                         NO. 4-10-0677             Filed 1/31/11

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

In re: the Marriage of                    ) Appeal from
CHRISTINA L. SMITHSON, n/k/a CHRISTINA    ) Circuit Court of
CAMPBELL,                                 ) Macon County
          Petitioner-Appellee,            ) No. 04D534
          and                             )
JAMES T. SMITHSON,                        ) Honorable
          Respondent-Appellant.           ) Theodore E. Paine,
                                          ) Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE KNECHT delivered the judgment of the
court, with opinion.
          Justice Turner concurred in the judgment and opinion.
          Justice Pope specially concurred in part and dissented
in part, with opinion.

                                OPINION

          The trial court terminated the joint-custody agreement

of the parties and awarded sole custody of their minor children,

Jacob Smithson and Ryan Smithson, to the mother, petitioner,

Christina Smithson, n/k/a Christina Campbell.       The trial court

also found respondent, the father, James Smithson, to be in

indirect civil contempt for failure to pay his half of noncovered

health-care expenses for the children.       James appeals both the

custody decision and the finding of indirect civil contempt.       We

affirm in part and vacate in part.

                             I. BACKGROUND

          James and Christina were married on March 7, 2000.       Two

children were born during the marriage, Jacob, on July 17, 2000,

and Ryan, on May 30, 2003.    James was in the United States Marine

Corps and served two tours of duty in Iraq and Kuwait during the
marriage.    On November 15, 2004, Christina filed a petition for

dissolution of marriage.    On November 23, 2004, the parties filed

a waiver of the time period for grounds.    That same day, the

parties entered into a joint parenting agreement which provided

Christina would be the primary custodian of Jacob and Ryan.      A

judgment of dissolution of marriage was also entered on November

23, 2004, which included a property-settlement agreement provid-

ing James would be entitled to custody of the children on alter-

nate Christmas vacations and 30 consecutive days during the

summer.

            The property agreement also required each party to

maintain medical insurance for the children during their employ-

ment.   The parties were then to each pay one-half of medical,

dental, optical, orthodontal, or health-care-related expenses for

the children not otherwise covered by insurance.

            On January 25, 2008, James filed a motion to modify

custody, requesting the joint-parenting agreement be terminated

and he be awarded sole custody of Jacob and Ryan.    On September

11, 2009, Christina filed a petition for adjudication of civil

contempt, alleging James had failed to pay the one-half of

medical, dental, optical, orthodontal, or health-care-related

expenses for the children not otherwise covered by insurance as

required by the judgment of dissolution.

            On March 2 to 4, 2010, and April 30, 2010, the trial

court held a hearing on the motion to modify custody and the

petition for adjudication of contempt.    After hearing testimony


                                - 2 -
from numerous witnesses, the trial court entered an order on

August 4, 2010.    The court concluded joint custody was not

working for James and Christina.    The court also found James had

not proved by clear and convincing evidence a change in physical

custody from Christina to him was necessary for the well-being of

Jacob and Ryan.    Further, James failed to prove there was an

agreement under which Christina would pay all health-care ex-

penses not covered by James' insurance nor did he request modifi-

cation of the judgment.    He did not pay one-half of uncovered

medical expenses nor did he request modification of the judgment.

The court then denied the motion to modify custody, terminated

the joint-parenting agreement, and awarded sole custody of Jacob

and Ryan to Christina.    The court also found James in contempt

for failing to pay his share of the boys' medical bills.     This

appeal followed.

                             II. ANALYSIS

                              A. Custody

          The determination of child custody rests largely within

the discretion of the trial court, and its decision will not be

disturbed on appeal unless it is against the manifest weight of

the evidence or the trial court abused its discretion.      In re

Marriage of Craig, 326 Ill. App. 3d 1127, 1129, 762 N.E.2d 1201,

1203 (2002).

