                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                    In re Marriage of McCormick, 2013 IL App (2d) 120100




Appellate Court            In re MARRIAGE OF AMY K. McCORMICK, Petitioner-Appellee, and
Caption                    DAVID A. McCORMICK, Respondent-Appellant.



District & No.             Second District
                           Docket No. 2-12-0100


Filed                      August 26, 2013


Held                       The trial court’s finding of no contempt in respondent’s second
(Note: This syllabus       postdecree contempt proceedings based on petitioner’s violations of the
constitutes no part of     visitation order entered in the parties’ dissolution action was affirmed,
the opinion of the court   notwithstanding the fact that the appellate court reversed the trial court’s
but has been prepared      finding of no contempt entered on respondent’s first contempt proceeding
by the Reporter of         based on allegations of similar violations, since the violations in the
Decisions for the          second proceeding were less severe and petitioner was under the
convenience of the         reasonable belief that her behavior was not contemptuous until the
reader.)
                           finding in the first proceeding was reversed; however, in the future,
                           petitioner should be aware that any new violations would be deemed
                           contumacious.


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 04-D-1073; the
Review                     Hon. Joseph J. Bruce, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 David A. McCormick, of Yorkville, appellant pro se.
Appeal
                           No brief filed for appellee.


Panel                      JUSTICE JORGENSEN delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Burke and Justice Schostok concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Respondent, David A. McCormick, initiated his second postdecree contempt proceedings
        against his former spouse, petitioner, Amy K. McCormick, based on violations of an
        underlying visitation order. On his first postdecree contempt petition, the trial court entered
        a finding of no contempt. Amy continued to violate the visitation order, though it would be
        fair to characterize her subsequent violations as less severe. Therefore, the subsequent
        violations did not demonstrate a willful disrespect of the order, and we hold that the trial
        court did not err in entering a second finding of no contempt. This is so even though this
        court later determined that the trial court erred in denying the initial contempt petition.
        Accordingly we affirm.

¶2                                     I. BACKGROUND
¶3          This appeal concerns the trial court’s order, entered December 29, 2011, finding that
        Amy was not in contempt for conduct occurring between August 11, 2011, and October 26,
        2011. However, an earlier violation period and contempt proceeding provides context to
        Amy’s allegedly contemptuous behavior at issue in this appeal, and so we begin our
        recitation of the facts there.

¶4                                  A. Initial Contempt Proceeding:
              Subject of In re Marriage of McCormick, 2013 IL App (2d) 110894-U
¶5          David filed a petition for rule to show cause on July 20, 2010, and an amended petition
        on January 14, 2011. In the amended petition, David alleged that Amy had repeatedly and
        willfully violated the visitation order. David, who lived 80 minutes away from Amy and their
        sons, alleged that he missed 43 visits with one son, 39 with another, and 19 with the third.
        The court asked David to present evidence of the incidents that seemed most serious to him.
¶6          The incidents included: (1) Amy allowed two of the boys to miss David’s scheduled 2008
        New Year’s Eve celebration in favor of a sleepover with friends; (2) Amy allowed one of the

                                                 -2-
       boys to miss an extended, two-week summer visit in favor of football practice; (3) Amy
       allowed two of the boys to miss a scheduled Easter visit in favor of sporting activities; and
       (4) Amy allowed one of the boys to miss a scheduled camping trip in order to participate in
       a dodgeball tournament, even though, due to the boys’ recent vacation with Amy, David had
       not seen them in three weeks. Amy admitted to each of these incidents, essentially explaining
       that she felt the other commitments were important to the boys.
¶7          The trial court issued its finding on August 11, 2011. It found the parties’ visitation
       problem to be one of the most difficult it had seen. It could not say that the problem was “all
       one party’s fault.” However, while it “didn’t want to even say [that Amy was in] contempt
       [of court],” it would say that Amy went “overboard” in prioritizing the children’s wishes
       over visitation with their father. The court did not find Amy to be in contempt.
¶8          David appealed the trial court’s finding of no contempt. This court initially dismissed
       David’s appeal as potentially premature, and David later perfected the appeal. See In re
       Marriage of Knoerr, 377 Ill. App. 3d 1042, 1049-50 (2007) (respondent may file a petition
       for rehearing and to supplement the record to establish that the appeal was not premature).
       Subsequently, on the merits, this court held that the trial court erred in its August 11, 2011,
       finding that Amy was not in contempt and we remanded for a determination on sanctions.
       McCormick, 2013 IL App (2d) 110894-U, ¶¶ 31, 35. We reasoned that Amy had admitted
       she violated the visitation order and that her rationale, primarily that the children had other
       commitments, established that the violations were willful. Id. ¶ 31. Moreover, we stated that
       the trial court “misled Amy by suggesting that she could legitimately second-guess the
       visitation schedule.” Id. Our ruling was filed in April 2013, well after the 2011 time frame
       at issue in this appeal.

