                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court



                      In re Marriage of Levinson, 2012 IL App (1st) 112567




Appellate Court            In re MARRIAGE OF ROBIN MITCHELL LEVINSON, Petitioner-
Caption                    Appellee, and ROBERT LEVINSON, Respondent-Appellant.


District & No.             First District, Fourth Division
                           Docket No. 1-11-2567


Rule 23 Order filed        June 7, 2012
Rule 23 Order
withdrawn                  July 5, 2012
Opinion filed              July 12, 2012


Held                       Award of temporary exclusive possession of the marital residence to
(Note: This syllabus       petitioner for the duration of the dissolution proceedings pursuant to
constitutes no part of     section 701 of the Illinois Marriage and Dissolution of Marriage Act was
the opinion of the court   reversed where there was no jeopardy to the physical or mental well-
but has been prepared      being of petitioner or the children due to the “birdnesting” visitation
by the Reporter of         schedule.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-D-4934; the Hon.
Review                     Kathleen Kennedy, Judge, presiding.


Judgment                   Reversed.
Counsel on                   Brian J. Hurst and Olga A. Wrobel, both of Law Offices of Brian J.
Appeal                       Hurst, of Chicago, for appellant.

                             Michael G. DiDomenico, Alan J. Toback, and Amanda M. Sleezer, all of
                             Lake Toback, of Chicago, for appellee.


Panel                        JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                             with opinion.
                             Presiding Justice Lavin and Justice Sterba concurred in the judgment and
                             opinion.
                                                OPINION

¶1         This matter is before the court on an interlocutory appeal by respondent, Robert Levinson
        (Robert), pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), from an
        order of the circuit court issued September 8, 2011, awarding the temporary exclusive
        possession of the marital residence, pursuant to section 701 of the Illinois Marriage and
        Dissolution of Marriage Act (Act) (750 ILCS 5/701 (West 2010)), to petitioner, Robin
        Mitchell Levinson (Robin), for the duration of the dissolution proceedings.

¶2                                        I. BACKGROUND
¶3          The parties were married on March 28, 2004. Throughout their marriage, Robert and
        Robin resided together at the marital residence at issue here. They have two young children:
        Bennet, born in 2007, and Jacob, born in 2005. According to the record, both Bennett and
        Jacob have special needs. Jacob has been diagnosed with sensory processing disorder and
        dyspraxia, and Bennett is currently being tested for sensory processing disorder.
¶4          This litigation has an extensive procedural history. We will address herein those motions
        and hearings pertinent to the issue before us.
¶5          On May 12, 2010, Robin filed a petition for dissolution of marriage, alleging
        irreconcilable differences. She asked for custody of the children as well as exclusive
        possession of the marital residence. Two days later, she also filed an emergency petition for
        an order of protection asking that Robert be prohibited from committing physical abuse,
        willful deprivation, harassment, interference with personal liberty, and intimidation of a
        dependent.1 Additionally, she sought restriction or denial of visitation with the children

                1
                  In this emergency petition for order of protection, Robin alleged that, on May 9, 2010,
        Robert grabbed her wrist, “pulled it back and forth and twisted it several times, and then he slammed
        it in a door while he was holding Bennett.” Robert then locked himself in a room with Bennett while
        Robin called the police. As a result of this incident, Robin allegedly injured her wrist and Bennett
        sustained scratches to his stomach. Although Robin refers to this incident throughout her appellate
        brief, we note that this petition was voluntarily dismissed and the court made no findings regarding

