- Firm Overview
- Practice Areas
- Family Law Victories
- Personal Injury Victories
- FAQ Videos
Father Obtains Custody of 8 Year old Son after Mother Interferes with our Client, the Father's Visitation and Wrongfully Removes Child to Florida In re Marriage of Gibbs, 268 Ill.App.3d 962
Father [our client] and custody Mother were separated when their only son was 15 months old and divorced when he was four years old. Although Father consistently exercised visitation with his son, Mother had a history of attempting to restrict Father's visitation through various Court actions aimed to "frustrate" our client’s visitation.
Finally, Mother relocated their son to the state of Florida, and then filed a petition asking for permission to remove his residence to Florida permanently. In addition, Mother filed a Petition to suspend our client’s visitation with his son.
We represented the Father at the trial level and throughout the appellate process. After a full trial consisting of 14 separate trial dates, we won and Mother was ordered to return their son to Illinois. When she refused to obey court orders, we succeeded in presenting a petition to hold the mother in contempt of court and she was ordered to Cook County Jail until she returned the boy to Illinois. Although this order was reversed in the Appellate Court where we also represented the father, the son was ordered returned to Illinois. Upon the son’s return to Illinois, we fought to obtain custody for the father, and were successful in doing so. MORE
The Trial Judge specifically found:
“that the Petitioner, ALEXANDRA ENGLER, based upon the history of the entire past and present proceedings, has been vigorous in her motivation to frustrate or restrict the Respondent’s rights of visitation with his minor son, Palmer.”
Trial Judge Plusdrak after he conducted a full interview with the minor child in his chambers known as an in-camera. The Judge concluded that Palmer had been “programmed” by the Petitioner, Mother:
Judge Plusdrak specifically found in his ruling:
“Now as to the child PALMER, on October 1, 1991, this Court met the child in chambers for an interview in the presence of the attorneys and the court reporter. PALMER, then five years of age, was understandably not at ease and somewhat fidgety. When I asked a question, the boy would look up at the ceiling and then recite quite rapidly that he likes his stepfather, that he recalls how his father let him ride a bike and be hurt when he was riding by himself, and that he likes the warm weather in Florida and the swimming pool.
One need not be a trained therapist or a psychiatrist to sense that little PALMER was programmed in this regard in advance of his scheduled interview in the Courts chambers.”
As to Alexandra’s claim that Palmer suffered from “ separation anxiety” when he was away from her more than one week at a time, Judge Plusdrak concluded that the findings of ALEXANDRA’S expert Dr. Ner Litner were not to be believed and instead Judge Plusdrak adopted the findings of Respondents expert. Judge Plusdrak stated in his opinion that:
“In this expert’s opinion, the little boy, Palmer is not suffering from any separation anxiety, but the such anxiety may be caused by his mother’s ambivalence. He continued in his opinion if the child were to continue to live in Florida separated from his father, he might become disrespectful and develop a sense of abandonment.” [tr. Sept 18, 1992 p. 12]
Judge Plusdrak further specifically found in his opinion that it was in Palmers best interest to remain in Illinois and to maintain a healthy and close relationship with his father. Judge Plusdrak specifically stated in his findings:
“One, Palmer the minor child, now age six, while in the physical custody of his mother has been under sporadic therapy for the past three years and needs to have a healthy and close relationship with his natural father, the Respondent herein.
Two, Petitioner based on this history of the entire past and present proceedings, has been, vigorous in her motivation to frustrate or restrict the Respondent's rights of visitation with his minor son, Palmer.
Three, the Respondent opposing the petition to remove the minor child, Palmer, to Florida, has been motivated by his parental love for his minor child and not by any hatred for Petitioner’s current husband.
Four, removal of the minor child, Palmer, to Florida would hamper realistic and reasonable visitation of the Respondent with the child.
Five, the move to Florida would not enhance Petitioner's employment now or in the future.
Six, Petitioner’s current husband Alexander Engler , is a pilot with United Airlines and to date has failed to file any application to work from the O'Hare base in Chicago, Illinois.
Seven, it is and will be in the best interest of the minor child to remain with his mother in the State of Illinois.
Eight, that Petitioner has failed to sustain her burden of proof as required by Section 609 of the IMDMA.”
The Appellate Court, First District in affirming Judge Plusdrak’s findings specifically concluded that Alexandra’s conduct had been calculated to frustrate PETER’S visitation and the Court stated:
This supports a conclusion that the move may have been intended to frustrate Peter’s visitation. Alexandra also had a history of attempting to restrict Peter’s visitation with Palmer through court action. She had alleged in her original removal petition that Peter’s visits with Palmer should be supervised based in part on her allegation that Peter watched sexually explicit movies in Palmer’s presence. These allegations were subsequently dropped without resolution. [Emphasis added]
The Appellate Court, First District specifically found that the evidence concerning Mr. Engler’s long history of physical abuse was a valid basis for concern. The Appellate Court stated:
Peter’s motives in opposing the move were based in part on his desire to maintain a relationship with Palmer an his concern for Palmer living with Engler.
