concurring in part and dissenting in part:
I concur with the holdings and analysis of the majority on all issues except its decision to remand for a new hearing. I would reverse the finding of contempt without ordering another hearing to be conducted.
In deciding whether a new contempt hearing is necessary, the court should look to the purpose and character of the sanction imposed by asking “ ‘what does the court primarily seek to accomplish by imposing sentence?’ ” (People v. Doherty (1988), 165 Ill. App. 3d 630, 634, 518 N.E.2d 1303, quoting Shillitani v. United States (1966), 384 U.S. 364, 370, 16 L. Ed. 2d 622, 627, 86 S. Ct. 1531, 1535.) A sanction for civil contempt is prospective in nature and primarily intended to compel a contumacious party to comply with the court’s order for the benefit of another party. (People v. Doherty, 165 Ill. App. 3d 630, 518 N.E.2d 1303.) Thus, civil contempt is coercive in nature rather than punitive. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167; Blankenship v. Blankenship (1978), 63 Ill. App. 3d 803, 380 N.E.2d 1165 (contempt proceeding against father for failing to return 16-year-old child to mother after visitation is civil in nature).
Here, the contempt hearing was held two years ago. At that time, the court wished to compel petitioner to produce the children for therapy and visitation with respondent. Nathan is now 19 years old and can no longer legally be forced to see his father. Arielle is nearly 17 years old. Notably, at oral arguments this court was informed that Arielle went on one additional visit with her father. During that visit, she ran away from South Bend and returned to Chicago. In practical terms, it is doubtful that Arielle can be forced to see her father.
In my opinion, at this late date the court’s attempts to compel petitioner to force the children to see their father has become moot. Holding another contempt hearing at this point in time would be meaningless. It does nothing more than impose further burdens on the already strained financial and emotional resources of the parties and their children, and on the resources of the trial court and any court hearing the case in subsequent appeals.
Moreover, the purpose of the hearing would be to permit petitioner to introduce medical evidence by psychiatrists regarding the children’s condition in August 1989. As the majority stated, the accused must be allowed to offer evidence in her own behalf. (People v. Stafford (1970), 118 Ill. App. 2d 453, 255 N.E.2d 17; Allendorf v. Daily (1958), 17 Ill. App. 2d 493, 150 N.E.2d 665.) If, however, petitioner has already shown through the evidence she presented that no willful contempt occurred, the additional hearing has little meaning.
Predicated on the following, I would find that the record does not reveal willful disobedience by petitioner of the court order requiring the children to go to therapy with Dr. Crivolio.
Notably, the trial judge failed to include in the order a finding of “willful” violation. See In re J.L.D. (1989), 178 Ill. App. 3d 1025, 1033, 534 N.E.2d 190 (indirect criminal contempt order reversed where order fails to find willful violation and record did not substantiate finding of willful violation); Janov v. Janov, 60 Ill. App. 2d 11, 15, 207 N.E.2d 691 (contempt order must in fact find that failure to comply with divorce decree was willful).
Furthermore, in support of my finding that any contempt here was not willful, I point to the erroneous bases of the trial court’s decision. For example, when it found petitioner in contempt, the court relied on certain alleged visitation abuse relating back to April 1988. This was error, where evidence regarding visitation abuse related to petitions other than the therapy-related petition which was at issue in the contempt charge. Moreover, as to the petitions relating to visitation abuse, petitioner had not yet had the opportunity to present any evidence in her defense. The only hearing which was completed at the time of the contempt charge was the hearing regarding the therapy-related petition.
The court also found a basis for contempt in that the children were supposed to be in “intensive therapy.” However, the children were inpatients in a psychiatric hospital setting, the most intensive therapeutic setting possible. Although this was not with Dr. Crivolio’s participation, the therapy was much more likely to be beneficial to the children where they voluntarily chose to be committed to the psychiatric hospital. (Interestingly, petitioner had invited respondent to participate in the hospital setting, but respondent refused.)
Finally, the court found petitioner in contempt based on the children’s prior testimony that they wanted to “get out of” visitation. This is not a sufficient basis to find petitioner in willful contempt.
Thus, the bases of the court’s finding of contempt reveal that the manifest weight of the evidence does not support a finding of willful contempt. In view of this evidence, I see no reason to remand the cause for a rehearing on the contempt petition in question in order to permit petitioner to supply even more evidence in her behalf.
For these reasons, I would reverse the finding of contempt and I would not remand for a new hearing.