In re Marriage of Trapkus , 2022 IL App (3d) 190631 ( 2022 )

2022 IL App (3d) 190631Opinion filed June 8, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
JANELLE TRAPKUS ) Rock Island County, Illinois.
)
Petitioner-Appellee, )
) Appeal Nos. 3-19-0631 and 3-20-0005
and ) Circuit No. 11-D-376
)
CHRISTOPHER TRAPKUS, )
) The Honorable
Respondent-Appellant. ) Kathleen Mesich,
) Judge, presiding.
___________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Daugherity and Schmidt concurred in the judgment and opinion.
____________________________________________________________________________
OPINION
¶1 The petitioner, Janelle Trapkus, and the respondent, Christopher Trapkus (Chris), married
in 2000 and divorced in 2013. In 2018, the parties filed cross-petitions for modification of the
dissolution judgment and other postjudgment orders. After a trial in 2019, the circuit court issued
a decision denying Chris’s petition to modify parenting time, granting Janelle’s petition to vacate
two rules regarding the scheduling of health care appointments and requiring the parties to
maintain a 10-foot distance from each other, and granting Janelle’s request to vacate a rule
prohibiting her from entering onto Chris’s property. We affirm in part and reverse in part.
¶2 I. BACKGROUND
¶3 The circuit court’s 2013 dissolution order allocated the physical care and custody of the
parties’ two children, P.T. (born March 13, 2004) and K.T. (born August 12, 2006), to Janelle
and granted Chris certain visitation rights. A detailed holiday schedule was also enacted “ending
at 8:00 a.m. the following day, or with transportation to school the following day, as the case
may be, excepting Christmas.” Notably, in ruling that Janelle would have physical care and
custody of the parties’ two children, the court found that joint legal custody was inappropriate
due to the animosity existing between Janelle and Chris but that “as time goes by communication
between the parties may improve, as the parties’ animosity dissipates, such that the Court would
entertain a future request for joint custody.”
¶4 In July 2014, the circuit court entered an order that, inter alia, required Janelle to
“endeavor to schedule all health care appointments for the parties’ children for a time when both
parents may appear and participate.” To facilitate this requirement, Janelle was ordered to
provide Chris with three available dates for medical appointments (hereinafter the Three-
Appointment Rule).
¶5 On December 5, 2014, Janelle filed a petition to modify visitation and requested a ban on
Chris’s girlfriend, Kathleen, from attending any of the children’s activities. Following an April
2015 evidentiary hearing, the circuit court denied the petition after finding no cause for the
restriction. However, based on an agreement by the parties, the court entered the “10-foot Rule,”
which required the parties to remain at a distance of at least 10 feet from each other at all
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extracurricular and other activities. The rule also applied to Janelle and Kathleen, who submitted
to the court’s jurisdiction for the limited purpose of instituting that rule.
¶6 In November 2016, after an evidentiary hearing on several pending motions, Janelle was
found in indirect civil contempt of court for violating the 10-foot Rule on at least two occasions.
The court also enjoined Janelle from entering onto Chris’s property for any reason. The court
further modified parenting time and ordered both parties to deliver the children to their
extracurricular activities with their equipment 10 minutes before the activity’s start time.
¶7 In January 2018, Chris filed a petition for modification, clarification, enforcement, and
adjudication of contempt and other relief. Chris sought, inter alia, equal parenting time with the
children, alleging that a substantial change of circumstances had occurred since the entry of the
allocation judgment in 2013 in that (1) five years had passed and (2) the children had
intermittently asked for more time with him. Chris also requested an order finding Janelle in
contempt for failing to comply with the Three-Appointment Rule. Additionally, Chris alleged
that the parties could not agree on the exact number of days in the summer vacation schedule. He
requested an order clarifying the exact number of days in the summer vacation schedule to
ensure that each party was receiving half of those days. He also sought compensatory parenting
time for the periods during which he was sent out of the country to work during the year because
Janelle would generally refuse to accommodate such requests by Chris.
¶8 In June 2018, Janelle filed her own petition for modification, enforcement, adjudication
of contempt, and other relief. The petition sought, inter alia, a change in the holiday parenting
schedule; the elimination of the Three-Appointment Rule, the 10-foot Rule, and the prohibition
on her from entering onto Chris’s property; and an order adjudicating Chris in contempt for
failing to follow specific orders including the 10-foot Rule. Shortly thereafter, Janelle filed her
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proposed parenting plan in conjunction with the parties’ cross-petitions in which she suggested
the parties alternate all significant holidays in an odd/even year allocation from 8 a.m. to 8 a.m.
the following day for each holiday.
