{ "id": 4266311, "name": "In re MARRIAGE OF DAVID CHAROUS, Petitioner-Appellant, and JODI CHAROUS, Respondent-Appellee", "name_abbreviation": "In re Marriage of Charous", "decision_date": "2006-09-13", "docket_number": "No. 2\u201406\u20140084", "first_page": "99", "last_page": "115", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 99" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "344 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777404 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "717-19", "parenthetical": "holding that a reviewing court may review record and independently determine that party violated trial court order without cause or justification so as to mandate the award of attorney fees under section 508(b), despite the trial court's failure to make such a finding" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0705-01" ] }, { "cite": "273 Ill. App. 3d 81", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258798 ], "year": 1995, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0081-01" ] }, { "cite": "100 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5498443 ], "year": 1981, "pin_cites": [ { "page": "877", "parenthetical": "noting that visitation affords members of a family the opportunity to communicate with each other, and thus diminish hostilities and foster an atmosphere in which a renewal of affection may take place" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0873-01" ] }, { "cite": "51 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384008 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "871-72" }, { "page": "872", "parenthetical": "affirming trial court's contempt finding against parent who failed to comply with visitation provisions because the children did not want to visit noncustodial parent" }, { "page": "872" }, { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0868-01" ] }, { "cite": "278 Ill. App. 3d 1071", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156777 ], "year": 1996, "pin_cites": [ { "page": "1082-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/1071-01" ] }, { "cite": "118 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5659767 ], "year": 1983, "pin_cites": [ { "page": "579-80", "parenthetical": "affirming a trial court's modification of a weekend visitation schedule because of the children's activities" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0576-01" ] }, { "cite": "103 Ill. 2d 266", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152411 ], "year": 1984, "pin_cites": [ { "page": "286-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0266-01" ] }, { "cite": "228 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5221761 ], "year": 1992, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0339-01" ] }, { "cite": "241 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2436599 ], "weight": 7, "year": 1993, "pin_cites": [ { "page": "508" }, { "page": "505" }, { "page": "502-03" }, { "page": "502" }, { "page": "505" }, { "page": "505" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0500-01" ] }, { "cite": "293 Ill. App. 3d 471", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847570 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "480" }, { "page": "479" }, { "page": "480" }, { "page": "480" }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0471-01" ] } ], "analysis": { "cardinality": 1210, "char_count": 43079, "ocr_confidence": 0.763, "pagerank": { "raw": 5.382157650133257e-08, "percentile": 0.3371300797845743 }, "sha256": "898f015a3b0e7632f63286e4e2f22a8f5b4cf447ce5b44a18438e6f9ffbd8355", "simhash": "1:abee99745b0d5752", "word_count": 6943 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF DAVID CHAROUS, Petitioner-Appellant, and JODI CHAROUS, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE HUTCHINSON\ndelivered the opinion of the court:\nPetitioner, David Charous, appeals from the trial court\u2019s judgment denying his petitions alleging visitation abuse and seeking a finding that respondent, Jodi Charous, was in indirect civil contempt of court for failing to comply with the visitation provisions of the parenting agreement incorporated into the parties\u2019 dissolution judgment. On appeal, David contends that (1) the trial court\u2019s denial of his petitions was against the manifest weight of the evidence, and (2) the trial court erred in denying his request for attorney fees pursuant to the provisions of the parties\u2019 parenting agreement as well as section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508(b) (West 2004)). We reverse and remand for further proceedings.\nThe parties were married on October 21, 1984. During the marriage, the parties had two children, Erica, born October 6, 1988, and Daniel, born June 12, 1993. On November 18, 2003, the trial court entered a judgment dissolving the parties\u2019 marriage. The dissolution judgment incorporated the terms of a parenting agreement entered into between the parties. Under the terms of the parenting agreement, Jodi was granted sole custody of the children, and David was granted visitation. The parenting agreement provided that the children were to visit David on alternating weekends and on every Wednesday evening. Weekend visitation was to begin at 5 p.m. on Friday and conclude at 7:30 p.m. on Sunday. The children were to be with Jodi and David alternatively on Passover, Memorial Day weekend, the Fourth of July, Labor Day, Rosh Hashanah, Yom Kippur, Thanksgiving, and summer and spring school vacations. The children were to be with Jodi on her birthday and Mother\u2019s Day and were to be with David on his birthday and Father\u2019s Day. The parenting agreement also contained provisions (1) requiring the parties to work together to resolve scheduling conflicts and to cooperate in rescheduling missed visits; (2) prohibiting the parties from withholding visitation because of nonpayment of support or other monetary disputes; (3) prohibiting each party from discussing in the presence of the children issues regarding the marital conflict or perceived deficiencies of the other parent in any regard; (4) prohibiting each party from making disparaging remarks about the other parent or \u201cattempting] to poison the children\u2019s minds\u201d; (5) requiring the parties to cooperate in facilitating the disclosure of the children\u2019s grades, evaluations, and school records; (6) requiring the children to attend psychological therapy with Dr. Burns; and (7) requiring Jodi to consult with David prior to making any decisions regarding the children\u2019s extracurricular activities.