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       because Robert was likely to abuse or endanger them during visitation, use visitation as an
       opportunity to abuse or harass Robin and the children, improperly detain or conceal the
       children, and otherwise act in a manner that is not in the best interest of the children.
¶6         The court appointed a child representative. It also began what the parties refer to as a
       “birdnesting” schedule, wherein each party occupies the marital residence during his or her
       parenting time, but vacates it during the other’s parenting time. For example, from a court
       order:
               “The parties shall not be in or at the martial ‘home’ located at 3834 Marshfield,
           Chicago, IL at the same time and Robert shall be allowed in the home as follows which
           tracks his parenting time: (a) May 14 from 3 pm to 6 pm, (b) May 15 from 3:30 pm to
           6:30 pm. However Robert may pick Jake up at said home at 2:30 pm and take him to
           soccer that day, (c) May 16 from 9 am to 1 pm, (d) May 17, 18 & 19 Robert shall pick
           Jake up at school at 3:00 and return to said home to be with Bennett and Jake until 6:00
           pm. *** Robin shall have the use of the home except as set forth in paragraph a-d set
           forth above and shall have the balance of time as her parenting time.”
¶7         On May 21, 2010, the court allowed Robin to withdraw her emergency petition for order
       of protection without prejudice. In the May 21 order, the court addressed numerous issues,
       including parenting time through the next month:
               “Robin shall have exclusive possession of the marital residence *** except during
           Robert’s parenting time referenced herein when he shall have exclusive possession of
           said marital residence, Robert shall take Jake to and from OT on his Thursday parenting
           time as referenced above. Each party may attend all scholastic and extra-curricular
           activities for the children regardless of the parenting time schedule; however no other
           relative shall be present at such events *** the parenting schedule and all aspects of this
           Order is without precedent and prejudice. *** No relatives of either party shall be on the
           premises of said marital residence.”
¶8         In June 2010, Robert filed a counterpetition for dissolution of marriage. He, too, asked
       for custody of the children and alleged that it was in the best interests of the children to be
       in his custody. He also filed a petition for interim relief in which he asked the court to
       “continue the nesting arrangement of the parties with the children in the marital residence.”
¶9         On June 23, 2010, the court, by written order, set forth another temporary parenting
       schedule. Per this order, Robert was to have parenting time in the marital residence on
       alternating weekends from Friday at 5 p.m. through Sunday at 5 p.m. and weekday parenting
       time on Tuesdays from 3 p.m. through 8 a.m. and Wednesdays and Thursdays from 3 p.m.
       to 7:30 p.m.
¶ 10       In August 2010, Robin filed a petition for exclusive possession of the marital residence
       wherein she alleged that, even after court-ordered therapy sessions, the level of tension
       between the parties had not diminished and Robert’s unpredictable behavior had jeopardized
       her and the children’s physical and mental well-being. Further, she claimed that the



       the incident.

                                                -3-
       temporary parenting agreement caused the children confusion and a lack of stability as they
       do not understand when each parent will be in the marital residence and do not understand
       where the other parent goes:
               “5. In an effort to create a temporary parenting schedule with the least disruption to
           the children, the Court entered a temporary Order in order for [Robert] to arrange for
           suitable housing that included an arrangement whereby Robin was awarded exclusive
           possession of the marital residence except during [Robert’s] parenting time which he
           exercises at the marital residence.
               6. Each time that the parties’ [sic] transition between parenting time, the arriving
           parent stays on the front steps until the other parent exits the front door, effectively
           creating a ‘changing of the guard.’ This practice has prohibited any overlap of time by
           the parties within the marital residence.
               7. This ‘changing of the guard’ is confusing to the children and contrary to their best
           interests of the children [sic] as they don’t understand why Robin is waiting outside the
           home. This practice has been in place because as previously alleged, the tension and
           hostility between the parties prohibits the parties from being in the same place at the
           same time. When Robin leaves the residence for [Robert’s] parenting time, the children
           express feelings of abandonment, often asking why she is leaving, where she is going,
           whether she has another home, does she live alone, and the like.
               8. Furthermore, the temporary schedule jeopardizes the children’s mental well being.
           Having both parties occupy the marital residence has created a lack of stability and
           confusion for the children because they don’t know which parent will be with them at the
           marital residence or where the other parent is when they are not at home.
               9. The children’s environment would be significantly more stable if each party
           maintained a residence where the children could establish their own space and routine
           with that parent.”
       Robin further alleged that Robert leaves the house in disarray after his parenting time. She
       also stated that, while Robert owns several properties and has family in Chicago, Robin does
       not have an alternate residence at which she can stay when it is Robert’s turn to be in the
       marital residence.
¶ 11       On October 12, 2010, the children’s representative filed a motion for custody evaluation
       in which he alleged, in part:
               “Since the first date of appointment, the level of acrimony in this case has been very
           high. There have been Petitions and Cross-Petitions filed alleging deficiencies in the
           parties’ parenting abilities as well as allegations and counter-allegations regarding what
           is consistent with the children’s best interest vis-aì-vis a parenting schedule. [The] Court
           worked very hard with the parties and the attorneys to try to resolve the custody/parenting
           schedule by agreement. A hearing proceeded for a full afternoon over the issue of
           exclusive possession which included many allegations and incidences relating to the best
           interests of the children and the effects of the dissolution proceedings and the actions of
           the parties on the children. The parties met with their attorneys and Judge Michael
           Hyman in a mediation session which lasted approximately four hours on September 27th