¶9 The circuit court heard evidence over three days on the parties’ cross-petitions. Janelle
testified, inter alia, that P.T was a freshman in high school and K.T. was in the seventh grade.
Both children excelled in school and were involved in extracurricular activities. During the
school year, Chris had alternate weekends, every other Monday, and overnights on Wednesdays.
To accommodate her work schedule as a physical therapist, Janelle sometimes asked Chris to
pick up the children on Fridays, to which he usually agreed. During the summer, Chris’s
parenting time included alternating weekends as well as Tuesday and Wednesday nights.
¶ 10 Janelle sought the elimination of the 10-foot Rule because it was difficult to adhere to in
certain situations and because she believed it made the children uncomfortable. She also sought
the elimination of the Three-Appointment Rule because it was overly burdensome to her as well
as medical professionals. Janelle suggested that she alone should schedule the children’s medical
appointments. Further, she sought the elimination of the order prohibiting her from entering onto
Chris’s property, as doing so would normalize pickups and drop-offs by allowing her to pull into
Chris’s driveway. In that regard, Janelle noted that Chris had purchased a new house, which was
set back farther than his previous house, and that when she parked on the street, she was in the
way of Chris’s neighbors. Chris wanted each of these rules to continue because he believed they
helped alleviate confrontations between the parties.
¶ 11 Chris testified, inter alia, that he wanted more parenting time because the children were
older, had matured, and were approaching a point at which he had a lot of experience to share
with them, both from work and athletics. He wanted the relatively equal parenting time schedule
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from the summer to apply to the entire year. Chris also stated that Janelle would rarely agree
with his requests for additional parenting time. He wanted the 10-foot Rule, Three-Appointment
Rule, and prohibition on Janelle entering onto his property to continue. He claimed that those
rules have brought stability to the children’s activities and have prevented conflict and
embarrassing situations.
¶ 12 Both P.T. and K.T. testified in camera. When asked by the court if they would change
anything about the parenting schedule, both children expressed the desire to see their parents
equally during the week. P.T. was aware of the 10-foot Rule but said it did not impact P.T.’s
parent-child relationships. K.T. felt personally responsible for the imposition of the 10-foot Rule
because it was put into place after an altercation occurred between Janelle and Kathleen at one of
K.T.’s extracurricular events.
¶ 13 On January 23, 2019, the circuit court issued its written decision. The court found that no
substantial change in circumstances had occurred. However, the court noted that the statutory
scheme allowed for modifications in certain situations when a change in circumstances had not
occurred, although the court neither listed nor commented on whether any of those situations
existed in this case.
¶ 14 In reviewing each of the statutory factors relevant in determining the best interest of
children, the court found that the children were close to both parents, were well adjusted to their
schools and church, and were healthy. The court also found that both parents were willing and
able to place the children’s needs above their own. The court did not comment on the in camera
interview with the children to preserve their privacy, although it stated it accounted for their
wishes in reaching its decision. The circuit court then denied Chris’s motion for modification of
parenting time. However, the court granted Janelle’s motion for modification regarding holidays.
5
Specifically, the court found “compelling” Janelle’s argument that Christmas Eve and Christmas
should be grouped together, as should New Year’s Eve and New Year’s Day. In addition, the
court eliminated overnights on holidays, except for Halloween, and eliminated visitation
completely on Veteran’s Day, Columbus Day, and the Saturday and Sunday following
Thanksgiving.
¶ 15 In addition, the circuit court held that the Three-Appointment Rule was no longer
necessary and granted Janelle sole responsibility for scheduling all medical appointments. The
court also eliminated the 10-foot Rule as to Chris but did not modify it as to Kathleen because
she had not been given proper notice. Finally, the court eliminated the rule enjoining Janelle
from entering onto Chris’s property, thereby allowing Janelle to pick up and drop off the children
in Chris’s driveway.
¶ 16 On February 25, 2019, Janelle filed a motion to lift the stay-away order as to Kathleen.
Chris filed a response on April 22, 2019. Janelle’s motion remains pending and undetermined.