\nOn May 21, 2004, David filed a verified petition for adjudication of indirect civil contempt of court. As subsequently amended, the petition alleged that Jodi had interfered with David\u2019s right to visitation with the children. The petition alleged that Jodi consistently \u201ccondoned or encouraged\u201d the children to miss their visitation time with David. Specifically, the petition alleged that the children had refused to spend a single night at David\u2019s home since the parenting agreement was entered. The petition further alleged that Jodi violated the parenting agreement by regularly discussing in the presence of the children financial disputes between the parties and David\u2019s purported refusal to pay for certain expenses. The petition also alleged that Jodi had violated the parenting agreement by removing David\u2019s name from the \u201ccontact list\u201d at Erica\u2019s school, which prevented David from being informed of Erica\u2019s grades and school events. The petition sought the entry of an order finding Jodi in indirect civil contempt of court and the entry of appropriate sanctions. The petition also sought the entry of an order requiring Jodi (1) to unconditionally support David\u2019s right to visitation and encourage the children to participate in visitation; (2) to desist from scheduling the children\u2019s extracurricular activities during David\u2019s scheduled visitation without first obtaining David\u2019s consent; (3) to refrain from discussing the parties\u2019 financial disputes in front of the children; (4) to execute all documents necessary for David to receive communications from the children\u2019s schools; and (5) to have the children ready and present when David is scheduled to pick them up for his visitation. David also requested an award of attorney fees and costs incurred in prosecuting the petition.\nOn May 12, 2005, David filed a petition pursuant to section 607.1 of the Act (750 ILCS 5/607.1 (West 2004)), alleging visitation abuse. The petition alleged that Jodi had willfully and without justification denied him visitation as set forth by the provisions of the parenting agreement. The violations alleged were similar to those alleged in the previously filed amended petition for adjudication of indirect civil contempt of court. The petition sought the entry of an order (1) entitling David to makeup visitations for missed visits that were the result of Jodi\u2019s interference and encouragement of the children to miss visitation with David; (2) requiring Jodi to no longer permit or encourage the children to miss visitation; (3) requiring Jodi to refrain from scheduling extracurricular activities for the children during David\u2019s scheduled visitation without first obtaining David\u2019s consent; and (4) requiring Jodi to have the children ready and present when David is scheduled to pick them up for visitation. The petition also requested an award of attorney fees and costs incurred in prosecuting the petition.\nOn May 12, 2005, the trial court conducted an in camera interview of the parties\u2019 children. Transcriptions of these interviews appear in the record on appeal, and we will not detail the children\u2019s testimony here. We limit our comments to the observation that both children expressed negative feelings about David and indicated that they did not wish to visit him. On June 6, 2005, the trial court entered an order requiring the parties\u2019 children to fully comply with the visitation schedule contained in the parenting agreement. The trial court\u2019s order further provided that the children\u2019s noncompliance with the order would subject them to sanctions.\nOn October 21, 2005, the trial court conducted a hearing on David\u2019s petitions alleging visitation abuse and seeking a finding of contempt. During the hearing, David called Jodi as an adverse witness. Jodi testified that she always had the children ready for visitation with David. Jodi testified that the children did visit David every Wednesday night unless David canceled the visit. Jodi testified, however, that the children sometimes did not want to visit David and that they would not always go to see him for weekend visitation. Jodi testified that, on these occasions, she made the children call David to tell him that they did not want to visit him. Jodi testified that David nonetheless would drive to her house to pick up the children even when the children had already called to tell him that they were not coming. Jodi testified that she has previously punished Daniel for refusing to visit David by making him stay in his room and taking away his video games.\nJodi testified that Thanksgiving 2003 was the first weekend that the children went to visit David under the parenting agreement. During the weekend, Erica called Jodi from David\u2019s house and stated that she was upset and that she did not want to spend the night. David later had a telephone conversation with Jodi and told her not to come to David\u2019s house. Jodi nonetheless went to David\u2019s house and asked to come inside. Jodi testified that the children were \u201chovering\u201d in a corner, crying and yelling that they wanted to leave the house. Jodi testified that David and David\u2019s mother were yelling back at the children. David told Jodi that everything was alright and asked her to leave the house, but she refused to leave unless she could take the children with her. Jodi acknowledged that the children had never stayed overnight at David\u2019s house since that incident.