In re Marriage of Clark

616 N.E.2d 2, 246 Ill. App. 3d 479, 186 Ill. Dec. 335, 1993 Ill. App. LEXIS 955
CourtAppellate Court of Illinois
DecidedJune 29, 1993
DocketNo. 4-92-0908
StatusPublished
Cited by4 cases

This text of 616 N.E.2d 2 (In re Marriage of Clark) 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 Clark, 616 N.E.2d 2, 246 Ill. App. 3d 479, 186 Ill. Dec. 335, 1993 Ill. App. LEXIS 955 (Ill. Ct. App. 1993).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Petitioner appeals an order of the circuit court of Douglas County denying a petition for leave to remove a child from the State of Illinois, pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 609). At the close of petitioner’s case, respondent moved for judgment under section 2 — 1110 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110). This motion was allowed, and the petition to remove the child was dismissed. Petitioner contends the trial court’s decision was contrary to the manifest weight of the evidence. We affirm.

The parties were divorced in January 1988, and petitioner was awarded custody of the minor child, Chelsea (born May 7, 1984). She remarried in March 1990 and, until recently, lived in Sullivan, Illinois, with her new husband, Chelsea, and Amanda, a 13-year-old daughter by a prior marriage. Petitioner testified she became symptomatic of chronic respiratory disease in 1987. Currently, she suffers from chronic asthma, bronchitis, and allergies. She sought medical attention and listed a number of daily medications her physician had prescribed for her. The medication has so far failed to relieve her symptoms, which include shortness of breath, chronic coughing, and a burning sensation that radiates throughout her mid-chest. In addition to the medication, she uses an aerator for immediate bronchial dilation. Petitioner testified she smokes cigarettes.

In August 1991, petitioner vacationed in Tennessee and immediately noticed that her breathing problems disappeared. This vacation lasted eight days. The following year, in May 1992, they decided to vacation in Tennessee again and discovered that once again her respiratory problems disappeared. This second visit lasted six days. When she returned to Illinois, the scratchy throat and burning in her chest reappeared. According to her own personal observation, the atmosphere in Tennessee has less pollen, maintains less humidity, and the temperature is more stable. No evidence was presented to substantiate these observations.

A letter from her physician was admitted into evidence for the limited purpose of showing petitioner’s state of mind, i.e., she believes that she suffers from chronic respiratory ailments. The letter consists of a single sentence stating she suffers from chronic respiratory disease and that she should move from central Illinois. The letter gives no indication why a different State would be better, nor is there any suggestion as to where petitioner should move.

Petitioner’s new husband, Bert Davis, applied for work during the second vacation in Tennessee in May 1992. Afterward, in July 1992, petitioner was present during a conversation between Davis and his supervisor at Quantum Chemical Company (Quantum) in Tuscola, Illinois. The gist of the conversation was admitted solely for the purpose of showing petitioner’s state of mind regarding her new husband’s employment prospects with Quantum. Petitioner testified this conversation gave her the impression that her husband’s unit would be phased out and he was ninth from the bottom if Quantum decided to lay off workers. Davis did not seek employment anywhere else in Illinois but, sometime later in July 1992, he was offered a job in Tennessee. Once he was assured of the new job, he took early retirement from Quantum.

On July 31, 1992, a petition for removal was filed and, on August 4 or 5, 1992, petitioner moved her family to Whitwell, Tennessee — a distance of 463 miles from respondent’s residence. Petitioner attempted to get a hearing scheduled as soon as possible, but the earliest date available was August 28, 1992. She testified she meant no disrespect to the court by moving prior to the date of the hearing. She explained her husband needed to start work immediately and, if the petition was allowed, she wanted Chelsea enrolled in her new school right away. She testified she understood that if her petition was denied, she would be required to relocate back to Illinois.

In removal cases, the paramount question is whether the move is in the best interest of the child. The burden of proof is on the custodial parent. (Ill. Rev. Stat. 1991, ch. 40, par. 609(a).) Each case must be judged on its own unique set of facts. (In re Marriage of Davis (1992), 229 Ill. App. 3d 653, 660, 594 N.E.2d 734, 739.) Our supreme court identified five factors to consider in determining whether removal is in the child’s best interest: (1) the likelihood of enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the move; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46.) In addition, the court should be guided by the policy of the Act, as expressed in section 102(7), to “secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.” Ill. Rev. Stat. 1991, ch. 40, par. 102(7).

First, we consider the likelihood that the proposed move will enhance the general quality of life for the custodial parent. We have no doubt that petitioner suffers from respiratory illness. However, the severity of this illness and the likelihood that a move to Tennessee will offer long-term relief from her symptoms are unknown. No medical testimony was presented on the question of her health, and the letter from her physician was admitted for the sole purpose of establishing her own state of mind. Even were we to accept this letter as proof of her medical condition, the letter offers no proof that a move to Tennessee would be beneficial. On this issue, the trial court was asked to rely on the mere opinion of petitioner that her physical condition will improve in Tennessee. No competent evidence was presented that would tend to establish a difference between the atmosphere and vegetation of central Illinois and the State of Tennessee.

There is also no evidence that petitioner’s standard of living will improve. Petitioner offered no proof of her husband’s salary at his new job, nor did she indicate that it would pay better than any job available in Illinois. It is significant to note that her husband applied for the job in Tennessee prior to being told of a possible layoff in Illinois. We also note the fact that he never sought other employment in Illinois.

Next, we address the most significant issue before the court — the benefit to the child. Petitioner testified that Chelsea appeared to have symptoms of a chronic sinus condition. Her eyes were oftentimes red and puffy, and she would become puffy across her nose and cheekbones as well. She also complains of headaches. All these symptoms seem to disappear in Tennessee. The record gives no indication that she has sought medical attention for these symptoms, and no medical testimony was offered to prove the severity of her illness or the likelihood that a move to Tennessee would provide long-term benefits.

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Bluebook (online)
616 N.E.2d 2, 246 Ill. App. 3d 479, 186 Ill. Dec. 335, 1993 Ill. App. LEXIS 955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-clark-illappct-1993.