¶ 17 On September 23, 2019, the circuit court entered its final judgment and order, which
incorporated the court’s January 23, 2019, decision. Chris appealed. On January 3, 2020, the
circuit court issued a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016)
regarding its September 23, 2019, final judgment and order.
¶ 18 II. ANALYSIS
¶ 19 On appeal, Chris argues that the circuit court erred when it (1) denied his petition for
modification of parenting time, (2) modified the parties’ allocation judgment by altering the
holiday parenting schedule and vacating the Three-Appointment Rule and 10-foot Rule, and
(3) vacated the order enjoining Janelle from entering onto Chris’s property.
¶ 20 A. Modification of Parenting Time
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¶ 21 Chris’s first argument on appeal is that the circuit court erred when it denied his petition
to modify the parenting-time allocation. Specifically, he argues that the court erroneously applied
section 610.5(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/610.5(c) (West 2016)) to the issue. Chris contends that the appropriate section to apply was
section 610.5(a) (id. § 610.5(a)).
¶ 22 When determining whether a circuit court applied the incorrect legal standard, we must
first ascertain the correct legal standard, which is a question of law subject to de novo review.
In re Marriage of Izzo, 2019 IL App (2d) 180623, ¶ 26. Additionally, Chris’s argument requires
us to construe the Act, which we perform de novo. See In re N.C., 2014 IL 116532, ¶ 50. “The
fundamental goal of statutory construction is to ascertain and give effect to the legislature’s
intent, best indicated by giving the statutory language its plain and ordinary meaning.” Id.¶ 23 At all times relevant to this case, section 610.5 of the Act provided, in relevant part:
“(a) Unless by stipulation of the parties or except as
provided in Section 603.10 of this Act, no motion to modify an
order allocating parental decision-making responsibilities, not
including parenting time, may be made earlier than 2 years after its
date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child’s present
environment may endanger seriously his or her mental, moral, or
physical health or significantly impair the child’s emotional
development. Parenting time may be modified at any time, without
a showing of serious endangerment, upon a showing of changed
7
circumstances that necessitates modification to serve the best
interests of the child.
(b) (Blank).
(c) Except in a case concerning the modification of any
restriction of parental responsibilities under Section 603.10, the
court shall modify a parenting plan or allocation judgment when
necessary to serve the child’s best interests if the court finds, by a
preponderance of the evidence, that on the basis of facts that have
arisen since the entry of the existing parenting plan or allocation
judgment or were not anticipated therein, a substantial change has
occurred in the circumstances of the child or of either parent and
that a modification is necessary to serve the child’s best interests.”
750 ILCS 5/610.5(a) to (c) (West 2016).
¶ 24 While it may appear that section 610.5(a) contains a legal standard applicable to motions
seeking the modification of a parenting-time allocation, a review of the evolution of the
modification statutes shows otherwise. Prior to January 1, 2016, modification of a custody
judgment was controlled by section 610 of the Act (750 ILCS 5/610 (West 2014)). In relevant
part, section 610 provided that
“(a) Unless by stipulation of the parties ***, no motion to
modify a custody judgment may be made earlier than 2 years after
its date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child’s present
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environment may endanger seriously his physical, mental, moral or
emotional health.
***
(b) The court shall not modify a prior custody judgment
unless it finds by clear and convincing evidence, upon the basis of
facts that have arisen since the prior judgment or that were
unknown to the court at the time of entry of the prior judgment,
that a change has occurred in the circumstances of the child or his
custodian, or in the case of a joint custody arrangement that a
change has occurred in the circumstances of the child or either or
both parties having custody, and that the modification is necessary
to serve the best interest of the child. The existence of facts
requiring notice to be given under Section 609.5 of this Act shall
be considered a change in circumstance. In the case of joint
custody, if the parties agree to a termination of a joint custody
arrangement, the court shall so terminate the joint custody and
make any modification which is in the child’s best interest. The
court shall state in its decision specific findings of fact in support
of its modification or termination of joint custody if either parent
opposes the modification or termination.” Id. § 610(a), (b).