\nJodi further testified that she once planned a surprise birthday party for Erica to take place during a weekend that the children were scheduled to visit David. Jodi never told David about the party and she did not invite him. Jodi also acknowledged that David once asked to reschedule a Wednesday evening visitation because he was having a medical procedure. Jodi refused the request because the children were busy on the day that David wanted to reschedule. Jodi testified that the children were busy with extracurricular activities and that \u201cthey have something to do probably every day of the week.\u201d Jodi testified that she was responsible for deciding whether the children would be involved in extracurricular activities and that she permitted the children to be involved in these activities even though they interfered with David\u2019s visitation. Jodi also admitted that she once told David that, if he did not pay for Erica\u2019s \u201cMYA trip\u201d to Philadelphia, she would tell Erica that it was David\u2019s fault that she could not go. Jodi also admitted that she once told David that if he wanted Erica to cancel a baby-sitting commitment so that she could visit him, he would have to reimburse Erica for the wages she would have earned babysitting. Jodi also acknowledged that, on December 8, 2004, she wrote a letter to Erica\u2019s school, instructing that David should be \u201ctaken off any list as a contact person or legal guardian.\u201d Jodi testified that she did not know if this letter ever \u201ctook effect,\u201d and that she forwarded to David all correspondence she received from the children\u2019s schools. Jodi testified that, although the parenting agreement required that the children were to attend counseling, she stopped scheduling appointments for the children because they did not want to go. Jodi testified that she did not believe that it was important for the children to attend counseling.\nJodi testified that she had never observed the children act in a hostile manner toward David. However, Jodi acknowledged that the children did not want to visit David and that they would tell her that they did not want to go. Jodi testified that she always told the children that they had to visit David and that the children would sometimes act in a hostile manner toward her when she told them this. Jodi testified that she encouraged the children to visit David. Jodi testified that she had packed the children\u2019s suitcases for overnight visitation with David on five or six occasions. Jodi testified that she had not done so more frequently because the children were old enough to pack for themselves. Jodi testified that she would always tell the children that they had to pack their suitcases, but that the children refused to do so. Jodi testified that David cancels Wednesday visitation approximately once a month.\nJodi testified that extracurricular activities were important to the children and that they had been involved in the same activities for the past seven or eight years. Jodi testified that she was not responsible for scheduling the times of Daniel\u2019s soccer games and practices. Jodi testified that some of the games and practices take place on her weekends with the children and that others take place on David\u2019s weekends. Jodi testified that David had never taken Daniel to soccer practice and that he has attended approximately half of his soccer games. Jodi testified that David had never offered to take Daniel to soccer during his weekend visitation. Jodi testified that Erica schedules her own baby-sitting jobs and that Jodi does not establish Erica\u2019s baby-sitting schedule.\nDavid testified that he lived in Skokie in a house with his parents. David testified that he always drives to Jodi\u2019s house to pick up the children for visitation on alternate weekends. After he arrives, the children come out of Jodi\u2019s house. David testified, however, that occasionally the children \u201cwere being hidden in the house\u201d and did not come out when he arrived. David testified to one occasion when he waited on Jodi\u2019s driveway for nearly 30 minutes to pick the children up. Finally, Jodi walked out of the house with Daniel and indicated that Daniel had soccer practice. David testified that, although he stated that it was his time for his visitation, Jodi nonetheless left with Daniel to go to soccer practice. David also testified that Erica regularly refused to attend weekend visitation because she was baby-sitting or had homework. Erica also told David that she would not spend time with him because he was not paying for any of her expenses or for a trip she wanted to take to Philadelphia. David testified that the children had not stayed overnight with him since the weekend of Thanksgiving 2003 and that each visitation with the children lasted only three or four hours.\nDavid testified to other occasions when scheduled visitation did not occur. David testified that Jodi refused David\u2019s request to reschedule a visitation that he missed as a result of a colonoscopy procedure. Jodi told David that she would not reschedule because the children \u201cdid not want to\u201d go with him. David also testified that he was denied visitation with the children on his October 2, 2005, birthday. On this occasion, David went to pick up Daniel from Sunday school and was met by Jodi. Jodi revealed a subpoena she had received in regard to the instant proceedings. Jodi showed Daniel the subpoena and said, \u201cask your father why he\u2019s doing this.\u201d After this, Daniel told David that he would not be visiting him that day. David also testified that he had been denied visitation on Father\u2019s Day 2005.