          Section 610(b) of the Illinois Marriage and Dissolution

of Marriage Act (Act) (750 ILCS 5/610(b) (West 2008)) provides:

                  "(b) The court shall not modify a prior


                                 - 3 -
          custody judgment unless it finds by clear and

          convincing evidence, upon the basis of facts

          that have arisen since the prior judgment or

          that were unknown to the court at the time of

          entry of the prior judgment, that a change

          has occurred in the circumstances of the

          child or his custodian, or in the case of a

          joint custody arrangement that a change has

          occurred in the circumstances of the child or

          either or both parties having custody, and

          that the modification is necessary to serve

          the best interest of the child.   ***   In the

          case of joint custody, if the parties agree

          to a termination of a joint custody arrange-

          ment, the court shall so terminate the joint

          custody and make any modification which is in

          the child's best interest.   The court shall

          state in its decision specific findings of

          fact in support of its modification or termi-

          nation of joint custody if either parent

          opposes the modification or termination."

          To modify a custody order, a petitioner must demon-

strate by clear and convincing evidence (1) a change of circum-

stances of the child or his custodian has occurred and (2) a

modification is necessary to serve the best interests of the

child.   See In re Marriage of Burke, 185 Ill. App. 3d 253, 256,


                               - 4 -
541 N.E.2d 245, 247 (1989).   However, in the case of a joint-

parenting agreement, where both parties agree to a termination of

the agreement, a trial court may proceed directly to a determina-

tion of the child's best interests.

          James argues the trial court applied the wrong burden

of proof in denying his motion to modify custody.   He contends he

did not need to prove a change of circumstances had occurred as

Christina agreed the joint-parenting agreement was not working

and the court needed only to determine what custody arrangement

was in the best interests of Jacob and Ryan.   James notes with

regard to joint custody, the supreme court has found stipulations

by both parents they no longer wish to be joint custodians

constitutes a change in circumstances and a custody modification

should be made in accordance with the child's best interests.      In

re Marriage of Lasky, 176 Ill. 2d 75, 81, 678 N.E.2d 1035, 1038

(1997).   Following Lasky, this court found in In re Marriage of

Ricketts, 329 Ill. App. 3d 173, 768 N.E.2d 834 (2002), where both

parents file petitions to modify a joint-custody agreement, each

seeking sole custody, both parents are, in essence, agreeing

joint custody should be terminated and there was no need to show

serious endangerment to the child's physical, mental, moral, or

emotional health in order to modify the custody agreement.

Ricketts, 329 Ill. App. 3d at 178, 768 N.E.2d at 838.

          James contends although he alone filed a motion to

modify custody by terminating the joint-custody agreement and

awarding sole custody to him, testimony by Christina at the


                               - 5 -
hearing on his motion amounted to an admission joint custody is

not working and, therefore, should be considered to be a stipula-

tion she no longer desires to have joint custody.    He contends

the trial court should have gone right to a best-interest analy-

sis as the change in circumstances noted by both Lasky and

Ricketts had occurred.

          The circumstances of this case are different from those

found in Lasky and Ricketts.     Although Christina did testify as

an adverse witness she found joint parenting not working, during

her attorney's opportunity to elicit testimony to clarify her

testimony, Christina testified the reason she did not believe

joint custody was working was she believed she was parenting with

Julia, James' new wife, and not James.    She based her belief on

the fact the communication between the two families was conducted

mostly by e-mail and James was at work when most of the e-mail

exchanges were made.     Julia operated an in-home day-care facility

and was home during the day.    Christina further stated she could

continue to joint parent with James and this was in the best

interests of the children.

          Section 610(b) requires both parties agree to a termi-

nation of joint custody before the court can terminate a joint-

custody order and make any modification of custody in the best

interests of the children.    However, these parties did not agree

to terminate joint custody.    Both parties did not file petitions

to modify custody nor was there a stipulation to that effect.

Christina's testimony, equivocal at best, was not an agreement to


                                 - 6 -
terminate joint custody.   We will not extend the reasoning of

either Lasky or Ricketts to include the facts of this case.

            James argues even if Christina's testimony is not

sufficient to eliminate a finding of change of circumstances or

be considered the change of circumstances itself, he has proved

by clear and convincing evidence there has been a substantial

change in circumstances.