Section 610(a) served as a gateway to an evidentiary hearing on a modification request if less
than two years had passed since the entry of the custody judgment. See Department of Public Aid
ex rel. Davis v. Brewer, 183 Ill. 2d 540, 554-56 (1998) (holding, inter alia, that “[s]ubsection (a)
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thereby serves an important gatekeeping function, as only those cases which satisfy the initial
procedural prerequisite contained in subsection (a) proceed to an evidentiary hearing conducted
pursuant to the provisions of subsection (b)”). The Brewer court clarified that modification was
not guaranteed even if the initial procedural requirement in section 610(a) was met; the standard
applicable to the modification decision itself was located in section 610(b). Id.¶ 25 When the General Assembly amended Illinois law in 2016 to replace “child custody”
with “allocation of parental responsibilities,” it repealed section 610 of the Act and added a new
modification statute—section 610.5 (750 ILCS 5/610.5 (West 2016)). Initially, section 610.5
provided, in relevant part, that
“(a) Unless by stipulation of the parties or except as
provided in subsection (b) of this Section or Section 603.10 of this
Act, no motion to modify an order allocating parental
responsibilities may be made earlier than 2 years after its date,
unless the court permits it to be made on the basis of affidavits that
there is reason to believe the child’s present environment may
endanger seriously his or her mental, moral, or physical health or
significantly impair the child’s emotional development.
(b) A motion to modify an order allocating parental
responsibilities may be made at any time by a party who has been
informed of the existence of facts requiring notice to be given
under Section 609.5 of this Act.
(c) Except in a case concerning the modification of any
restriction of parental responsibilities under Section 603.10, the
10
court shall modify a parenting plan or allocation judgment when
necessary to serve the child’s best interests if the court finds, by a
preponderance of the evidence, that on the basis of facts that have
arisen since the entry of the existing parenting plan or allocation
judgment or were not anticipated therein, a substantial change has
occurred in the circumstances of the child or of either parent and
that a modification is necessary to serve the child’s best interests.”
750 ILCS 5/610.5(a) to (c) (West Supp. 2015).
Clearly, the General Assembly sought to retain the old statute’s gateway function from
subsection (a) and the general standard applicable to modification decisions from subsection (b),
even though the latter was moved to subsection (c) in the new statute. In addition, it is
noteworthy that subsection (c) referred in part to modifications of “parenting plan[s]” (id.
§ 610.5(c)), which the Act defined—and continues to define—as including written agreements
allocating parenting time (id. § 600(f)).
¶ 26 The new modification statute was amended again shortly thereafter. As of January 1,
2017, section 610.5 provides, in relevant part, that
“(a) Unless by stipulation of the parties or except as
provided in Section 603.10 of this Act, no motion to modify an
order allocating parental decision-making responsibilities, not
including parenting time, may be made earlier than 2 years after its
date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child’s present
environment may endanger seriously his or her mental, moral, or
11
physical health or significantly impair the child’s emotional
development. Parenting time may be modified at any time, without
a showing of serious endangerment, upon a showing of changed
circumstances that necessitates modification to serve the best
interests of the child.
(b) (Blank).
(c) Except in a case concerning the modification of any
restriction of parental responsibilities under Section 603.10, the
court shall modify a parenting plan or allocation judgment when
necessary to serve the child’s best interests if the court finds, by a
preponderance of the evidence, that on the basis of facts that have
arisen since the entry of the existing parenting plan or allocation
judgment or were not anticipated therein, a substantial change has
occurred in the circumstances of the child or of either parent and
that a modification is necessary to serve the child’s best interests.”
750 ILCS 5/610.5(a) to (c) (West 2016).
¶ 27 The changes made by the General Assembly to subsection (a) evince an intent for that
subsection to remain as a gateway to an evidentiary hearing, in line with the construction
announced in our supreme court’s decision in Brewer. Notably, “after [the supreme court] has
construed a statute, that construction becomes, in effect, a part of the statute and any change in
interpretation can be effected by the General Assembly if it desires so to do.” (Internal quotation
marks omitted.) Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶ 19. Subsection (a) as
amended retained the initial procedural requirement of serious endangerment for all modification
12
requests made within two years of an allocation but altered the procedural requirement for
parenting-time modification requests. 750 ILCS 5/610.5(a) (West 2016). For those requests, and
only those requests, no matter whether the request was made within two years of the allocation
sought to be modified, the General Assembly decreased the initial procedural requirement from a
showing of serious endangerment to a showing of “changed circumstances.” Id. There is nothing
in the amended version of section 610.5 to indicate that the General Assembly sought to alter the
Brewer interpretation of subsection (a) as a gateway to an evidentiary hearing. See Heelan, 2015
IL 118170, ¶ 19 (holding that, “[w]hen a court construes a statute and the legislature does not
amend it to supersede that judicial gloss, we presume that the legislature has acquiesced in the
court’s exposition of legislative intent”).
