## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Grunst ad v. Cooper , 2012 IL App (3d) 120524

Appellate Court Caption NE E L Y A. GRUNSTAD, Petitioner-Appellee
, v. PATRI CK W

. COOPER, Respondent-Appellant.

District & N o. Third District Docke t No. 3-12-0524

Filed October 17, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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

. ) In a custody dispute, the trial court did not abuse its discretion in denying the fathe r’s reque st to have the judge conduct an in came ra interview with one of the children, since the judge stated that the child’s pref ere nce

was only one fac tor to be considere d an d h e was conce rned about the impact such a

n interview would have on the child, and the de nial of the fathe r’s pe tition was affirme d.

Dec ision Under
Review Appea l from the Circuit Court of L a Salle County
, No. 05-F -20; the Hon. R.J . L annon, Jr., J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Stephen L

. Kre ntz and L inda M. Salfisberg
, both of Kre ntz & Salfisberg
, P.C., of Pl ano, for

appellant.

Geor g e Mueller , of Mueller Ander son, P.C., of Ottawa, for appellee

.

Panel J USTI CE CARTER delivered the judg ment of the c ourt, with opinion.
J ustices Holdridg e and McDa de concur red in the judgme nt and opinion.

OP INION

¶ 1 The responde nt-appe llant, Patrick W. Cooper, filed a petition to modify custody as to the
two children he had with the petitioner-a ppellee, Nee ly A. Grunstad. At the close of Patrick’s

case -in-chie f during the hear ing on his petition, the circ uit court g rante d Nee ly ’s motion for

a direc ted verdic t. On appea l, Patrick argues that the cour t er re d when it: (1) denied his motion to conduct an in came ra interview of the parties’ oldest child, Oly via; and (2) g rante d Nee ly ’s motion for a dire cted f inding. We af

firm.

¶ 2 FACTS ¶ 3 Nee ly an d P at ri ck h ad two children toge ther: Oly via, born September 18, 1998; and Kee g an, born April 7, 2001. In a 2003 Neva da court order
, Nee ly and Patrick wer e g rante d joint custody of the children with Nee ly as the primary phy sical cust o d i an. Both parties moved to I llinois sometime therea fter. ¶ 4 On April 22, 2005, Nee ly and Patrick enter ed into an ag ree d order for child support. The
ag ree ment, which wa s approve d by the court, also incorporated the par ties’ joint parenting
ag ree ment, which provide d, inter alia
, that Nee ly would have primary phy sical custody of the childre n. ¶ 5 On Fe bruar

y 19, 2010, Patrick filed a petition to modify cu s t o d y i n which he soug ht primary phy sical custody of the children. In the petition, Patrick listed numerous rea sons why he believed chang es in circ umstances war rante d a chang e in custody
, including that he could provide a more stable e nvironment for the children a nd that: (1) Ne ely

intended to remove the children to Neva da without Patrick’s consent and ag ainst his will; (2) Nee ly failed to provide an adequate educa tional environment for the children; (3) Nee ly failed to provide a stable living envi ro n m en t ; (4) Nee ly exposed the children to domestic violence; (5) the children had poor hyg iene in Nee ly ’s car e; (6) Ne el y failed to proper ly provide for the children’ s medical ne eds; and (7) Nee ly was fina ncially irresponsible. ¶ 6 On Fe bruar

y 9, 2011, Patrick filed a motion for in came ra interview of Oly via, alleg ing that Oly via wished to share her thoughts about custody and that beca use she was 10 y ear s

-2-old, “re quiring her to testify in open cour

t would be unnec essar ily

traumatic to he r.” ¶ 7 Over sever al day s in November 2011, the ci rc u i t co u rt h el d a hear ing on Patrick’s petition to modify custody

. Evidence prese nted at the hear ing tended to establish, inter alia
, the following

