                                  Illinois Official Reports

                                         Appellate Court



                         In re Marriage of Engst, 2014 IL App (4th) 131078




Appellate Court              In re: MARRIAGE OF DAVID ENGST, Petitioner-Appellant, and
Caption                      MICHELLE ENGST, Respondent-Appellee.


District & No.               Fourth District
                             Docket No. 4-13-1078


Filed                        April 3, 2014


Held                         Where the evidence was sufficient to warrant a finding that the mental
(Note: This syllabus         well-being of respondent or the parties’ children was jeopardized by
constitutes no part of the   both parents’ occupancy of the marital residence, the trial court’s
opinion of the court but     award of exclusive possession of the residence during the pendency of
has been prepared by the     the marriage dissolution proceedings to respondent pursuant to section
Reporter of Decisions        701 of the Illinois Marriage and Dissolution of Marriage Act was not
for the convenience of       against the manifest weight of the evidence.
the reader.)



Decision Under               Appeal from the Circuit Court of McLean County, No. 13-D-392; the
Review                       Hon. Charles G. Reynard, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Michelle N. Schneiderheinze and Jon D. McLaughlin (argued), both
Appeal                       of Bloomington Law Group LLC, of Bloomington, for appellant.

                             Helen E. Ogar (argued), of Ogar & Miller, of Bloomington, for
                             appellee.
     Panel                    JUSTICE HARRIS delivered the judgment of the court, with opinion.
                              Justices Turner and Steigmann concurred in the judgment and
                              opinion.




                                               OPINION

¶1         Petitioner, David Engst, filed a petition for dissolution of his marriage to respondent,
       Michelle Engst. During the proceedings, Michelle filed a petition for exclusive possession of
       the marital residence, which the trial court granted. David appeals the court’s interlocutory
       order pursuant to Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010), arguing (1) the court’s
       order was against the manifest weight of the evidence and (2) the court erred by denying his
       motion to dismiss Michelle’s petition for exclusive possession of the marital residence. We
       affirm.

¶2                                           I. BACKGROUND
¶3         The parties were married in September 1992 and had two children: A.E., born in April
       2000; and C.E., born in July 2004. On August 2, 2013, David filed his petition for dissolution
       of marriage.
¶4         On August 14, 2013, Michelle filed a petition for exclusive possession of the marital
       residence. She asserted both parties had the legal right to reside in the marital residence with
       the minor children. Michelle also alleged as follows:
                “That the mental well-being of the minor children of the marriage would be
                jeopardized by the continued occupancy of the marital residence by both spouses and it
                is for the mental well-being of [Michelle] and the minor children that exclusive
                possession of the marital residence be awarded to [Michelle].”
       Michelle requested the trial court enter an order granting her exclusive possession of the
       marital residence during the pendency of the divorce proceedings. The same date, she also
       filed a petition for temporary relief, requesting the court order David to contribute to the
       payment of all marital obligations, award her temporary custody of the minor children, and
       order David to pay temporary child support.
¶5         On October 25, 2013, David filed a motion to dismiss Michelle’s petitions pursuant to
       section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)).
       Relevant to this appeal, he argued Michelle’s filings were legally insufficient and did not
       contain sufficient facts to establish each element of a cause of action.
¶6         The same date David filed his motion, the trial court conducted a hearing in the matter.
       Initially, it considered the motion to dismiss. David’s counsel argued Michelle’s petition
       contained only vague and conclusory allegations, rather than specific allegations of fact,
       making it “virtually impossible” for him to prepare any kind of defense. Michelle’s counsel
       argued the petitions were sufficient to put David on notice of Michelle’s claims. The court
       denied David’s motion to dismiss, stating, although it preferred to have more detailed
       pleadings, it was not persuaded that David had been “meaningfully disadvantaged.”


