ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

In re MARRIAGE OF ERIC LONVICK, Petitioner and

Counterrespondent-Appellee and Cross-Appellant, and LINDA

LONVICK, Respondent and Counterpetitioner-Appellant and CrossAppellee.

 District & No. Second District

Docket Nos. 2-12-0865, 2-12-0895 cons.

Filed August 28, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

On appeal from the dissolution of the parties’ marriage, the award of

custody of their child to petitioner was upheld over respondent’s

contentions that she did not have a mental disorder and that she was not

overprotective of the child, and, further, the report of a court-appointed

evaluator was properly admitted over respondent’s claim it was

impermissible hearsay and was improperly accepted as substantive

evidence, and the award of $120,000 in attorney fees to respondent was

not an abuse of discretion.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 10-D-1555; the

Hon. Paul A. Marchese and the Hon. Robert J. Anderson, Judges,

presiding.

Judgment Affirmed.
Counsel on

Appeal

Aldo E. Botti and Jean M. Lasics-Wessels, both of Botti Law Firm, P.C.,

of Oak Brook, for appellant.

Bryan S. Estes, of Law Offices of William J. Stogsdill, Jr., P.C., of

Wheaton, for appellee.

Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.

Presiding Justice Burke and Justice Hutchinson concurred in the

judgment and opinion.

OPINION

¶ 1 Respondent, Linda Lonvick, appeals from the judgment of the Du Page County circuit

court awarding custody of the parties’ minor child, E.L., to petitioner, Eric Lonvick, and

from the order denying her motion to reconsider. Specifically, Linda contends that the child

custody determination is against the manifest weight of the evidence. Additionally, Linda

contends that the trial court erred when it (1) denied her motion for substitution of judge for

cause; (2) admitted into evidence a court-appointed evaluator’s report prepared pursuant to

section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/604(b) (West 2010)); (3) accepted and relied on the testimony of the evaluator that was

allegedly hearsay; and (4) ruled that funds that Eric received from his father during the

marriage were gifts, and therefore nonmarital property, and that no commingling with the

marital estate occurred. Eric cross-appeals from the judgment of the trial court awarding

$120,000 in attorney fees to Linda. For the reasons set forth herein, we affirm the judgment

of the trial court.

¶ 2 I. BACKGROUND

¶ 3 Eric and Linda were married on October 2, 2004; they had one child, E.L., born August

22, 2005. In November 2009, Linda left the marital residence in Glen Ellyn, Illinois, with

E.L. and moved into a women’s shelter; Linda and E.L. then returned home after 16 days.

On July 9, 2010, Eric filed a petition for dissolution of marriage, and on July 12 Linda filed

a counterpetition. On July 17, Linda and E.L. moved out of the marital home and stayed with

a friend, Ingrid Zynga, in Glen Ellyn, for eight weeks. Thereafter, she and E.L. moved into

an apartment in Wheaton, Illinois.

¶ 4 Prior to trial, on July 2, 2011, Eric filed a motion to enroll E.L. in kindergarten in Glen

Ellyn, the district where Eric resided, as opposed to Wheaton, the district where Linda

resided with E.L. After an evidentiary hearing on August 16, to which Linda objected, the

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trial court, Judge Paul A. Marchese presiding, granted Eric’s motion, stating that, because

E.L. had lived in the Glen Ellyn school district until he and his mother moved from the

marital home, and was familiar with the neighborhood and the school, it was in E.L.’s best

interest to attend the Glen Ellyn school.

¶ 5 On August 22, 2011, Linda filed a motion for substitution of judge for cause that was

heard on September 2, by Judge Robert J. Anderson. The motion alleged that because Judge

Marchese ordered that E.L. attend kindergarten in Glen Ellyn, he had predetermined a factor

under section 602(a)(4) of the Act (750 ILCS 5/602(a)(4) (West 2010)), pertaining to E.L.’s

adjustment to his home, school, and community. On September 2, Judge Anderson denied

the motion, finding that there was no showing of actual prejudice, and returned the case to

Judge Marchese. The case proceeded to trial before Judge Marchese, commencing October

20, 2011.

¶ 6 At trial, Eric testified that he purchased a home in Glen Ellyn in 1991, prior to the

marriage, and kept it in his name alone. Linda moved in when they married and continued

to reside there until 2010 when she moved out. At the time of his testimony, Eric was 51

years old and he had been employed by Walgreens as senior database administrator since

2005. In 2005, he obtained a master’s degree in computer science from DePaul University.

He was in good health, but suffered from sleep apnea and used a CPAP machine to help him

breathe at night. For 20 years he had volunteered as a member of the National Ski Patrol.

