## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Lonvick , 2013 IL App (2d) 120865

Appellate Court Caption I n r e M A R R IA G E O F E R IC LO N V IC K
, P e t i t i o n e r a n d Counterr es p o n d en t -A p p el l ee an d Cross-Appellant, and L I NDA L ONVI CK, Respondent and Counterpetitio n er- Appellant and CrossAppellee

.

District & N o. Second District Docke t Nos. 2-12-0865, 2-12- 0895 cons.

Filed August 28, 2013

Held (Note : This syl lab us

con st it ute s no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appea l from the dissoluti on o f t h e p arties’ marria g e, the awa rd of
cust o dy of their child to petitioner was upheld over responde nt’s contentions that she did not have a mental disorder and that she was not overpr otective of the child, and, further, the repor t of a court-a

ppointed evaluator was proper ly admitted over responde nt’s cl ai m i t was impermissible hear say and was improperly acc epte d as substantive evidenc e, and the awa

rd of $120,000 in attorney fee s to respondent wa s not an abuse of discre tion.

Dec ision Under
Review Ap peal from the C ircuit Court of Du Pag e C ounty , No. 10-D-1555; t h e Hon. Paul A. Marc hese and the Hon. Robert J

. Anderson, J udg es, presiding

.

J udg ment Affir med.Counsel on

Appea l Aldo E. Botti and J ean M. L asics-Wessels, both of Botti L aw Firm, P.C., of Oak Br ook, for a

ppellant.

Br y an S. Estes, of L aw Offic es of Wil liam J

. Stogsdill, J r., P.C., of Wheaton, for a

ppellee.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion. Presiding J ustice Bur

ke and J ustice Hutchinson concurred in the judgme nt and opinion.

OP INION

¶ 1 Respondent, L inda L onvick, appe als from the judgment of the Du Pag e C ounty circ uit
court awa rding custody of the parties’ minor child, E.L
., t o p et i t i o n er, Eric L onvick, and from the order deny

ing her motion to rec onsider. Specifica lly
, L inda contends that the child custody deter

mination is ag ainst the manifest weight of the evidenc e. Additionally
, L inda contends that the trial court err ed when it (1) denied her motion for substitut ion of judge for

cause ; (2) admitted into evidenc e a court-a ppointed evaluator’s repor t prepa red pursuant to section 604(b) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Act ) (7 5 0 I L CS 5/604( b) (West 2010)); (3) acc epted and relied on the testimony of the evaluator that was alleg edly hear say ; and (4) ruled th at funds that Eric rec eived from his fathe r during the marria g e wer e g ifts, and ther ef o re nonmarital proper

ty , and that no commingling with the marit al es t ate occur

red. Eric cross-a

ppeals from the judgme nt of the trial court awa rding $120,000 in attorney fee s to L inda. For the rea sons set forth here in, we aff irm the judgme nt of the trial c ourt.

¶ 2 I . BA CKGROUND ¶ 3 Eric and L inda wer e marrie d on October 2, 2004; they had one child, E.L
., born August 22, 2005

. I n November 2009, L inda left the marital residenc e in Glen Elly n, I llinois
, with E.L

. and moved into a women’s shelter; L inda and E. L

. t h en returned home afte r 16 day s. On J uly 9, 2010, Eric filed a petition for dissoluti on of marria g e, and on J uly 12 L inda filed

a counter petition. On J uly 17, L inda and E.L

. moved out of the marital home and stayed with

a friend, Ing rid Z y

ng a, in G len Elly

n, for eight w eeks. There afte r, she and E.L . moved into
an apa rtment in Wheaton, I llinois

. ¶ 4 Prior to tr ial, on J uly 2, 2011, Eric filed a motion to enroll E.L

. in kinde rg arte n in Glen E l l y n, the district wher e Eric resided, as opposed to Wheaton, the district wher e L inda resided with E.L

. After an evidentiary hear ing on August 16
, to which L inda obj ecte d, the

-2-trial court, J udg e P aul A. Marc hese presiding
, gra n t ed Eric’s m otion, stating that, beca use E.L

. had lived in the Glen Elly n school district until he and his mother moved from the marital home, and was familiar with the neig hborhood and the school, it wa s in E .L .’s best interest to attend the G len Elly n school. ¶ 5 On August 22, 2011, L inda filed a motion for substitut ion of judge for ca u s e t h at was hear d on September 2, by J udg e Robert J

. Ander son. The motion alleg ed that beca use J udg e Marc hese order ed that E.L

. attend kinderg arte n in Glen Elly n, he had prede termined a fac tor under section 602(a) (4) of the Act (750 I L CS 5/602(a)( 4) (West 2010)), perta ining to E.L .’s adjustment to his home, school, and community . On September 2, J udg e Ande rson denied the motion, finding that ther e wa s no showing of actua l prejudice , and re turned the c ase to J udg e Marc hese. The case proce eded to trial befor e J udg e Marc hese, commencing October 20, 2011. ¶ 6 At tr i al
, E ri c t es tified that he purcha sed a home in Glen Elly n in 1991, prior to the marria g e, and kept i t in his name alone. L inda moved in when they marrie d and continued
to reside there until 2010 when she mo v ed o u t

. At the time of his testimony
, Eric was 51
y ear s old and he had been employ ed by Walgr eens as senior d at ab as e administrator since 2005. In 2005, he obtained a master’ s degree in computer scienc e from DePaul University

. He was in g ood health, but suffe red from sleep apnea and used a CPAP machine to help him breathe at nig ht. For 20 year s he had voluntee red a s a member of the National Ski P atrol. ¶ 7 E ri c t es t ified extensively reg arding his relationship with E.L