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¶7         The matter proceeded on Michelle’s requests for temporary relief and both parties testified.
       Michelle stated she worked as a junior high school teacher and resided in the marital residence
       with David and the parties’ two children. She was seeking an award of temporary custody of
       the children and stated that, historically, she had been primarily responsible for the children’s
       care. Michelle testified David worked for UPS and, during his employer’s busy season, was
       sometimes not home until 7 or 8 p.m. She acknowledged David assisted with transporting the
       children.
¶8         Michelle testified she was seeking exclusive possession of the marital residence because
       she felt there was a lot of tension and stress in the home. She stated David had been physically
       aggressive toward her and noted occasions when he would try to block her access to a doorway
       or to another area of the house. According to Michelle, David would “stick his chest out” or
       “move as [she was] going by” and then blame her for bumping or pushing him. She
       acknowledged that David never hit her and that she had never called the police but stated she
       was physically afraid of David and there was a constant threat of physical aggression toward
       her. Michelle testified she felt intimidated, bullied, antagonized, and uncomfortable.
¶9         Michelle stated David was also verbally aggressive toward her. She testified he criticized
       her, swore at her, and called her names in front of the children. Michelle stated David used a
       “derogatory tone” when speaking to her, which she described as sarcastic, not pleasant,
       mocking, and degrading. Further, she stated she was intimidated by David’s “weird
       behaviors,” and testified as follows:
               “For example, he might come upstairs from the basement and he just starts talking and
               repeating himself. ‘Lights are on again. The lights are on.’ Just weird behaviors that
               he’ll constantly repeat and say over and over, and then he’ll say ‘Hum, that’s funny, the
               lights are on again’, and waiting to get a response, and he’ll repeat it until I say
               something like, ‘I didn’t know they were on. I’m sorry I left them on.’ ”
       Michelle noted other odd behavior, stating David would engage in “baby talk,” or whisper
       about something he did not approve of or that he perceived Michelle had done wrong. She
       noted he contradicted himself by saying one thing and then later saying the opposite. He would
       then become upset when Michelle acted on his original statements. Michelle believed the
       tension and stress in the home was affecting the children and that the children were “stressed
       out.” She stated the parties’ youngest daughter would cry and both children expressed that they
       did not like it when their parents argued.
¶ 10       On cross-examination, Michelle acknowledged that she also made derogatory comments to
       David, telling him that he was acting like a two-year-old and that he was being immature. She
       agreed she may have used profanity toward David but did not recall any specific instances.
       Michelle also testified both parties had used cellular phones to record events that occurred
       between them.
¶ 11       David denied ever physically striking Michelle but acknowledged instances when both
       parties refused to move out of a doorway that the other intended to go through, resulting in one
       person brushing up against the other. David denied any other acts of physical aggression
       between the parties. Although he testified that Michelle had called him names within the last
       few months, he had no concerns about residing in the same home as her. David denied seeing
       any symptoms of stress in the children. He also denied ever videotaping Michelle but stated
       both parties had pretended to record each other and that was “something wrong that [they] both
       ha[d] done.”

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¶ 12       Following the parties’ arguments, the trial court granted Michelle temporary custody of the
       children and exclusive possession of the marital home, finding her “quite credible in
       describing the conduct that she *** alleged.” It concluded the parties needed to physically
       separate so that the children would no longer be exposed to a “highly negative” situation. The
       court believed the children were suffering in their current situation and were hurt by their
       parents’ frequent arguing.
¶ 13       On November 25, 2013, David filed a notice of interlocutory appeal pursuant to Rule 307.
       In that notice, he asserted his challenge to the trial court’s October 25, 2013, order, granting
       exclusive possession of the marital residence to Michelle.

¶ 14                                           II. ANALYSIS
¶ 15        Initially on appeal, we address an issue of jurisdiction alluded to in Michelle’s brief. As
       stated, David filed an interlocutory appeal pursuant to Rule 307. However, Michelle’s brief
       contains a statement of jurisdiction in which she asserts Rule 307 does not allow for an
       interlocutory appeal from the denial of a motion to dismiss. For the reasons that follow, we find
       jurisdiction appropriate under Rule 307(a)(1).
¶ 16        Rule 307(a)(1) provides that appeals may be taken from an interlocutory order of the trial
       court “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an
       injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26, 2010). Here, although the trial court denied
       David’s motion to dismiss Michelle’s petition for exclusive possession, it went on to consider
       the merits of her petition and granted her request for temporary relief. Section 701 of the
       Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/701 (West 2012)) sets
       forth the requirements for granting such a request and also states that when those requirements
       are met, the court may “enter orders of injunction, mandatory or restraining, granting the
       exclusive possession of the marital residence to either spouse.” (Emphasis added.) The court’s
       October 2013 order from which David appealed granted Michelle injunctive relief and,
       therefore, an interlocutory appeal pursuant to Rule 307(a)(1) was appropriate. See also
       In re Marriage of Levinson, 2012 IL App (1st) 112567, ¶ 1, 975 N.E.2d 270 (noting an
       interlocutory appeal was taken pursuant to Rule 307(a)(1) from a circuit court order that
       awarded temporary exclusive possession of the marital residence under section 701 of the Act
       (750 ILCS 5/701 (West 2010))).
¶ 17        We next address the merits of David’s appeal, which challenges the trial court’s order
       granting exclusive possession of the marital residence to Michelle. David argues both that the
       court erred in denying his motion to dismiss Michelle’s petition for exclusive possession and
       that the court’s decision awarding Michelle exclusive possession was against the manifest
       weight of the evidence. We disagree on both counts but first consider David’s contentions with
       respect to the court’s denial of his motion to dismiss.
¶ 18        David argues the trial court erred in failing to grant his motion to dismiss pursuant to
       section 2-615 of the Code because Illinois is a fact-pleading state and Michelle’s petition for
       exclusive possession was “void of any facts that would be sufficient to establish each element
       of a cause of action.” In response, Michelle maintains the court committed no error in denying
       David’s section 2-615 motion to dismiss because such a motion addresses only defects in a
       “pleading” and her petition, which sought temporary relief in the pending dissolution
       proceeding, was a motion rather than a “pleading.” We agree with Michelle.