¶ 7 Eric testified extensively regarding his relationship with E.L. and the activities they

shared, which included skiing, T-ball, Sunday school, and visiting extended family.

Additionally, Eric tried to have E.L. participate in activities through the Y.M.C.A. and the

Glen Ellyn Park District and in an early development class at the College of DuPage

(C.O.D.). Eric testified that Linda either withdrew E.L. from programs Eric had enrolled him

in or objected to his participation.

¶ 8 Eric further testified that E.L. had his own bedroom and bathroom at the marital home.

If Eric had custody, E.L. would attend a morning “kindergarten roundup” at the Y.M.C.A.

and its bus would then take him to kindergarten at Ben Franklin School in Glen Ellyn. After

school, four different families would be able to assist if Eric had work obligations.

¶ 9 Eric testified that during the marriage his father had gifted him with money via checks

that were made out to Eric as payee and were deposited into various investment and

individual retirement accounts. His father also contributed money directly to a checking

account that was held solely in Eric’s name.

¶ 10 Linda testified that she was 48 years old, in good health, and not currently taking any

medications. She had a bachelor’s degree from Columbia College in art and design and had

last worked in that field in 1992. Since 2005, she had been the primary caregiver for E.L. and

had not worked outside the home.

¶ 11 Linda stated that early in their marriage Eric choked her and threatened to “chop [her]

into pieces.” She testified that he would not give her enough money to buy food and would

not allow her to spend money on anything for their home.

¶ 12 Linda also testified that “checks from Grandpa Lonvick” were deposited into the

investment accounts that were held jointly. On cross-examination, Linda testified that none

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of the checks from Eric’s father were made out to her and that the checks were deposited into

various accounts. Linda also testified that sometimes a check was deposited into a joint

account and then Eric would transfer money into an Ameriprise account held solely by him.

¶ 13 Dr. Gerald Blechman, the court-appointed evaluator, testified that he prepared a section

604(b) custody evaluation report, applying each of the factors contained in section 602 of the

Act. See 750 ILCS 5/602 (West 2010). Dr. Blechman met with Linda, Eric, and E.L. on

multiple occasions; he also interviewed Dr. James Natter, Dr. Ellen Keating, and Jahn

O’Brien, Eric’s next-door neighbor. Dr. Blechman also received letters from Zynga and

Dorothy Lance, Linda’s mother. Blechman recommended that Eric be granted sole custody

subject to “reasonable visitation” as set forth in his report. Dr. Blechman testified that Linda

was “overprotective” and that, when he observed E.L. with Linda, E.L.’s behavior was “very

passive, relatively nonverbal, constricted.” When Dr. Blechman observed E.L. with his

father, he was more verbally expressive, had more ideas of his own, and “in general,

appeared to be a different child.”

¶ 14 Dr. Keating’s testimony was allowed for the purpose of impeachment of Dr. Blechman’s

testimony regarding what he had considered in forming his opinion. Dr. Keating testified that

she was a clinical psychologist and had counseled Linda intermittently between 2005 and

2007. She diagnosed Linda with an “adjustment disorder,” i.e., “life stressors that cause

upset.” She testified that she told Dr. Blechman “something to the effect of there was nothing

in my observations or conclusions at the time that would preclude her from being an

adequate parent.” She also stated that, as her observations were from 2005 to 2007 and she

was testifying in 2011, “it has been a long time.”

¶ 15 Several other witnesses testified at trial. Lance testified that, on May 20, 2009, Eric

punched Linda with a closed fist and she heard Linda yell. She called to her husband to help

Linda. O’Brien testified regarding the same altercation; she observed Linda slap Eric on his

arm with an open hand and Eric immediately slap her back the same way. O’Brien did not

hear any yelling, screaming, or crying.

¶ 16 O’Brien and E.L.’s babysitter, Natalie Nestrok, each testified about an occasion when

Eric was riding his bike on the sidewalk while pulling E.L. in a bike trailer. They both stated

that Linda ran after Eric and shouted at him that he was riding too fast. Nestrok stated that

there was nothing unusual or concerning about how Eric was riding with E.L. in the trailer.

¶ 17 Jean Spyksma, music minister at Eric’s church, testified that she had known Eric and

Linda since their wedding and that Eric had been bringing E.L. to church regularly. She

observed E.L. to be happy and bubbly, not fearful or frightened of other children.