\nDavid also testified that Daniel recently refused visitation with him because David would not pay for his summer camp and because David had sold the marital home. During David\u2019s testimony, David\u2019s attorney introduced a recorded telephone message left by Daniel on David\u2019s answering machine. In the message, Daniel stated:\n\u201cHi, dad. It\u2019s 9:20, August 7th, p.m. Umm, just telling you now I\u2019m not going with you tomorrow. Bye. I\u2019m not going with you because I feel uncomfortable that you\u2019re selling the house and it really bothers me and you make me \u2014 and it makes me upset. Bye.\u201d\nDavid testified that Jodi is uncooperative in making visitation arrangements and rarely returns his telephone calls. David testified that Jodi did not want to get involved in making arrangements for visitation and that he would have to attempt to make arrangements by speaking to the children directly. David testified that Jodi is mean and sarcastic and that her demeanor is \u201cquite poor\u201d in front of the children. David testified that Jodi would often ask him for money when he came to pick up the children for visitation. On cross-examination, David acknowledged that he had canceled some of his Wednesday visitations because of business commitments. David also acknowledged that he sometimes canceled visitation one hour before it was to commence. David did not know the exact number of visits he had canceled, but testified that it was not a majority of the visits. David also testified that he had gone to most of Daniel\u2019s soccer games and a few practices. David testified that most of Daniel\u2019s soccer games take place on Sunday.\nJoseph Poell testified that he was an attorney and had been appointed as the children\u2019s representative in this case. Poell testified that he recalled having a conversation with Jodi on August 30, 2004. Poell testified that, during this conversation, Jodi told him that she thought that David should not be involved in the children\u2019s lives at all. Poell also testified that he had met David on several occasions and that he did not know anything about David\u2019s character that would endanger the children in any way or that should preclude his exercise of visitation with the children.\nAt the close of evidence, the trial court denied David\u2019s petitions alleging visitation abuse and seeking a finding that Jodi was in indirect civil contempt. In making its ruling, the trial court noted that it had a very \u201cheart wrenching\u201d discussion with the children and that it found that the children were \u201cterribly torn by the position that [the] adults have put them in.\u201d The trial court made the following additional findings:\n\u201cI will tell both parents that you\u2019re both at fault. You know, Mr. Charous, I was told, and I told you before, about the things that your son complained of why you weren\u2019t \u2014 if you went to practice, you had your nose in a newspaper reading all the time. You didn\u2019t care about going where he wanted to go. You wanted to do what you wanted to do, and I\u2019ll have to say Mr. Charous, somewhere along the line between your divorce and today\u2019s date, you dropped the ball. And that ball needs to be picked up in a way that no Court can ever enforce, and no Court can tell you how to do it because it\u2019s something between a parent and child relationship that\u2019s done outside the doors to this courtroom. Mrs. Charous, I don\u2019t believe that you\u2019re helping to foster the situation at all, and I place a lot of the blame at your feet, and I\u2019m appalled by the recording that I heard in here today because what it tells me is that that pause is a pause by your son probably to look at you and say what am I supposed to say, mom, or, yeah, by the way, I\u2019m uncomfortable with you because you\u2019re making me sell the house. That\u2019s not right. And those are not the words of a 10-9, 10 or 11 year old. And that\u2019s coming from you, and it doesn\u2019t take a brain surgeon to figure it out. *** [A]nd I\u2019ll say it on the record now, you\u2019re both bad parents. *** Does it rise to the level of me being able to hold Mrs. Charous in contempt, no.\u201d\nThe trial court made no specific findings as to David\u2019s request for attorney fees and costs pursuant to the provisions of the parties\u2019 parenting agreement as well as section 508(b) of the Act.\nThe trial court subsequently denied David\u2019s motion to reconsider. The trial court\u2019s written order denying the motion provided, \u201cThe Court finds: that [David] failed to meet his burden by preponderance of the evidence that [Jodi] willfully violated the court\u2019s orders.\u201d The trial court\u2019s order further provided that, \u201c[I]n the event that [David] appeals this Court\u2019s decision, the transcript of the Court\u2019s in camera interview with the children shall be transcribed and sent to the appellate court with the record.\u201d This timely appeal followed.\nDavid\u2019s first contention on appeal is that the trial court\u2019s denial of his petitions was against the manifest weight of the evidence. David argues that the trial court improperly placed upon him the burden of proving both that Jodi violated a court order and that her conduct in violating the order was willful and contumacious. David argues that he was required to prove only that Jodi violated an order of the trial court and the burden then shifted to Jodi to show that her conduct in doing so was not willful and contumacious. See In re Marriage of Tatham, 293 Ill. App. 3d 471, 480 (1997). David argues that he proved by a preponderance of the evidence that Jodi violated the provisions of the parenting agreement by not requiring the children to participate in visitation with David; by failing to cooperate with David to reschedule visitation when conflicts arose; by discussing with the children issues regarding the marital conflict and communicating \u201cinappropriate, inaccurate, and derogatory information\u201d about David to the children; by failing to require the children to attend psychological counseling; by scheduling the children\u2019s extracurricular activities without consulting David; and by interfering with David\u2019s ability to be informed as to the children\u2019s progress in school. David also argues that Jodi failed to present any evidence that her conduct in violating the provisions of the parenting agreement was not willful or contumacious. Accordingly, David contends that the trial court should have granted his petitions.