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           and another hour on September 28, 2010. The mediation session, which was focused on
           custody and parenting time, was unsuccessful. The parties continue to be at odds over the
           issues of joint versus sole custody and an appropriate parenting schedule consistent with
           the children’s best interest.”
       The court appointed Dr. John Palen as the evaluator pursuant to section 604 of the Act (750
       ILCS 5/604(b) (West 2010)).
¶ 12       Dr. Palen issued his initial section 604(b) report on May 30, 2011. In his report, he
       evaluated the personalities and relationships of the parties and their children and made
       several recommendations regarding custody and visitation. In regard to Robin, Dr. Palen
       noted:
               “The children are attached primarily to their mother and enjoy a close, warm and
           trusting relationship with her. Ms. Mitchell has been their principal caretaker since birth
           and Jake and Bennett rely on her to meet their needs for physical and emotional
           sustenance. The boys feel happy and secure in her presence and experience anxiety to
           varying degrees when contemplating separation from her. Collateral contacts report that
           she is an exemplary parent in many ways. The principal parenting weakness that one
           could identify is that, as Mr. Levinson describes, Ms. Mitchell can have a tendency to
           ‘hover’, thereby possibly interfering with the boys’ ability to function as independently
           as they might otherwise. She is exceedingly patient and nurturing and while one can
           certainly not fault her for being so, it is the rare parent who does not occasionally lose
           patience and raise his or her voice. Mr. Levinson is not as patient, loses his temper and
           although the manner in which he disciplines may not rise to a level that would cause
           undue alarm, from the boys’ perspective it is so very different from what they experience
           with their mother that it is perceived as frightening and off-putting. And, as written
           elsewhere–the more reactive Mr. Levinson is to the boys’ expression of anger toward
           him, the more protective Ms. Mitchell becomes, causing Mr. Levinson to interpret her
           actions as interference and leading to stepped up efforts to gain control. A circular
           process ensues that is corrosive to the boys’ relationship with their father as well as to
           the co-parenting relationship. One might further hypothesize that the trouble Jake
           experiences in processing sensory data may pre-dispose him to react in an exaggerated
           manner to his dad’s style of discipline.”
       Dr. Palen continued:
               “The boys’ relationship with their father is not on the same solid footing as is their
           relationship with their mother for a number of reasons. By many accounts Mr. Levinson
           was only tangentially involved with the children until the marital separation took place
           in May, 2010. To his credit he then stepped into a role that was relatively unfamiliar to
           him and has been diligent about asking for more time with the children since then. He
           has never failed to assume responsibility on his parenting time, arrives at the appointed
           hour, and engages in activities with the boys that they enjoy. And, like Ms. Mitchell, he
           has kept abreast of Jake’s progress in speech and occupational therapy, as well as with
           both boys’ general academic progress. He is an intelligent man, well read with regard to
           Jake’s special needs as well as in the area of the importance of fathers to their sons, but


                                                -5-
           a man who despite good intentions is not as able to resonate with his sons on an
           emotional or empathetic level as he might want to be. He is also an individual who is
           accustomed to meeting goals that he sets and getting what he wants–certainly attributes
           that contribute to his success in the world of business but not ones that lend themselves
           to warm and sensitive relationships with people with whom he might want to be
           emotionally intimate. Findings from psychological testing reveal that ‘Mr. Levinson is
           someone who is highly self-focused, and concerned or even preoccupied with meeting
           his own needs–often at the expense of paying attention to the needs of others.’ This
           particular personality characteristic would make it challenging for Mr. Levinson to spend
           extended periods of time with children who are by nature unrelenting in their demands
           and need for attention.”
¶ 13       Dr. Palen discussed the children’s particular emotional sensitivities and concluded that
       “[t]hese children, perhaps more than others in their age range, require a consistent and
       predictable schedule that can serve as a secure base from which to explore their worlds.”
¶ 14       Dr. Palen presented the court with a supplement to his report in August 2011. In the
       supplement, Dr. Palen said that he reconsidered some of his initial recommendations after
       reviewing the case file in preparation for his deposition. Dr. Palen recommended that Robert
       spend more time with the children than he originally recommended, noting:
               “The challenge is that of devising a plan that meets the boys’ needs for exposure to
           their male parent while simultaneously providing them with the high level of
           predictability and consistency that they need given Jake’s special needs. It is my
           understanding that Bennett is presently being evaluated for Sensory Processing Disorder,
           which if diagnosed, would also suggest that he too requires a highly stable and
           predictable schedule–particularly during the academic year.”
¶ 15       Dr. Palen stated, “Ideally, few changes should be made until the parents are living in
       separate residences. The boys are accustomed to the current schedule and should not be
       required to adjust to a different one prior to acclimating to having two homes.” He
       recommended that the schedule should remain essentially the same but that:
               “The caveat to the above recommendation is that the schedule may remain as is
           (whether the parents are in the same residence or separated) but only if the children are
           able to do well at school following the overnight during the school week. This needs to
           be evaluated at the end of the first six weeks of school ***.” (Emphasis in original.)
¶ 16       On July14, 2011, Robin filed a motion to modify visitation, or in the alternative for de
       novo hearing, for exclusive possession of the marital residence and for other relief. Robin
       asked, in pertinent part, for exclusive possession of the marital residence at all times. Robert
       asked, in pertinent part, that the court deny Robin’s motion and that the parties maintain
       shared possession of the marital residence, continuing with the “birdnesting” schedule that
       was in place by agreement and court approval since June 2010.
¶ 17       In the motion at issue, Robin made the following allegations to support her position that
       she should be awarded exclusive possession: (1) there remained tension between the parties
       at pickups and drop-offs, resulting in Robert responding in an overly aggressive manner; (2)
       Robin suffered “tension” caused by the co-occupancy of the marital residence; (3) Robin