. and the activities they share d, which included skiing, T-ball, Su n d ay s chool, and visiti ng extended family

. Additionally , Eric trie d to have E.L . participate in activities throug h the Y.M.C .A. and the Glen Elly n Park District and i n an ea rl y development class at the College of DuPag e (C.O.D.). Eric testified that L inda either withdrew E.L

. from programs Eric had enrolled him in or objecte d to his participation. ¶ 8 Eric further testified that E.L

. had his own bedroom and bathroom at the marital home. I f Eric had custody , E.L . would attend a mor ning “ kinderg arte n roundup” a t the Y.M.C .A. and its bus would then take him to kinderg arte n at Be n Fr anklin School in Glen Elly n. After school, four diff

ere nt families would be able to assist if Eric had wor k obligations. ¶ 9 Eric testified that during the m arr iag e his fathe r had g ifted him with money via che cks that wer e made out to Eric as payee and wer e deposited into various investment and in d i v i du al retire ment acc ounts. His fathe r also contributed money direc tly to a chec king

acc ount that was held solely in Eric’s name. ¶ 10 L inda testified that she was 48 y ear s old, in g oo d h ea l t h
, an d n o t curr ently takingany medications. She had a bache lor’s degree from Columbi a College in art and desig n and had last worke d in that field in 1992. Since 2005, she had been the primary car eg iver for E.L

. and had not worke d outside the home. ¶ 11 L inda s tated tha t ea rl y i n their m arr iag e Eric choked her and threatened to “chop [her] into piec es.” She testified that he would not g ive her enough money to buy food and would not allow her to spend mone y on any thing f or their home. ¶ 12 L inda also testified that “che cks from Gran dp a L o n v i ck ” we re d ep o s i t ed into the investment acc ounts that wer e held jointly

. On cross-e x amination, L inda testified that none

-3-of the chec ks from Eric’ s fathe r wer e made out to her and that the chec ks wer e deposited into

various acc ounts. L inda also testified that sometimes a chec k was deposited into a joint

acc ount and then Eric would transfe r money into an Ameriprise acc ount held solely by him. ¶ 13 Dr. Ger ald Ble chman, the court-a ppointed evaluator, testified that he prepa red a section 604(b) custody evalua

tion repor t, applying eac h of the fac tors contained in section 602 of the Act. See 750 I L CS 5/602 (West 2010). Dr. Ble chman m et wi t h L inda, Eric, and E.L

. on multipl e occa sions; he also int er v i ew ed Dr. J ames Natter
, Dr. Ellen Kea ting, and J ahn O’B rien, Eric’ s next-door neig hbor. Dr. Ble chman also rec eived l et t ers from Z y ng a and Dorothy L ance , L inda’s mother. Ble chman rec ommended that Eric be g rante d sole custody subject to “re asonable visitation” as set forth in his repor t. Dr. Ble chman testified that L inda

was “over protec tive” and that, when he observe d E.L

. with L inda, E.L .’s behavior was “ver y passive, relatively nonverb al
, co nstricted.” When Dr. Ble chman observe d E.L

. with his fathe r, he wa s m o re verba lly expressive, had more ideas of his own, and “in g ener al,
appea red to be a diffe rent c hild.” ¶ 14 Dr. Keating’ s testimony was allowed for the purpose of impeachme nt of Dr. Ble chman’ s testimony reg arding what he had considere d in forming his opinion. Dr. Keating testified that she was a clinical psy cholog ist and had counsele d L inda intermittently betwee n 2005 and 2 0 0 7. She diagnosed L inda with an “adjustment disorder,” i.e.
, “life stressors that cause upset.” She testified that she told Dr. Ble chman “something to the eff ect of there was nothing in my observations or conclusions at the time that would prec lude h er fr o m b eing an adequate pare nt.” She also stated that, as her observations we re from 2005 to 2007 and she was testifying in 2011, “ it has been a long time.” ¶ 15 S ev er al o t h er wi tnesses testified at trial. L ance testified that, on May 20, 2009, Eric punched L inda with a closed fist and she hear d L inda y ell. She called to her husband to help L inda. O’B rien testified reg arding the same alterc ation; she observe d L inda slap Eric on his arm with an ope n hand and E ric im mediately slap her back the same way . O’B rien did not hear any y elling, sc rea

ming, or cry ing. ¶ 16 O’B rien and E.L

. ’s baby sitter, Natalie Nestrok, eac h testified about an occa sion when Eric was riding his bike on the sidewalk while pulling E.L

. in a bike trailer. They both stated that L inda ra

n afte r Eric and shouted at him that he was riding too fast. Nestrok stated that there was nothing unusual or conce rning about how Eric was riding with E.L

. in the trailer. ¶ 17 J ean Spy

ksma, music minist er at Eric’ s churc h, testifi ed t h at she had known Eric a nd L inda s i n ce t h ei r wedding and that Eric had been bring ing E.L

. to churc h regularly

. She observe d E.L . to be happy and bubbly , not fea

rful or f rig htened of

other c hildren. ¶ 18 City of Wheaton police office r J ames Craig testified for Eric on rebuttal that on J anuar y 27, 2012, he and another office r responde d to a ca ll at L inda’s apa rtment in Wheaton. Eric
met them in the parking lot and told them that he was there to pick up his son and that L inda “wa s not letting the child come out.” Offic er Craig and the other office r then went to L inda’s
apar tment and spoke to her in the hallway
, wher e she told them that E.L