. Ne el y t es t ified that she was 33 y ear s old and worke d as a cosmetolog ist in Ottawa. In 2005, she lived in Wedron and was dating Dan Partridg e. In 2006, she moved into

an apar t m en t wi th Partridg e. They later lived in Mendota. The relationship ended afte r a single episode of dome stic violence. ¶ 8 For the approximately five y ear s (save a p er i o d o f s i x t o eig ht months) prior to the hear ing, Nee ly had been living in Ottawa and was dating Br ad Hug hes. She and the children would sometimes stay overnight at Hughes’s house. On one occa sion in Marc h 2008, she and Hug hes had an arg

ument at Hug hes’s house. Nee ly woke the children and took them home. ¶ 9 Over the course of the h ea ri n g, testimony was elicited to indicate that the parties ha d signific ant problems communicating and cooper ating

. Patrick’s attorney elicited testimony from Ne ely

that she bl ocked Patrick’s num ber on the cell phones t hat s he provided for the children, and that she and Patrick com m u n i ca t ed poorly with reg ard to Kee g an being

scre ened f

or attention-de ficit disorder a nd his subsequent Ritalin prescription. ¶ 10 Patrick prese nted sever al witnesses who testif i ed t h at Ol y

v i a ex perie nced dif

ficulty during the 2008-09 school y ear when she was in fourth g rade

. Oly via’s teac her from that y ear testified t hat Oly

via’s performa

nce was averag e, that she di d not work up to her p o t en t i al, that she perf

ormed poorly on her rea ding prog ram, and that she failed to complete her homework on numerous occa sions. Howeve r, the teac her also acknow ledg ed that Oly via passed and that she said in a repor t c ard that Oly

via had a g reat year , worke d hard, and had

a positive attitude. The teac her never contac ted Nee ly that y ear to express any conce rns with Oly via. The teac her also stated that many of the children at the school had problems with lice that y ear

. ¶ 11 Patrick also prese nted the testimony of a school social worke r from Central School, who provided “mental health support” to Oly via during her six th-g rade y ear

. On one occa sion, s h e spoke to O ly

via in he r office for 30 minutes. O ly via was “over

whelmed and stressed about things that wer e happening at home.” Oly via said she wanted t o l i v e with her dad and stepmom, that she was happier with the m, and that her mom and boy friend dr ank a lot a nd made her fee l unsafe

. The school social worke r also testified that P at rick, Abby
, and Patrick’s fathe r came to the school i n Ap ri l 2 0 1 1 afte r a court date in this case to talk to Oly via about what happene d in court. The school social worke r observe d t h at Ol y via was upset by this visit, that she wanted the case to be over, and that she wanted to te ll the judge why she wa nted to live with Patrick. ¶ 12 Abby Cooper (née Kolotka) testified that she marrie d Patrick in Marc h 2010 and that they lived in a house in Ot t aw a. T h ey had dated since approximately November of 2005. She worke d as an exercise specia list and aquatic thera py specia list at a hospital. She and Patrick had one child toge ther, Connor, who was approximately a y ear -and- a-ha lf old at the time of th e h ear ing. Oly

via and Kee g an have bonded with Connor. Abby testified, inter alia
, that Oly via arr ived with lice but never left with lice during visits that occur red while the lice problem persisted; that Nee ly confr onted her afte r a children’ s conce rt in Se p t em ber 2010

-3-and called h er d er og atory names; that Nee ly was responsible for the children missing two

dentist appointments in May and Decembe r 2010; that she and Patrick called the pol ice in Dec ember 2010 to do a wellness chec k on the chi l d ren at Nee ly ’s residenc e beca use the children wer e alleg edly home alone; and that she took Kee g an to the hospital for ring worm in October

