In Re Marriage of Ballegeer

602 N.E.2d 852, 236 Ill. App. 3d 941, 176 Ill. Dec. 906, 1992 Ill. App. LEXIS 1710
CourtAppellate Court of Illinois
DecidedOctober 21, 1992
Docket3-92-0002
StatusPublished
Cited by8 cases

This text of 602 N.E.2d 852 (In Re Marriage of Ballegeer) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Ballegeer, 602 N.E.2d 852, 236 Ill. App. 3d 941, 176 Ill. Dec. 906, 1992 Ill. App. LEXIS 1710 (Ill. Ct. App. 1992).

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

Sandra Kay Dey appeals from an order of the circuit court of Henry County denying her petition to remove her minor son, Joshua, from Iowa to Colorado. The circuit court denied the petition for removal, finding that the best interests of the child would be better served if he lived in an area closer to his father, David G. Ballegeer, and his extended family. We reverse the circuit court’s decision.

The record shows that the parties’ marriage was dissolved on July 8, 1986. Joshua was two years old at that time, and the parties agreed that Sandra would have sole custody and control of him. David was granted visitation on every Wednesday night, on alternating weekends and holidays, and for two weeks in the summer.

On February 17, 1987, Sandra filed a petition seeking permission to move with Joshua to Davenport, Iowa. The trial court, noting that the parties agreed that she could move, granted her petition. It also noted that jurisdiction would remain with the courts of Illinois.

On August 30, 1991, Sandra filed a petition seeking to remove Joshua to Colorado. David objected and filed a petition seeking modification of custody. The court then held a consolidated hearing on both petitions.

The evidence from the hearing showed that prior to her petition, Sandra was employed as the warehouse manager for Aspen Distributing in Bettendorf, Iowa. She lived with her new husband, Steven Dey, his 15-year-old son, and their 3-year-old - daughter. Early in 1991, Sandra learned that Aspen Distributing was shutting down its Iowa operations. At that time she searched the area for other comparable employment; however, she was unable to find any. Following the plant’s closing on July 15, 1991, Sandra was offered a position with the company’s corporate headquarters in Denver, Colorado.

After careful consideration of the factors involved, Sandra decided to accept the offer because it involved moving to a larger metropolitan area which would provide greater cultural opportunities. In addition, it provided her with a substantial salary increase and improved her chances for advancement within the company. She conceded that she would be living a great distance from other family members. However, she was willing to allow David liberal visitation rights.

Because of the short time given for accepting the position and the need to enroll Joshua in a school, Sandra moved to Colorado prior to the completion of the proceedings on the motion to remove Joshua from the State. Sandra testified that Joshua had received good grades in his new school and had adjusted well to the move. The new neighborhood had a number of children Joshua’s age, and he had made several friends.

David testified that he wanted Joshua to remain in Illinois and live with him. He stated that he lived on a farm and operated a trucking and excavating business. He noted that he had also remarried and his wife, Robin, was very attached to Joshua. He also stated that since his divorce he has never missed a weekend visit with Joshua and has missed only two Wednesday visitations. When Joshua visited, the two of them would do the farm chores together, go to sales, and go boating.

David also testified that his parents, as well as Sandra’s parents, live near him. He stated that Joshua is close to both sets of his grandparents and would be able to visit them frequently if Joshua was allowed to live with him. He also noted that Joshua has aunts, uncles, and cousins his own age who also live in the area. Finally, he pointed out that both sides of the families get together for birthday and holiday celebrations which Joshua would miss out on if he lived in Colorado.

Other evidence showed that seven-year-old Joshua was interviewed by the trial judge in chambers. The judge found him to be an intelligent and sharp child who expressed a preference to live with his father so he could play on the farm and help his dad do chores. Finally, the record shows that the guardian ad litem recommended that Joshua be allowed to live "with David because Joshua would lose contact with extended family members if he was allowed to move to Colorado.

Based on this evidence, the trial judge found that both parties were decent and proper parents. He also found that Sandra’s move was appropriate and not designed to frustrate David’s visitation rights. In fact, he noted that he would have made the same decision Sandra had. However, the judge found that it was in Joshua’s best interest to remain in Illinois because of his connection to his extended family. As such, he denied Sandra’s petition and granted David’s petition for change of custody.

On appeal, we initially find that the trial court improperly addressed the two petitions. We note that the petitions involved are governed by different sections of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.) and involve different standards of proof and evidence.

Here, Sandra filed a petition to remove, which is governed by section 609 of the Act. Under that section, the burden is on the petitioner to show that removal of the child is in the child’s best interest. The factors used to determine the best interest of the child are set forth in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

In Eckert, the court stated that a trial court should consider the proposed move in terms of the likelihood the move will enhance the general quality of life for the child and the custodial parent. In addition, it should consider the custodial parent’s motives in seeking removal and the motives of the noncustodial parent in resisting the move. Furthermore, since it is in a child’s best interest to have a healthy and close relationship with both parents as well as other family members, the court should consider whether a reasonable visitation schedule could be reached if the move were allowed. In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.

In response, David filed a petition for change of custody. Such a petition is governed by section 610(b) of the Act, which provides in relevant part:

“The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment *** that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child. *** The court shall state in its decision specific findings of fact in support of its modification or termination of joint custody if either parent opposes the modification or termination.” (Ill. Rev. Stat. 1991, ch. 40, par. 610(b).)

David’s petition was predicated upon Sandra’s move to Colorado.

The court allowed both petitions to be consolidated into one hearing. Problems in such consolidated hearings have arisen in the past. (See, e.g., In re Marriage of Gratz (1989), 193 Ill. App.

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Bluebook (online)
602 N.E.2d 852, 236 Ill. App. 3d 941, 176 Ill. Dec. 906, 1992 Ill. App. LEXIS 1710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-ballegeer-illappct-1992.