In re Marriage of Karonis

No. 3--97--0226


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_
In re MARRIAGE OF ) Appeal from the Circuit
LISA KARONIS, ) Court of Du Page County.
)
Petitioner-Appellee, ) No. 95--D--1923
)
and )
) Honorable
JAMES P. KARONIS, ) C. Stanley Austin and
) Mark W. Dwyer,
Respondent-Appellant. ) Judges, Presiding.


JUSTICE INGLIS delivered the opinion of the court:
Respondent, James P. Karonis, appeals the order of the circuit
court of Du Page County granting the dissolution of marriage to
petitioner, Lisa Karonis. Respondent contends that the trial court
erred in (1) awarding custody of their minor children to
petitioner; (2) allowing the guardians ad litem to hear illegally
taped recordings of telephone conversations between respondent and
the children; and (3) assessing the amount of child support. We
affirm.
Respondent and petitioner were married on March 13, 1983. The
parties have three children, C., born October 31, 1985; S., born
April 2, 1990; and M., born March 28, 1992. Petitioner filed for
dissolution of marriage on July 27, 1995. The trial court granted
the dissolution on December 2, 1996, awarding permanent custody to
petitioner subject to liberal visitation with respondent and
setting child support payments of $800 per month. Respondent
timely appeals.
Respondent first argues that the trial court s award of sole
custody to petitioner was against the manifest weight of the
evidence. Respondent contends that the children have consistently
maintained that they would prefer to reside with him. Respondent
also asserts that the evidence clearly shows that he is a better
parent than petitioner.
The primary consideration in determining any custody dispute
is the best interest and welfare of the children. 750 ILCS 5/602
(West 1996); In re Marriage of Quindry, 223 Ill. App. 3d 735, 737
(1992). Having had a superior opportunity to observe the
witnesses, evaluate the evidence, and consider the needs of the
children, the trial court is in a better position than the
reviewing court to determine the children's best interest. In re
Marriage of Quindry, 223 Ill. App. 3d at 737. A determination of
custody will not be overturned unless the trial court's decision is
contrary to the manifest weight of the evidence. In re Marriage of
Petraitis, 263 Ill. App. 3d 1022, 1031 (1993). A judgment is
against the manifest weight of the evidence when the opposite
conclusion is apparent or when the findings appear to be
unreasonable, arbitrary, or not based upon the evidence. Rhodes v.
Illinois Central Golf R.R., 172 Ill. 2d 213, 242 (1996).
After a careful examination of the record, we conclude that
the trial court's custody determination was not against the
manifest weight of the evidence. The trial court gave careful
consideration to each of the factors enumerated in section 602(a).
In particular, respondent s assertions that the trial court did not
consider the wishes of the children simply are not supported by the
record. The trial court heard the testimony from Dr. Dres, the
court appointed conciliator, and Dr. Bonkowski, the children s
therapist, that the children showed a preference to live with their
father. However, the court also heard the testimony of Dorothy
Korstad and David Winthers, the court appointed guardians ad litem
(GALs). Winthers report indicated that the oldest child lacked
credibility. Both GALs believed that the children s wishes to live
with their father were obviously programmed and that they were
influenced by their father. Given these facts, we cannot say that
it was unreasonable for the trial court to weigh the expert
opinions and to conclude that any statements made by the children
were unreliable.
Nor can we find that it was unreasonable for the trial court
to conclude that the custody of the children should be awarded to
petitioner. The court was aware that petitioner had problems with
the children and was in need of anger control counseling. While
the court had concerns about petitioner s credibility, it also had
serious concerns and questions about respondent s credibility. The
court noted that respondent persisted in having Eva Sawicki, his
friend with whom he lived, present during visitations, in violation
of court orders. The court also noted that petitioner misstated
his earnings, gave conflicting testimony relative to the operation
of his businesses, and showed an unending unwillingness to comply
with court orders. The court stated, All in all, this entire
case does not present a pretty picture in terms of the custody of
these children. In many respects the Court is forced to choose
between the lesser of two problematic situations. Nevertheless,
it was clear to the court that the children were adjusting well to
school and other activities while in their mother s care. Given
the expert testimony and documents bearing upon the custody of the
children and considering the testimony of the parties, including
their temperaments, personalities, and capabilities, the trial
court s decision was not against the manifest weight of the
evidence.