\nWe first consider the trial court\u2019s denial of David\u2019s amended petition seeking a finding that Jodi was in indirect civil contempt. Generally, civil contempt occurs when a party fails to do something ordered by the trial court, resulting in the loss of a benefit or advantage to the opposing party. Tatham, 293 Ill. App. 3d at 479. Contempt that occurs outside of the presence of the trial court is classified as indirect contempt. Tatham, 293 Ill. App. 3d at 480. The existence of an order of the trial court and proof of willful disobedience of that order are essential to any finding of indirect civil contempt. Tatham, 293 Ill. App. 3d at 480. The burden initially falls on the petitioner to prove by a preponderance of the evidence that the alleged contemnor has violated a court order. In re Marriage of LaTour, 241 Ill. App. 3d 500, 508 (1993). The burden then shifts to the alleged contemnor to show that noncompliance with the court\u2019s order was not willful or contumacious and that he or she had a valid excuse for failure to follow the court order. Tatham, 293 Ill. App. 3d at 480. Contumacious conduct consists of \u201cconduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or lessening the authority and dignity of the court.\u201d In re Marriage of Fuesting, 228 Ill. App. 3d 339, 349 (1992). Whether a party is guilty of indirect civil contempt is a question for the trial court, and its decision will not be disturbed on appeal 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).\nBased upon our review of the record, we conclude that the trial court\u2019s denial of David\u2019s amended petition seeking a finding that Jodi was in indirect civil contempt was against the manifest weight of the evidence and reflected an abuse of discretion. David satisfied his evidentiary burden by proving by a preponderance of the evidence that Jodi had committed numerous violations of the provisions of the parenting agreement. Specifically, David proved that Jodi failed to comply with the visitation schedule, which provided that David was to have overnight visitation with the children on alternating weekends beginning on Friday at 5 p.m. and concluding on Sunday at 7:30 p.m. In her own testimony during the hearing, Jodi acknowledged that the children had not stayed overnight with David since Thanksgiving 2003. Jodi also did not dispute David\u2019s testimony that none of his weekend visits with the children after Thanksgiving 2003 lasted more than three or four hours. Additionally, Jodi acknowledged that, on certain alternating weekends, visitation did not occur at all because the children refused to visit David. Jodi acknowledged that the children also missed a weekend visitation with David when Jodi scheduled a surprise birthday party for Erica. Jodi admitted that she did not inform David about the birthday party and did not invite him to attend. Jodi also did not controvert David\u2019s testimony that he did not have visitation on his birthday or on Father\u2019s Day in 2005, despite the provisions of the parenting agreement indicating that he was entitled to visitation on these holidays.\nDavid also proved that Jodi violated provisions of the parenting agreement that prohibited her from discussing with the children \u201cissues of marital conflict.\u201d At the hearing, David offered several examples of instances where Daniel refused to visit him after Daniel had discussions with Jodi about certain monetary disputes and issues of marital conflict. For example, Daniel refused to visit David because David would not pay for his summer camp and because David had sold the marital residence pursuant to the provisions of the dissolution judgment. As detailed above, the trial court specifically found that Jodi was responsible for making Daniel leave a message on David\u2019s answering machine, stating that he would not visit David because he was \u201cuncomfortable\u201d that David was selling the house. David also introduced evidence that Daniel refused to visit him on David\u2019s birthday after Jodi showed Daniel a subpoena she had received in regard to the instant proceedings.\nDavid also proved that Jodi had violated provisions of the parenting agreement requiring her to \u201ccooperate in facilitating [David\u2019s] obtaining of the children\u2019s grades and progress at school,\u201d \u201cauthorize [David] to inspect the children\u2019s school and medical records and to communicate with teachers, school personnel, counselors and physicians to discuss the children\u2019s standing and progress,\u201d and \u201ccooperate in advising the school to notify [David] of programs open to parents.\u201d During her testimony, Jodi acknowledged that, on December 8, 2004, she had written a letter to Erica\u2019s school with instructions to remove David from \u201cany list as a contact person.\u201d Finally, David proved that Jodi refused to require the children to participate in psychological counseling with Dr. Burns despite the provision of the parenting agreement requiring the children to do so.\nOnce David proved by a preponderance of the evidence that Jodi had violated multiple provisions of the parenting agreement, the burden then shifted to Jodi to prove that her conduct was not willful or contumacious. In her appellate brief, as she did at trial, Jodi asserts that any violation of the parenting agreement committed by her was neither willful nor contumacious. Jodi initially argues that the evidence introduced at trial established that the children were unable to regularly visit with David primarily because of their busy extracurricular schedules. Relying on In re Marriage of LaTour, 241 Ill. App. 3d 500, 505 (1983), Jodi argues that she had the authority under the parenting agreement to select the children\u2019s extracurricular activities and that scheduled visitations should not preclude the children from engaging in those activities.