¶ 18 City of Wheaton police officer James Craig testified for Eric on rebuttal that on January

27, 2012, he and another officer responded to a call at Linda’s apartment in Wheaton. Eric

met them in the parking lot and told them that he was there to pick up his son and that Linda

“was not letting the child come out.” Officer Craig and the other officer then went to Linda’s

apartment and spoke to her in the hallway, where she told them that E.L. did not want to go

with his father and that she was not going to force him. They entered the apartment and saw

E.L. watching television; Linda sat down next to him on the couch. Officer Craig testified

that she put her arm around E.L. and her other hand on his knee. Officer Craig stood about

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10 feet away and the other officer was in the doorway to the apartment. Linda raised her hand

and told them in a “slightly elevated voice” to “stop, get back, give him room to breathe.”

Officer Craig then went outside and called the supervisor, and the decision was made that,

because E.L. was six years old, “[s]he needed to present the child for visitation, or we would

be forced to do a charge for unlawful visitation and [sic] interference.” He stated that E.L.

was “a little kid” and “seemed scared when I went into the apartment.”

¶ 19 On cross-examination, Officer Craig stated that he had been wearing his uniform with

his badge and had his gun in his holster. He stated that “[u]nder these particular

circumstances, it seemed to me that [Linda] was being a little oversensitive about the whole

situation.” He also stated that he thought it odd that she had her arms around E.L. and was

patting his knee, “like we’re going to come in there and beat him with our clubs or

something.”

¶ 20 On March 20, 2012, the trial court issued its ruling and read its memorandum opinion in

open court. Regarding custody, the court considered all the relevant factors, including those

in section 602 of the Act. The court noted that both parents wished to be the custodial parent,

and that, during the marriage, while Eric was working, Linda was a homemaker and was

responsible for E.L. Until Linda moved with E.L. to Wheaton, he had lived in Eric’s home

in Glen Ellyn. While E.L. lived with Linda, there was no temporary designation of custody

and Eric had regular visitation with E.L.

¶ 21 The trial court noted that Dr. Blechman conducted a thorough investigation and it found

his testimony and conclusions credible. Dr. Blechman concluded that there was a significant

difference in E.L.’s interaction and interrelationship with Linda and with Eric. When Dr.

Blechman observed E.L. with Eric,E.L.was animated, verbal, and happy; notably, when E.L.

was with Linda, he spoke very little and was passive. Dr. Blechman found Linda to be fearful

and anxious. The trial court noted that Dr. Blechman’s findings regarding Linda’s

“overprotectiveness” were corroborated bythreewitnesses,includingOfficerCraig. The trial

court also noted that Dr. Natter had counseled Linda and Eric together for two years and had

diagnosed Linda with an anxiety disorder. The trial court further found that Dr. Keating’s

testimony did not impeach Dr. Blechman. The trial court then found that Linda had a “mental

disorder such that her ability to be a sole custodian [was] seriously impaired.”

¶ 22 The trial court found that Linda’s allegations of physical abuse were not credible. The

trial court furtherfound that Eric demonstrated “more willingness and ability to facilitate and

encourage a close and continuing relationship” with Linda than Linda did with Eric.

Additionally, the trial court noted:

“While both parties indicated that they appreciate the role of the other parent in their

child’s life, [Linda’s] actions are dispositive. Apart from signing up [E.L.] in the

Wheaton school district, signing [Eric’s] name to documents to withdraw [E.L.] from

C.O.D., and withdrawing [E.L.] from activities without consulting [Eric] during the trial

in this matter, on different occasions when it was time for [E.L.] to go with [Eric] for

visitation, [Linda] wished to be with [E.L.] instead [and] delayed visitation.”

The trial court then found that the parties did not have the ability to cooperate as required for

joint custody (see 750 ILCS 5/602.1 (West 2010)) and awarded E.L.’s sole care and custody

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to Eric, subject to Linda’s visitation rights. Linda was ordered to pay child support to Eric.

¶ 23 In awarding rehabilitative maintenance to Linda, the trial court considered the statutory

factors. The trial court noted that, although the marriage lasted only seven years, “the Court

is mindful of the disparity of nonmarital assets and income of the parties and the present and

future earning capacities.” The trial court also noted that during the course of the marriage

Linda was a stay-at-home mother by agreement of the parties, and the trial court considered

the testimony regarding Linda’s “emotional health.” The trial court ordered Eric to pay

maintenance in the amount of $3,000 per month for a period of 36 months, after which Linda

could petition for review.

¶ 24 Regarding nonmarital property, the trial court noted that: Eric testified as to gifts he

received from his father; “the presumption of gift to the marriage can be rebutted by clear

and convincing evidence if the elements of gift are satisfied”; and Eric’s father gave him

checks payable to him alone or made deposits into specific accounts held in Eric’s name

alone. The court found that these checks and deposits were intended as gifts; were

unconditional and without consideration; involved family; were irrevocable; and were

accepted. In addition, there was no evidence of record of commingling the gifts with the

marital estate.