¶9                               B. Subsequent Contempt Proceeding:
                                     Subject of the Instant Appeal
¶ 10       After the trial court issued its first finding of no contempt, and while the first appeal was
       pending, the parties continued under a slightly modified visitation schedule. However, on
       three separate weekends, Amy “allowed” at least one boy to miss a visit. The oldest minor
       son, age 16, expressed resistance toward visiting David. On the weekend of September 4,
       2011, which included Labor Day, he refused to visit David because he did not want to cancel
       his work shifts at a baseball stadium. That weekend was an important business weekend for
       the stadium. The son hoped to stay in good favor with his employer as he wanted to be
       rehired the next summer. Amy testified that she allowed him to attend work rather than visit
       David, because she understood that it was important to hold onto a job in a difficult
       economy. On September 10, 2011, and October 22, 2011, the son refused to visit David
       because he wanted to attend in-town activities with his friends. He complained to David via
       text message: “Whatever, Dad. Be as disappointed as [you] want. I’ve worked with you but
       I’m not going to sit and do nothing every Saturday night.” Amy essentially testified that she
       was at a loss to get the son to cooperate with visitation and that she did not like to argue with
       him.
¶ 11       The middle son, age 14, also missed a visit on Labor Day weekend. The first day, Amy

                                                 -3-
       drove him and a friend to Iowa to watch a football game. It is unclear from the record
       whether this trip constituted a missed visit or whether it was an agreed-upon event offered
       to provide context to the weekend. The second day, the son missed a visit to attend a tryout
       for a travel baseball team. When the son learned that the tryout conflicted with David’s
       visitation, he cried and became very upset at the idea of missing the tryout. Amy decided to
       allow him to attend the tryout. Following the tryout, Amy did not drive the son to David’s
       home for the last day of the weekend.
¶ 12       Based on these violations,1 on September 14 and October 26, 2011, David petitioned for
       a second rule to show cause against Amy. The court heard the matter on October 26, 2011.
¶ 13       On December 29, 2011, the trial court entered a finding of no contempt. As to the oldest
       son, the court clarified that it had not intended for him to jeopardize his summer job,
       “particularly if [he] only had another couple weeks to go.” Allowing the son to miss a visit
       for an important work weekend was not against the spirit of the visitation order. The court
       stated, however, that, as to the middle son, Amy should have arranged transportation to
       David’s house after the tryout: “[T]hat’s a problem. Okay?” But the court stated in general
       that, although Amy might have made some technical mistakes, she did not willfully violate
       the order. The court found that the children missed visits due to their own willfulness and
       that, while Amy might have been overly indulgent at times, there was very little to suggest
       that she was “the one responsible for the problems going on with the children not wanting
       to see [David] on the days in question.” The court admonished David that there was “a limit
       to what [the courts and legal system] can do to try to solve the problems.”
¶ 14       David appealed the trial court’s December 29, 2011, finding of no contempt. As before,
       this court initially dismissed David’s appeal as potentially premature, and David perfected
       the appeal. See Knoerr, 377 Ill. App. 3d at 1049-50.