\nWe reject Jodi\u2019s assertions that the children\u2019s participation in extracurricular activities excused her noncompliance with the visitation provisions of the parenting agreement. The record contains no evidence that the children\u2019s participation in extracurricular activities precluded them from overnight visitation with David on those weekends assigned to him. While the children may have been engaged in daily activities during the weekend, we see no reason appearing in the record that David could not have been responsible for transporting the children to these activities as part of his visitation. Indeed, the evidence introduced at the hearing indicated that David had attended some of Daniel\u2019s soccer games and practices, and there was no evidence that he did not wish to do so. Contrary to Jodi\u2019s assertions in her appellate brief, the record contains no evidence that David ever rejected any suggestion by Jodi that he take the children to their extracurricular activities.\nAdditionally, we note that, while the parenting agreement ultimately gave Jodi the authority to decide what extracurricular activities the children would be involved in, it also required her to \u201cconsult with David before making any final decisions regarding after school activities for the children.\u201d The parenting agreement also provided that, \u201c[s]ince David has been involved in some of these activities, and may need to be involved for transportation on his parenting time, it is important that he give input to Jodi regarding his availability to provide transportation to these activities *** when the children are residing with him.\u201d These provisions certainly indicate the parties\u2019 intent that David would be involved in the children\u2019s extracurricular activities and that their participation in extracurricular activities would not preclude him from exercising visitation. Indeed, the provisions acknowledge that David might have to transport the children to those activities that take place during his parenting time. The record contains no evidence that Jodi ever consulted with David about the children\u2019s extracurricular activities as required by the parenting agreement. Instead, the evidence revealed that Jodi unilaterally selected the extracurricular activities for the children. During the hearing, Jodi offered no explanation that might justify her failure to consult with David about this issue.\nFurthermore, we decline to apply the principles expressed in LaTour as a basis to conclude that the children\u2019s participation in extracurricular activities excused compliance with the visitation schedule. In LaTour, the reviewing court held that a trial court erred in denying a father\u2019s petition to modify a visitation order, which provided that the father could have visitation \u201cat reasonable times and places.\u201d LaTour, 241 Ill. App. 3d at 502-03. The father lived in the suburbs of Chicago and the mother lived in Quincy, and to facilitate visitation the dissolution judgment provided that the mother \u201cshall take the *** children to the Dixie Truck stop in [McLean] on weekends when requested by [the father] with sufficient advance notice to [the mother].\u201d LaTour, 241 Ill. App. 3d at 502. The reviewing court held that the trial court should have granted the father\u2019s request for the establishment of a definite visitation schedule and remanded the case for the entry of a new visitation order. LaTour, 241 Ill. App. 3d at 505. In remanding the case, the reviewing court noted that the parties\u2019 children had busy extracurricular schedules and indicated that it would be reasonable for the trial court to \u201cprovide that children with extracurricular activities scheduled on [the father\u2019s] weekend for visitation need not attend that visitation.\u201d LaTour, 241 Ill. App. 3d at 505. The reviewing court explained that \u201cbusy and appropriate extracurricular schedules need not dictate visitation, but a visitation schedule also should not dictate or unduly restrict [the children\u2019s] activities.\u201d LaTour, 241 Ill. App. 3d at 505.\nIn LaTour, the parties lived a great distance apart, making it impracticable for the parties\u2019 children to participate in extracurricular activities and to visit their father during the same weekend. Unlike the parties in LaTour, the parties in the instant case do not live a great distance apart. The testimony introduced at trial indicated that Jodi resided in Deerfield and David resided in Skokie. Given the relative proximity of the parties\u2019 residences, the children\u2019s participation in extracurricular activities did not preclude their visitation with David for the rest of the weekend. In the event that the children\u2019s extracurricular activities unduly interfered with Jodi\u2019s ability to comply with the court-ordered visitation schedule, then the appropriate action that Jodi should have taken was to seek modification of the trial court\u2019s visitation order rather than to ignore its provisions. See Gibson v. Barton, 118 Ill. App. 3d 576, 579-80 (1983) (affirming a trial court\u2019s modification of a weekend visitation schedule because of the children\u2019s activities). As Jodi has not requested a modification of the visitation schedule, we reject her assertions that the children\u2019s extracurricular activities justified her noncompliance with the visitation provisions of the parenting agreement.