            The trial court essentially made a finding of change of

circumstances by finding joint custody was not working for James

and Christina as "[b]oth have not communicated as necessary in

the past" and, when they did communicate, James has dictated

rather than discussed issues and has belittled Christina's

parenting choices.    Thus, James got part of the remedy he sought,

the termination of the joint-parenting agreement, as the trial

court found it was not working.    The court went on to find James

had not proved by clear and convincing evidence a change in

physical custody from Christina to him was "necessary" for the

"well-being" of Jacob and Ryan.

            Both parties presented evidence of the other's flaws.

Christina's marriage to James was her fourth and she was now

married for the sixth time but in the process of a dissolution

which also included a custody fight for the two-year-old half

sister of Jacob and Ryan, Lillian Campbell.    Christina had a 17-

year-old son from her second marriage, Andrew Cook, who lived

with her.   Christina and her four children lived in a modest home

in Argenta.    Jacob and Ryan have lived there since Ryan was born


                                - 7 -
and had always lived with their two half siblings, to whom they

were very close.

            Christina's fifth and sixth marriages, which occurred

in the span of time from her divorce from James in November 2004

to 2010, were brief and included domestic violence to which Jacob

and Ryan were exposed.    Christina engaged in questionable prac-

tices regarding the sleeping arrangements for the boys in letting

them sleep in her bedroom with her and each of her last two

husbands.    During her last marriage, to Jonathon Campbell, Jacob

and Ryan had slept on the floor in Christina and Jonathon's

bedroom while they were intimate.    Christina admitted this was

not in the best interests of the children.     Christina took the

boys with her to her parents' home over 20 times during the night

when she and Campbell were fighting.     This included school

nights.    Jacob expressed worry about his mother's safety.

            Christina, Jacob, and Ryan were present when her older

son, Andrew, built and set off an explosive device made from

toilet cleaner and did not think he needed discipline for this

act.    Andrew also lit a pinata on fire inside the house to see if

it was really flame resistant.

            Jacob had problems with dental health, and Ryan had

difficulties in school with reading and speech.     Christina was

not always on top of Jacob's dental-health issues and Ryan's

speech issues, sometimes letting months go by without any treat-

ment.    She did not inform James of Ryan's speech and hearing

difficulties until months after his diagnosis and he had been


                                 - 8 -
given an individual educational plan (IEP) by the local school

district.   Once James was informed of the boys' health or educa-

tional difficulties in 2007, he and his wife, Julia, were very

involved in the decisions about their care.   James complained of

poor eating habits Christina was fostering in the boys as evi-

denced by their poor dental health and the fact they would not

eat well-balanced and healthy food when visiting him in Califor-

nia.

            As for James, once he returned from his second tour of

duty in Iraq in 2004, he did not come home to Christina and his

sons.   He did not notify them where he was living and most of

Christina's contact with him was through James's father.   Despite

the provisions of the judgment of dissolution allowing James

visitation with Jacob and Ryan for 30 days in the summer and

every other Christmas vacation, he did not exercise this visita-

tion and appeared to have seen the boys once in 2005 and once in

2006.   One of the visits was facilitated by James's father and

not James himself.   He made no requests of Christina for informa-

tion about the boys' medical, dental, or other care.

            James apparently moved to California, then Florida, and

finally settled down in Murietta, California, and married Julia.

Julia ran a day care in their home and did a lot of research on

child care and child rearing.   It was then, in 2007, when he

started to insist on all of his visitation and to be involved in

the decision-making for the boys' care.   Julia, herself, had been

married several times and had two children, Jillian, age 15, and


                                - 9 -
Jett, age 13, living with James and Julia at the time of the

hearing.

            Dr. Helen Appleton was appointed by the trial court to

do a custody evaluation.   Dr. Appleton actually did two evalua-

tions.    The evaluations favor James, and Dr. Appleton ultimately

recommended custody be given to James.    Dr. Appleton interviewed

both James and Christina as well as Julia, Jacob, Ryan, and

Andrew.    She reviewed extensive documents including many e-mails

between the parties and dental and doctor reports of treatment of

the boys as well as reports by school teachers.    She did not

interview any other relatives of the boys, school officials, or

teachers.