¶ 25 On April 11, 2012, the trial court entered its judgment for dissolution of marriage,

awarding Eric sole custody of E.L., with child support payable from Linda to Eric.

Additionally, the trial court ordered Eric to pay Linda maintenance in the amount of $3,000

per month for 36 months, after which the maintenance would be reviewable. Eric was also

ordered to pay $120,000 in attorney fees directly to Linda’s attorneys.

¶ 26 Eric’s motion to reconsider the attorney fee award was denied on July 10, 2012. The trial

court noted the disparity in Eric’s and Linda’s incomes, and the fact that Linda was

unemployed and had been caring for E.L. during the pendency of the trial.

¶ 27 On the same date, the trial court granted in part and denied in part Linda’s “Motion to

Reconsider and/or Vacate Judgment for Dissolution of Marriage.” The trial court granted

Linda’s request to receive notice from E.L.’s medical, dental, and educational providers and

notice from Eric as to E.L.’s extracurricular activities. In denying the motion to reconsider

as to the admission of Dr. Blechman’s report, the trial court stated, “what I gave weight to

was Dr. Blechman’s live testimony in court. If I completely put Dr. Blechman’s written

report aside and did not read it or consider it at all, [his] oral testimony in live court is what

carried the day.” The trial court further stated that Nestrok’s and Officer Craig’s testimony

corroborated Dr. Blechman’s observations.

¶ 28 Linda timely appealed. Eric cross-appealed the portion of the judgment awarding

$120,000 to Linda for attorney fees.

¶ 29 II. ANALYSIS

¶ 30 As a preliminary matter, we note that this case involved a flurry of motions pertaining

to the filing of briefs. This court granted Linda leave to file her opening brief instanter

because the report of proceedings needed to be corrected due to errors and omissions. On

November 5, 2012, Eric timely filed his “reply” brief but, in doing so, addressed only the

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issue concerning attorney fees raised by his cross-appeal. In turn, the discussion in Linda’s

reply brief, filed November 26, was limited to that one issue. On December 3, this court

allowed Eric to file a second brief which addressed the remaining issues. We denied Linda’s

motion to strike but granted her additional time to file a response.

¶ 31 Illinois Supreme Court Rule 343 (eff. July 1, 2008) requires a cross-appellant to “file a

single brief as appellee and cross-appellant at the time his or her brief as appellee is due; the

appellant’s answer to the arguments on the cross-appeal shall be included in appellant’s reply

brief.” Thus, Eric should have filed a single brief; however, for purposes of this appeal, we

will treat Eric’s two briefs as one. Additionally, we note that these matters, including Linda’s

motion for leave to file her opening brief instanter and motion for additional time to file her

response, prevented the timely disposition of this appeal within 150 days pursuant to Illinois

Supreme Court Rule 311(a)(5) (eff. Feb. 26, 2010).

¶ 32 A. Custody

¶ 33 We first consider Linda’s argument that the trial court’s custody judgment is against the

manifest weight of the evidence. We will not disturb a custody determination unless it is

against the manifest weight of the evidence. In re Marriage of Ricketts, 329 Ill. App. 3d 173,

181 (2002). “A judgment is against the manifest weight of the evidence when the opposite

conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based

upon the evidence.” Id. at 181-82. In determining custody, the primary consideration is the

best interest and welfare of the children involved. Prince v. Herrera, 261 Ill. App. 3d 606,

611 (1994). Under section 602 of the Act (750 ILCS 5/602 (West 2010)), the court is to

consider all relevant factors, including the following, in determining the best interest of the

children:

“(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his

siblings and any other person who may significantly affect the child’s best interest;

(4) the child’s adjustment to his home, school and community;

(5) the mental and physical health of all individuals involved;

(6) the physical violence or threat of physical violence by the child’s potential

custodian, whether directed against the child or directed against another person;

(7) the occurrence of ongoing or repeated abuse as defined in Section 103 of the

Illinois Domestic Violence Act of 1986, whether directed against the child or directed

against another person;

(8) the willingness and ability of each parent to facilitate and encourage a close and

continuing relationship between the other parent and the child; [and]

(9) whether one of the parents is a sex offender[.]” 750 ILCS 5/602 (West 2010).

Linda correctly points out that stability and continuity are in the best interest of a child and

that there is a presumption in favor of the present custodial parent. See Ricketts, 329 Ill. App.