The evidence that Engler physically abused his ex-wife and girl friend is disturbing and a valid basis for concern. [ page 4 of Appellate Opinion]
That the Appellate Court, First District went on to note that:
As to Peter’s visitation rights, there was evidence that prior to the move he had exercised visitation although there were occasions which he missed. Overall, he consistently exercised his rights.
Since the move to Florida, the visitation schedule has changed and Peter has not been able to see Palmer on a regular basis. Alexandra offered visitation of three weeks in the summer, but visitation during the other months would be only three days. Before the move, Peter was allowed every other weekend and one weekday each week. Obviously, visitation could not be the same after the move to Florida; the move would reduce Peter’s visitation significantly during the school year.
The Father (our client) and Mother were married October 16, 1982 and had a daughter a year later. They separated in 1988. While still married the Father began dating, and had a child by, another woman. The Mother filed for divorce in 1989 and the Father asked for custody of their daughter, who was then 7 years old. The trial judge found that our client was guilty of “onerous adultery, denied him custody of his daughter and restricted his visitation as well.
We represented the Father in his Appeal to the Appellate Court and won a decision overturning the trial judge’s decision.
On Appeal the Court recognized that their daughter was a “very mature 7 year old” and that her preference for who would be her primary residential parent should be recognized. The Court determined the trial judge failed to examine the maturity of the daughter’s opinion and its underlying reasoning. The 7 year-old’s statements both in and out of court should have been given more serious consideration by the trial court.
If you are going through a divorce in Illinois where maintenance or spousal support may be ordered you should be aware of the New Maintenance Law that took effect January 1, 2015.
The New Maintenance Statute in Illinois offers Unique Opportunities for Creative and Effective Financial Settlements.
In a recent contested Illinois Divorce case we were able to successfully settle a hotly contested and what would otherwise have been a prolonged divorce for our Client, the Husband.
After the divorce, Husband failed to provide proof of all his income to Wife as required under the Judgment for Dissolution of Marriage, including, but not limited to, stock options awarded and exercised after the divorce. The end result was Wife was awarded a substantial sum of additional maintenance. The ex-Husband did not disclose the income awarded from those exercised stock options based on his claim such income was his non-marital property that Wife was not entitled to.
Under the Judgment for Dissolution of Marriage, the Wife was entitled to maintenance based on Husband’s earnings at the time of the divorce plus 30% of any additional net earned income of Husband. The ex-Husband had been paying Wife what he calculated to be his net earned income for several years.
We fought for the Wife and won for her a property settlement that included real estate and cash of $2,053,029. After the Divorce Judgment was entered the Husband delayed payment to our client of her cash settlement. We successfully argued that the ex-husband was doing what many ex-husbands do. His object was to delay the payment in order to gamble with her money hoping the market going up.
If the market went up after a long delay the Husband would simply pay the amount specified of $2,053,029 and keep the increase in value of the Wife’s interest that the cash earned.
At the divorce trial, the Wife's divorce lawyer claimed that the Husband had a 25% interest in a commercial building in Chicago. She obtained a Real estate appraisal to back up her claim of $3,550,000. Husbands 25% marital interest, she says is worth: $877,550.
She argues that the marital portion of the commercial Real estate is worth $877,550 and demands half of the Husband's interest as her share of this marital property in their divorce. The Husband's lawyer did not dispute the Wife's claim of marital value of this asset.
The Husband interviews with Martoccio & Martoccio and asks if there's anything we can do to help. We review the case and tell him there is a way.
“[Husband] next argues that the trial court's award of attorney fees failed to meet the requirements of section 508 and was unsupported by the evidence. (111. Rev. Stat, 1991, ch. 40, par, 508.) At the conclusion of the custody trial, the trial court granted [Wife’s] fee petition in its entirety. After a request for a hearing on attorney fees, this ruling was retracted and the matter was set for hearing. Wife first called an expert witness on the matter of attorney fees. The expert testified that the $27,919.66 fee charged by Wife’s attorney was customary and reasonable. The court subsequently ordered Wife to pay $16,501 of her attorneys fees and ordered Husband to pay $10,000 of those fees. Finance charges were deducted from the amount allocated to Wife.
At the fee petition hearing, Mr. Martoccio, counsel for Husband, objected to the fee petition and its attendant computerized fee schedule printout on the ground that it lacked a proper foundation. Martoccio objected to the schedule of hours because no evidence was presented indicating how those hours were transcribed and whether they had been entered accurately into the computer. Wife’s attorney testified that he reviewed the documents and found them to be accurate and necessary, and asserted that this testimony served as a proper foundation for the records. The time records themselves simply provide a general description of the service performed, the time spent on that service and the fee charged for that service.
Ex Husband was Director of International Sales for a major manufacturing company, and earned $163,850 per year. Rather than take only his word, for his earnings to determine the amount of child support and his contribution to college expenses of one of the parties daughters, we had him produce records to verify his income. Sure enough his records showed the Ex Husband was earning $163,850. We also served a subpoena to his employer, once again the records confirmed $163,850 yearly.
Although it seemed to to be repetitious, the question of Ex Husband’s income just didn’t feel right since his lawyer continuously delayed the case for over a year with no apparent reason.
Sensing that something was not quite right although it was only several days to the trial, we served a second subpoena on the Ex Husbands employer just for completeness.