            Dr. Appleton found Christina had not demonstrated the

ability to provide a stable home environment and has poor judg-

ment in her selection of men.    Although there was no physical

abuse during her marriage to James, her history indicated she

gravitated toward abusive men.    Exposure to domestic abuse was

not in the best interest of the children.    While she noted

witnessing abuse must have a detrimental effect on the boys, she

could not pinpoint any specific effect she had observed.    Dr.

Appleton noted a close bond between Christina and Jacob and Ryan

but, on her second interview of the boys, found they had been

"coached" and the bond was not a healthy one as Jacob in particu-

lar was overly concerned about what his mother would think of the

answers he gave to Dr. Appleton.    Although she acknowledged there

would be an adjustment period if the boys were separated from


                                - 10 -
their mother, Dr. Appleton's opinion was it was in the best

interest of the boys for James to have physical custody.

           A guardian ad litem, James Zachry, was also appointed

for Jacob and Ryan.    Zachry interviewed the boys and their

teachers and read the depositions of each parent.    Although he

described Christina's personal life as a "train wreck," Zachry

recommended it was in the children's best interest to remain with

Christina.    Zachry found both boys were healthy, well-fed, and

personable.    They lived virtually their entire lives in Argenta

and went to school there.    Zachry believed the boys had been

coached in their answers by Christina and her mother, who lived

nearby.   Despite the coaching, he found the boys' wishes to live

with their mother to be sincere.

           Zachry found the boys enjoyed their time spent with

James and Julia, and Julia's children had a good relationship

with the boys.    He found James raised legitimate concerns regard-

ing Christina's personal life and inadequacies in her care of the

boys.   Zachry found James and Julia both had the boys' best

interests at heart.

           Zachry found James had a distinct disadvantage by

living in California since he could not see the boys very often.

Christina had a distinct advantage because she always had physi-

cal custody of the boys.    She has taken an active role in their

schooling and been a parent active in their lives.    She sincerely

wishes the best for the boys and tried to be her best for them

despite some problems.


                               - 11 -
            Zachry acknowledged Dr. Appleton's report and findings

and stated those recommendations could be supported by the facts.

However, in Zachry's opinion, uprooting Jacob and Ryan from the

only home they had ever known, the school system with which they

were familiar, and the social community in which they have lived

would not be in their best interest.

            Zachry noted while Christina has not led a stable life,

she has a support system.    Her parents live near her as well as

her brother and other relatives.    James absented himself from the

boys' life by choosing to live in California and, thus, was

unable to be involved in their daily life since 2004.    He has not

been a model of stability.    He has had several different jobs

from the time he and Christina were married to the present, has

been in the military, and has gone back to school.    While Zachry

thinks Christina's lifestyle choices must have had some effect on

Jacob and Ryan, they appear to be happy, healthy, and well-

adjusted.

            Zachry recommended custody remain with Christina but

James should have as much visitation as feasible given the

distance between his home and Christina's home.

            The trial court interviewed both Jacob and Ryan in

camera.   They both professed a desire to live with their mother.

            Section 602(a) of the Act (750 ILCS 5/602(a) (West

2008)) provides a trial court shall consider all relevant factors

when determining the best interests of a child, including the

factors specifically set forth by the Act.    These factors are:


                               - 12 -
       "(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 interrelation-

ship of the child with his parent or parents,

his sibling and any other person who may

significantly affect the child's best inter-

est;

       (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 re-

peated abuse *** 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(a) (West 2008).


                     - 13 -
            Both parents desire custody of Jacob and Ryan.   The

boys are young but both expressed a desire to live with their

mother.   The boys get along with both parents as well as James'

wife, Julia, and her children and Christina's other children, the

boys' half siblings, Andrew and Lillian.    Although Dr. Appleton

found the boys' relationship with Christina to be an insecure

attachment and not healthy, all of the other evidence showed

Christina has raised two happy, healthy, well-adjusted boys, with

help from her family support system.    James absented himself from

their lives for several years and has not been involved in the

day-to-day care of feeding, bathing, and school activities.

James' most recent involvement has been to have visitation with

the boys for summer and Christmas vacations when daily life with

them is just that, a vacation.