. did not want to g o with his fathe r and that she was not g oing to forc e him. They enter ed the apar tment and saw E.L . watching television; L inda s at down next to him on the couch. Offic er Craigtestified that she put he r arm around E.L . and her other ha nd on his kne e. Offic er Craig stood a bout

-4-10 fee t awa y and the other office r was in the doorwa y to the apar

tment. L inda raised her hand and tol d them in a “slightly eleva ted voi ce” to “stop, g et back, g ive hi m ro o m to breathe.” Offic er Cra ig the n went outside and c alled the supe rvisor, and the decision was made that, beca use E.L

. was six y ear s old, “[s] he neede d to prese nt the child for visitation, or we would be forced to do a charg e for unlawful visitation and [ sic ] i nterfe renc e.” He st ated that E.L

. was “ a little kid” and “se emed sc are d when I went into the apa

rtment.” ¶ 19 On cross-examination, Offic er Craig stated that he had been wearing hi s u n iform with his badg e and had his gun in his holster. He stated that “[u] nder t h es e particula r circ umstances, it seeme d to me that [L inda] was being a littl e overse nsitive about the whole situation.” He a lso stated that he thoug ht it odd that she had her arms a round E.L . and wa s patting his knee, “like we’ re g oing to come in there and beat him with our clubs or something.” ¶ 20 On Marc h 20, 2012, the trial court issued its ruling and rea d its memorandum opinion in
open court. Reg arding custody
, the court considere d all the rele vant fac tors, including those in section 602 of the Act. The court noted that both pare nts wished to be the custodial pare nt, and that, during the marria g e, while Eric was working, L inda was a homemaker and was responsible for E.L . Until L inda moved with E .L

. to Wheaton, he had lived in E ric’s home in Glen Elly

n. Whil e E.L

. lived with L inda, there was no temporar y desig nation of custody and Eric had re gular visitation with E.L

. ¶ 21 The trial court noted that Dr. Ble chman conducte d a thoroug h investigation and it found his testimony and conclusions cre dible. Dr. Ble chman conclude d that there was a signific ant differ ence in E.L .’s interac tion and interre lationship with L inda and with Eric. When Dr. Ble chman observe d E.L

. with Eri c , E

. L

. w a s animated, verba l, and happy ; notably
, when E.L

. was with L inda, he spoke very littl e and was passive. Dr. Ble chman found L inda to be fea rful and anxious

. The trial court noted that Dr. Bl echma n’s finding s reg arding L inda’s “over protec tiveness” wer e corr oborate d by three witnesses, in c lu d in g O f f ic e r Cr aig

. The trial
court also noted that Dr. Natter had counsele d L inda and Eric toge ther for two year s and had diag nosed L inda with an anxiety disorder. The trial court further found that Dr. Ke at i ng ’s testimony did not impeach Dr. Ble chman. The trial court then found that L inda had a “mental disorder suc h that her a

bility to be a sole c ustodian [was] seriously impaired.” ¶ 22 T h e t ri al court found t hat L inda’s allegations of phy sical abuse wer e not cre dible. The trial court further found that Eric demonstrated “more willingness and ability to fac ilitate and

encour ag e a close and continuing relationship” with L inda than L inda d i d wi t h Eric. Additionally , the trial cour t noted: “While both parties indicated that they appre ciate t h e ro le of the other pare nt in their child’s life, [L inda’s] actio n s are dispositi ve. Apar t from signing up [E.L .] in the Wheaton school district, signing [Eric’s] name to d o cu ments to withdraw [E.L .] from C.O.D., and withdrawing [E.L .] from activities without consulting [Eric] during the trial in this mat t er, on differ ent occa sions when it was time for [E.L .] to g o with [Eric] for visitation, [ L inda] wished to be with [ E.L .] i nstead [and] delay ed visitation.”
The trial court then found that the parties did not have the ability to cooper ate as require d for joint custody (see 750 I L CS 5/602.1 (West 2010)) and awa rded E.L .’s sole car e and custody

-5-to Eric, subjec t to L inda’s visitation rights. L inda was order ed to pa y child support to E ric. ¶ 23 In awa

rding reha

bilitative maintenanc e to L inda, the trial court considere d the statutory fac tors. The trial court noted that, althoug h the marria g e lasted only seven year s, “the Court is mindful of the disparity of nonmarital assets and income of the parties and the prese nt and future e arningcapa cities.” The trial court a lso noted that duringthe cour se of the ma rriag e L inda was a stay -at-home mother by agree ment of the parties, and the trial court considere d the testimony reg arding L inda’s “emotional health.” The trial cou rt order ed Eric to pay maintenanc e in the amount of $3,000 per month for a period of 36 months, afte r which L inda could petition for re view. ¶ 24 R ega rd i n g n o n marital proper ty , the trial court noted that: Eric testified as to g ifts he

re ce i v ed fr o m his fathe r; “the presumption of gift t o the m arr iag e can be rebutted by clea r and convincing evidenc e if the elements of g ift are satisfied ”; an d E ri c’s fathe r g ave him chec ks payable t o him alone or made deposits into specific acc ounts held in Eric’ s name alone. The court found that these chec ks and deposits wer e intended as g ifts; wer e unconditional and wi t h out consideration; involved family ; wer e irrevoc able; and wer e

acc epted. In addition, there was no evidenc e of rec ord of commingling the g ifts with the marital estate

. ¶ 25 On April 11, 2012, the trial court enter ed its judgme nt fo r d i s s o l u t i o n of marriag e,

awa rding Eric sol e custody of E.L
., with child support payable from L inda to Eric. Additionally
, the trial court order ed Eric to pay L inda maintenanc e in the amount of $3,000
per month for 36 months, after which the maintenanc e would be revie wable. Eric was also order ed to pay

