In re Marriage of Fields

NO. 4-96-0166

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In Re: the Marriage of ) Appeal from
CRYSTAL K. FIELDS, ) Circuit Court of
Petitioner-Appellant, ) Vermilion County
and ) No. 95D20
RICHARD ALLEN FIELDS, )
Respondent-Appellee. ) Honorable
) Gordon R. Stipp,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:
In January 1995, petitioner, Crystal K. Fields, filed a
petition for dissolution of her marriage with respondent, Richard
Allen Fields. In March 1995, Richard filed a petition requesting
temporary visitation with the parties' two children, M.F. and
A.F. Crystal subsequently filed a petition requesting temporary
custody and support of the children. In May 1995, pursuant to an
agreement reached by Crystal and Richard during a hearing on the
petitions, the trial court entered a temporary order granting
custody of the children to Crystal and visitation privileges to
Richard, subject to certain restrictions. In October 1995, a
successor judge conducted a final hearing on dissolution and all
other pending issues, including visitation. The court subse-
quently entered an order dissolving Crystal's and Richard's mar-
riage, and granting Richard reasonable visitation with both
children, without restrictions or required counseling.
Crystal appeals, arguing that the trial court erred by
(1) determining that the original court's decision in the tempo-
rary relief hearing was res judicata, and refusing to allow evi-
dence that was or could have been introduced at the prior hear-
ing; (2) allocating more than half of the marital debts to
Crystal; (3) placing the burden on her to show that restricted
visitation should be continued as provided by the temporary
order; (4) determining that M.F.'s counselor could not testify as
an expert and denying the introduction of the counseling center's
billing records; and (5) failing to apply the proper standard
when it refused to order counseling. We affirm all portions of
the judgment except with regard to the visitation order; because
we agree with Crystal's first argument, we reverse and remand for
a de novo hearing on the issue of visitation.
I. BACKGROUND
Crystal and Richard married in September 1991. They
had two children during their marriage, M.F., born in November
1989, and A.F., born in July 1994.
The parties separated in June 1994, and the children
remained with Crystal. After the separation, Richard visited
M.F. and A.F. on a regular basis. In November 1994, Crystal
began requiring Richard's visits to be supervised because she
believed that Richard was sexually abusing M.F. In January 1995,
Crystal filed a petition for dissolution of the marriage. In
March 1995, Richard filed a petition requesting temporary reason-
able visitation with M.F. and A.F. Crystal subsequently filed a
petition requesting temporary custody and support of their children.
During April and May 1995, the original trial judge,
Judge Borbely, conducted a partial hearing on the petitions for
temporary support, custody, and visitation. Because the parties
are familiar with the evidence, we review it only to the extent
necessary to put Crystal's arguments in context. Linda Jacques,
an investigator for the Department of Children and Family Servic-
es (DCFS), testified that in November 1994 and January 1995 she
investigated two allegations that M.F. had been sexually abused.
Jacques determined that the initial report of abuse was unfound-
ed. After conducting an investigation of the second report of
abuse, including interviews with M.F., Richard, and Dr. Frank
Stephens, a pediatrician who examined M.F. in December 1994,
Jacques determined that the report was indicated for sexual
penetration of M.F. by Richard.
The trial court also allowed into evidence Dr.
Stephens' evidence deposition, in which he testified that Crystal
brought M.F. for an examination in December 1994. During that
examination, Crystal reported that M.F. exhibited vaginal and
rectal redness, wet her bed five or six times a week, masturbated
frequently, and had experienced an episode of unexplained vaginal
bleeding around November 1994. Crystal also told Dr. Stephens
that she suspected sexual abuse. Dr. Stephens determined that,
based upon the history provided by Crystal and the physical
examination, M.F. had been sexually abused. On cross-examina-
tion, Dr. Stephens testified that Crystal had told him that the
initial report of abuse to DCFS resulted in an indicated report.
Dr. Stephens further stated that if the conclusions of the
initial DCFS report were otherwise and if there had been no
vaginal bleeding, he would be unable to conclude that sexual
abuse had occurred, although he would still have concerns based
solely on the physical examination.