2011. ¶ 13 Patrick’s father testified that in Fe bruar y 2011, Oly

via ca lled him and said she wa s not g etting fed at Nee ly ’s, that she was eating toast for dinner, that Nee ly was drinking
, and that Nee ly was not allowingher to have snac ks. Patrick’s father stated that Oly via did not look malnourished the next time he saw her. Patrick’s fathe r also alleg ed that afte r his wife died in Ma y 2009, Oly

via told him that she had been cry ing about the loss a

nd Nee ly told her to stop crying a

nd slapped Oly

via along side the hea d. ¶ 14 Both attorney s attempted to elicit testimony reg arding the parties’ history of drinking and “par tying.” Both parties denied that they abused a lc o h o l, a n d Pa tr ick prese nted testimony that he drank and went to bars much less fre quently

. He had become more i n v o l v ed with his family , espec ially

the childre n’s daily

lives. ¶ 15 Patrick testified, inter alia
, that he worke d as a plant mecha nic for Sabic, former ly G.E. Plastics. Both he and Abby testified that prior to the petition to modify custody
, they saw the children fre quently
, including many times that wer e not schedule d visits. After the petition, Nee ly cut this extra time and they saw the children far less fre quently

. Patrick also testified

ex tensively with reg ard to the family activities they eng ag ed in with the children. P at ri ck admitted that the children wer e involved in many activities and had b ee n d o ing well in school. ¶ 16 At the close of Patrick’s case -in-chie f, Nee ly ’s attorney made a moti o n for a dire cted verdic t. The court hear d the parties’ arguments on th e motion and took the matter under advisement. ¶ 17 On November 23, 2011, the circ uit court announ ce d i t s decision on the motion for a direc ted verdic t. The court found that both Patrick’s and Nee ly ’s circ umstances had chang ed for the better. The court noted that Patrick prese nted alm o s t n o evidenc e with reg ard to Kee g an and that the evidenc e cente red around Oly via. Whil e Ol y

via did strug g le at times during the 2008-09 school y ear , her teac her did state that Oly via had a g reat y ear

. Also, the
court minimi zed the impact of Oly via’s attendanc e problems that y ear , as 30 other students in her school also had problems with lice. In addition, the court noted that Patrick prese nted

some evidenc e that Oly

via wanted to live with him and st ressed that while t hat prefer ence

was signific ant, “the law is clea r a child’s pref

ere nce standing alone is not sufficie nt to modify custody .” In assessing the evidenc e Patrick prese nted, the court emphasized that the law favor ed the finality of custody decisions and cre ated a presumption in favor of the child’s

curr ent custodian “which is not to be lightly overturne d.” The court noted that the pare nts had serious communication and cooper ation issues, but could not find that Nee ly ’s shortcoming s

wer e sufficie nt to nece ssitate a chan ge in custody

. Be cause it found that the chang es in circ umstances did not adver sely aff ect the welfa

re of the children, the court g rante d Nee ly ’s motion for a dire cted f

inding. ¶ 18 After the circ uit court announce d its ruling
, Patrick’s attorney ag ain reque sted the court

-4-to conduct an in camera interview of Oly via. The c ourt denied that reque st, stating: “The re are a lot of rea sons why I would be reluc tant to have an in-camera confe renc e wit h t h e ch i l d

. Fr om what I have hear d the case s are clea r that it is not enoug h and so she’s just g oing to come out of that mee ting a nd for the purpose of this discussion I ’m assuming that she’s going to express a st rong pref ere nce for li ving with her f ather
, but that’s not e noug h and then she’s g oing to be frustrated beca use she doesn’t g et her way and so I ’m not g oing to ha ve an in- came ra c onfer ence with her.” ¶ 19 After

various visitation and monetary issues were resolved, Patr ick appe aled.