$120,000 in attorney

fee s directly

to L inda’s attorne y s. ¶ 26 Eric’ s motion to rec onsider the attorney fee awa rd was denied on J uly 10, 2012. The trial
court noted the disparity in Eric’ s and L inda’s incomes, and the fac t that L inda was unemploy ed and ha d been c aringfor E.L . duringthe pende ncy of the trial. ¶ 27 On t he same date, the trial court gra nted i n part an d d en i ed in part L inda’s “Motion t o R ec o n sider and/or Vac ate J udgment for Dissolution of Marr iag e.” The trial court g ra n t ed L inda’s reque st to rec eive notice from E.L .’s medical, dental, and educational providers and notice fr om Eric as to E.L .’s extracurr icular a ctivities. In denying the motion to rec onsider
as t o the admis sion of Dr. Blec hman’s re port, the trial cour t stated, “what I g ave weig ht to

was Dr. Bl ec hman’s live testimony in court. I f I completely put Dr. Ble chman’ s written
repor t aside and did not rea d it or consider it at all, [hi s] oral testimony in live court is what

car ried the day .” The trial court further stated that Nestrok’ s and Offic er Craig ’s testimony

corr oborate d Dr. B lechman’ s observa tions. ¶ 28 L inda t i m el y ap p ea l ed

. E ri c cr o s s -appe aled the portion of the judgme nt awar ding $120,000 to L inda for a

ttorney fee s.

¶ 29 I I . ANALYSI S ¶ 30 As a p re l i m inary matter, we note t hat t his case involved a flurry of m otions pertaining
to the filing of briefs. This court g ra n t ed L i n d a l eave to file her opening brief instanter beca use the rep o rt o f p ro ceeding s neede d to be corr ecte d due to err ors and omissions

. On November 5, 2012, Eric timely filed his “re ply” brief but, in doing so, addre ssed only the

-6-issue conce rning attorney fee s raised by his c ross-appe al. In turn, the discussion in L inda’s

reply brief, filed November 26, was limit ed t o t h at o n e issue. On Dec ember 3, this court allowed Eric to file a second brief which addre ssed the rema ining issues. We denied L inda’s motion to s trike but grante d her a dditional tim e to file a response

. ¶ 31 I llinois Supreme Court Rule 343 (ef f. J uly 1, 2008) require s a cr oss-appe llant to “file a single brief as appellee and cross-a ppellant at the time his or her brief as appellee is due; the appellant’ s answe r to the arguments on the cross-a ppeal shall be included in appellant’ s reply brief.” Thus, Eric should have filed a single brief; howeve r, for purposes of this appea l, we will treat Eric’ s two briefs as one. Additionally
, we note that these matters, including L inda’s motion for leave to file her opening brief instanter and motion for additional time to file her
response , preve nted the timely dispositi on of this appea l within 150 day s pursuant to I llinois Supreme Court Rule 311(a )(5) (ef f. F eb. 26, 2010).

¶ 32 A. Custody ¶ 33 We first consider L inda’s argument that the trial court’s custody judgme nt is ag ainst the manifest weight of the evidenc e. We will not disturb a custody deter mination unless it is
ag ainst the manifest weight of the evidenc e. In re Marriage of Ricke tts , 329 I ll. App. 3d 173, 181 (2002). “A judgme nt is a g ainst the manifest we ight of the evidenc e whe n the opposite conclusion is appar ent or when the finding s appea r to be unrea sonable, arbitra ry , or not based
upon the evidenc e.” Id. at 181-82. In deter mining custody
, the primary consideration is the best interest a

nd welfa re of the childre n involved. Prince v . Herrera , 261 I ll. App. 3d 606, 611 (1994). Under section 602 of the Act (7 5 0 I L CS 5/602 (West 2010)), the court is to consider all rele vant fac tors, including the following
, in deter mining the best interest of the children: “(1) the wishes of the child’s par ent or pa rents as to his custody ; (2) the w ishes of the c hild as to his custodian; (3) the interac tion and interre lationship of the child wi t h h i s pare nt or pare nts, his siblings and a

ny other pe rson who may

signific antly

aff ect the c hild’s best interest; (4) the c hild’s adjustment to his hom e, school a nd community ; (5) the me ntal and phy sical hea lth of all individuals invol ved; (6) the phy sical violence or threat of phy sical violence by the child’s potential custodian, whe ther dire cted a g ainst the child or dire cted a g ainst another pe rson; (7) the occur

renc e of ong oing or repe ated abuse as d ef i ned in Section 103 of the I llinois Domestic Viol ence Act of 1986, whether d i re ct ed against the child or di rec ted
ag ainst another pe rson; (8) the willingness and ability of eac h pare nt to fac ilitate and encour ag e a close and continuing r elationship betwee n the other pa rent a nd the child; [and] (9) whe ther one of the pa rents is a sex offende r[.] ” 750 I L CS 5/ 602 (West 2010).
L inda corr ectly points out that stability and continuity are in the best interest of a child and that there is a presumption in favor of the prese nt custodial pare nt. See Ricke tts , 329 I ll. App. 3d at 180. This does not mean, howeve r, that the presumption controls ever y situation. “The

-7-trial court’s custody deter mination is aff

orded ‘great defe renc e’ beca use the trial court is in

a superior position to judge the cre dibilit y of the witnesses and deter mine the best interests of the child.” Id. at 177 (citing In re Marriage of Gustavson
, 247 I ll. App. 3d 797, 801 (1993))