Dr. Padmasharee Reddy, M.F.'s pediatrician, testified
that she examined M.F. in November 1994 and found no physical
evidence of abuse. Sarah Baron, Crystal's 12-year-old daughter
from a previous marriage, testified that near the end of 1994,
M.F. climbed on top of her and told her that M.F. and Richard
"rub butts." Sarah also testified that she listened to a conver-
sation between Richard and M.F. during which Richard told M.F. if
she broke "the secret," Richard would go to prison.
Crystal testified that in November 1994 she first
suspected that Richard may have abused M.F. because of M.F.'s
statement to Sarah. Crystal denied telling Dr. Stephens that the
initial DCFS report had resulted in an indicated finding.
Crystal also stated that M.F. masturbates excessively, is often
angry, and displays violent behaviors.
Richard testified and denied sexually abusing M.F.
Richard also stated that he was fired from two jobs for sexual
harassment, although he denied harassing the female coworkers.
On cross-examination, Richard stated that prior to being fired
the second time in 1994, he was accused by the coworker of more
than one incident of sexual harassment. Richard also stated that
he was a heavy drinker prior to May 1993, and when he drank he
was verbally abusive to Crystal.
On the third day of testimony, the trial court, the
parties' attorneys, and the guardian ad litem met in chambers and
discussed a settlement agreement. After that discussion took
place, the court stated the following:
"Mr. and Mrs. Fields, let me describe
for you folks just exactly what has happened
during the recess. ***
When we began the recess and met in
chambers, the subject of our discussion,
first of all, was [Richard's attorney's]
motion for the Court to conduct an interview
in chambers with M.F.. And in the process of
discussing that motion, our discussion
evolved into what I would describe as a set-
tlement conference. And I want the two of
you to understand just exactly what my pro-
cess and procedure is in conducting such a
process. The best way I can describe it is
this:
Each of your attorneys and [the guardian
ad litem] will have an opportunity more or
less informally to describe to the Court any
additional evidence that they would have.
They are all allowed to make any arguments
that they want to make based on the evidence
-- assuming that everything comes out just
the way they expected it would in the presen-
tation of evidence. And then based on that I
have attempted to give them some guidance as
to where we might end up if things go just
the way they anticipate. *** I have not
ruled on these matters. But in conducting a
settlement conference I do attempt to give
the parties some guidance. ***
At the conclusion of all of that I un-
derstand [the attorneys] have met with [the]
clients and that you have now been able to
reach an agreement that will dispose of the
temporary issues ***."
The parties indicated to the court that they had reached an
agreement. The court approved the agreement, and stated the
following:
"I don't think the record is sufficient
to support a specific finding of abuse in
this case. That doesn't mean that I don't
have concerns. I do. *** [T]hat is the
reason that this agreement contains a coun-
seling component."
The trial court subsequently entered a written order
reflecting the settlement reached during the temporary relief
hearing. The court granted (1) Crystal temporary custody of M.F.
and A.F., and (2) Richard "reasonable visitation privileges" with
the children subject to certain terms and conditions, including
that all visits had to be supervised by one of Richard's siblings
or parents. The court also ordered both parties to seek counsel-
ing and to make the children available for counseling, and
specifically noted that the order was "by its terms temporary."
In October 1995, a different judge, Judge Stipp, con-
ducted the hearing on dissolution and all other pending issues,
including visitation. Prior to hearing any evidence, the trial
court ruled that it was bound by the findings of Judge Borbely at
the temporary relief hearing, and it would not allow evidence
that was or could have been introduced at that prior hearing--
namely, evidence regarding any occurrence prior to May 26, 1995.
The court allowed those portions of the transcript of the tempo-
rary relief hearing regarding Dr. Stephens' deposition and
Jacques' testimony, but, only for the limited purpose of founda-
tion. After hearing testimony and arguments, the court granted
the dissolution and reserved a ruling on the visitation issue.
In December 1995, the court entered the judgment of dissolution,
granted Crystal sole custody of M.F. and A.F., and granted
Richard reasonable visitation without any restrictions or condi-
tions.
II. VISITATION
Crystal first argues that the successor trial judge,
Judge Stipp, erred by (1) determining that the decision of Judge
Borbely, the original trial judge in the temporary relief hear-
ing, was res judicata, and (2) refusing to allow evidence at the
October 1995 hearing that was or could have been introduced at
the April-May 1995 temporary relief hearing. We agree.