                                                 -6-
       does not have alternative housing or means with which to obtain same; (4) Robert has
       housing available to him through real estate investment properties and family members; and
       (5) the current visitation schedule is seriously endangering the mental and emotional well-
       being of the children, “the effects of which are delineated in Dr. Palen’s report.” In her
       motion, Robin also incorporated her initial petition for exclusive possession, which contained
       additional allegations that: (1) Robert exhibits an inability to control his emotions in dealing
       with Robin and the children; (2) Robert used physical violence against Robin in May 2010;
       (3) when Robert leaves the home after his parenting time, the house is left in disarray and in
       a messy condition.
¶ 18       The court held a hearing on this motion spanning five afternoons ending September 1,
       2011. The court limited the hearing to two issues: exclusive possession of the marital
       residence and Robert’s school-year overnight parenting time. We are interested here in the
       portion of the hearing relating to exclusive possession of the marital residence. The court
       heard testimony from the parties; the court’s appointed section 604(b) expert, Dr. Palen;
       Robert’s brother-in-law; and Robert’s sister.
¶ 19       At the hearing, Dr. Palen testified consistently with his report and supplemental report.
       He testified:
               “Q. [MR. HURST (attorney for respondent):] There’s nothing in your report, either
           your initial report or your supplemental report, that says anything about any of the parties
           being at risk; am I correct?
               A. [DR. PALEN:] That’s correct.
               Q. Would it be fair to say, if you considered there to be an imminent risk to either Mr.
           Levinson or Mrs. Levinson or the children, that that would have been contained in your
           report?
               A. Of course, yes.
               Q. Would it be fair to say that if you thought that there was a circumstance that you
           learned about during the course of your evaluation that seriously endangered either the
           parties or the children, that that would have been reflected in the report?
               A. I would have had to report it, yes.
               Q. Would it also be fair to say, if you learned of circumstances during your evaluation
           that caused you to believe that one of the parties or the children was in jeopardy, that that
           would have been contained in your report?
               A. Yes.
               Q. Is it reasonable for us to conclude, because those things are not referenced in your
           report, that you did not make any findings that either of the parties or the children were
           endangered during the course of your investigation?
               A. That’s correct.
               Q. Would it also be correct that because there’s nothing in your reports about either
           of the parties or the children being in jeopardy, that you made no findings that anyone
           was in jeopardy?
               A. I addressed it in the relevant sections of the summary, yes.

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           Q. You did address that factor, and you found there was nothing that led to the
       conclusion of endangerment or jeopardy, correct?
           A. That’s right.”
¶ 20   Dr. Palen also testified:
           “Q. [MR. TOBACK (attorney for respondent):] I was asking if you agree or disagree
       with the following statement that is made in Robin Mitchell’s sworn motion that brings
       us here today: The current visitation schedule is seriously endangering the mental and
       emotional well-being of the children. The effects of which are set forth herein and above
       and more fully delineated in Dr. Palen’s report. Agree or disagree, sir?
           A. [DR. PALEN:] I disagree.”
¶ 21   Regarding the benefits of a birdnesting arrangement, Dr. Palen testified:
           “Q. [MR. ROSENBERG (attorney for plaintiff):] This issue of a shared residence,
       I believe you stated, in the questions by Mr. Toback, that you did not believe a shared
       residence in toto was in the best interest of the children during the pendency of this case,
       correct?
           A. [DR. PALEN:] Yes.
           Q. Are there certain benefits to the children of the parties sharing a residence, bird
       nesting as they were doing?
           A. Well, yes, there are.
           Q. Briefly, what are the benefits to the children of the parties maintaining the status
       quo?
           A. Well, from their perspective, they’re in one location, not packing a little bag,
       going back and forth. From their perspective, life is consistent. The only thing that
       changes is mom’s there sometime, dad’s there at other times.
           Q. Are there certain benefits to Mr. and Mrs. Levinson having separate residences
       relative to the children, benefits to the children, not the parties? Strictly talking about the
       children. Are there benefits to them, to the parties having separate residences?
           A. I think so.
           Q. What are the benefits to the children of the parents going–these parents going
       through this divorce having separate residences?
           A. I can only think that because the parents, I presume, are uncomfortable with the
       arrangement and are at times anxious about the arrangement, that that is something that
       the children pick up on from time to time.
           Q. And are there–you testified to certain detriments to the children of the parents
       residing in the same household, correct?
           A. Yes.
           Q. And by that, I mean the shared residence/nesting that they’re doing, correct?
           A. There are pros and cons to it, yes.
           Q. And the cons you said were the friction and the tension and the anxiety of the