. ¶ 34 L i n d a co n t en d s that, of the fac tors set forth above, the following ar e o f p ri m ar y importance in this case : (1) her mental health; (2) Eric’ s phy sical violence; (3) the interac tion and interre lationship of E.L

. with eac h pare nt; and (4 ) the willingness and ability of eac h
pare nt to fac ilitate and encour ag e a close and continuing relationsh ip betwee n the other
pare nt and E.L

. ¶ 35 L inda aver s that she does not have a mental disorder; that she is not a fea rful and anxious
person; and that she is not overpr otect i v e o f E.L

. The trial court hear d testimony from various source s and specific ally relied on the testimony of Offic er C ra i g, Nestrok, and O’B rien reg arding L inda’s mental state. Eac h of t h ese witnesses related instances when L inda had exhibi ted ex cessive fea rfulness and anxiety

. Dr. Bl echman testified ex tensively ab out L inda’s fea

rs, and he conclude d that she suffe red from a mental disorder. The trial
court noted that, afte r car efully revie wing L inda’s testimony and demea nor, it found that she had exhibited “irrational ove rprotec tiveness” towa rd E.L

. ¶ 36 The trial court also found that L inda’s alleg ations of abuse or phy sical violence wer e not

cre dible. She related an incident that alleg edly happene d ear ly in the marria g e wher e Eric choked her and threatened to “chop [her] into piece s.” The trial court noted that L inda took

no action such as seeking an order of protec tion or bring ing criminal char g es. Whil e it is true that not ever

y person who is abused pursues leg al reme dies, cre dibilit y of the witnesses was the re al issue in this case

. L inda and L ance testified t hat Eric “punche d” L inda. R eg arding this alleg ation, the trial court noted t hat L ance was unable to observe the incident and that her testimony was impeache d. L inda’s own versi o n o f the incident was contra dicted by O’B rien, who did have an opportunity to observe
, and the trial court specific ally found that L inda slapped Eric “with an open hand and that he then slapped her back with an open hand.” The c ourt conc luded that “ther e wa s no cre dible evidenc e of a buse or phy sical violence .” ¶ 37 As to the third fac tor, the interac tion and interre lationship betwee n E.L

. and eac h pare nt, she argue s t h at E.L

. “ac ts no differ ently with his fathe r than he does with his mother.” Howeve r, Dr. Ble chman testified that, when he observe d E.L

. with L inda, E.L .’s behavior

was “ver y passive, relatively nonverba l, constricted.” During Dr. Ble chman’ s observations of E.L

. with Eric, E.L

. was more animated and v erb al, and he interac ted with Eric more positively . The trial c ourt also viewe d videos that L inda introduce d of family holiday s and E.L .’s ac tiviti es. We defe r to the trial cour t’s assessment. ¶ 38 Reg arding the fourth fac tor, L inda aver s that there was insufficient proof that L inda does
not have the ability to fac ilitate and encoura g e a close relationship bet we en E .L

. and Eric. However, t h e trial court pointed out that L inda’s actions wer e dispositi ve; she secr etly
reg istered E.L

. in the Wheaton school district, signe d Eric’ s name to documents in order to withdraw E.L

. from the C.O.D. program, and withdrew E.L

. from various activities without consulting Eric. Additionally
, during the trial, L inda delayed Eric’ s visitation on occa sions when she wished to be with E.L

.

-8-¶ 39 A trial cour t’s custody

decision is entitled to g reat weight. Gustavson , 247 I ll. App. 3d
at 801 (“G reat defe renc e must be acc orded the trial court’s custody deter mination since the trial court is in a superior position to judge the cre dibilit y of the witnesses and deter mine the best interests of the child.”). We deter mine that t h e trial court’s decision is not ag ainst the manifest weight of the evidenc e prese nted at trial. We reje ct L ind a’ s p o s ition that the opposite conclusion is clea rly evident and that the ruling is unrea sonable, arbitra ry , or not based on the evidenc e pre sented. See Best v. Be st , 223 I ll. 2d 342, 350-51 (2006). ¶ 40 For all these rea sons, we aff irm the trial court’s ruling awa rding Eric sole custody of E.L

.

¶ 41 B. D r. B lechman’ s Report and Te stimony ¶ 42 L inda argues that the trial court err ed when it admitted into evidenc e Dr. Bl ec h man’s section 604(b) repor

t, beca use the repor

t is impermissible hear say

. Under section 604(b) of the Act t h e t ri al co urt “may seek the advice of profe ssional personne l, whether or not employ ed by the court on a regular basis.” 750 I L CS 5/604(b) (West 2010). Advice g iven by
t he profe ssional personne l “shall be g iven in writing and made available by the court t o

co u n s el

. ” Id. Additionally
, section 605(a) of the Act provides that, in a contested custody
proce eding, t h e t ri al court “may order an investigation and repor t conce rning custodial

arr ang ements for the child.” 750 I L CS 5/605(a) (West 2010). The trial court “may examine and consider the investigator’s repor t in deter mining custody .” 750 I L CS 5 / 6 0 5 (c) (West 2010). This court has held t hat a trial court e rre d when it excluded an investig ator’s r eport

on the basis that it was hear say

. In re Marriage of Noble
, 192 I ll. App. 3d 501, 510 (1989). This court interpre ted section 605(c) to be an exception to the hear say ru l e, and it also pointed out that any party may call the investigator for cross-e x amination. Id. at 511; see also Heldebrandt v. Heldebrandt
, 251 I ll. App. 3d 950, 956 (1993) (“Thus, section 605(c) of the Act provides that a repor

