that visitation with Chris-

topher was pursuant to the emergency order of pro-

tection—which denied visitation.

There were thirty extensions of the emergency order

of protection between June 29, 2005 and December

12, 2006. Most of the extensions were agreed to by

the parties. On September 1, 2005, Judge Steven L.

Nordquist, the judge who had presided over the case

since early 1998, sent a letter to the parties indi-

cating that he had been reassigned to Boone County

and that on the court’s own motion he was reassign-

ing the case to judge John R. Truitt. The letter fur-

ther indicated that the cause had been set for status

on September 8, 2005, and that Judge Truitt was

unavailable that day. As such, the court reset the

case for status on September 22, 2005, before Judge

Truitt. The trial court entered an order dated Sep-

tember 2, 2005, continuing the emergency order of

protection until September 22, 2005.

On July 5, 2005, Deborah filed a petition for re-

hearing on the trial court’s June 15, 2005, orders grant-

ing the emergency order of protection and Lorenzo’s

emergency petition for temporary change of custody.

On September 14, 2005, Deborah filed a motion to

vacate the emergency order of protection. In that mo-

tion, Deborah argued that pursuant to section 220(e)

of the Domestic Violence Act (750 ILCS 60/220(e)

(West 2004)), an emergency order of protection can

only-be extended in open court. Deborah therefore

maintained that Judge Nordquist’s sua sponte exten-

sion from September 8 to September 22 was in viola-

tion of the statute. Additionally, she pointed out that

102a

the trial court docket indicated that the parties were

in court on August 23, 2005, and agreed to extend the

status to September 8, 2005. However, she argued

that the parties were not in fact in court and that her

attorney had attended a funeral that day. On Sep-

tember 22, 2005, following a hearing, the trial court

denied the petition for rehearing and the motion to va-

cate the emergency order of protection. On October 3,

2005, Deborah filed a notice of appeal from that order.

On November 7, 2005, we dismissed the appeal for

lack of jurisdiction because it was untimely. See Jn re

Marriage of Orlando, No. 2-05-0985, final order dated

November 7, 2005.

Thereafter, status on the emergency order of pro-

tection and the emergency petition for temporary

change of custody was continually extended by agree-

ment of the parties. Ultimately, on December 12, 2006,

by agreement of the parties, the trial court vacated

the emergency order of protection. On that same day

the trial court entered: a “no contact” order barring

Deborah from visiting Christopher and Jonathan or

going near their home, school, or place of employ-

ment.

On December 19, 2006, Attorney Bischoff filed a mo-

tion to withdraw as the child’s representative. The

trial court granted that motion. On January 11, 2007,

Deborah filed another motion for change of venue,

arguing that she could not receive a fair and timely

trial in Winnebago County. On January 29, 2007,

the trial court denied the motion for change of venue

and appointed Attorney Janet Fuenty to serve as the

child’s representative. A trial on Lorenzo’s counter-

petition for change of custody commenced on June 4,

2007.

103a

At the start of the trial, Deborah made an oral

motion to dismiss the counterpetition because the al-

legations were conclusory. Deborah argued that the

counterpetition only alleged that, she concealed her

intent to move to Ohio during the dissolution pro-

ceedings, and that, therefore, evidence of any events

occurring subsequent to the filing of the counterpeti-

tion could not be admitted at trial. Deborah acknowl-

edged that if the counterpetition was amended, Lorenzo

could admit evidence of events occurring subsequent

to the filing of the counterpetition. The trial court

denied the oral motion to dismiss. The trial court

noted that Deborah had ample time to challenge the

pleadings; that there was no surprise or prejudice

because, since the filing of the counterpetition, there

had been extensive discovery and interrogatories had

been exchanged; and that the rules of pleading and

proof were not to be as strictly construed when dealing

with the concept of the best interest of the children.

Thereafter, trial commenced. The trial lasted ap-

proximately two weeks and the trial court heard the

testimony of approximately 13 witnesses. The following

is a brief recitation of the testimony that is relevant

to the issues raised in this appeal.

Lorenzo testified that he and Deborah entered into

a co-parenting agreement in 1999. Pursuant to the

agreement, among other things, he was to have visi-

tation with the children every other weekend, holiday

visitation was to be determined by agreement, and he

was to have phone communication four times a week.