3d at 180. This does not mean, however, that the presumption controls every situation. “The

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trial court’s custody determination is afforded ‘great deference’ because the trial court is in

a superior position to judge the credibility of the witnesses and determine the best interests

of the child.” Id. at 177 (citing In re Marriage of Gustavson, 247 Ill. App. 3d 797, 801

(1993)).

¶ 34 Linda contends that, of the factors set forth above, the following are of primary

importance in this case: (1) her mental health; (2) Eric’s physical violence; (3) the interaction

and interrelationship of E.L. with each parent; and (4) the willingness and ability of each

parent to facilitate and encourage a close and continuing relationship between the other

parent and E.L.

¶ 35 Linda avers that she does not have a mental disorder; that she is not a fearful and anxious

person; and that she is not overprotective of E.L. The trial court heard testimony from

various sources and specifically relied on the testimony of Officer Craig, Nestrok, and

O’Brien regarding Linda’s mental state. Each of these witnesses related instances when

Linda had exhibited excessive fearfulness and anxiety. Dr. Blechman testified extensively

about Linda’s fears, and he concluded that she suffered from a mental disorder. The trial

court noted that, after carefully reviewing Linda’s testimony and demeanor, it found that she

had exhibited “irrational overprotectiveness” toward E.L.

¶ 36 The trial court also found that Linda’s allegations of abuse or physical violence were not

credible. She related an incident that allegedly happened early in the marriage where Eric

choked her and threatened to “chop [her] into pieces.” The trial court noted that Linda took

no action such as seeking an order of protection or bringing criminal charges. While it is true

that not every person who is abused pursues legal remedies, credibility of the witnesses was

the real issue in this case. Linda and Lance testified that Eric “punched” Linda. Regarding

this allegation, the trial court noted that Lance was unable to observe the incident and that

her testimony was impeached. Linda’s own version of the incident was contradicted by

O’Brien, who did have an opportunity to observe, and the trial court specifically found that

Linda slapped Eric “with an open hand and that he then slapped her back with an open hand.”

The court concluded that “there was no credible evidence of abuse or physical violence.”

¶ 37 As to the third factor, the interaction and interrelationship between E.L. and each parent,

she argues that E.L. “acts no differently with his father than he does with his mother.”

However, Dr. Blechman testified that, when he observed E.L. with Linda, E.L.’s behavior

was “very passive, relatively nonverbal, constricted.” During Dr. Blechman’s observations

of E.L. with Eric, E.L. was more animated and verbal, and he interacted with Eric more

positively. The trial court also viewed videos that Linda introduced of family holidays and

E.L.’s activities. We defer to the trial court’s assessment.

¶ 38 Regarding the fourth factor, Linda avers that there was insufficient proof that Linda does

not have the ability to facilitate and encourage a close relationship between E.L. and Eric.

However, the trial court pointed out that Linda’s actions were dispositive; she secretly

registered E.L. in the Wheaton school district, signed 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, Linda delayed Eric’s visitation on occasions

when she wished to be with E.L.

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¶ 39 A trial court’s custody decision is entitled to great weight. Gustavson, 247 Ill. App. 3d

at 801 (“Great deference must be accorded the trial court’s custody determination since the

trial court is in a superior position to judge the credibility of the witnesses and determine the

best interests of the child.”). We determine that the trial court’s decision is not against the

manifest weight of the evidence presented at trial. We reject Linda’s position that the

opposite conclusion is clearly evident and that the ruling is unreasonable, arbitrary, or not

based on the evidence presented. See Best v. Best, 223 Ill. 2d 342, 350-51 (2006).

¶ 40 For all these reasons, we affirm the trial court’s ruling awarding Eric sole custody of E.L.

¶ 41 B. Dr. Blechman’s Report and Testimony

¶ 42 Linda argues that the trial court erred when it admitted into evidence Dr. Blechman’s

section 604(b) report, because the report is impermissible hearsay. Under section 604(b) of

the Act the trial court “may seek the advice of professional personnel, whether or not

employed by the court on a regular basis.” 750 ILCS 5/604(b) (West 2010). Advice given by

the professional personnel “shall be given in writing and made available by the court to

counsel.” Id. Additionally, section 605(a) of the Act provides that, in a contested custody

proceeding, the trial court “may order an investigation and report concerning custodial

arrangements for the child.” 750 ILCS 5/605(a) (West 2010). The trial court “may examine

and consider the investigator’s report in determining custody.” 750 ILCS 5/605(c) (West

2010). This court has held that a trial court erred when it excluded an investigator’s report

on the basis that it was hearsay. In re Marriage of Noble, 192 Ill. App. 3d 501, 510 (1989).