¶ 20 ANALYSI S ¶ 21 On appeal, P atrick argues first that the circuit court e rre d when it denied his motion to conduct an in came ra interview of Oly via. Specifica lly
, Patrick arg ues that the court denied him his rig ht to prese nt evidenc e in support of his case by ref using to conduct the interview, which would have included Oly via’s custodial pref

ere nce for Patrick. Patrick also speculates that the interview could have reve aled other unspecifie d, potentially rele vant evidenc e, and

asser ts that the court “had the authority
, if not the obliga tion to expand the interview to hear additional and re levant informa tion from the child as to asc erta in her be st interests.” 1 ¶ 22 Section 604(a) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Ac t) g ives the
court the discretion to conduct an in ca me ra interview of a child “to asce rtain the child’s wishes as to his custodian and as t o visitation.” 750 I L CS 5/6 0 4 (a ) (W es t 2010). “A court does not need to interview a child in order to consider and weig h what it considers to be the wishes of the c hild.” In re M arriage of W

anstreet , 364 I ll. App. 3d 729, 733 (2006). ¶ 23 In this case , the circ uit court decide d to wait to rule on Patrick’s motion for an in c amera interview of Oly

via until afte r the evidenc e was prese nted. Such decisions have been found
to be a proper exercise of the court’s discretion. See Marriage of W anstreet , 364 I ll. App. 3d
at 733 (noting that the patience involved with w aiting to r ule on a motion for an in c amera interview until afte r t h e evidenc e had been prese nted “under score [d] the sound discretion exercised by the court” in that c ase) . Moreove r, the c ourt in this case wa s alrea dy awa re of Oly via’s pref ere nce, as Patrick prese nted other evidenc e in that reg ard. In ruling on Patrick’s motion, the court stated that it was reluctant to conduct the interview not only beca use t he child’s pref

ere nce is just one fac tor to consider in rea ching a custody decision
, b u t al so b ecause the court was conce rned about the emoti onal i mpact the interview would have o n Oly via. We f ind no err or in the court’s rea soning. Under these circ umstances, we hold that

I n sup por t of thi s ar gum ent , Pat ri ck re li es chi ef ly on Crown ove r v. Crown ove r , 33 I ll

. App. 1 3d 327 (19 75)
, whic h we not e was is sue d two years bef ore the l e gis la tur e ena ct ed the I ll ino is Ma rr ia ge and Dis sol uti on of Ma rr ia ge Act (75 0 I LCS 5/1 01 et seq

. (W est 2010 ) (e nac te d by Publ ic Act 80- 923, ef

fe ct ive Oct obe r 1, 1977 ))

. Fur the r, the oth er cas e re li ed on by Pat ri ck, In re Ma rri age of Gust afs on , 187 I ll

. App. 3d 551 (19 89)
, add re sse d onl y an al le ged e r r o r in admitt ing hea rs ay te st imony of a chi ld’ s pre fe re nce ( Ma rri age of Gust afs on , 187 I ll

. App. 3d at 555)
, and is the re for e

re adi ly dis ti nguish abl e fr om the ins ta nt cas e (s ee In re Ma rri age of Doty
, 255 I ll

. App. 3d 1087
, 1094 (19 94) ).

-5-the court did not abuse its d i s cr et i o n when it denied Patrick’s motion for an in came ra

interview of Oly

via. Marriage of W

anstreet , 364 I ll. App. 3d at 733 (“[w]hen a trial court finds go o d re as o n not to conduct an in came ra interview, a revie wing court will not substitut e its judgme nt”). ¶ 24 Patrick’s second argument o n ap p ea l i s t hat the circ uit court err ed when it gr anted Nee ly ’s motion for a direc ted verdic t. Specifica lly
, Patrick argues that he prese nted a prima facie case sufficie nt to defeat the motion for direc ted finding

. ¶ 25 A two-prong analy sis applies when a court rules on a motion for a d i re ct ed v erdict. People e x rel. She rman v. Cryns , 203 I ll. 2d 264, 275 (2003).
“F irst, the court must deter mine, as a matter of law, whether the plaintiff has prese nted

a prima facie case

. A plaintiff establishes a prima facie case by proff ering at least ‘some evidenc e on ever

y element essential to [t he plaintiff’ s underly ing] cause of action.’ [C itation.] I f the plaintiff has failed to meet this burden, the court should g rant the motion and enter judgme nt in the defe ndant’s favor