Initially, we address Richard's argument that because
Crystal failed to make an offer of proof, she waived for review
her contentions that the trial court erred by excluding the
testimony of (1) Patricia Kaine (Richard's former coworker) and
(2) M.F.'s counselor, Kathryn McGee. We agree that Crystal
failed to make an adequate offer of proof regarding Kaine's
testimony. Accordingly, because the nature of that evidence is
not obvious, we hold that Crystal has waived that particular
contention of error. See Holder v. Caselton, 275 Ill. App. 3d
950, 955, 657 N.E.2d 680, 685 (1995).
However, we do not agree that Crystal waived her
contention of error regarding McGee's testimony. A formal offer
of proof is not required when the circumstances and the question
itself sufficiently indicate the purpose and substance of the
evidence sought, and when the question is in proper form and
clearly admits of a favorable answer. In re A.M., 274 Ill. App.
3d 702, 709, 653 N.E.2d 1294, 1299 (1995). In addition, a
statement by counsel may be sufficient, particularly where there
is no statement by the court, opposing counsel, or any witness
disputing counsel's statement. A.M., 274 Ill. App. 3d at 709,
653 N.E.2d at 1299. During her opening statement, Crystal's
trial counsel set forth, with particularity, both the purpose and
substance of McGee's testimony; counsel's statements were undis-
puted. Further, the questions asked of McGee sufficiently indi-
cate the purpose and substance of the evidence sought through her
testimony. The better practice would have been for Crystal's
trial counsel either to explicitly make a formal offer of proof
or to inform the court that she wished to make representations in
lieu of that formal offer. Had Crystal's counsel done so, then
the court or Richard could state any objection they might have to
proceeding upon representations alone. Nonetheless, on this
record we conclude that Crystal's failure to make a formal offer
of proof did not result in waiver.
In addition, Crystal contends that the trial court
erred during the final hearing when it excluded other evidence
that Crystal had introduced or could have introduced at the
temporary relief hearing--namely, Crystal's testimony regarding
M.F.'s behaviors, Richard's testimony regarding his loss of two
jobs for sexually harassing female coworkers, Dr. Stephens' evi-
dence deposition, and prior testimony of DCFS investigator
Jacques regarding an indicated finding that Richard abused M.F.
The nature and purpose of this excluded evidence are obvious on
this record. Thus, formal offers of proof were not necessary to
preserve this issue for review before this court. See Smith v.
Black & Decker U.S., Inc., 272 Ill. App. 3d 451, 458, 650 N.E.2d 1108, 1114 (1995).
Section 603(a) of the Illinois Marriage and Dissolution
of Marriage Act (Act) provides that "[a] party to a custody
proceeding *** may move for a temporary custody order." 750 ILCS
5/603(a) (West 1994). The trial court may award temporary
custody under the best-interest-of-the-child standard set forth
in section 602 of the Act (750 ILCS 5/602 (West 1994)) after a
hearing or based solely on affidavits (if the parties do not
object). 750 ILCS 5/603(a) (West 1994). Although section 603
refers only to "a custody proceeding," visitation is a form of
custody (In re Marriage of Allen, 265 Ill. App. 3d 208, 213, 638 N.E.2d 340, 344 (1994)), and is subject to the custody rules as
set forth in the Act (In re Custody of Myer, 100 Ill. App. 3d 27,
32, 426 N.E.2d 333, 336 (1981)).
A temporary order--by its very nature--is provisional
in character and continues only during the pendency of the
action. In re Marriage of Simmons, 221 Ill. App. 3d 89, 91, 581 N.E.2d 716, 718 (1991). When the matter that is the subject of
the temporary order comes before the court for a hearing on the
merits, the temporary order has fulfilled its purpose and is
superseded by the final--or permanent--order. Simmons, 221 Ill.
App. 3d at 91, 581 N.E.2d at 719. Once the trial court enters
the final order, an assumption arises that the court has thereby
adjusted for any inequity in its temporary orders. In re Mar-
riage of Dunseth, 260 Ill. App. 3d 816, 827, 633 N.E.2d 82, 92
(1994).
