In re Marriage of Robin L. , 2022 IL App (4th) 220472-U ( 2022 )

NOTICE 2022 IL App (4th) 220472-U FILED
This Order was filed under October 31, 2022
Supreme Court Rule 23 and is NO. 4-22-0472 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re MARRIAGE OF ) Appeal from the
ROBIN L., ) Circuit Court of
Petitioner-Appellee, ) Sangamon County
and ) No. 19D176
MARTIN L., )
Respondent-Appellant. ) Honorable
) Colleen R. Lawless,
) Judge Presiding
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Turner and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding the record did not show the application of
any lesser legal standard to the motion to modify parenting time by the trial court.
¶2 Respondent, Martin L., appeals from the trial court’s judgment granting the motion
to modify parenting time filed by petitioner, Robin L. On appeal, Martin argues the trial court’s
“eleventh-hour” decision to evaluate Robin’s motion under a “statutorily-lesser” legal standard not
pursued by Robin was an abuse of the court’s discretion and a violation of his right to due process
because he did not have notice and an opportunity to defend against the lesser standard. Because
the record does not show the application of any lesser legal standard by the trial court, we reject
Martin’s argument and affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 In June 2007, Martin and Robin married. During the marriage, the parties had three
children, S.L. (born November 30, 2009), J.L. (born June 1, 2012), and M.L. (born October 2,
2014). In January 2018, the parties divorced. The judgment of dissolution set forth a parenting
time schedule. The parenting time schedule was later modified by an agreed order in October 2019.
¶5 In December 2021, Robin filed a pro se motion to modify parenting time. In her
motion, Robin alleged, in relevant part, there had “been substantial changes in circumstances that
necessitate a change to the parenting time schedule.” Robin requested, in relevant part, the trial
court enter an order “[f]inding that substantial changes in circumstances have occurred *** that
necessitate a change to the parenting time schedule.”
¶6 In January 2022, Martin filed a response to Robin’s motion to modify parenting
time. In his response, Martin argued, in relevant part, the factual allegations set forth in Robin’s
motion did not “qualify as a substantial change in circumstances.”
¶7 In May 2022, the trial court conducted a hearing on Robin’s motion to modify
parenting time. Robin appeared pro se, while Martin appeared with counsel. The court received
testimony from both parties as well as several exhibits.
¶8 During the evidentiary portion of the hearing, Martin, after the trial court inquired
about a potential settlement conference, repeated his position to the court that “[t]he changes that
occurred *** are not substantial.” Later, Martin, when addressing the court’s concern about a
particular line of examination, quoted the following proposition from In re Marriage of Salvatore,
2019 IL App (2d) 180425, ¶ 24, 124 N.E.3d 1136: “ ‘[A] substantial change in circumstances will
not be found when the parties’ present circumstances were contemplated when they entered their
agreement.’ ” The court, in response, stated, “[I]t is true, obviously, that is a circumstance and your
recitation of what the general law is, which is substantial changes won’t be found when everything
that is being offered as a change was contemplated, yes.”
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¶9 Following the evidentiary portion of the hearing, the trial court entertained
arguments from the parties. Neither party specifically addressed the applicable legal standard by
which the court should evaluate Robin’s motion.
¶ 10 The trial court, after hearing arguments from the parties, granted Robin’s motion.
In a lengthy oral pronouncement of its decision, the court began by stating, “The burden or the
standard by which I have to modify a parenting time schedule is to determine whether there [h]as
been a change in circumstances necessary to warrant the modification and if that modification is
in the best interests of the children.” As to the former, the court initially stated, “I do believe there
has been a change in circumstances since entry of even the 2019 order.” The court found: “I do
believe the children’s schedules, their ages, the parties’ ability to communicate with each other
and effectively work this arrangement out and what the schedule had been, those have changed
since entry of the order.” In so finding, the court recognized Robin had testified she “had thought
about [t]hat the kids may want to participate in activities, and those things were maybe likely to
occur” when the prior order was entered; however, the court found, “what had not actually
happened was the level by which the parties were unable to work with the track schedule, the cross
country schedule, and she could not anticipate the level of inflexibility that was being provided by
[Martin] in this case.” The court concluded, “I believe that it [is] a sufficient change for me to
modify the parenting time schedule.” The court further concluded, after a detailed review of best-
interest factors, a modification was in the children’s best interests. The court entered an order
modifying the parenting time schedule.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, Martin argues the trial court’s “eleventh-hour” decision to evaluate
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Robin’s motion to modify parenting time under a “statutorily-lesser” legal standard not pursued
by Robin was an abuse of the court’s discretion and a violation of his right to due process because
he did not have notice and an opportunity to defend against the lesser standard.