                                              -8-
           parents coming back and forth, correct?
                A. Yes.
                Q. What are the detriments to the children of the parents having separate residences?
                A. It will require a period of adjustment, settling in to a new routine. That will take
           some time. It’s more inconvenient for them, but they will eventually have to do that.
                Q. I was going to say, it’s eventually going to happen, isn’t it?
                A. Yes.
                Q. *** The parents having separate residences now and the fallout, whatever that
           may be to the children, is it as good to do that now as any other time; i.e. after the
           divorce?
                A. Well, the drawback now, of course, is school is starting. So it’s not an ideal time
           to affect [sic] a major change like that.
                                                  ***
                Q. Can it benefit the children to begin to deal with the true reality, which is mom and
           dad are getting divorced; they’re going to have two toothbrushes and two houses and two
           bedrooms and two of everything?
                A. Yeah, they’re going to have to eventually, yes.
                Q. Now, these–and one last thing. You concluded, if I’m not mistaken, that the
           overall balance, benefit to the children, for the parents to be in separate households,
           correct?
                A. Yes.
                                                  ***
                Q. I want to be certain I am clear. That is your opinion, right, that the parties being
           in separate residences is consistent with the children’s best interest?
                A. Ultimately. The timing is important.”
¶ 22       Dr. Palen testified that consistency was particularly important for the children involved
       in this case:
                “Q. [MR. ROSENBERG (attorney for plaintiff):] And, in fact, the kids would know
           that if they’re at their father’s house, they’re with their father, correct?
                A. [DR. PALEN:] Yes.
                Q. And they would know, if they’re at their father’s house, their mother’s not coming
           home that day; they’re not looking when mommy’s coming home? Mommy’s not coming
           home; they’re at dad’s house, correct?
                A. That’s right.
                Q. Could that reduce the confusion for the children by knowing they have dad’s
           house and mom’s house, dad’s time and mom’s time?
                A. It could.
                Q. Do you believe it’s true or not true that the mental well-being of the children is
           jeopardized by the continued occupancy of the parents in the marital residence?

                                                 -9-
                 A. I don’t think it’s jeopardized. I think it just postpones the inevitable.”
       The court also heard testimony and evidence relating to the children’s schooling as well as
       their special needs. At the time Dr. Palen issued his reports, Jake had been diagnosed with
       a sensory processing disorder and dyspraxia. Dr. Palen testified that Jake was scheduled to
       begin taking Ritalin within the next month to treat attention deficit hyperactivity disorder.
       When questioned about the upcoming medication regimen, Dr. Palen testified that there
       should be “as much consistency as possible so that the psychiatrists have reliable data.” Dr.
       Palen testified that the children were doing well in school, that they do well in peer
       relationships, and that they receive appropriate services.
¶ 23        Robin testified about several problems that began during the 15 months since the
       birdnesting arrangement began. When asked if Robin perceived a correlation between the
       boys’ behavior and the birdnesting arrangement, she responded that they are “much more
       aggressive with each other” after spending time with Robert. According to Robin, Jake’s
       “anxiety increased, and he’s become more emotional, more aggressive, more easily
       frustrated.” In April 2010, he began wetting his pants and wearing the same clothing day and
       night. She also testified that when Jake sees his father come to the marital residence, Jake
       says he “doesn’t want daddy to come or he’ll block the door when it’s time for [Robert’s]
       parenting time.”
¶ 24        Robin testified that the birdnesting arrangement is also stressful for her. She feels anxious
       about sharing the home. She has no privacy in her own home, and because she does not have
       another home to live in, she has no privacy in a residence outside of the marital home. Robin
       keeps her personal belongings in padlocked storage boxes. She takes time away from her
       children in order to pack and unpack her bags. When she packs, the children ask where she
       is staying, why she is staying with another family, and why she is not staying with her own
       family.
¶ 25        Robin also testified that, when Robert leaves after his parenting time at the marital
       residence, the house is in disarray. She testified that Jake’s special sensory tools, which are
       necessary for his therapy, are often missing, misplaced, or broken. She testified:
                 “Q. [MR. TOBACK (attorney for plaintiff):] What would change if you and [Robert]
            had separate residences?
                 A. [ROBIN LEVINSON:] Well, the stress levels would be greatly reduced for me and
            anxiety that I experience about having to share a home and not knowing what the home
            is going to look like when I come home. The other thing is that it’s extremely time
            consuming to try to get the house back into the shape that it needs to be for the boys and
            for them to operate in the best possible situation that they can given their special needs.
            And it’s extremely time consuming. All of my time in the home is generally with the
            boys. To have to clean and organize with them in the house and be in this constant state
            of trying to catch up is extremely difficult. Also with the fact that I have no privacy in the
            home. And, you know, I think it would be beneficial for the boys to see us in two
            separate living spaces.”
¶ 26        Robert testified that, while he recognized that the nesting schedule was not supposed to
       be permanent, it is the best arrangement at the present time:

                                                 -10-
                 “Q. [MR. KLEIN (attorney for respondent):] Tell me what you believe is best in
            terms of this nesting arrangement.
                 A. [MR. LEVINSON:] Well, I believe that the nesting arrangement is the best of the
            alternatives that we have presently.
                 Q. Why?
                 A. Because it is a–an arrangement that allows for the children–that serves to
            maximize the stability for the children.
                 Q. How so?
                 A. Well, the children have the continuity of their home, what’s clearly their home.
            And it’s a very comfortable home for them. And it’s the only home they’ve ever known.
            They were brought from the hospital, each of them, to this home. And they each have
            their own bedrooms, their playroom, their kitchen. And the nesting arrangement allows
            for the children to have that stability of the home. And the only difference is, which they
            understand, is that mommy and daddy take turns in being with them when in the home.
            So they’re not subjected at this point to the disruption of having to pack up and move out
            for periods of time and to go to an inferior environment, by every measure, size, quality,
            just in every way. It’s a small apartment compared to a large, luxurious home. So my
            belief is that it is best for the children to have the stability and this continuity and to
            minimize the disruption and the impact of our divorce. And I believe that the nesting
            arrangement allows for that. It also allows for the stability of the children to have
            substantial amounts of time with each parent and to enjoy the bond and the love that they
            receive from each parent. So it’s my belief that it is the best–excuse me, that it is the best
            of the alternatives that we have available.
                 Q. You recognize that at some point the nesting will end, correct, when the divorce
            is over?
                 A. Of course. Of course. Yes.”
¶ 27        On September 8, 2011, the trial court granted Robin’s motion in a memorandum order.
       It stated that “under these circumstances the mental well-being of Robin Mitchell Levinson
       and Jacob and Bennett is jeopardized by occupancy of the marital residence by both
       spouses,” and granted Robin exclusive possession of the marital residence pursuant to
       section 701 of the Act until the final determination of the cause. The court found that Robin
       testified credibly regarding the negative effects of the shared household on both herself and
       the children. It noted that Robert disagreed that the children continue to exhibit stress-related
       behaviors. The court found Robert’s denial of Dr. Palen’s conclusion that the current
       birdnesting arrangement causes unnecessary stress and tension for everyone and is not in the
       best interest of the children to be incredible.
¶ 28        The finding that jeopardy exists was based on the following facts and testimony: (1) high
       personal stress experienced by Robin and her observations of the behaviors that suggest the
       high levels of stress experienced by the children; (2) the children’s attachment to Robin, who
       has been their primary caretaker since birth, and the inference that they experience stress due
       to the birdnesting arrangement both directly and also indirectly from the stress experienced
       by their mother; (3) the fact that the birdnesting has lasted 15 months, only 3 months short

                                                  -11-
       of the deadline for the court’s final decision on custody under the Illinois Supreme Court
       rules (although the court acknowledged that it is unlikely the custody deadline would be met
       due to the pending section 604.5 evaluation); and (4) that by continuing the birdnesting, the
       court would “enable” the parties to continue their power struggle to the detriment of the
       children and the ultimate resolution of the case.
¶ 29        Robert filed the instant interlocutory appeal, asking this court to reverse the order of the
       trial court.

¶ 30                                        II. ANALYSIS
¶ 31        Robert contends that the court erred by improperly employing too broad a definition of
       “jeopardy” as it is used in the Act. Specifically, Robert takes issue with the court’s statement:
       “Robert Levinson points to dictionary definitions of jeopardy which include danger, hazard,
       and peril. But the terms ‘jeopardy’ and ‘well-being’ must be construed liberally to promote
       the underlying purposes of the Act. The legislative purposes are undermined by defining the
       terms narrowly to, for example, require evidence of prior harm or serious endangerment, i.e.,
       a situation that a mental health professional would be mandated to report to the Department
       of Children and Family Services.” Robert argues that the court should have given effect to
       the “plain meaning” of “jeopardy.” We agree.
¶ 32        “Section 701 of the Illinois Marriage and Dissolution of Marriage Act [citation] governs
       the granting of exclusive possession of the marital residence to either spouse pending final
       determination of the cause.” In re Marriage of Hofstetter, 102 Ill. App. 3d 392, 395-96
       (1981).
¶ 33        Section 701 of the Act reads:
                 “§ 701. Marital Residence–Order granting possession to spouse. 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 the
            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. No such order shall in any manner affect any estate in
            homestead property of either party.” 750 ILCS 5/701 (West 2010).
       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 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. 750 ILCS 5/701
       (West 2010). We review orders granting exclusive possession pursuant to section 701 under
       a manifest weight of the evidence standard. In re Marriage of Hofstetter, 102 Ill. App. 3d at
       396. A judgment is against the manifest weight of the evidence when the opposite conclusion
       is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the
       evidence. In re Marriage of Karonis, 296 Ill. App. 3d 86, 88 (1998).