t submitt ed under this section is an exception to the hear say rule.” ). ¶ 43 L inda’s argument fails beca use it is illogica l. The Act allows a trial court to seek advice and guidance and to order an investigation and repor t in making a custody deter mination. Deny ing the court the ability to consi d er t h e ad v ice contained in an appointed evaluator’s written repor

t would make no sens e. T h e s tatute is clea r, and case law supports the trial court’s de cision. ¶ 44 We note that the trial court specific ally explained the basis fo r i t s fi n d ing and that its

r e ma r k s when denying L inda’s motion for rec onsideration are espec ially clea r. The trial court reiter ated its position that, even without the writt en evaluation, Dr. Ble chman’ s testimony

was cre dible and corr oborate d by other witnesses. See g ener ally Dowd & Dowd, Ltd. v. Gleason
, 352 I ll. App. 3d 365, 389 (2004) (noting that, absent evidenc e to the contra ry , a trial court is pre sumed to have c onsidered c ompetent evidenc e). ¶ 45 L i n d a also contends that Dr. Blechma n’s t estimony reg arding what he was tol d b y Dr

. Natter and Dr. Kea

ting was improperly

acc epted by

the trial cour

t as substantive evidenc e. L inda cites People v. Leach
, 391 I ll. App. 3d 161 (2009), and Kim v. Nazarian
, 216 I ll. App. 3d 818 (1991), for her argument that “[a]n expert witness may testify reg arding the contents of his repor

t and rec ords relied upon; howeve r, the information introduced to show the bases of the opinions are hear say and not substantive evidenc e.” We first note that Leach was

-9-vacated by the I llinois Supreme Court (see People v. Leach
, 237 I ll. 2d 575 (2010)

(super visory op.)), which ultimately held that beca use an autopsy repor

t prepa re d b y a medical examiner was “neither ‘the equivalent of aff idavits made for the purpose of proving the guilt of a particula

r criminal defe ndant at t ri al ’ [ citation], nor prepare d for the primary
p u r p o s e o f providing evidenc e in a criminal case [citation] ,” it was proper ly admitted beca us e it was nontestimonial. People v . Leach , 2012 I L111534, ¶ 137. ¶ 46 L inda also relies on Kim
, a medical malprac tice case wher e this court held that two of the defe ndant’s expert witnesses wer e err oneously allowed to testify t h at the opinions of nontestifying phy sicians corr oborate d their opinions. Kim
, 216 I ll. App. 3d at 826. The Kim
court addre ssed the federa l rule that allowed an expert to g ive an opinion based on information rea sonably relied upon by experts in the particula r field, even if the information is not otherwise admissible. Fe d. R. Evid. 70 3 (e ff

. Oct. 1, 1987). In Kim
, the experts testified that they did not actua lly rely on the nontestifying p h y s i ci an s’ opinions befor e forming their own opinions, and, there fore
, allowing the t es timony to the out-of-c ourt opinions viol ated the r

ule ag ainst hear say

. See W ingo v

. Rock

ford Memorial Hospital , 292 I ll. App. 3d 896, 908 (1997) (a medical malprac tice case distinguishing Kim on the basis that the testifying head obstetrical nurse revie wed the deposition of an on-duty nurse to g ive her

an understanding of the case and that she relied on that deposition in arriving at her opinion; unlike in Kim
, the on-duty nurse’ s testimony was not elicited to mere ly corr oborate ). In this

case , Dr. Blechma

n made his recommendations base d on persona l observation, int ervie ws with Dr. Natter and Dr. Keating, and interviews with a nd corr espondenc e from the parties’ friends, neig hbors, and family members. We de termine that the trial court did not err when it admitted Dr. Ble chman’ s testimony

.

¶ 47 C. Nonmarital Funds ¶ 48 Next, L inda ar gues that $66,000 that Eric’ s fathe r g ave to E ric duringthe cour se of the marriag e should have been allocate d as marital proper ty

. Marital proper

ty is statutorily define d as “all proper

ty acquir ed b y ei t h er spouse subsequent to the marria g e.” 750 I L CS 5/503(a) (West 2010). Property obtained by g ift, leg acy , or desce nt is excepted from marital
proper t y an d i s classified as nonmarital proper ty

. 750 I L CS 5/503(a)( 1) (West 2010). The trial court’s decision to classify proper ty as either marital or nonmarital will not be reve rsed

on appea l unless the decision is contra ry t o the manifest weight of the evidenc e. In re Marriage of

Smith
, 265 I ll. App. 3d 249, 253 (1994). “Ultimately
, the deter mination whether

an asset is marital or nonmarital is a question of fac t which rests upon the trial court’s deter m i n at i o n of the cre dibilit y of the witnesses and the weight to be acc orded their testimony .” Id. at 252-53. ¶ 49 In addition to t h e p re s u m p t i o n t hat proper ty obtained during a marria g e is marital
proper ty , there is a presumption that a transfe r fr o m a p ar en t t o a child is a g ift. In re Marriage of

Hluska
, 2011 I L App (1st) 092636, ¶ 88. In a case wher e a deter mination of the
nature of proper

ty is sub j ec t to these conflicting presumptions, the presumptions are considere d to canc el eac h other out. Id. “In other words, the p re sumption that all proper ty acquir ed afte r marria g e is marital proper ty is canc eled out by the conflicting presumption of

-10-a g ift from a p ar ent to a child, and, thus, the trial court is fre e to deter mine the issue of whether the asset in qu est ion was marital or nonmarital proper ty without resor

t to either presumption. [C itation.] ” Id. ¶ 50 The trial co u rt h ea rd E ri c’ s and L inda’s testimony reg arding the money from Eric ’s fathe r. Their testimony conflicte d in part as to wher e chec ks wer e deposited, but it was clea r that Eric’ s fathe r either

deposited money

direc tly into Eric’s bank a ccount or wrote chec ks with E ric as the sole payee. There fore
, we conclude that the trial court’s deter mination that the $66,000 was nonma

rital proper

ty is not ag ainst the manifest we ight of the evidenc e.