The doctrine of res judicata provides that a final
judgment on the merits rendered by a court of competent jurisdic-
tion bars any subsequent actions between the same parties on the
same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204 (1996). Because a temporary
visitation order is not a final judgment on the merits, such an
order cannot be regarded as res judicata of the issues raised by
the parties. Smith v. Smith, 36 Ill. App. 2d 55, 60, 183 N.E.2d 559, 561 (1962). Further, this court has also urged trial courts
to use caution in applying the doctrine of res judicata to perma-
nent child custody orders (to the extent any custody order is
ever permanent), as follows:
"Generally, a court's order regarding
child custody is res judicata as to facts
which existed at the time the order was en-
tered. New conditions must establish a
change in custody is warranted ***. [Cita-
tion.] Courts should be cautious in deter-
mining when to apply res judicata in child
custody cases. This doctrine should not be
strictly applied to bar evidence when the
most important consideration is the welfare
of a child." In re Marriage of Weaver, 228
Ill. App. 3d 609, 616, 592 N.E.2d 643, 648
(1992).
Because a temporary visitation order means just that--
particularly when a different judge presides at the hearing on
the merits, which will result in a permanent or final order--we
hold that a trial court must conduct a hearing regarding perma-
nent custody or visitation de novo. During the final hearing,
the trial court should consider all factors which relate to the
best interests of the children. See 750 ILCS 5/607 (West 1994).
We find support for our holding in the long-standing
principle that a party is entitled to a resolution of factual
questions by a trier of fact who has been afforded a full oppor-
tunity to assess the credibility of witnesses by observing their
demeanor. See In re Marriage of Sorenson, 127 Ill. App. 3d 967,
969, 469 N.E.2d 440, 442 (1984). In child custody cases, courts
have relied on this principle to hold that even when the parties
stipulate that a successor judge may resolve factual questions by
reviewing the record of prior proceedings, a new trial may still
be warranted where critical determinations necessarily hinge upon
the credibility of one witness over another. Sorenson, 127 Ill.
App. 3d at 969, 469 N.E.2d at 442; see also In re Marriage of
Akins, 188 Ill. App. 3d 951, 953, 544 N.E.2d 1131, 1132 (1989).
In addition, we note that neither section 606 of the
Act (which governs hearings related to permanent custody and
visitation) (750 ILCS 5/606 (West 1994)) nor section 607 of the
Act (which governs visitation privileges) (750 ILCS 5/607 (West
1994)) contains any language limiting the introduction of evi-
dence, unlike section 610(b) of the Act, which provides that the
trial court--when considering a petition to modify a custody
order--is limited to "[t]he facts that have arisen since the
prior judgment or that were unknown to the court" at the time of
the prior judgment (750 ILCS 5/610(b) (West 1994)). Instead,
section 606 of the Act specifically provides that "[p]revious
statements made by [a] child relating to any allegations that the
child is an abused or neglected child" are admissible in a
custody or visitation hearing. (Emphasis added.) 750 ILCS
5/606(e) (West 1994).
In the present case, Judge Borbely, the original judge,
entered the temporary visitation order pursuant to an agreement
reached by Crystal and Richard after three days of testimony at
the temporary relief hearing. In approving the agreement, the
trial court specifically noted that the parties' attorneys had
informed it of additional evidence they would have presented had
the hearing continued. That statement shows the court understood
the temporary nature of the order it was entering. Levy v.
Skilling, 136 Ill. App. 3d 727, 729, 483 N.E.2d 917, 919 (1985)
(determination of whether an order is temporary or final is
governed by the order's substance). Prior to hearing any evi-
dence at the October 1995 final hearing, Judge Stipp, the succes-
sor trial judge, ruled that he would not allow evidence that was
or could have been introduced at the April-May 1995 temporary
relief hearing, as follows:
"Before proceeding to hear evidence, the
court does wish to remind both counsel and
state for the record that the court takes
notice of the order for temporary relief
entered by Judge Borbely on May 26th, 1995.
* * *
Specifically, the court notes Paragraph
3 of the order which is quoted as follows:
`That the allegation of the petitioner that
[Richard] has been guilty of sexual abuse
with regard to said children has not been
established by the evidence.' Further, the
court notes that that order did, in fact,
grant reasonable visitation to [Richard] with
provisions *** primarily providing for spe-
cific times and periods of visitation and
with some supervision details specified in
connection with the visitation arrangements.