This court interpreted section 605(c) to be an exception to the hearsay rule, and it also

pointed out that any partymay call the investigator for cross-examination. Id. at 511; see also

Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 956 (1993) (“Thus, section 605(c) of the

Act provides that a report submitted under this section is an exception to the hearsay rule.”).

¶ 43 Linda’s argument fails because it is illogical. The Act allows a trial court to seek advice

and guidance and to order an investigation and report in making a custody determination.

Denying the court the ability to consider the advice contained in an appointed evaluator’s

written report would make no sense. The statute is clear, and case law supports the trial

court’s decision.

¶ 44 We note that the trial court specifically explained the basis for its finding and that its

remarkswhen denying Linda’s motion for reconsideration are especiallyclear. The trial court

reiterated its position that, even without the written evaluation, Dr. Blechman’s testimony

was credible and corroborated by other witnesses. See generally Dowd & Dowd, Ltd. v.

Gleason, 352 Ill. App. 3d 365, 389 (2004) (noting that, absent evidence to the contrary, a trial

court is presumed to have considered competent evidence).

¶ 45 Linda also contends that Dr. Blechman’s testimony regarding what he was told by Dr.

Natter and Dr. Keating was improperly accepted by the trial court as substantive evidence.

Linda cites People v. Leach, 391 Ill. App. 3d 161 (2009), and Kim v. Nazarian, 216 Ill. App.

3d 818 (1991), for her argument that “[a]n expert witness may testify regarding the contents

of his report and records relied upon; however, the information introduced to show the bases

of the opinions are hearsay and not substantive evidence.” We first note that Leach was

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vacated by the Illinois Supreme Court (see People v. Leach, 237 Ill. 2d 575 (2010)

(supervisory op.)), which ultimately held that because an autopsy report prepared by a

medical examiner was “neither ‘the equivalent of affidavits made for the purpose of proving

the guilt of a particular criminal defendant at trial’ [citation], nor prepared for the primary

purpose of providing evidence in a criminal case [citation],” it was properlyadmitted because

it was nontestimonial. People v. Leach, 2012 IL 111534, ¶ 137.

¶ 46 Linda also relies on Kim, a medical malpractice case where this court held that two of the

defendant’s expert witnesses were erroneously allowed to testify that the opinions of

nontestifying physicians corroborated their opinions. Kim, 216 Ill. App. 3d at 826. The Kim

court addressed the federal rule that allowed an expert to give an opinion based on

information reasonably relied upon by experts in the particular field, even if the information

is not otherwise admissible. Fed. R. Evid. 703 (eff. Oct. 1, 1987). In Kim, the experts

testified that they did not actually rely on the nontestifying physicians’ opinions before

forming their own opinions, and, therefore, allowing the testimony to the out-of-court

opinions violated the rule against hearsay. See Wingo v. Rockford Memorial Hospital, 292

Ill. App. 3d 896, 908 (1997) (a medical malpractice case distinguishing Kim on the basis that

the testifying head obstetrical nurse reviewed the deposition of an on-duty nurse to give 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 merely corroborate). In this

case, Dr. Blechman made his recommendations based on personal observation, interviews

with Dr. Natter and Dr. Keating, and interviews with and correspondence from the parties’

friends, neighbors, and family members. We determine that the trial court did not err when

it admitted Dr. Blechman’s testimony.

¶ 47 C. Nonmarital Funds

¶ 48 Next, Linda argues that $66,000 that Eric’s father gave to Eric during the course of the

marriage should have been allocated as marital property. Marital property is statutorily

defined as “all property acquired by either spouse subsequent to the marriage.” 750 ILCS

5/503(a) (West 2010). Property obtained by gift, legacy, or descent is excepted from marital

property and is classified as nonmarital property. 750 ILCS 5/503(a)(1) (West 2010). The

trial court’s decision to classify property as either marital or nonmarital will not be reversed

on appeal unless the decision is contrary to the manifest weight of the evidence. In re

Marriage of Smith, 265 Ill. App. 3d 249, 253 (1994). “Ultimately, the determination whether

an asset is marital or nonmarital is a question of fact which rests upon the trial court’s

determination of the credibility of the witnesses and the weight to be accorded their

testimony.” Id. at 252-53.

¶ 49 In addition to the presumption that property obtained during a marriage is marital

property, there is a presumption that a transfer from a parent to a child is a gift. In re

Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 88. In a case where a determination of the

nature of property is subject to these conflicting presumptions, the presumptions are

considered to cancel each other out. Id. “In other words, the presumption that all property

acquired after marriage is marital property is canceled out by the conflicting presumption of

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a gift from a parent to a child, and, thus, the trial court is free to determine the issue of

whether the asset in question was marital or nonmarital property without resort to either

presumption. [Citation.]” Id.