¶ 28 Furthermore, Brewer interpreted subsection (c)’s predecessor as containing the legal
standard for evidentiary hearings on modification requests (Brewer, 183 Ill. 2d at 554-56), and
when the General Assembly amended section 610.5, it did not amend subsection (c) (750 ILCS
5/610.5(c) (West 2016)). Our supreme court has long held that
“[w]hen the General Assembly amends a statute and no
change is made in parts of it, the repeated portions, either literally
or substantially, are regarded as a continuation of the existing law
and not as the enactment of a new law upon the subject.
[Citations.] It should also be borne in mind that amendments are to
be construed together with the original act to which they relate as
constituting one law, and also together with other statutes on the
same subject, as part of a coherent system of legislation; and this
rule is applicable where a later independent statute amends a
13
former statute by implication. The provisions of the amendatory
and amended acts are to be harmonized, if possible, so as to give
effect to each, and leave no clause of either inoperative.” Klemme
v. Drainage District No. 5 of the Township of Crete, 380 Ill. 221,
224 (1942).
As previously mentioned, the modification of a “parenting plan” referenced in subsection (c)
continued to include written agreements that allocated parenting time. 750 ILCS 5/600(f),
610.5(c) (West 2016). If the General Assembly had intended to create a new legal standard in
subsection (a) for deciding parenting-time modification requests, it would have had to amend
subsection (c). See Klemme, 380 Ill. at 224.
¶ 29 In this case, Chris sought the modification of a parenting-time allocation. The circuit
court permitted Chris to bring that petition, which later proceeded to an evidentiary hearing. The
applicable legal standard at the evidentiary hearing was the standard appearing in section
610.5(c). Cf. Brewer, 183 Ill. 2d at 554-56 (holding that section 610.5(c)’s predecessor, section
610(b), contained the applicable legal standard for determining whether a modification request
should be granted). For the foregoing reasons, we reject Chris’s argument that section 610.5(a)
contained the legal standard applicable to his request for modification of the parenting-time
allocation.
¶ 30 Next, Chris asserts that, even if the circuit court applied the correct legal standard, its
denial of his modification petition constituted an abuse of discretion because a substantial change
in circumstances had occurred in that the children were older and had expressed the desire to
spend more time with him.
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¶ 31 We first note that Chris’s claim is incorrect that the appropriate standard of review is
abuse of discretion. The circuit court found that no substantial change in circumstances had
occurred. The question of whether a substantial change in circumstances has occurred is a factual
question that we review under the manifest-weight-of-the-evidence standard. See In re Marriage
of Wengielnik, 2020 IL App (3d) 180533, ¶ 12 (holding that “[w]hen the trial court finds that no
substantial change in circumstances has occurred, we review whether the manifest weight of the
evidence supports the finding” (citing In re Marriage of Barnard, 283 Ill. App. 3d 366, 370
(1996))).
¶ 32 Next, we note that Chris has cited no law to support his claim that a substantial change in
circumstances occurs when children age and express a desire to spend more time with the
noncustodial parent. He does attempt to analogize this case to In re Marriage of Kessler, 110 Ill.
App. 3d 61 (1982), claiming that, “[e]ven in the context of child support modification, this Court
has held that a change in circumstances occurs merely because the children are older.” First,
Chris’s pinpoint citation is page 65 of Kessler; that page is from the background section of the
decision and not from the court’s legal analysis. Second, even if Chris’s pinpoint citation was
merely a scrivener’s error, it is clear that Kessler does not blanketly hold that “a change in
circumstances occurs merely because the children are older.” When the Kessler court affirmed
the circuit court’s decision to increase the respondent’s child support obligation, the court’s
change-in-circumstances analysis included far more than just the aging of the children:
“In the present case, the court predicated its determination
upon evidence that respondent is a practicing attorney and a
partner in a law firm; that he earned income which has
substantially increased since the entry of the original judgment in
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1977; that the cost of living had increased greatly; that the minor
children are now of school age and are no longer preschoolers; that
although the evidence showed that petitioner’s expense list was
‘somewhat inflated,’ the children’s needs and activities had in fact
greatly increased since the time of judgment.” Id. at 73.