¶ 51 D. Substitution of J udg e ¶ 52 Finally
, L inda asser ts that the trial court err ed when it denied her “motion for substitut ion of judge for cause ” broug ht pursuant to section 2-1001(a )(3) of the Code of Civil Procedur e (C o d e) (735 I L CS 5/2-1001(a) (3) (West 2010)). In her motion, L inda asser ted that, i n g ranting Eric’ s motion to enroll E.L

. in kinderg arte n i n Gl en E l ly n, the trial court had “pre deter mined the rele vant [custody ] fac tor of [E.L .’s] adjustment to his home, school and community ,” a fac tor under section 602(a) (4) of the Act. 750 I L CS 5/602(a)( 4) (West 2010). The motion was hear d an d d en ied by J udg e Ander son on September 2, 2011. L inda’s aff idavit in support of her motion mere ly rec ited the fac ts prese nted to J udg e Marc hese and then stated that he had “pre deter mined a fac tor of custody and has rende red an opinion a nd its ruling on the merits–of minor child’s adjustment to his home, school and community

–which is a fac tor when deter mining bes t i ntere st in a custody hear ing.” L inda then conc luded that J udg e Mar chese was, ther efor e, pre judiced ag ainst her. ¶ 53 Section 2-1001(a )(3) of the Code provides for a substitut ion of judge for cause

. 735 I L CS 5/2-1001(a) (3) (West 2010). “A trial judge is presumed to be impartial, and the burden is on the party alleg ing partiality to overc ome this presumption. [C itation.] The moving party must establish ‘ac tual prejudice ’ i n a petition seekingsubstitut ion of j udg e for cause , i.e.
, either prejudicial t rial conduct or persona l bias. [C itation.] ” In re Joshua S.
, 2012 I L App (2d) 120197, ¶ 41. The trial court is in the best position to d et er m i n e whether it has become prejudice d, and its deter

mination will not be reve rsed unless ag ainst the manifest weight of the evidenc e. Id. ¶ 54 The trial court’s ruling on Eric’ s motion to enroll E.L

. in kinderg arte n in Glen Elly n was hardly a harbing er of things to come. The trial court considere d that E.L

. was livin g with L inda in a re nted apa

rtment in Wheaton while Eric was living in the m arital home in Glen Elly n that he had owned for 20 y ear s and in which E.L

. had lived for the first 5 y ear s of his life. At t h e t i me the motion was hear d, the school y ear was approa ching and E.L

. was to beg in attending kinderg arte n. A trial that would deter mine the issue of custody
, in a ddition
to other issues the parties could not resolve, was schedule d for mid-October

. Whil e the child’s adjustment to his home, school, and community is one of the rele vant fac tors under the Act, there are sever al other rele vant fac tors as well, and the rec ord ref lects that the issue of custody was vigor ously litigated at t ri al, with the trial court hear ing sever al day s of testimony and conside ringnumerous exhibits

. ¶ 55 This court has state d:

-11-“More over, the alleged b i as or prejudice of a trial judge to be disqualifying must be shown to have stemmed from an extra-j u d i ci al source and result in an opinion on the merits on some basis other than what the judge lear ned from his participation in the case

. [C itation.] * * * [A] lleg ed erroneous rulings and finding s made by the t rial j udg e in the

course of the trial *** are not in themselves sufficie nt rea sons to be lieve that the judge had a persona l bias or prejudice for or ag ainst him [citations] ***.” In r e Ma r r i a g e o f Santa Cruz , 179 I ll. App. 3d 611, 622-23 (1989).
We are confide nt that the trial court g ave the issue of child custody the utmost consideration without input from an extrajudicial source

. ¶ 56 We conclude that J udg e Ande rson’s dete rmination that J udg e Mar chese ’s dec ision did
not indicate actua l prejudice is not ag ainst the manifest weight of the evidenc e, and we will
not reve rse it.

¶ 57 E. Eric’ s Cross-appea l Reg ardingAttorney Fe es ¶ 58 Eric cross-a

ppeals the awa

rd of $120,00 0 i n at t o rn ey fe es for L inda’s attorney s. We revie w for an abuse of discretion a trial court’s awa rd of attorney fee s under section 508(a) of the Act (750 I L CS 5/508(a) (West 2010)). In re Marriage of Sobie ski
, 2013 I L App (2d) 111146, ¶ 37. ¶ 59 Section 508(a) of the Ac t states:

“Th e co u rt from time to time, afte r due notice and hear ing, and afte r considering the financ ial resour ces of the parties, may order any party to pay a rea sonable amount for his

own or the ot her party ’s costs and attorney ’s fees. *** At the conclusion o f [ t he case], contribution to attorney ’s fee s and costs may be awa rded from the opposing party in

acc ordanc e with subsection (j) of Section 503 ***.” 750 I L CS 5/ 508(a) (West 2010).
Sect i on 503(j)(2) provides: “Any awa rd of contribution to one party from the other party shall be based on the criter ia for division of marital property under this Section 503 and, if maintenanc e has been awar ded, on the criteria for an award of main t en ance under Section 504.” 750 I L CS 5/ 503(j)(2) (West 2010). In turn, section 504 lists the following f actor s: “(1) the income and proper ty of each party
, including ma rital proper

ty apportioned and non-ma

rital proper

ty assig ned to the par

ty seekingmaintenanc e; (2) the ne eds of e ach pa

rty ; (3) the pr esent a

nd future e arningcapa city of ea ch par

ty ; (4) any impairment of t h e p rese nt and future ear ning capa city of the party seeking maintenanc e due to that party d evoti ng time to domestic duties or having forg one or delayed educ ation, training , employ ment, or ca

ree r opportunities due to the mar riag e; (5) the time nece ssary to enable the party seeking maintenanc e to acquir e appropr iate education, training
, and employ ment, and whether that pa rty is able t o support himself

or herse lf throug h ap p ropriate employ ment or is the custodian of a child making it
appropr iate that the c ustodian not seek employ ment; (6) the sta ndard of living esta

blished duringthe marr iag e;

-12-(7) the dur ation of the mar riag e; (8) the a g e and the phy sical and e motional condition of both parties; (9) the tax consequ en ce s of the proper ty division upon the respe ctive economic circ umstances of

the par ties; (10) contributions and service s b y the party seeking maintenanc e to the education, training , car eer

or ca ree r potential, or lice nse of the othe r spouse; (11) a ny valid agree ment of the pa rties; and (12) any other fac tor that the court expressly finds to be just and equitable.” 750 I L CS 5/504(a) ( West 2010). ¶ 60 The Act allows the trial court to order one party to contribute to the other’s attorney fee s wher e one party lacks the financ ial resour ces to pay them and the other party has the ability
to pay

. In re Marriage of Schneide r , 214 I ll. 2 d 1 5 2, 174 (2005). The party seeking contribution must establish his or her inability to pay and the other spouse’s ability to do so. Id. Inability to pa

y exis ts where the pay

ment of attorney fee s would strip the party of his or her me ans of support or

would undermine his or he r financ ial stability

. Id. ¶ 61 Eric first arg

ues that the trial court lacke d authority to awa rd a contribution for attorney fe es that require d pay

ment from the nonmarital assets that had been assig ned to him. Eri c admits that a trial court is to consider the fac tors contained in section 504 reg arding maintenanc e when deter

mining whether to awa

rd a contribut ion for attorney fee s. Section 504(a) (1) lists as a rele vant fac tor “the income and proper ty of each party , including marital
proper ty apportioned and non-marital proper ty assigned to the party seeking maintenanc e.” (Emphasis added.) 750 I L CS 5/504(a)( 1 ) (W es t 2 010). Eric interpre ts this languag e as g ranting the trial court “ authority only to consider the non- marital prope rty assig ned to the party seeking maintenanc e not the non-marital proper ty assig ned to the spouse who may be obligated to pay maintenanc e when considering a reque st for attorney fee s.” This argument lacks merit and borders on frivolity
, as i t disreg ards and reda cts t h e wo rd “e ac h ” from the statute. Section 504(a) (1) allows consideration of “the income and proper ty of each party ” (empha sis added)
, n o t j u s t the party seeking maintenanc e or contribution. No proper ty of either pa rty is ex cluded. ¶ 62 Eric corr ectly points out that this court observe d in In re Marriage of D eLarco
, 313 I ll. App. 3d 107 (2000), that the leg islative g oal was to level the play ing field by equalizing the parties’ litigation resour ces. DeLarco held that “[t] he ‘equa liz ation’ fac t o r of section 501(c- 1) applies only to attorney fee s and costs awa rded during the period while the litigation is pending ,” beca

use interim fee s may be deeme d ultimately to have been advanc es from the
p ar t ies’ marital estate. Id. at 113. Howeve r, nothing in the Act require s the trial court t o “equa liz e” fee s in a contribution hear i n g. Id. Eric posits that “the trial court may have considere d the af

fidavit reg arding Eric’ s pay ment of attorne y

fee s and believe d incorre ctly that the trial cour

t was required to equalize fees” in order to “leve l the playing f ield.” This is sheer speculation a

nd misplaced relianc e on DeLarco

. We agree with L inda that the trial
court proper ly considere d the disparity betwee n the parties’ incomes and educa tion, and the parties’ agree ment that L inda would be a stay -at-home mother and E.L .’s primary car etake r. ¶ 63 Eric also arg

ues that the trial court err ed in ordering him to pay the $120,000 in attorney

-13-fee s within 30 day s of the entry of the judgme nt

. Ac cording to Eric, the trial court lacke d

authority to require pay

ment within a specifie d period

. W e wo u ld find this to be an inte re s t i n g question had the trial court actua lly so order ed. Howeve r, Eric provides no citation to the rec ord wher e the trial court require d that the pay ment be made within 30 day s. The trial court’s April 11, 2012, judgme nt for dissoluti on mere ly stated, “Eric L onvick shall
pay the sum of $120,000 as and for a contribution to Mrs. L onvick’s attorney ’s fee s to Botti L aw F irm, P.C.” This argument lacks merit. ¶ 64 Acc ording ly
, we deter mine that the trial court did not err in finding that L inda could not
pay her own fee s and that Eric had the ability to contribute to L inda’s fee s. Thus, considering the totality of the rec ord, we conclude that the g rant of L inda’s petition for contribution was not an abuse of discre tion.

¶ 65 I I I . CONCLUSI ON ¶ 66 For the rea sons stated, the judgme nt of the circ uit court of Du Pag e County is affirme d.

¶ 67 Affir

med.

-14-