* * *
Furthermore, the court is of the belief
that on this particular issue, having been
once litigated, the court is bound to follow
the findings by Judge Borbely. The court
will be open and receptive to any and all
evidence accruing from and after May 26th[,
1995]; ***. But the court does not intend to
address and listen a second time to identical
evidence previously presented in connection
with the original orders for temporary re-
lief."
After Crystal objected, the court stated the following:
"I do note the order entered was a tem-
porary order. This is a final hearing. I
give high credence and value to the finding
made by Judge Borbely, and it is my intention
to examine the issue of restrictions on visi-
tation based upon new evidence arising from
and after May 26th[, 1995]."
On this record, we conclude that Judge Stipp, the
successor trial judge, erred by determining that he was bound by
the findings of Judge Borbely, the original judge, made during
the temporary relief hearing. Thus, we hold that Judge Stipp
erred by excluding evidence that was or could have been presented
at the temporary relief hearing. Accordingly, we reverse and
remand for a de novo hearing on the issue of visitation.
In so concluding, we note that when parents are going
through a divorce, it is imperative that their minor children
have some order and stability in their lives pending the final
resolution of issues. The overriding concern in custody and
visitation disputes is determining what will best serve the
interests of the children. Section 603 of the Act was implement-
ed to (1) encourage informal and agreed determinations of tempo-
rary custody and visitation, (2) accelerate the process of
awarding temporary custody and visitation through the use of
affidavits, and (3) minimize disruptions in children's lives by
providing stability in their living environment and relationships
with their parents as quickly as possible. See Ill. Ann. Stat.,
ch. 40, par. 603, Historical & Practice Notes, at 53 (Smith-Hurd
1980). If the findings at a temporary hearing were binding at
the final hearing, the purposes of section 603 of the Act would
be defeated and the best interests of the children would not be
served. Parties would no longer be willing to have the trial
court enter a temporary order based solely on affidavits or on
evidence adduced during truncated hearings. Parties would be
forced either to forego temporary relief altogether or fully
litigate their cases during the temporary relief hearing when
otherwise they would not have chosen to do so.
III. PROPERTY AND DEBT DISTRIBUTION
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance
Sheet No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
[The following material is not to be published pursuant to
Supreme Court Rule 23.]
Crystal also argues that the trial court erred by
allocating more than half of the marital debts to her. Crystal
specifically contends that the court's refusal to grant her a
lump-sum reimbursement or short-term rehabilitative maintenance
was manifestly unjust in light of her voluntary post-separation
debt payments of $3,257.71 and the ultimate division of property
and debts. We disagree.
Section 503(d) of the Act (750 ILCS 5/503(d) (West
1994)) requires the trial court to divide the marital property in
just proportions. Dunseth, 260 Ill. App. 3d at 831, 633 N.E.2d
at 94. It is well settled that just proportions does not neces-
sarily mean mathematically equal shares. Dunseth, 260 Ill. App.
3d at 831, 633 N.E.2d at 94. Pursuant to section 503(d), the
trial court must consider many factors when dividing marital
property, including the duration of the marriage, the standard of
living established during the marriage, the value of the property
awarded to each spouse, the relevant economic conditions of each
spouse, whether the apportionment is in lieu of or in addition to
maintenance, and the age, health, occupation, employability,
liabilities, sources of income and needs of each party. Dunseth,
260 Ill. App. 3d at 831, 633 N.E.2d at 94. A reviewing court
must not substitute its judgment for that of the trial court
absent a clear abuse of discretion. Dunseth, 260 Ill. App. 3d at
831, 633 N.E.2d at 94. An abuse of discretion occurs only where
no reasonable person could adopt the trial court's position.
Dunseth, 260 Ill. App. 3d at 831, 633 N.E.2d at 94. Further,
this court held in In re Marriage of Benz, 165 Ill. App. 3d 273,
288, 518 N.E.2d 1316, 1324 (1988), that a trial court "need not
make specific findings as to each of the factors set forth in
section 503(d) [of the Act]."
In this case, the trial court ordered that Crystal be
liable for repaying personal loans from Crystal's immediate
family members (her mother and sister) in the amount of $4,696.