Respondent next argues that the trial court erred in allowing
the GALs to listen to telephone conversations between respondent
and his children that were recorded by petitioner. Respondent
alleges that the recordings violated the eavesdropping statutes
(720 ILCS 5/14--1 et seq. (West 1996)). Respondent contends that,
although the trial court properly barred the tapes from being
admitted as evidence, the tapes were nevertheless effectively used
as evidence, because the trial court allowed the GALs to use those
tapes to formulate their recommendations to the court. Respondent
asserts that allowing the GALs to use the allegedly illegally
obtained tapes prejudiced him.
Prior to trial, the trial court appointed Winthers as GAL for
the oldest child, C., for the limited purpose of determining if she
should testify at trial. Previously, petitioner recorded some of
respondent s telephone conversations with his daughters. C.
apparently told Winthers about the recordings made by petitioner of
telephone conversations between respondent and the children and
gave Winthers permission to listen to them. Thereafter, respondent
filed a motion to bar the use of the recorded conversations.
Respondent argued that the eavesdropping statute barred their use
as evidence (720 ILCS 5/14--5 (West 1996)). The trial court
ordered that no information derived from the tapes was to be used
in any way as evidence at trial and allowed Winthers to listen to
the tapes.
In his report, Winthers noted that, while the tapes did play
a role in formulating his report, he maintained the confidentiality
of the contents because of the court order barring the contents of
the tapes as evidence. After interviewing C., reviewing Dr. Dres
conciliation report, listening to three of the tapes, and
interviewing respondent and her sister, L., Winthers seriously
doubted C. s reliability in accurately reporting facts to the trial
court. He observed that much of the information C. knew about the
divorce was received directly from her father and that she seemed
to be programmed. Winthers felt that versions of certain
incidents which C. discussed with Winthers were markedly different
from the taped version. During his second interview with C., he
received quite different and more detailed facts concerning
incidents previously discussed. He concluded that C. should not be
permitted to have an in camera interview with the trial court.
After Winthers was dismissed, the court appointed Korstad to
be the GAL for the children during the custody hearing. She
requested permission to listen to the tapes. Korstad felt that, if
the children were being subjected to manipulation or undue
influence and if their credibility was in issue, it would be in the
best interests of the children to investigate this matter to the
fullest extent. The trial court granted her request, stating,
I think there is a fundamental difference between
something being admitted into evidence as direct evidence and
the GAL having access to information which may or may not be
the basis of any opinion that the GAL ultimately renders.
Obviously, people like conciliators, experts, GALs obtain
information in a lot of different places which may or may not
of its own be admissible directly into court.
I think she would be subject to cross examination with
regard to any bias or how much weight she gave to any
particular basis for any opinion, but I don t think that the
record in this trial would be tainted at this point in time by
allowing Miss Korstad access to these two tapes.
The trial court also allowed respondent s counsel access to the
tapes if she so requested. Respondent s counsel did not want to
listen to the tapes and there is no evidence that she requested to
do so. Korstad did not mention the tapes in her report, nor did
respondent point to testimony at trial in which the tapes were
discussed. Thus, there is no indication in the record that the
tapes or their contents were used as evidence at trial.
We first note that respondent assumes that the tapes were
recorded in violation of the eavesdropping statutes. He cites
Fears v. Fears, 5 Ill. App. 3d 610 (1972) and the eavesdropping
statutes for the proposition that evidence obtained in violation of
those statutes should not be admitted or relied upon at trial.
Further, petitioner argues that the recordings did not violate
those statutes, and therefore the trial court improperly barred the
tapes from being used as evidence at trial. We find these
arguments irrelevant here because, regardless of a violation,
neither the tapes nor their contents were used as evidence at trial
or relied on by the trial court. Moreover, as petitioner admits,
she was not harmed by the trial court s ruling since she prevailed
on the custody issue.
Even assuming arguendo that the trial court relied on the
tapes, we fail to find any prejudice. The trial court based its
finding on the expert testimony and documents as well as the
testimony of the parties, including their temperaments,
personalities, and capabilities. Respondent has merely asserted
the existence of prejudice without demonstrating how he was
prejudiced.
Further, if the contents of the tapes were so inflammatory as
to bias the GALs, respondent could have cross-examined them.
Contrary to respondent s assertion that the cross-examination of
the GALs concerning their personal bias would be impossible,
respondent could have made an offer of proof and introduced the
tapes for the limited purpose of proving bias. Such an offer would
have allowed this court the opportunity to assess any prejudice
allegedly arising from the tapes. Regardless, respondent chose not
to listen to the tapes, even though he was a party to the taped
conversations, and made no request to cross-examine the GALs. He
merely argued that the eavesdropping statutes render such material
inadmissible. Because he failed to act, he cannot now complain
that he was prejudiced. See In re Marriage of Pylawka, 277 Ill.