¶ 15                                      II. ANALYSIS
¶ 16       David argues that the trial court erred when, on December 29, 2011, it entered a finding
       of no contempt for conduct alleged to have occurred between August 11, 2011, and October
       26, 2011. Amy did not file an appellate brief. However, as the record is simple and the
       claimed errors are such that we can easily decide them without the aid of an appellee’s brief,
       we proceed. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,
       133 (1976).
¶ 17       Indirect contempt occurs outside the presence of the trial court. In re Marriage of
       Tatham, 293 Ill. App. 3d 471, 480 (1997). Proof of willful disobedience of a court order is
       essential to any finding of indirect civil contempt. Id. Once the petitioner establishes by a
       preponderance of the evidence that a violation occurred, the alleged contemnor has the
       burden of showing that the violation was not willful and contumacious and that he or she had

               1
                David also complained that Amy did not provide him with the boys’ coaches’ contact
       information as directed. Amy provided David with only the web address for the league’s website and
       the e-mail address of the league coordinators. David had tried to talk to the coaches at one game, but
       they were “unapproachable.”

                                                    -4-
       a valid excuse for failing to follow the order. In re Marriage of Charous, 368 Ill. App. 3d 99,
       107 (2006). Contumacious behavior consists of “conduct calculated to embarrass, hinder, or
       obstruct a court in its administration of justice or [conduct] lessening the authority and
       dignity of the court.” (Internal quotation marks omitted.) Id. at 108. Whether a party is guilty
       of contempt is a question of fact for the trial court, and a reviewing court should not disturb
       the trial court’s determination unless it is against the manifest weight of the evidence or the
       record reflects an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d 266, 286-87
       (1984); cf. In re Marriage of Barile, 385 Ill. App. 3d 752, 759 n.3 (2008) (applying the
       Logston standard despite the supreme court’s general advisement against application of the
       abuse-of-discretion standard to findings of fact).
¶ 18        Here, again, the contempt period at issue followed an initial finding of no contempt for
       prior violations of the visitation order. Amy continued to violate the visitation order during
       this period. However, we think it fair to say that there was no increase in the frequency or
       severity of the violations and that, if anything, Amy demonstrated greater compliance than
       she had in the past. Following the close of evidence and the trial court’s ruling on the
       violations during the period at issue, this court reversed the trial court’s finding of no
       contempt as to the previous period. Thus, the question for this court becomes whether to: (1)
       review the violations in light of only the visitation order and, in keeping with our previous
       appellate ruling, consider reversing; or (2) review the violations in light of the trial court’s
       initial ruling of no contempt, even though that ruling was later determined to be erroneous.
       We favor the latter approach.
¶ 19        In determining whether a party’s violation of a court order constitutes contempt, the trial
       court may consider the procedural posture of the case as a context for the party’s actions.
       See, e.g., In re Marriage of Kuhn, 221 Ill. App. 3d 1, 4 (1991) (where the husband was in the
       process of exhausting attempts to obtain appellate relief, his admittedly willful and
       intentional failure to pay college expenses as ordered was not due to any disrespect of the
       court, and, therefore, contempt was too harsh a penalty). In other words, it is important to
       consider the party’s frame of reference and feedback from the court at the time he or she
       committed the violation. The contempt period at issue here is August 11, 2011 (the date of
       the trial court’s initial finding of no contempt), to October 26, 2011 (the date on which David
       filed the latter of his subsequent petitions). At the outset of this period, Amy was informed
       by the court that her previous behavior, including allowing the boys to miss more than 43
       visits, several vacations, and significant holidays (New Year’s and Easter), was not
       contemptuous. She reasonably continued to labor under this belief until April 2013, when
       this court ruled that the trial court had erred in entering its initial finding of no contempt.
       Still, her compliance with the visitation order improved somewhat. She allowed only three
       missed weekend visits, which included one holiday (Labor Day). Even on these missed visits,
       at least one of the three boys attended. In fact, had it not been for the conflict with the oldest
       son, Amy would have achieved a much higher degree of compliance. Particularly where, in
       its initial finding of no contempt, the trial court “misled Amy by suggesting that she could
       legitimately second-guess the visitation schedule,” we cannot find that Amy willfully
       disrespected an order of the court between August 11, 2011, and October 26, 2011.
       (Emphasis added.) McCormick, 2013 IL App (2d) 110894-U, ¶ 31. Going forward and based

                                                  -5-
       on our reversal of the initial finding in McCormick, 2013 IL App (2d) 110894-U, however,
       we expect that Amy is now aware that any new violations may be considered contumacious
       behavior.

¶ 20                                 III. CONCLUSION
¶ 21      For the aforementioned reasons, we affirm the trial court’s finding of no contempt.

¶ 22      Affirmed.




                                              -6-