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¶ 19        A section 2-615 motion “applies only to the dismissal of pleadings.” In re Marriage of
       Sutherland, 251 Ill. App. 3d 411, 414, 622 N.E.2d 105, 108 (1993); see also In re Marriage of
       Wolff, 355 Ill. App. 3d 403, 407, 822 N.E.2d 596, 601-02 (2005) (holding a motion to dismiss
       pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)) applied only to the
       dismissal of pleadings and not to a motion to reconsider). “A pleading *** consists of a party’s
       formal allegations of his claims or defenses” while “[a] motion is an application to the court for
       a ruling or an order in a pending case.” Wolff, 355 Ill. App. 3d at 407, 822 N.E.2d at 601-02.
¶ 20        In this instance, Michelle’s petition for exclusive possession was not a pleading but a
       motion for temporary relief. Section 501(a) of the Act (750 ILCS 5/501(a) (West 2012)) sets
       forth the manner in which a party to dissolution proceedings may be granted temporary relief,
       providing that either party may “move” for various forms of temporary relief. 750 ILCS
       5/501(a) (West 2012). “Section 501(a)(3) is an all-inclusive provision which allows a party to
       move for *** temporary relief, such as temporary custody; exclusive possession of the marital
       residence; sequestration of assets; and temporary attorney fees.” In re Marriage of Meyer, 197
       Ill. App. 3d 975, 978, 557 N.E.2d 242, 245 (1990); 750 ILCS 5/501(a)(3) (West 2012).
¶ 21        Here, the record shows Michelle “move[d]” for temporary relief in the form of exclusive
       possession of the martial residence as provided for by section 501(a) of the Act. 750 ILCS
       5/501(a) (West 2012). Her request was not a “pleading” that consisted of formal allegations of
       her claims or defenses, but a motion, i.e., “an application to the court for a ruling or an order in
       a pending case.” Wolff, 355 Ill. App. 3d at 407, 822 N.E.2d at 601-02. Therefore, Michelle’s
       petition for exclusive possession of the marital residence was not subject to dismissal pursuant
       to section 2-615 of the Code and, on that basis, we find the trial court committed no error in
       denying David’s 2-615 motion to dismiss.
¶ 22        Finally, on appeal, David argues the trial court’s decision to award exclusive possession of
       the marital residence to Michelle was against the manifest weight of the evidence. He contends
       the evidence presented did not support a finding that the physical or mental well-being of either
       Michelle or the children was “jeopardized” by both parties’ occupancy of the marital
       residence. David describes the parties’ living situation as “typical” for that of a divorcing
       family and argues that, even assuming Michelle’s testimony was accurate and credible (as the
       trial court found), “there would still not be sufficient evidence to meet [Michelle’s] burden.”
       David notes neither party sought an order of protection and there was no history of physical
       abuse between them.
¶ 23        Section 701 of the Act (Act) (750 ILCS 5/701 (West 2012)) sets forth the circumstances
       under which a trial court may grant a request for exclusive possession of the marital residence.
       That section provides as follows:
                “Where there is on file a verified complaint or verified petition seeking temporary
                eviction from the marital residence, the court may, during the pendency of the
                proceeding, only in cases where the physical or mental well being of either spouse or
                their children is jeopardized by occupancy of the marital residence by both spouses,
                and only upon due notice and full hearing, unless waived by the court on good cause
                shown, enter orders of injunction, mandatory or restraining, granting the exclusive
                possession of the marital residence to either spouse, by eviction from, or restoration of,
                the marital residence, until the final determination of the cause.” (Emphasis added.)
                750 ILCS 5/701 (West 2012).
¶ 24        “Accordingly, pursuant to section 701 of the Act, the court has the authority to grant
       exclusive possession if (1) a party has filed a verified petition seeking exclusive possession of
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       the marital residence, and (2) the physical or mental well-being of either spouse or their
       children is jeopardized by the occupancy of the marital residence by both spouses.” Levinson,
       2012 IL App (1st) 112567, ¶ 33, 975 N.E.2d 270. “We review orders granting exclusive
       possession pursuant to section 701 under a manifest weight of the evidence standard.”
       Levinson, 2012 IL App (1st) 112567, ¶ 33, 975 N.E.2d 270 (citing In re Marriage of
       Hofstetter, 102 Ill. App. 3d 392, 396, 430 N.E.2d 79, 82 (1981)). “A judgment is against the
       manifest weight of the evidence only when the opposite conclusion is clearly apparent.”
       In re Parentage of J.W., 2013 IL 114817, ¶ 55, 990 N.E.2d 698.
¶ 25       “When interpreting a statute, the primary objective is to give effect to the legislature’s
       intent, which is best indicated by the plain and ordinary language of the statute itself.” Hartney
       Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25, 998 N.E.2d 1227. “Words should be given their
       plain and obvious meaning unless the legislative act changes that meaning.” Hartney, 2013 IL
       115130, ¶ 25, 998 N.E.2d 1227. As stated, section 701 of the Act permits a trial court to grant
       exclusive possession of the marital residence to one spouse “only in cases where the physical
       or mental well being of either spouse or their children is jeopardized by occupancy of the
       marital residence by both spouses.” 750 ILCS 5/701 (West 2012). Given its plain and ordinary
       meaning, the word “jeopardize” means “to expose to danger or risk.” Merriam-Webster’s
       Collegiate Dictionary 627 (10th ed. 2000).
¶ 26       Here, the trial court’s decision to grant Michelle temporary exclusive possession of the
       marital residence was not against the manifest weight of the evidence. In reaching its decision,
       the court found Michelle’s testimony credible, determined the children were being exposed to
       a “highly negative” situation, and believed the children were suffering and being hurt by their
       parent’s frequent arguing. Evidence presented at the hearing supported the court’s findings.