Moreover, the aging of children is a far more relevant consideration in the child-support
modification context than in the parenting-time modification context because expenses increase
for children as they age. Even if Chris were correct that “a change in circumstances occurs
merely because the children are older” in the child-support modification context, the parenting-
time modification context is not sufficiently analogous for that conclusion to be appropriately
drawn in this case.
¶ 33 This is not to say that the aging of children or their expressed wishes could never
constitute a substantial change in circumstances. When a court determines whether a substantial
change in circumstances has occurred, Illinois law requires the court to consider the totality of
the circumstances. In re Marriage of Davis, 341 Ill. App. 3d 356, 359 (2003); see also Kessler,
110 Ill. App. 3d at 73. We will not blanketly hold that a substantial change in circumstances
either does or does not occur when a certain number of years have passed since the entry of the
parenting-time allocation or when the children have expressed a desire for more equal parenting
time. See, e.g., In re Marriage of Andersen, 236 Ill. App. 3d 679, 684 (1992) (noting that “a
custodial arrangement that may be in the best interest of a seven-year-old child may not be in the
best interest of a 14-year-old boy”). Rather, we hold that if such circumstances are relevant to the
determination of whether a substantial change in circumstances has occurred, those
circumstances must be considered in their context. See, e.g., Davis, 341 Ill. App. 3d at 360
16
(noting that, “[i]n some cases, the differences between the needs of a small child and the needs of
that same child as an adolescent can be sufficient to constitute a change in circumstances”).
¶ 34 The fatal flaw in Chris’s argument is that he points to no evidence to show that in this
particular case, the aging of the children and their expressed wishes for more equal parenting
time constituted a substantial change in circumstances. In this regard, we note that section
610.5(c) of the modification statute requires a substantial change in circumstances to be based on
facts that “were not anticipated” in the entry of the existing parenting plan. 750 ILCS 5/610.5(c)
(West 2016). Here, K.T. was six years old and P.T. nine years old when the dissolution order
was entered. They were 11 and 13, respectively, when Chris filed his parenting-time
modification request. Without more, there is nothing to suggest that the aging of the children in
this case was anything other than a fact anticipated in the entry of the initial allocation in 2013.
¶ 35 Further, the well-documented animosity between the parties was the reason why the
circuit court refused to institute equal parenting time in the initial allocation in 2013. As this
court has recently noted, “courts have traditionally viewed 50/50 joint parenting time with
caution. [Citation.] In cases where the evidence clearly showed that parents had too much
animosity to be able to cooperate, 50/50 arrangements have been set aside. [Citations.]” In re
Marriage of Virgin, 2021 IL App (3d) 190650, ¶ 47. Even though both children in this case
expressed a desire for more time with Chris, he has not even attempted to demonstrate, for
example, that the animosity between him and Janelle had decreased to the extent that a 50/50
parenting time schedule was appropriate. Without more than the children’s desire for a more
equal visitation schedule, there is no basis for this court to overturn the circuit court’s ruling.
17
¶ 36 Under the circumstances of this case, we hold that the circuit court’s finding that no
substantial change in circumstances had occurred was supported by the manifest weight of the
evidence.
¶ 37 B. Modification of the Holiday Schedule
¶ 38 Chris’s second argument on appeal is that the circuit court erred when it modified the
parties’ parenting time on holidays. He alleges that the modification was neither in the children’s
best interests nor “minor.”
¶ 39 Initially, we note that the circuit court ordered this modification under section 610.5(e),
which provides that the circuit court can modify a parenting plan in the absence of changed
circumstances if the modification (1) is in the child’s best interests and (2) one of four
enumerated circumstances is present. 750 ILCS 5/610.5(e) (West 2016). In its order, the circuit
court did not discuss or even mention any of the four circumstances enumerated in section
610.5(e). While we find it troubling that the circuit court did not state under which circumstance
this case fell, we also note the following:
“[T]he reasons given for a judgment or order are not
material if the judgment or order itself is correct. It is the judgment
that is on appeal to a court of review and not what else may have
been said by the lower court. The reviewing court need not accept
the reasons given by the circuit court for its judgment. Rather, a
reviewing court can uphold the decision of the circuit court on any
grounds which are called for by the record regardless of whether
the circuit court relied on the grounds and regardless of whether
18
the circuit court’s reasoning was correct.” Ultsch v. Illinois
Municipal Retirement Fund, 226 Ill. 2d 169, 192 (2007).