From the beginning, Deborah did not comply with the

agreement in that she failed to keep him apprised of

the children’s progress in srool and their health

conditions. After he filed his counterpetition for change

of custody, compliance with the visitation require-

ments of the coparenting agreement became worse.

104a

Lorenzo testified that Deborah did not allow him visi-

tation for the first quarter of 2002. In June of 2003 he

was denied visitation because Jonathan was hospital-

ized after being hit by a car. Deborah did not tell

Lorenzo where Jonathan was hospitalized. He called

every hospital in Chicago until he found him. He then

went to visit Jonathan in the hospital. Additionally,

he only saw Christopher twice between October 2003

until June 15, 2005, both times when he was drop-

ping Jonathan off. October 2003 is when Deborah and

Christopher accused him of poisoning Christopher by

feeding Christopher milk products despite Christo-

pher’s alleged milk allergy.

Lorenzo further testified that on June 2, 2004, the

Winnebago County trial court entered an order grant-

ing him visitation with both boys from June 4, 2004,

through July 2, 2004. He arranged to bring the boys

home following Christopher’s eighth grade gradua-

tion ceremony in Chicago. When he parked his car at

the school, he was surrounded by police officers and

presented with an order of protection that Deborah

had obtained that day in Cook County. The order of

protection denied him any contact with Christopher.

He showed the police officers the visitation order that

was entered in Winnebago County. Nonetheless, he

was not allowed to witness Christopher’s graduation.

The police officers pleaded with Deborah to allow

Lorenzo to sit in the back of the Church to see the

graduation. Deborah refused. He left Chicago with

only Jonathan. Finally, Lorenzo testified that of the

six or seven DCFS investigations that were instigated

against him, presumably by Deborah, they were all

determined to be unfounded.

Deborah testified that from 1998 until 2001, visita-

tion was going well between Lorenzo and the chil-

105a

dren. Lorenzo did not miss any visitation in 2002 or

2003. From the years 2000 until 2004 there were no

pleadings on file indicating that Lorenzo missed any

visitation. She informed Lorenzo whenever Christo-

pher was hospitalized. In early October 2003, when

Christopher and Jonathan returned home from visi-

tation with their father, Christopher had sores all

over his body and complained about a burning pain in

his stomach. He was thereafter hospitalized for six

days at the Resurrection Medical Center in Chicago.

The hospitalization was caused by Lorenzo feeding

Christopher milk products despite Christopher’s milk

allergy.

Deborah further testified that she had a daughter

with her second husband named Caitlin. Caitlin was

ten years old at the time of trial. Christopher and

Jonathan had a good relationship with Caitlin prior

to the emergency change of custody in June 2005.

Deborah testified that she had a very good relation-

ship with the boys. She took care of them, took them

to school, fed them, and helped them with their home-

work, Deborah testified that Christopher and Jonathan

loved her very much and would constantly hang on

her.

Finally, Deborah testified that in 1995 Lorenzo was

charged with eavesdropping for tape recording their

phone conversations. Also around that time frame,

Lorenzo had physically assaulted her second husband

by grabbing him around the neck. Deborah related

incidents of abusive behavior during her marriage to

Lorenzo. One example was a time Lorenzo became

upset because she ironed the wrong shirt for him so

he called her a “bitch” and threw the shirt in her face.

Another example was a time shortly after Chris-

topher was born and she wanted to go grocery shop-

106a

ping without Christopher. Lorenzo told her to make

sure that Christopher was changed and fed before

she left because he did not want to have to do any-

thing while she was gone. She also testified that

every morning getting up, if Lorenzo missed the alarm,

he would scream at her and blame her for his being

late for work.

Brian Klaung testified that he was a licensed

clinical social worker who had been hired by Lorenzo

on June 23, 2005, to provide counseling to Christo-

pher and Jonathan Lorenzo requested that Deborah

stipulate to the fact that Klaung was an expert.

Deborah refused to stipulate and indicated that

whether Klaung was an expert or an opinion witness

was irrelevant since either way the issue was the

probative value or the weight to be given to his testi-

mony. The trial court found Klaung to be qualified as

an expert in the areas to which he testified and

indicated that it would determine the weight to be

given to his testimony

Klaung testified that, with respect to Christopher

and Jonathan, he was convinced wi

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