. [C itation.] Be cause a deter mination that a plaintiff has fa iled to present a prima facie case is a question of law, the circ uit court’s ruling is reviewe d de novo on appea l. [ Citations.]
I f, howeve r, the circ uit court deter mines that the plaintiff has prese nted a prima facie

case , the court then moves to the second prong of the inquiry

. In its role as the finder of fac t, the court must consider the totality of the evidenc e presented, including any

ev i d en ce whi ch is favor able to the defendant. Cont rar y to the Pedrick standard, which
g overns a motion for a direc ted verdic t during a jury trial ( Pedrick v. Peoria & Eastern R.R. Co. , 37 I ll. 2 d 494 (1967))
, under section 2-1110 [ of t he C ode of Civil Procedur e (735 I L CS 5/2-1110 (West 2000))] the court is not to view the evidenc e in the light most favor able to the plaintiff. [C itation.] Rather, the circ uit court must weig h all the evidenc e, deter mine the cre dibilit y of the witnesses, and draw rea sonable infere nces there fr om. [C itations.] This weig hing pro ce s s m ay result in the neg ation of some of the evidenc e prese nted by the plaintiff. After weig hing the quality of all of th e ev i d en ce, both that
prese nted by the plaintiff and that prese nted by the defe ndant, the court should deter mine, applying the standar d o f proof require d for the underly ing cause , whether sufficie nt evidenc e rema ins to establish the plainti ff’s p r i ma facie case

. I f the circ uit court finds that sufficie nt evidence has been prese nted to e stablish the plaintiff’s prima facie case , the court should deny the defendant’s mot i o n and proce ed with the t rial. [ Citation.] I f, howeve r, the court deter mines that the ev idence war rants a finding in favor of the defe ndant, i t should g rant the defe ndan t ’s m o tion and enter a judgme nt dismiss ing the action. [C itation.] A revie wing court will not reve rse the circ uit court’s ruling on appea l unless it is contra

ry to the m anife st weight of t he evidence. [ Citation.] ” Cryns
, 203 I ll. 2d at 275-76. ¶ 26 In this case , while the circ uit court did not specific ally state that it found that Patrick had
prese nted a prima facie case , the court’s comments indicate that it in fac t did so. The court specific ally found that Patrick had established that a chang e in circ umstances had occur red. Next, the court discussed the totality of the e vidence that Patrick prese nted, indicating that it had moved to the second p rong of the direc ted finding analy sis. The court noted that

-6-Patrick’s case cente red around Oly via. The court pointed out the discrepa ncy betwee n the incourt testimony of Oly

via’s teac her and her assessment of Oly via on her repor

t car d, and otherwise minimi zed the imp ac t o f Ol y v ia’s high number of absenc es due to the lice outbreak that y ear

. The court considere d that Oly via had ex p re s s ed a prefer ence for livi ng with Patrick, but also rec og nized that a cus t o d y decision involves much more than just a consideration of the children’ s pref ere nce. I mpor t an t ly
, the court mentioned that the law favor s finality in custody decisions and the fac t that such decisions are not easily overturne d. The court weig hed the evidenc e and considere d it under the applicable standard of proof of clea r and convincin g e v id e n c e (750 I L CS 5/610(b) (West 2010)), and deter mined that Patrick failed to prese nt sufficie nt evidence to establish his prima facie case

. The court’s decision ref lects a thorough considera tion of t he evidence under the applicable law, and w e find no

err or in the court’s analy sis or fac tual finding s. Acc ording ly
, we hold that the court did not

err when it g rante d Nee ly ’s motion for a dire cted ve rdict.

¶ 27 CONCL USI ON ¶ 28 For the fore g oing rea sons, we aff irm the judgme nt of the circ uit court of L a Salle County

.

¶ 29 Affir

med.

-7-