       Further, although the court did not make specific findings with respect to section 701’s
       requirements–which would have aided our review–there was sufficient evidence from which it
       could have found the mental health of either Michelle or the children was “jeopardized” by
       both spouses’ occupancy of the marital residence.
¶ 27       Michelle testified David had been physically and verbally aggressive toward her. She felt
       physically afraid of him, intimidated, bullied, antagonized, and uncomfortable. Michelle
       described instances when David stood in front of her and blocked her access to a doorway or to
       another area of the house. David acknowledged that behavior when testifying on his own
       behalf. Michelle also testified David criticized her, swore at her, called her names, and
       threatened to “knock [her] head off.” David did not deny that those events had occurred. The
       evidence also showed some of the parties’ arguments and conflicts occurred in front of the
       children. Michelle believed the situation in the home was affecting the children and noted the
       parties’ youngest daughter would cry and both children expressed that they did not like it when
       their parents argued. Again, the trial court found Michelle’s testimony more credible than that
       of David, who denied any negative impact on the children from the parties’ situation. An
       opposite credibility determination from that made by court is not clearly apparent.
¶ 28       On appeal, David points out that the parties had no history of physical abuse and neither
       had ever sought an order of protection. However, section 701 of the Act allows the trial court to
       grant a request for exclusive possession where the “mental well being of either spouse or their
       children is jeopardized.” 750 ILCS 5/701 (West 2012). Thus, a situation need not rise to the
       level of physical violence before section 701 relief may be granted. In this case, the evidence
       presented was sufficient to support a finding that the mental well-being of either Michelle or
       the children was adversely affected by the occupancy of both spouses in the marital residence.
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¶ 29       On appeal, the parties cite four cases that concern requests for exclusive possession of a
       martial residence. David argues the cases support reversal of the trial court’s order in the
       instant case while Michelle argues they are factually distinguishable. We note resolution of a
       request for exclusive possession under section 701 depends upon the particular factual
       circumstances of each case and all of the cases cited by the parties necessarily turned on the
       specific facts presented. We find the cases cited by the parties factually distinguishable from
       the case at bar. Further, none of the cited cases requires reversal of the court’s decision here.
¶ 30       David relies heavily on Levinson, 2012 IL App (1st) 112567, ¶ 44, 975 N.E.2d 270,
       wherein the First District reversed the trial court’s grant of exclusive possession of the marital
       residence to the wife, finding it clear from the evidence that “there was no jeopardy to either
       the physical or mental well-being of [the wife] or the children.” In that case, the parties resided
       in the martial residence on a “birdnesting” schedule, “wherein each party occupie[d] the
       marital residence during his or her parenting time, but vacate[d] it during the other’s parenting
       time.” Levinson, 2012 IL App (1st) 112567, ¶ 6, 975 N.E.2d 270. In reversing the trial court’s
       judgment, the First District gave the word “jeopardy” its plain and ordinary meaning and
       declined to define it in a more expansive manner as the trial court before it had done. Levinson,
       2012 IL App (1st) 112567, ¶¶ 31-36, 975 N.E.2d 270.
¶ 31       Further, in rendering its decision, the First District found evidence that the wife and
       children experienced “stress” due to the “birdnesting” arrangement was insufficient to support
       an order of exclusive possession under section 701. Levinson, 2012 IL App (1st) 112567, ¶ 37,
       975 N.E.2d 270. Specifically, the court stated as follows:
               “[The wife] alleged that sharing the marital residence with [the husband] causes her
               stress. She also alleged that the children feel stress and confusion due to the lack of
               stability as pertains to the birdnesting arrangement. Although she refers to the alleged
               [physical] altercation of May 9, 2010, we note that the emergency petition for order of
               protection was voluntarily dismissed and the trial court did not make any findings
               regarding the incident. Moreover, Dr. Palen [(the court-appointed evaluator)] testified
               that he disagreed with [the wife’s] assessment that the birdnesting visitation schedule
               ‘is seriously endangering the mental and emotional well-being of the children.’ ***
               [T]his combination of factors is clearly not sufficient under section 701 to constitute
               jeopardy.” Levinson, 2012 IL App (1st) 112567, ¶ 43, 975 N.E.2d 270.
¶ 32       As stated, Levinson is factually distinguishable from the present case. Most obvious is that,
       unlike in Levinson, the parties in this case resided in the marital home together on a full-time
       basis. Next, in the case at bar, we find no indication from the record that the trial court applied
       an incorrect standard or an overly expansive definition of “jeopardize.” Further, the evidence
       presented in this case involved more serious concerns than the “stress” alleged in Levinson.
       Here, Michelle testified that David was physically and verbally aggressive toward her, she felt
       intimidated and bullied by his behavior, and the children witnessed the parties’ conflicts.
       Finally, in Levinson, the wife’s testimony regarding the children’s well-being was contradicted
       by the testimony of a court-appointed evaluator. In this instance, Michelle’s testimony was not
       similarly contradicted.
¶ 33       In his brief, David contrasts Levinson with Hofstetter, 102 Ill. App. 3d at 396, 430 N.E.2d
       at 82, wherein the First District found sufficient evidence existed for the trial court to
       determine a husband’s presence in the marital home would jeopardize the wife’s physical and
       emotional well-being. In that case, the court noted the wife’s testimony “that her husband