App. 3d 728, 734 (1996).
Respondent also appears to argue that because the tapes were
obtained in violation of the eavesdropping statutes no one should
be allowed access to them. However, this argument also is not
pertinent to the issue here. We are not concerned with whether the
GALs are liable for listening to the tapes.
To the extent respondent asserts that the GALs cannot consider
inadmissible evidence in forming their opinions, his argument is
baseless. Section 506 of the Marriage and Dissolution of Marriage
Act (750 ILCS 5/506 (West 1996)) requires the GAL to defend and
protect the best interest of the child whom he or she represents.
In discharging his or her duty, the GAL will review or consider all
kinds of information regarding the child, both admissible and
inadmissible at trial. Such information assists the GAL in
determining the existence of problems that might cause the child
psychological or physical harm. We fail to see any prejudice where
the GAL listens to information that may be inadmissible at trial.
Compelling reasons of public policy dictate that the GAL perform
duties essential to the health and welfare of the child whom the
GAL represents. See Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994).
Paramount among these is the GAL s duty to ascertain and defend the
child s best interests. Reviewing the tapes materially advanced
the GALs' ability to determine and defend the child s interests
here. Accordingly, we find that the trial court did not err in
allowing the GALs to listen to the tapes.
Respondent last contends that the trial court erred in
awarding $800 per month in child support. Respondent argues that
the evidence did not show his annual income was $40,000.
Respondent further maintains that the trial court erroneously
failed to deduct social security dependancy disability benefits as
well as taxes, insurance premiums, and union dues from his gross
income as required under section 505(a) of the Marriage and
Dissolution of Marriage Act (750 ILCS 5/505(a)(West 1996)).
Petitioner counters that it was unreasonable for the trial court to
set respondent s income at $40,000 and that his income should have
been set at $110,000.
Section 505(a) sets forth a number of relevant factors to be
considered by the court in determining child support. 750 ILCS
5/505(a)(West 1996). The amount of an award of child support is
within the trial court s discretion and will not be disturbed on
appeal absent abuse of that discretion. In re Marriage of
Clabault, 249 Ill. App. 3d 641, 651 (1993).
As a prerequisite to determining child support, the trial
court must first determine the noncustodial parent s net income.
750 ILCS 5/505(a)(1)(West 1996). If the present net income is
difficult to ascertain or uncertain, a court may consider past
earnings. In re Marriage of Olson, 223 Ill. App. 3d 636, 652
(1992). The credibility and forthrightness of the noncustodial
parent in disclosing income is a factor to be considered in
accepting evidence of net income. Olson, 223 Ill. App. 3d at 652.
The evidence reveals that respondent s income tax returns
showed that respondent earned $11,000 in 1993, and less than
$15,000 in 1994. Respondent also testified at trial that he earned
no money from Christina s, one of his family-owned restaurants, and
that his only source of income is from monthly social security
disability payments.
There was also evidence that respondent may have earned more
than the income reflected by his testimony. Respondent purchased
a conversion van for $30,618 in 1995. Further evidence showed that
respondent stated his income to be $110,000 on the credit
application for the van. Moreover, contrary to respondent s
testimony that total sales from Christina s were only $13,000 as of
June 16, 1996, there is evidence that Christina s realized total
sales of $79,137 as of that date. We agree with the trial court
that it was difficult to ascertain the exact amount of respondent s
income where respondent s financial statements appeared to misstate
his earnings and where there was conflicting testimony regarding
the income derived from his businesses. Under the circumstances,
we find that the trial court s assessment of respondent s income
was reasonable.
We note that petitioner did not cross-appeal from the award of
child support, and therefore she cannot argue that the trial court
should have assessed respondent s income at $110,000. In any
event, the trial court is in a better position to accept or reject
evidence of net income. We find that the trial court did not
abuse its discretion in finding that respondent s net income was at
least $40,000.
As to respondent s contention regarding the trial court s
failure to make appropriate deductions, the trial court stated that
it reached a net income amount of $40,000 after applying the
statutory guidelines relative to appropriate deductions for
purposes of determining net figures as well as the thirty-two
percent guideline for three minor children. The trial court
properly considered the guidelines under section 505(a) and made
the appropriate deductions in determining respondent s net income.
Accordingly, we do not find that the trial court abused its
discretion in awarding $800 per month in child support.
For the foregoing reasons, the decision of the trial court of
Du Page County is affirmed.
Affirmed.
BOWMAN and DOYLE, JJ., concur.