\nJodi also asserts that her failure to comply with the visitation schedule was the result of the children\u2019s refusal to visit David. The trial court was apparently swayed by this justification, as it directed this court to review the transcript of its in camera interview of the children. During this interview, as noted above, the children expressed their dislike of David and indicated their unwillingness to visit him. After reviewing the transcript of the in camera interview, as well as the other evidence introduced during the hearing, we reject the notion that the children\u2019s unwillingness to visit David excused Jodi\u2019s failure to comply with the visitation requirements. We conclude that the trial court\u2019s contrary conclusion was against the manifest weight of the evidence and constituted an abuse of discretion.\nIllinois courts have held that a custodial parent may not disregard the visitation requirements of a dissolution judgment merely because his or her children do not desire to visit the noncustodial parent. See In re Marriage of Marshall, 278 Ill. App. 3d 1071, 1082-83 (1996); Doggett v. Doggett, 51 Ill. App. 3d 868, 871-72 (1977). Where a dissolution judgment places the ultimate responsibility for compliance with the visitation provisions upon the custodial parent, the custodial parent cannot escape his or her duty to comply with the visitation provisions by \u201cattempting to shift this burden to the discretion of [his or] her children.\u201d Doggett, 51 Ill. App. 3d at 872 (affirming trial court\u2019s contempt finding against parent who failed to comply with visitation provisions because the children did not want to visit noncustodial parent). A parent must comply with court-ordered visitation even where the child has expressed hostility toward the other parent. In re Marriage of Reed, 100 Ill. App. 3d 873, 877 (1981) (noting that visitation affords members of a family the opportunity to communicate with each other, and thus diminish hostilities and foster an atmosphere in which a renewal of affection may take place). In his treatise on Illinois family law, H. Joseph Gitlin states:\n\u201cIn Illinois, the legislative public policy strongly suggests that the child should not have a voice in determining whether or not the child will obey a visitation order. The [Act] specifically states that the noncustodial parent will have reasonable visitation unless that right is forfeited because the child would be seriously endangered by such visitation. The public policy is also stated statutorily by declaring the presumption that maximum involvement of both parents with a child is in the child\u2019s best interests.\nThe standard in Illinois as to enforcement of visitation should be that visitation should be enforced, regardless of the child\u2019s preference, and that the means for such enforcement should be through contempt proceedings, with an opportunity to purge by allowing visitation during a period of probation.\u201d H. Gitlin, Gitlin on Divorce \u00a714 \u2014 2(c), at 14-31 (3d ed. 2001).\nIn light of these authorities, Jodi cannot escape responsibility for her failure to comply with the visitation provisions of the parenting agreement by shifting the blame to the children. Although Erica and Daniel were not children of tender years, they were nonetheless minor children under the care, control, and custody of Jodi. The parenting agreement specifically imposed upon Jodi the obligation to have the \u201cchildren prepared [for visitation] with the appropriate clothing and items the children will need to take with them\u201d and to have the children \u201cready to leave promptly at the scheduled time.\u201d The evidence introduced at the hearing established that Jodi failed to consistently meet these obligations to facilitate the children\u2019s visitation with David. As noted above, Jodi had the children\u2019s suitcases packed and ready for weekend visitation only five or six times over a period of almost two years. Although the parties\u2019 children may have resisted visitation with David, Jodi offered no evidence to establish that visitation with David would compromise the children\u2019s safety or well-being. As noted above, the children\u2019s representative had no objection to the children\u2019s continued visitation with David and testified that he was aware of no evidence that would preclude David \u201cfrom being an appropriate party to have visitation with his children.\u201d We also reject Jodi\u2019s attempts to justify her failure to require the children to attend psychological counseling by explaining that the children did not want to attend. Again, Jodi cannot attempt to shift to her children the blame for her failure to comply with her court-ordered obligations. See Doggett, 51 Ill. App. 3d at 872.\nAdditionally, Jodi does not even attempt to offer any explanation for her other violations of the parenting agreement. During her testimony at trial, Jodi did not attempt to justify (1) her scheduling of a surprise birthday party for Erica on David\u2019s weekend for visitation without notifying or inviting David; (2) her decision to discuss in front of the children monetary and marital disputes between the parties; (3) her failure to require the children to attend visitation on David\u2019s birthday and Father\u2019s Day in 2005; (4) her decision to show Daniel a subpoena that she received in relation to the instant proceedings in an effort to interfere with David\u2019s visitation; and (5) her conduct in notifying Erica\u2019s school to have David removed as a contact. Because Jodi lacked a legally sufficient excuse for her numerous failures to comply with the trial court\u2019s order, we conclude that Jodi failed to prove that her conduct was not willful or contumacious.