            Jacob and Ryan are adjusted to their school, home, and

community in Argenta.    They have lived nowhere else.   The evi-

dence was overwhelming they are happy, overall healthy, and well-

adjusted.    James has been concerned Ryan's speech and hearing

needs were not being adequately addressed, but he has an IEP and

is receiving services.    By the end of the custody hearing, it was

noted Ryan was going to be held back in first grade as he was

immature and not quite meeting educational goals.    Jacob was a

high-achieving student in the fourth grade.    His dental issues

had been addressed.    The issues needing to be addressed for both

boys were not completely addressed until James became involved,

but Christina has now addressed them.


                               - 14 -
            No evidence showed either parent or Jacob or Ryan had

mental- or physical-health issues which would prevent the parents

from parenting or the children from thriving.     Christina has a

history of being in abusive relationships, some of which predate

the birth of Jacob and Ryan.    However, they were present for some

incidents of physical domestic violence as well as heated argu-

ments.    This factor weighs against Christina.   There is no

ongoing abuse and neither parent is a sex offender.

            As for each party's willingness to foster a relation-

ship between Jacob and Ryan and the other parent, the evidence in

this case showed a deteriorating relationship between the par-

ents.    Christina tried to coach the boys against James, and James

went out of his way to discover as much negative information as

he could on Christina to present in court.    These facts do not

bode well for either parent continuing to foster a good relation-

ship between the boys and the noncustodial parent.

            Although "train wreck" may describe Christina's past

life in relation to the men in her life, the evidence indicated

she has been a good mother to Jacob and Ryan overall and they

were currently thriving in her care.    No evidence showed she was

currently in any relationship, let alone an abusive one.     If

James' interest in the boys' well-being remains at its current

level, he will keep Christina focused should she be tempted to

falter in her care of the boys.

            The trial court concluded James did not prove it was

necessary to change physical custody from Christina to him.       The


                               - 15 -
court also concluded the joint-custody arrangement should be

terminated, and it was in Jacob and Ryan's best interests to be

in Christina's custody.    These conclusions and ensuing orders by

the court are not against the manifest weight of the evidence or

an abuse of discretion.

                             B. Contempt

          James also appeals from the order of the trial court

finding him in direct civil contempt for failure to pay his share

of health-care expenses for Jacob and Ryan not covered by insur-

ance.

          Whether a party is guilty of contempt is a question of

fact for the trial court, and its ruling will not be disturbed

unless it is against the manifest weigh of the evidence or an

abuse of discretion.     In re Marriage of Spent, 342 Ill. App. 3d

643, 653-54, 796 N.E.2d 191, 200 (2003).    The existence of an

order of the court and proof of willful disobedience of that

order must be shown for a finding of indirect contempt.     The

burden in resisting a finding of contempt rests on the alleged

contemnor to show noncompliance was not willful and he has a

valid excuse for failure to follow the court order.      Spent, 342

Ill. App. 3d at 653, 796 N.E.2d at 200.

          The property-settlement agreement executed by the

parties and incorporated into the judgment of dissolution of

their marriage stated as follows:

               "[III.]    5. Each of the parties shall

          maintain medical insurance available to them


                                - 16 -
            through their employment for the benefit of

            the minor children of the parties, and each

            of the parties shall pay one-half of any

            medical, dental, optical, orthodontal or

            other health care related expense for the

            children not covered by any insurance."

            James admits this agreement exists but contends the

parties later agreed Christina would pay all uncovered medical

expenses for Jacob and Ryan in exchange for not being obligated

to provide medical insurance for them; while James would continue

to provide primary medical-insurance coverage for the boys.

Christina emphatically denied there was any such agreement.

            James admits there was no written agreement between the

parties modifying the court order.      He introduced at trial

several e-mails between himself and Christina which he claimed

proved Christina had agreed to this modification.      One e-mail

from James asked Christina to confirm the agreement and she

replied "Thank you."    The other e-mail from James admitted there

was no written modification agreement but he claimed Christina

responded to this e-mail acquiescing to it.      James did not have a

copy of her response.    Christina denied responding to this e-mail

and denied entering into any agreement to modify the original

court order.

            The trial court found James did not prove an agreement

to modify the original order as to payment of uncovered medical

expenses.    The court noted James never requested modification of


                               - 17 -
the judgment by the court.