¶ 14 Martin’s argument before this court is premised on the trial court’s application of a
lesser legal standard to Robin’s motion. Specifically, Martin asserts the court applied a
changed-circumstances standard which he asserts is set forth in section 610.5(a) of the Illinois
Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610.5(a) (West 2020)) as opposed
to the substantial-change-of-circumstances standard set forth in section 610.5(c) of the Act (id.
§ 610.05(c)).
¶ 15 The record shows the trial court received a written motion to modify parenting time
and a response thereto focused on the existence or absence of a substantial change in
circumstances. Then, during the hearing on the motion, the court heard Martin’s position that the
changes that occurred were “not substantial.” The court also, when addressing Martin’s response
to its concerns about a particular line of inquiry by Martin, acknowledged Martin correctly recited
“what the general law is, which is substantial changes won’t be found when everything that is
being offered as a change was contemplated.” Therefore, the only position presented to and
recognized by the court prior to the oral pronouncement of the decision was that there had to be a
substantial change in circumstances before any modification could be ordered.
¶ 16 The record also shows the trial court, during the oral pronouncement of the
decision, recognized before it could order any modification it had to find “there [has] been a change
in circumstances necessary to warrant the modification.” (Emphasis added.) The court, after
indicating it believed there had been at least some change in circumstances, reviewed the changes
that occurred, changes with respect to “the children’s schedules, their ages, the parties’ ability to
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communicate with each other and effectively work this arrangement out and what the schedule
had been.” In reviewing these changes, the court specifically considered and found that changes
were not anticipated. The court concluded, “I believe that it [is] a sufficient change for me to
modify the parenting time schedule.” (Emphasis added.) Therefore, while the court did not use the
word “substantial” during the oral pronouncement of its decision, it considered whether changes
were anticipated, a specific statutory consideration set forth in section 610.5(c) of the Act (750
ILCS 5/610.5(c) (West 2020)), and repeatedly used qualifying language when addressing the
change required for any modification.
¶ 17 A trial court is, furthermore, “presumed to know the law and apply it properly.”
In re N.B., 191 Ill. 2d 338, 345, 730 N.E.2d 1086, 1089 (2000). To rebut that presumption, there
must be strong affirmative evidence to the contrary. In re Commitment of Gavin, 2019 IL App (1st)
180881, ¶ 55, 143 N.E.3d 885. Martin does not address authority filed after the hearing on the
motion to modify but before the filing of his initial brief with this court explaining how section
610.5(a) of the Act (750 ILCS 5/610.5(a) (West 2020)) does not, in fact, set forth a
changed-circumstances standard applicable to motions seeking the modification of parenting time.
In re Marriage of Trapkus, 2022 IL App (3d) 190631, ¶¶ 21-29. Therefore, we must presume the
trial court followed the law and did not apply a non-existent legal standard.
¶ 18 Accordingly, we conclude the record does not show the application of any lesser
legal standard to the motion to modify parenting time by the trial court and, therefore, we reject
Martin’s argument. In so finding, we note, even if Martin had shown the trial court applied an
incorrect lesser standard, he provided no argument or supporting authority in his initial brief as to
why that error would constitute reversible error where he undisputedly had the opportunity to
prepare for the hearing and question Robin under the correct legal standard. See Ill. S. Ct. R.
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341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited and shall not be raised in the reply
brief, in oral argument, or on petition for rehearing.”); see also In re Marriage of Saracco, 2014
IL App (3d) 130741, ¶ 14, 22 N.E.3d 489 (accepting the parties’ concessions that the absence of a
specific finding of a substantial change in circumstances does not mandate reversal if the record
supports the existence of a substantial change).
¶ 19 III. CONCLUSION
¶ 20 We affirm the trial court’s judgment.
¶ 21 Affirmed.
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