\nIn ruling on the contempt petition, the trial court found that David was a \u201cbad parent\u201d and noted that David could be more attentive to the children\u2019s interests. While the record does not necessarily contradict these findings, for the reasons detailed above we cannot accept the trial court\u2019s apparent conclusion that these circumstances justified Jodi\u2019s failure to comply with the provisions of the parenting agreement. Although perhaps David\u2019s parenting skills might have been a reason for the children\u2019s unwillingness to participate in visitation, they did not provide Jodi a lawful justification to violate numerous provisions of the parenting agreement. See Doggett, 51 Ill. App. 3d at 872. As already noted, the record contains no indication that the children\u2019s well-being was being jeopardized as a result of visitation with David, and the children\u2019s representative had no objection to continuing visitation pursuant to the terms of the parenting agreement. Accordingly, we conclude that the trial court should have granted David\u2019s petition to hold Jodi in indirect civil contempt of court. Therefore, we reverse the trial court\u2019s order denying his petition. We remand the case to the trial court for the entry of a finding that Jodi is in indirect civil contempt of court and for further proceedings to determine appropriate sanctions and other relief.\nWe next consider the trial court\u2019s denial of David\u2019s petition alleging visitation abuse pursuant to section 607.1 of the Act. Section 607.1 provides a party an alternative remedy to seek enforcement of court-ordered visitation that is separate and apart from the trial court\u2019s contempt power. 750 ILCS 5/607.1 (West 2004). Section 607.1 provides that visitation abuse occurs when a party has willfully and without justification denied another party visitation as set forth by the court. 750 ILCS 5/607.1(a) (West 2004). A trial court\u2019s finding that a party committed visitation abuse will not be disturbed unless it is against the manifest weight of the evidence. In re Marriage of Aleshire, 273 Ill. App. 3d 81, 83 (1995). Upon a finding of visitation abuse, a trial court is authorized to (1) modify the visitation order; (2) order supervised visitation with a third party or public agency; (3) order makeup visitation; (4) order the parties to participate in counseling and mediation; and (5) order other appropriate relief deemed equitable. 750 ILCS 5/607.1(c) (West 2004).\nIn light of our earlier discussion, we conclude that David sustained his burden to prove that Jodi willfully and without justification denied David visitation as set forth by the parenting agreement. Accordingly, we hold that the trial court\u2019s decision to deny his petition alleging visitation abuse under section 607.1 of the Act was against the manifest weight of the evidence. We reverse the trial court\u2019s order denying his petition alleging visitation abuse and remand the case to the trial court for further proceedings to determine the proper grant of relief. In so ordering, we note that some of the relief sought in David\u2019s petition for visitation abuse overlaps with the relief requested in his amended petition seeking to hold Jodi in contempt. To avoid the entry of confusing and duplicitous orders on remand, the trial court is directed to enter a single order fully detailing all of the relief awarded to David on both petitions.\nDavid\u2019s second contention on appeal is that the trial court improperly denied his request for attorney fees and costs incurred in prosecuting his petitions. David contends that he is entitled to an award of costs and fees under the provisions of the parenting agreement, which specifically provides that, if \u201ceither party fails to comply with the terms of this Parenting Agreement, then the offending party will be ordered to pay all attorney\u2019s fees and costs incurred by the party seeking compliance with this Agreement.\u201d David also contends that he was entitled to an award of fees and costs under section 508(b) of the Act, which provides, \u201cIn every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney\u2019s fees of the prevailing party.\u201d 750 ILCS 5/508(b) (West 2004). Because the evidence introduced at the hearing established that Jodi\u2019s failure to comply with the provisions of the parenting agreement was without compelling cause or justification, we conclude that David was entitled to an award of attorney fees and costs incurred in prosecuting his petitions and we reverse the trial court\u2019s order denying his request for fees and costs. See In re Marriage of Berto, 344 Ill. App. 3d 705, 717-19 (2003) (holding that a reviewing court may review record and independently determine that party violated trial court order without cause or justification so as to mandate the award of attorney fees under section 508(b), despite the trial court\u2019s failure to make such a finding). We remand the cause with instructions for the trial court to conduct a hearing to determine the amount of fees and costs incurred by David in prosecuting his petitions to enforce the visitation provisions of the parenting agreement. After conducting the hearing, the trial court shall award David reasonable attorney fees and costs. See Berto, 344 Ill. App. 3d at 719.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Lake County and we remand the case for further proceedings consistent with this order.\nReversed and remanded with instructions.\nBOWMAN and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE HUTCHINSON" } ], "attorneys": [ "Michael A. Haber and Mary Katherine Danna, both of Kalcheim, Haber & Kuzniar, LLP of Chicago, for appellant.", "Paul B. Goodman and Stacy M. Rhody, both of Paul Goodman & Associates, of Northbrook, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF DAVID CHAROUS, Petitioner-Appellant, and JODI CHAROUS, Respondent-Appellee.\nSecond District\nNo. 2\u201406\u20140084\nOpinion filed September 13, 2006.\nMichael A. Haber and Mary Katherine Danna, both of Kalcheim, Haber & Kuzniar, LLP of Chicago, for appellant.\nPaul B. Goodman and Stacy M. Rhody, both of Paul Goodman & Associates, of Northbrook, for appellee." }, "file_name": "0099-01", "first_page_order": 117, "last_page_order": 133 }