            Although the evidence as to the agreement was in

dispute, the trial court is in a superior position to judge the

credibility of the witnesses.    In re Marriage of Bates, 212 Ill.

2d 489, 515, 819 N.E.2d 714, 728 (2004).    We will not substitute

our judgment for the trial court's finding of fact there was no

modification of the court order.    This decision of the court was

not against the manifest weight of the evidence or an abuse of

discretion.

            James argues even if the court finds there to have been

no agreement to modify his obligations to pay his share of

uncovered medical expenses, he had a good-faith belief there was

such an agreement and, therefore, his actions did not amount to

willful disobedience of a court order.    The evidence did not

persuade the trial court there was an agreement, but it did

explain why he did not pay.    Thus, he contends he was not will-

fully disobeying a court order and should not be held in contempt

of court.

            The trial court found Christina did not send documents

or demand payment for one-half of uncovered medical expenses for

several years, but James was aware of those expenses because he

received explanations of benefits because he carried the health

insurance.    He had notice Christina was seeking payment for these

expenses at least since she filed the petition for adjudication

of indirect civil contempt on September 11, 2009.    James did not

pay any of those expenses and he had the ability to do so.


                                - 18 -
            James has an arguable point, but we find because he did

nothing to reduce the alleged modified agreement to writing or

bring it before the court despite the equivocal "agreement" he

received from Christina, it was unreasonable for him to rely on

the alleged modifications and not pay his share of uncovered

medical expenses prior to Christina filing a petition for an

adjudication of indirect civil contempt.     He was fully aware of

the existence of the original agreement as to uncovered medical

expenses.    We do not believe his conduct supports a finding of

civil contempt.

            Instead, we conclude his conduct was not justified and

he remains responsible for his share of uncovered medical ex-

penses and the attorney fees Christina incurred seeking to

enforce the original agreement.

                           III. CONCLUSION

            We find the trial court's judgment terminating the

joint-parenting agreement and placing full custody with Christina

is not against the manifest weight of the evidence and not an

abuse of discretion.    We conclude the finding of indirect con-

tempt is against the manifest weight of the evidence, and we

vacate it.

            We affirm the judgment in part and vacate in part (the

finding of contempt).

            Affirmed in part and vacated in part.




                               - 19 -
           JUSTICE POPE, concurring in part and dissenting in

part:

           I concur with the majority opinion regarding the

custody issue.    However, I respectfully dissent from the major-

ity's decision concerning the contempt issue.    As noted by the

majority, the trial court is required to make factual findings

when determining whether a person is guilty of contempt.    These

factual findings are entitled to deference by the appellate court

and should not be disturbed unless against the manifest weight of

the evidence.    Certainly, in determining whether the alleged

contemnor's disobedience of a court order is willful, the trial

court is called upon to make credibility determinations.

           Here, the evidence is undisputed on the following

issues.   James was required to pay one-half of the uncovered

medical expenses, he received explanation-of-benefits statements

showing any unpaid balance, and he had the ability to pay and

failed to pay his share.    The only disputed issue was willful-

ness.   James's contention Christina agreed to this arrangement is

not supported by the record.    The agreement of the parties

provided for both parents to carry insurance through their

employment.   Christina later became unemployed and did not have

an employer through whom she could carry insurance.    This did not

relieve James of his obligation to maintain insurance or to cover

one-half of the unpaid medical bills.

           James never sought modification of the agreement in

court nor could he produce any written documentation showing


                               - 20 -
Christina's agreement to any modification.   He failed to pay any

out-of-pocket expenses from 2005 on, despite demands for payment

by Christina when she had a known address for him and a written

demand by Christina's attorney in August 2009.   Following the

filing of the contempt petition, James sent an e-mail to Chris-

tina stating he would pay 50% of the uncovered medical expenses.

According to counsel during oral argument before this court,

these expenses still have not been paid.

          The trial court found, after hearing extensive testi-

mony, James failed to pay his obligations, he had the ability to

pay, and he failed to prove any agreement between the parties

that would mitigate his conduct.   I believe the trial court's

findings are not against the manifest weight of the evidence, and

therefore I would have affirmed the trial court in toto.




                             - 21 -