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       struck her with his fist, an iron and a gun, that he pointed the gun at her and ‘shot it twice.’ ”
       Hofstetter, 102 Ill. App. 3d at 396, 430 N.E.2d at 82.
¶ 34       To the extent David contends the evidence presented in this case had to reach the level of
       what occurred in Hofstetter, we disagree. As discussed, the trial court had authority under
       section 701 to grant exclusive possession of the marital residence to either spouse upon a
       showing that “the physical or mental well being of either spouse or their children is
       jeopardized.” (Emphasis added.) 750 ILCS 5/701 (West 2012). A lack of physical violence or
       abuse between the parties does not warrant reversal of the trial court’s decision where the
       evidence otherwise shows a spouse or child’s mental well-being was being adversely affected.
¶ 35       Additionally, in Hofstetter, 102 Ill. App. 3d at 396, 430 N.E.2d at 82, the court held that
       “[e]ven though the husband denied some of the acts alleged by the wife, where there is
       conflicting testimony, the determination of the witnesses’ credibility is for the trier of fact.” As
       stated, in this case, the trial court found Michelle more credible than David. The record reflects
       no error in that finding.
¶ 36       The parties cite two additional cases: In re Marriage of Lima, 265 Ill. App. 3d 753, 638
       N.E.2d 1186 (1994); and In re Marriage of Lombaer, 200 Ill. App. 3d 712, 558 N.E.2d 388
       (1990). However, resolution of those cases turned on the particular facts presented in each
       case, which we find distinguishable from the facts presented here.
¶ 37       In the instant case, sufficient evidence was presented from which the trial court could find
       the mental well-being of either Michelle or the children was jeopardized by both parents’
       occupancy of the marital residence. An opposite conclusion from that of the court is not clearly
       apparent and, as a result, the court’s award of exclusive possession of the marital residence to
       Michelle was not against the manifest weight of the evidence.

¶ 38                                      III. CONCLUSION
¶ 39      For the reasons stated, we affirm the trial court’s judgment.

¶ 40      Affirmed.




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