In this case, only one of the four circumstances from section 610.5(e) could be present in this
case—subsection (e)(2), which requires that “the modification constitutes a minor modification
in the parenting plan or allocation judgment.” 750 ILCS 5/610.5(e)(2) (West 2016). Accordingly,
we will analyze this issue under section 610.5(e)(2).
¶ 40 When determining whether a modification to parenting time under section 610.5(e) is in
the children’s best interests, courts must consider all relevant factors, including:
“(1) the wishes of each parent seeking parenting time;
(2) the wishes of the child, taking into account the child’s
maturity and ability to express reasoned and independent
preferences as to parenting time;
(3) the amount of time each parent spent performing
caretaking functions with respect to the child in the 24 months
preceding the filing of any petition for allocation of parental
responsibilities or, if the child is under 2 years of age, since the
child’s birth;
(4) any prior agreement or course of conduct between the
parents relating to caretaking functions with respect to the child;
(5) the interaction and interrelationship of the child with his
or her parents and siblings and with any other person who may
significantly affect the child’s best interests;
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(6) the child’s adjustment to his or her home, school, and
community;
(7) the mental and physical health of all individuals
involved;
(8) the child’s needs;
(9) the distance between the parents’ residences, the cost
and difficulty of transporting the child, each parent’s and the
child’s daily schedules, and the ability of the parents to cooperate
in the arrangement;
(10) whether a restriction on parenting time is appropriate;
(11) the physical violence or threat of physical violence by
the child’s parent directed against the child or other member of the
child’s household;
(12) the willingness and ability of each parent to place the
needs of the child ahead of his or her own needs;
(13) the willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the
other parent and the child;
(14) the occurrence of abuse against the child or other
member of the child’s household;
(15) whether one of the parents is a convicted sex offender
or lives with a convicted sex offender and, if so, the exact nature of
the offense and what if any treatment the offender has successfully
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participated in; the parties are entitled to a hearing on the issues
raised in this paragraph (15);
(16) the terms of a parent’s military family-care plan that a
parent must complete before deployment if a parent is a member of
the United States Armed Forces who is being deployed; and
(17) any other relevant factor that the court expressly finds
to be relevant.” Id. § 602.7(b).
¶ 41 Under section 610.5(e)(2), if no substantial change in circumstances has occurred but the
proposed modification has been found to be in a child’s best interests, the circuit court can order
the modification if it constitutes a “minor” modification. Id. § 610.5(e)(2). What constitutes a
“minor” modification is not defined in the statutory scheme. See id. §§ 600 to 610.5. “We are
*** directed by case law in the State of Illinois to apply to words appearing in legislative
enactments their common dictionary meaning or commonly accepted use unless otherwise
defined by the legislature, the specific meaning being determined by the object sought to be
accomplished by the statute in which they are used.” Bowes v. City of Chicago, 3 Ill. 2d 175, 201
(1954). The dictionary definition of “minor” is “inferior in importance, size, or degree:
comparatively unimportant.” Webster’s Ninth New Collegiate Dictionary 757 (1990).
¶ 42 We review a circuit court’s modification decision under the manifest-weight-of-the-
evidence standard. In re Marriage of Bates, 212 Ill. 2d 489, 515 (2004). A decision is against the
manifest weight of the evidence “only if the opposite conclusion is clearly apparent or the
decision is unreasonable, arbitrary, or not based on the evidence.” In re Keyon R., 2017 IL App
(2d) 160657, ¶ 16.
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¶ 43 Our review of the record reveals no basis to support the circuit court’s modification of the
parties’ holiday parenting-time schedule. Holidays are always addressed separately from normal
visitation in parenting plans because those days are important. While it may be possible to
modify holiday parenting time in a “minor” fashion, such circumstances are not present in this
case. Here, the court eliminated visitation on Veteran’s Day, Columbus Day, and the Saturday
and Sunday following Thanksgiving, which had the effect of reducing Chris’s parenting time
because Janelle is the parent who had the children by default on those days. There is nothing in
the record to support a finding that it was in the children’s best interests to reduce Chris’s
parenting time. Moreover, while we acknowledge that split visitation on Christmas Eve and
Christmas Day, as well as on New Year’s Eve and New Year’s Day, could potentially create
logistical difficulties for the parties, we are also mindful that it is a significant change for the
children to go from seeing both parents every Christmas and New Year’s holiday to seeing only
one parent on those holidays. Under these circumstances, we hold that the modifications made by
the circuit court to the parties’ holiday parenting-time schedule were not minor and that the
court’s judgment in that regard was against the manifest weight of the evidence.