The court ordered that Richard be liable for marital debts to
five third-party creditors in the amount of $4,375. The court
also ordered Crystal to pay her portion of the guardian ad litem
fees pursuant to a prior court order, and awarded Crystal a
window air conditioner.
Based upon our review of the record, we conclude that
the trial did not clearly abuse its discretion in its property
division and debt allocation.
[The preceding material is not to be published pursuant to
Supreme Court Rule 23.]
IV. ISSUES ON REMAND
Although we have determined that this case must be
remanded for a de novo hearing on the issue of visitation,
Crystal raises other issues that will likely arise on remand. We
address these issues separately.
A. Burden of Proof in a Visitation Proceeding
Crystal argues that the trial court erred by placing
the burden on her to show that supervised visitation should be
continued as provided by the temporary order. We disagree.
Section 607 of the Act governs a parent's visitation
rights. Section 607(a) of the Act entitles a parent who was not
granted custody of his child to reasonable visitation rights
unless the court finds that visitation would seriously endanger
the child's physical, mental, moral, or emotional health. 750
ILCS 5/607(a) (West 1994). The custodial parent carries the
burden of proving by a preponderance of the evidence that visita-
tion with the noncustodial parent would seriously endanger the
child. Heldebrandt v. Heldebrandt, 251 Ill. App. 3d 950, 957,
623 N.E.2d 780, 785 (1993).
In the present case, Crystal petitioned for temporary
custody, which the trial court granted. Prior to the October
1995 final hearing, the parties stipulated that Crystal would
have sole custody of M.F. and A.F. Thus, the trial court did not
err by placing on Crystal, as the custodial parent, the burden of
proving that visitation with Richard would seriously endanger
their children.
B. Testimony of McGee as an Expert Witness
The material in this section is not to be published
pursuant to Supreme Court Rule 23.
[The following material is not to be published pursuant to
Supreme Court Rule 23.]
Crystal next argues that the trial court erred by
refusing to allow M.F.'s counselor, Kathryn McGee, to testify as
an expert witness. Crystal specifically contends that in his
temporary order, the original judge appointed McGee as a court
witness pursuant to section 604(b) of the Act (750 ILCS 5/604(b)
(West 1994)), or, alternatively, that the successor judge erred
by finding that McGee was not qualified as an expert and that
McGee's testimony was not necessary. We disagree.
1. Court-Appointed Witness
Section 604(b) of the Act provides as follows:
"The court may seek the advice of pro-
fessional personnel, whether or not employed
by the court on a regular basis. The advice
given shall be in writing and made available
by the court to counsel." 750 ILCS 5/604(b)
(West 1994).
In this case, Judge Borbely, the original judge,
entered a temporary order, and wrote the following:
"[B]oth parties shall seek counseling at
the Center For Children Services ***, and
cooperate fully with said counseling and
shall further make the children available in
connection with all counseling sessions as
recommended by the said Center For Children
Services."
No indication exists in this record that Judge Borbely sought
McGee's advice, ordered McGee to prepare a written report for the
court, or appointed McGee as a court's witness pursuant to
section 604(b) of the Act. Instead, the record merely indicates
that the trial court ordered the parties and their children to
participate in counseling as a condition of its temporary order.
Accordingly, the successor trial court did not err by excluding
McGee's opinions or the center's written report under section
604(b) of the Act.
2. Qualifications and Necessity of McGee as an Expert
The general principles governing the admission of
expert testimony are well established. The proponent of the
testimony bears the burden of establishing the qualifications of
a person to testify as an expert witness on a particular subject.
Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 36, 541 N.E.2d 643, 658 (1989). The determination whether
a witness is qualified to give an expert opinion lies within the
trial court's sound discretion, and a reviewing court will not
disturb that determination absent a clear showing of abuse of
discretion. Decker v. Domino's Pizza, Inc., 268 Ill. App. 3d
521, 528, 644 N.E.2d 515, 520 (1994). Further, the determination
whether an expert witness' testimony will aid in the understand-
ing of the issues in the case lies within the trial court's
discretion. Decker, 268 Ill. App. 3d at 528, 644 N.E.2d at 520.