¶ 50 The trial court heard Eric’s and Linda’s testimony regarding the money from Eric’s

father. Their testimony conflicted in part as to where checks were deposited, but it was clear

that Eric’s father either deposited money directly into Eric’s bank account or wrote checks

with Eric as the sole payee. Therefore, we conclude that the trial court’s determination that

the $66,000 was nonmarital property is not against the manifest weight of the evidence.

¶ 51 D. Substitution of Judge

¶ 52 Finally, Linda asserts that the trial court erred when it denied her “motion for substitution

of judge for cause” brought pursuant to section 2-1001(a)(3) of the Code of Civil Procedure

(Code) (735 ILCS 5/2-1001(a)(3) (West 2010)). In her motion, Linda asserted that, in

granting Eric’s motion to enroll E.L. in kindergarten in Glen Ellyn, the trial court had

“predetermined the relevant [custody] factor of [E.L.’s] adjustment to his home, school and

community,” a factor under section 602(a)(4) of the Act. 750 ILCS 5/602(a)(4) (West 2010).

The motion was heard and denied by Judge Anderson on September 2, 2011. Linda’s

affidavit in support of her motion merely recited the facts presented to Judge Marchese and

then stated that he had “predetermined a factor of custody and has rendered an opinion and

its ruling on the merits–of minor child’s adjustment to his home, school and

community–which is a factor when determining best interest in a custody hearing.” Linda

then concluded that Judge Marchese was, therefore, prejudiced against her.

¶ 53 Section 2-1001(a)(3) of the Code provides for a substitution of judge for cause. 735 ILCS

5/2-1001(a)(3) (West 2010). “A trial judge is presumed to be impartial, and the burden is on

the partyalleging partiality to overcome this presumption. [Citation.] The moving partymust

establish ‘actual prejudice’ in a petition seeking substitution of judge for cause, i.e., either

prejudicial trial conduct or personal bias. [Citation.]” In re Joshua S., 2012 IL App (2d)

120197, ¶ 41. The trial court is in the best position to determine whether it has become

prejudiced, and its determination will not be reversed unless against the manifest weight of

the evidence. Id.

¶ 54 The trial court’s ruling on Eric’s motion to enroll E.L. in kindergarten in Glen Ellyn was

hardly a harbinger of things to come. The trial court considered that E.L. was living with

Linda in a rented apartment in Wheaton while Eric was living in the marital home in Glen

Ellyn that he had owned for 20 years and in which E.L. had lived for the first 5 years of his

life. At the time the motion was heard, the school year was approaching and E.L. was to

begin attending kindergarten. A trial that would determine the issue of custody, in addition

to other issues the parties could not resolve, was scheduled for mid-October. While the

child’s adjustment to his home, school, and community is one of the relevant factors under

the Act, there are several other relevant factors as well, and the record reflects that the issue

of custody was vigorously litigated at trial, with the trial court hearing several days of

testimony and considering numerous exhibits.

¶ 55 This court has stated:

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“Moreover, the alleged bias or prejudice of a trial judge to be disqualifying must be

shown to have stemmed from an extra-judicial source and result in an opinion on the

merits on some basis other than what the judge learned from his participation in the case.

[Citation.] *** [A]lleged erroneous rulings and findings made by the trial judge in the

course of the trial *** are not in themselves sufficient reasons to believe that the judge

had a personal bias or prejudice for or against him [citations] ***.” In re Marriage of

Santa Cruz, 179 Ill. App. 3d 611, 622-23 (1989).

We are confident that the trial court gave the issue of child custody the utmost consideration

without input from an extrajudicial source. 

¶ 56 We conclude that Judge Anderson’s determination that Judge Marchese’s decision did

not indicate actual prejudice is not against the manifest weight of the evidence, and we will

not reverse it.

¶ 57 E. Eric’s Cross-appeal Regarding Attorney Fees

¶ 58 Eric cross-appeals the award of $120,000 in attorney fees for Linda’s attorneys. We

review for an abuse of discretion a trial court’s award of attorney fees under section 508(a)

of the Act (750 ILCS 5/508(a) (West 2010)). In re Marriage of Sobieski, 2013 IL App (2d)

111146, ¶ 37.