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¶ 34       The primary rule of statutory construction is to ascertain and give effect to the intent of
       the legislature. People v. Ramirez, 214 Ill. 2d 176, 179 (2005). The language of a statute is
       the best means of determining legislative intent, and where the statutory language is clear and
       unambiguous, its plain meaning will be given effect. Ramirez, 214 Ill. 2d at 179. “[W]ords
       and phrases should not be construed in isolation, but must be interpreted in light of other
       relevant provisions of the statute.” In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002).
       “Accordingly, in determining the intent of the legislature, the court may properly consider
       not only the language of the statute, but also the reason and necessity for the law, the evils
       sought to be remedied, and the purpose to be achieved.” Id.
¶ 35       Section 102 of the Act provides that the Act “shall be liberally construed and applied to
       promote its underlying purposes.” 750 ILCS 5/102 (West 2010). The purposes of the Act are,
       in relevant part, to “mitigate the potential harm to the spouses and their children by the
       process of legal dissolution of marriage,” and “secure the maximum involvement and
       cooperation of both parents regarding the physical, mental, and emotional well-being of the
       children during and after litigation.” 750 ILCS 5/102(4), (7) (West 2010); In re Marriage of
       Wade, 408 Ill. App. 3d 775, 780 (2011).
¶ 36       As the parties and the trial court acknowledge, there are very few reported cases
       construing section 701, and none of those give specific meaning to the terms “well-being”
       or “jeopardized.” Of the cases that have interpreted section 701, all suggest that section 701
       imposes a high bar for exclusive possession. See, e.g., In re Marriage of Lima, 265 Ill. App.
       3d 753 (1994); In re Marriage of Lombaer, 200 Ill. App. 3d 712 (1990); In re Marriage of
       Hofstetter, 102 Ill. App. 3d 392. We have found nothing to suggest that a court should define
       “jeopardy” in the context of section 701 in a more expansive manner. Moreover, we believe
       the underlying purposes of the Act (mitigating potential harm to spouses and children as well
       as securing maximum involvement of the parents regarding the well-being of the children
       during dissolution proceedings) are served by giving effect to the plain meaning of
       “jeopardy” as it is used in section 701. See 750 ILCS 5/102(4), (7) (West 2010).
¶ 37       Although Dr. Palen opined that mutual occupancy of the marital residence in this case
       causes everyone undue stress and is not in the best interest of the Levinson children, he
       declined to characterize the circumstances as dangerous for the children. Robin testified that
       her mental well-being and the well-being of the children are jeopardized by the continued co-
       occupancy of the marital residence because of the high personal stress she experiences as a
       result of this birdnesting agreement as well as her observations of the behaviors of the
       children that suggest the high levels of stress the children likewise experience. The trial court
       found that “[i]t is reasonable to infer that these children experience stress in the birdnesting
       arrangement both directly and also indirectly from the stress experienced by their mother, the
       person to whom they are primarily attached.” Even considering all of this to be true, and even
       recognizing that Robin and the children do experience “stress” due to the birdnesting
       arrangement in the marital household, this is still not sufficient under section 701 to support
       an order of exclusive possession.
¶ 38       The established case law provides guidance as to what types of situations are considered
       to jeopardize one’s well-being under section 701 and what types are not. We find In re
       Marriage of Hofstetter, 102 Ill. App. 3d 392, and In re Marriage of Lima, 265 Ill. App. 3d