In the present case, Richard objected to McGee's testi-
fying as an expert, and the trial court stated the following:
"Well, there's been nothing laid in
foundation that convinces the court that the
witness is qualified to give an expert opin-
ion with regard to the psychological or emo-
tional state of this particular child. ***
*** I'm not sure expert testimony is
necessary for the court to make its determi-
nation."
Reviewing the record before us, although this court may
have decided differently, we cannot conclude that the trial court
clearly abused its discretion by determining that (1) McGee was
not qualified as an expert, and (2) expert testimony was not
necessary for the court to make its determination.
[The preceding material is not to be published pursuant to
Supreme Court Rule 23.]
C. Billing Records
Crystal next argues that the trial court erred by
excluding billing records of the counseling center. We agree.
Supreme Court Rule 236 provides an exception to the
hearsay rule for records of regularly conducted activities of any
business. 145 Ill. 2d R. 236. A party may establish a founda-
tion for admitting business records through testimony of the
records custodian or of another person familiar with the business
and its mode of operation. Department of Corrections ex rel.
People v. Adams, 278 Ill. App. 3d 803, 811, 663 N.E.2d 1145, 1151
(1996).
In the present case, the trial court refused to admit
the billing records, stating that "[t]o the extent *** they're
prepared by others, they're not admissible under the business
records exception." Accordingly, the trial court erred by
excluding the center's billing records.
D. Standard for Entering a Visitation Order
Crystal next argues that the trial court erroneously
applied the "serious endangerment" standard in deciding that
Richard should not be ordered to participate in counseling. We
agree.
Section 607 of the Act governs a parent's visitation
rights. Section 607(a) of the Act provides that "[a] parent not
granted custody of the child is entitled to reasonable visitation
rights unless the court finds, after a hearing, that visitation
would endanger seriously the child's physical, mental, moral or
emotional health." 750 ILCS 5/607(a) (West 1994). A restriction
on a noncustodial parent's visitation rights is inappropriate
absent a finding of serious endangerment. See In re Marriage of
Lee, 246 Ill. App. 3d 628, 645, 615 N.E.2d 1314, 1326 (1993).
However, not every condition which a trial court may
place upon a noncustodial parent is a "restriction." A restric-
tion of visitation is an action which limits, restrains, or
confines visitation within bounds. Lee, 246 Ill. App. 3d at 645,
615 N.E.2d at 1326. A termination of visitation is a restric-
tion, as is a prohibition on overnight visitation. Likewise, a
requirement that visitation be supervised, occur in the home of
the custodial parent, or outside the home of the noncustodial
parent is a restriction.
We conclude that requiring a noncustodial parent to
participate in counseling is not a "restriction" on visitation.
A counseling requirement in no way limits, restrains, or confines
visitation within bounds. Instead, participation in counseling
is more "in the nature of an accommodation" (emphasis omitted) by
a noncustodial parent to best serve the interests of the child.
See In re Marriage of Tisckos/Stewart, 161 Ill. App. 3d 302, 311,
514 N.E.2d 523, 529 (1987). Because counseling is not a restric-
tion, a trial court should apply the "best interest of the child"
standard in determining whether to order a noncustodial parent to
participate in counseling. In re Marriage of Dobey, 258 Ill.
App. 3d 874, 877, 629 N.E.2d 812, 815 (1994) (trial court has
broad discretion in determining visitation rights of the noncus-
todial parent, with the best interest of the child being the main
concern).
In its December 1995 order, the trial court explicitly
revealed that it used the "serious endangerment" standard when it
wrote the following:
"[T]he Court *** hereby finds as fol-
lows:
1. That [Richard] should have reason-
able visitation with both of the said minor
children of the parties, without restrictions
or conditions, and with no requirements of
counseling, because the evidence presented to
the Court does not establish that such visi-
tation would seriously endanger the child's
physical, mental, moral[,] or emotional
health ***."
We hold that the trial court erred by applying the
"serious endangerment" standard in determining that Richard need
not participate in counseling, and on remand, the trial court
should apply the "best interest of the child" standard in making
that determination.
V. CONCLUSION
For the reasons stated, we affirm all portions of the
judgment except with regard to the visitation order. We reverse
and remand for a de novo hearing on the issue of visitation
consistent with the views expressed herein.
Affirmed in part; reversed in part and remanded with
directions.
GREEN and KNECHT, JJ., concur.