¶ 59 Section 508(a) of the Act states:

“The court from time to time, after due notice and hearing, and after considering the

financial resources of the parties, may order any party to pay a reasonable amount for his

own or the other party’s costs and attorney’s fees. *** At the conclusion of [the case],

contribution to attorney’s fees and costs may be awarded from the opposing party in

accordance with subsection (j) of Section 503 ***.” 750 ILCS 5/508(a) (West 2010).

Section 503(j)(2) provides: “Any award of contribution to one party from the other party

shall be based on the criteria for division of marital property under this Section 503 and, if

maintenance has been awarded, on the criteria for an award of maintenance under Section

504.” 750 ILCS 5/503(j)(2) (West 2010). In turn, section 504 lists the following factors:

“(1) the income and property of each party, including marital property apportioned

and non-marital property assigned to the party seeking maintenance;

(2) the needs of each party;

(3) the present and future earning capacity of each party;

(4) any impairment of the present and future earning capacity of the party seeking

maintenance due to that party devoting time to domestic duties or having forgone or

delayed education, training, employment, or career opportunities due to the marriage;

(5) the time necessary to enable the party seekingmaintenance to acquire appropriate

education, training, and employment, and whether that party is able to support himself

or herself through appropriate employment or is the custodian of a child making it

appropriate that the custodian not seek employment; 

(6) the standard of living established during the marriage;

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(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the property division upon the respective economic

circumstances of the parties;

(10) contributions and services by the party seeking maintenance to the education,

training, career or career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable.” 750 ILCS

5/504(a) (West 2010).

¶ 60 The Act allows the trial court to order one party to contribute to the other’s attorney fees

where one party lacks the financial resources to pay them and the other party has the ability

to pay. In re Marriage of Schneider, 214 Ill. 2d 152, 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 pay exists where the payment of attorney fees would strip the party of his or

her means of support or would undermine his or her financial stability. Id.

¶ 61 Eric first argues that the trial court lacked authority to award a contribution for attorney

fees that required payment from the nonmarital assets that had been assigned to him. Eric

admits that a trial court is to consider the factors contained in section 504 regarding

maintenance when determining whether to award a contribution for attorney fees. Section

504(a)(1) lists as a relevant factor “the income and property of each party, including marital

property apportioned and non-marital property assigned to the party seeking maintenance.”

(Emphasis added.) 750 ILCS 5/504(a)(1) (West 2010). Eric interprets this language as

granting the trial court “authority only to consider the non-marital property assigned to the

party seeking maintenance not the non-marital property assigned to the spouse who may be

obligated to pay maintenance when considering a request for attorney fees.” This argument

lacks merit and borders on frivolity, as it disregards and redacts the word “each” from the

statute. Section 504(a)(1) allows consideration of “the income and property of each party”

(emphasis added), not just the party seeking maintenance or contribution. No property of

either party is excluded.

¶ 62 Eric correctly points out that this court observed in In re Marriage of DeLarco, 313 Ill.

App. 3d 107 (2000), that the legislative goal was to level the playing field by equalizing the

parties’ litigation resources. DeLarco held that “[t]he ‘equalization’ factor of section

501(c-1) applies onlyto attorneyfees and costs awarded during the period while the litigation

is pending,” because interim fees may be deemed ultimately to have been advances from the

parties’ marital estate. Id. at 113. However, nothing in the Act requires the trial court to

“equalize” fees in a contribution hearing. Id. Eric posits that “the trial court may have

considered the affidavit regarding Eric’s payment of attorney fees and believed incorrectly

that the trial court was required to equalize fees” in order to “level the playing field.” This

is sheer speculation and misplaced reliance on DeLarco. We agree with Linda that the trial

court properly considered the disparity between the parties’ incomes and education, and the

parties’ agreement that Linda would be a stay-at-home mother and E.L.’s primary caretaker.

¶ 63 Eric also argues that the trial court erred in ordering him to pay the $120,000 in attorney

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fees within 30 days of the entry of the judgment. According to Eric, the trial court lacked

authority to require payment within a specified period. We would find this to be an

interesting question had the trial court actually so ordered. However, Eric provides no

citation to the record where the trial court required that the payment be made within 30 days.

The trial court’s April 11, 2012, judgment for dissolution merely stated, “Eric Lonvick shall

pay the sum of $120,000 as and for a contribution to Mrs. Lonvick’s attorney’s fees to Botti

Law Firm, P.C.” This argument lacks merit.

¶ 64 Accordingly, we determine that the trial court did not err in finding that Linda could not

pay her own fees and that Eric had the ability to contribute to Linda’s fees. Thus, considering

the totality of the record, we conclude that the grant of Linda’s petition for contribution was

not an abuse of discretion.

¶ 65 III. CONCLUSION

¶ 66 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 67 Affirmed.

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