                                                 -13-
       753, instructive regarding what is and is not considered jeopardy in the context of section
       701. In In re Marriage of Hofstetter, 102 Ill. App. 3d 392, the appellate court affirmed the
       award of exclusive possession of the marital residence to the wife pursuant to section 701.
       In that case, the parties had been married for approximately 10 years. The wife, who filed for
       exclusive possession, testified that her husband yelled at her, hit her with his fist, and beat
       her over the head with his gun. She was frightened. She testified that he pointed the gun at
       her and fired it twice, he broke her teeth, he threatened to kill her, he struck her with an iron,
       and he locked her out of the house for one week. The husband admitted that he struck and
       beat his wife. He denied having hit her with the gun. On appeal, this court found there was
       “sufficient evidence for the trial [court] to determine that the husband’s presence in the
       marital home would jeopardize the wife’s physical and emotional well-being.” Id. at 396.
¶ 39        In In re Marriage of Lima, 265 Ill. App. 3d 753, the trial court awarded the temporary
       exclusive possession of the marital residence to the wife pursuant section 701. The husband
       appealed by interlocutory order, and the appellate court reversed. The facts of that case are
       as follows: the parties were married approximately 20 years and had two children, ages 17
       and 18. The husband filed a petition for dissolution of marriage, and the wife filed a
       counterpetition for dissolution and, in pertinent part, a petition for exclusive possession of
       the marital residence pursuant to section 701. At the hearing on the motion, the wife testified
       that, three years previously, her husband had intercourse with her without her consent. After
       this event, the husband and wife continued to live in the house together. The wife prepared
       meals and did the husband’s laundry. They slept in different bedrooms both before the
       nonconsensual intercourse and after. She testified as an adverse witness that, after the
       nonconsensual intercourse, she did not care if the husband was in the house. The wife
       testified that she was a diabetic who used insulin each day. She testified, in response to the
       court’s questioning, that diabetic reactions manifest themselves from stress, and that her
       diabetic reactions had occurred more frequently during the past year. She also testified that,
       since the filing of the dissolution proceeding, the reactions got worse and more frequent. The
       trial court awarded the wife the exclusive possession of the marital residence for the duration
       of the dissolution proceedings, stating “ ‘I do not believe, for the record, that Mr. Lima would
       do anything directly or indirectly either physically or mentally to cause any further acts but
       I believe his presence there, given the facts that have existed, will definitely jeopardize Mrs.
       Lima’s physical and/or mental well being [sic].’ ” Id. at 757. The husband appealed.
¶ 40        The appellate court reversed the decision of the trial court. In so doing, it found:
                “It must appear that a conclusion opposite to that reached by the trier of fact is clearly
            evident for a judgment to be against the manifest weight of the evidence. Judith’s
            testimony on January 6, 1994, that on August 4, 1990, she felt used and described the
            instance of sexual intercourse as lacking romance was the last time intercourse occurred.
            Prior to August 4, 1990, while John occupied the basement sleeping quarters and Judith
            occupied the master bedroom, they had intercourse. Subsequent to August 4, 1990, while
            John remained in the marital residence, and after he left the residence, John and Judith
            did not have intercourse, nor was there any evidence of a suggestion of engaging in
            intercourse, either consensually or nonconsensually. The one incident of intercourse on
            August 4, 1990, does not support the conclusion that the physical or mental well-being

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           of Judith is jeopardized.” Id. at 756-57.
¶ 41       The appellate court also found that, while the wife was diagnosed a diabetic in 1991 and
       takes insulin daily, “[t]he *** intake of insulin and self-diagnosed drop in blood sugar level
       resulting in a diabetic reaction does not support the conclusion that the physical or mental
       well-being of Judith is jeopardized.” Id. at 757.
¶ 42       It also noted that the trial court’s use of and/or language in its ruling was unclear as to
       whether the exclusive possession was awarded because of the nonconsensual intercourse or
       because of the increased diabetic reactions, or both. Id.
¶ 43       We find In re Marriage of Lima instructive to our decision today. In Lima, the wife
       alleged that her well-being was jeopardized due to stress caused by an incident of
       nonconsensual intercourse as well as health problems stemming from the stress of the
       dissolution proceedings. The appellate court found each of these reasons insufficient under
       the standards of section 701 of the Act. Id. at 757-58. In the same way, here, Robin alleged
       that sharing the marital residence with Robert 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 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 testified that he disagreed
       with Robin’s assessment that the birdnesting visitation schedule “is seriously endangering
       the mental and emotional well-being of the children.” Just as in Lima, this combination of
       factors is clearly not sufficient under section 701 to constitute jeopardy.
¶ 44       It is clear from the evidence before us there was no jeopardy to either the physical or
       mental well-being of Robin or the children prior to September 8, 2011. Nor was there
       evidence of any future jeopardy to the physical or mental well-being of Robin or the children.
       We recognize the trial court’s concern that possession of the marital residence is being used
       as a tool in the arsenals of Robert and Robin, two individuals involved in a contentious
       divorce. Nevertheless, we are not free to set our own standard, but are bound by that which
       the legislature has set forth by statute. Accordingly, we find that the judgment of the trial
       court is unsubstantiated by the evidence and is against the manifest weight of the evidence.
¶ 45       Next, Robert also contends that, “[e]ven if there were some basis to look beyond the
       plain meaning of jeopardy, a liberal construction of ‘jeopardy’ does not mitigate against the
       standards for injunctive relief.” However, because of our decision herein, we need not
       address this issue.

¶ 46                                    III. CONCLUSION
¶ 47        Accordingly, for the foregoing reasons, the judgment of the circuit court of Cook County
       is reversed.

¶ 48      Reversed.




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