¶ 44 C. Modification of Certain Rules Pertaining to the Parties
¶ 45 Chris next argues that the circuit court erred by granting Janelle’s request for the
elimination of the Three-Appointment Rule, the 10-foot Rule, and the prohibition on Janelle
entering onto Chris’s property. He asserts that these modifications were neither in the best
interests of the children nor “minor.”
¶ 46 We note that the parties are incorrect regarding the law applicable to these rules. Each of
these rules is properly considered to be a restriction on parental responsibilities, which is
governed by section 603.10 of the Act. See 750 ILCS 5/603.10 (West 2016). In relevant part,
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section 603.10(a)(1) permits a circuit court to impose “a reduction, elimination, or other
adjustment of the parent’s decision-making responsibilities.” Id. § 603.10(a)(1). The Three-
Appointment Rule is properly considered a section 603.10(a)(1) restriction on Janelle’s decision-
making responsibilities related to the children’s health care. Id. Additionally, section
603.10(a)(4) permits a circuit court to impose a restriction “restraining a parent’s *** proximity
to the other parent.” Id. § 603.10(a)(4). The 10-foot Rule and the prohibition on Janelle entering
onto Chris’s property are both properly considered section 603.10(a)(4) restrictions. Id.
¶ 47 The significance of these classifications is that modifications of such restrictions are
governed by section 603.10(b), not section 610.5. Section 603.10(b) provides:
“(b) The court may modify an order restricting parental
responsibilities if, after a hearing, the court finds by a
preponderance of the evidence that a modification is in the child’s
best interests based on (i) a change of circumstances that occurred
after the entry of an order restricting parental responsibilities; or
(ii) conduct of which the court was previously unaware that
seriously endangers the child. In determining whether to modify an
order under this subsection, the court must consider factors that
include, but need not be limited to, the following:
(1) abuse, neglect, or abandonment of the child;
(2) abusing or allowing abuse of another person that
had an impact upon the child;
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(3) use of drugs, alcohol, or any other substance in a
way that interferes with the parent’s ability to perform
caretaking functions with respect to the child; and
(4) persistent continuing interference with the other
parent’s access to the child, except for actions taken with a
reasonable, good-faith belief that they are necessary to
protect the child’s safety pending adjudication of the facts
underlying that belief, provided that the interfering parent
initiates a proceeding to determine those facts as soon as
practicable.” Id. § 603.10(b).
¶ 48 Significantly, neither of the two requirements in section 603.10(b) was met in this case.
First, the evidence presented was essentially that Janelle merely found the rules at issue in this
case to be inconvenient to her. We are aware of no Illinois case that has found a change in
circumstances related to a restriction simply because that restriction was inconvenient to one of
the parents; indeed, the rules at issue in this case were inconvenient to Janelle from their
inception. Accordingly, the record in this case does not support a finding that these rules could
be modified under 603.10(b) due to a change in circumstances. Id. Second, there is nothing in the
record to suggest that “conduct of which the court was previously unaware that seriously
endangers the child” was present in this case. Id. Accordingly, because modifications of the
Three-Appointment Rule, the 10-foot Rule, and the prohibition on Janelle entering onto Chris’s
property were not proper under section 603.10(b), we hold that the circuit court erred when it
eliminated them.
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¶ 49 For the foregoing reasons, we hold that the circuit court (1) did not err when it denied
Chris’s petition to modify the parenting-time allocation; (2) erred when it modified the parties’
parenting time on holidays; and (3) erred when it eliminated the Three-Appointment Rule, the
10-foot Rule, and the prohibition on Janelle entering onto Chris’s property.
¶ 50 III. CONCLUSION
¶ 51 For the foregoing reasons, the judgment of the circuit court of Rock Island County is
affirmed in part and reversed in part.
¶ 52 Affirmed in part and reversed in part.
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2022 IL App (3d) 190631Decision Under Review: Appeal from the Circuit Court of Rock Island County, No. 11-
D-376; the Hon. Kathleen Mesich, Judge, presiding.
Attorneys Michael G. DiDomenico, of Lake Toback DiDomenico, of
for Chicago, for appellant.
Appellant:
Attorneys Jennifer Olsen, of Davenport, Iowa, for appellee.
for
Appellee:
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