In Re Marriage of Davis

594 N.E.2d 734, 229 Ill. App. 3d 653, 171 Ill. Dec. 590, 1992 Ill. App. LEXIS 846
CourtAppellate Court of Illinois
DecidedJune 4, 1992
Docket4-91-0624
StatusPublished
Cited by18 cases

This text of 594 N.E.2d 734 (In Re Marriage of Davis) 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 Davis, 594 N.E.2d 734, 229 Ill. App. 3d 653, 171 Ill. Dec. 590, 1992 Ill. App. LEXIS 846 (Ill. Ct. App. 1992).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Petitioner Colleen Davis Sample filed a petition in the circuit court of Macon County, asking for permission to remove the parties’ minor child Melissa to the State of Georgia. Her former husband, respondent Lynn Davis, objected, and a hearing was held on the petition. The trial court granted the petition and modified respondent’s visitation with Melissa. His motions for reconsideration and to vacate the judgment were denied, and he now appeals.

Petitioner and respondent were divorced in 1989. They have three minor children, Patrick, Matthew, and Melissa. At the time of the hearing on the petition to remove, Patrick was 14 years old, Matthew was 13, and Melissa was 6. Custody of all three children was awarded to petitioner, subject to respondent’s visitation.

In May 1990, the parties entered into a stipulation whereby custody of Patrick and Matthew was transferred to respondent, subject to petitioner’s right of reasonable visitation. Melissa continued to reside with petitioner. Respondent’s child-support obligation was terminated by agreement. In June 1990, respondent filed a petition for adjudication of civil contempt, charging petitioner had denied him visitation with Melissa. He also filed a petition to modify the judgment of dissolution, asking for additional visitation with Melissa in order to allow her to spend more time with her brothers. In August 1990, the trial court entered an order granting respondent additional visitation with Melissa. Visitation was granted on alternating weekends, for half of Melissa’s Christmas school vacation and half of the Easter school vacation, alternating holidays and alternating birthdays, a half day during each week, and three weeks during the summer. This was respondent’s visitation schedule at the time of the hearing on petitioner’s petition to remove. The modification order also provided that respondent would be allowed to make phone calls to Melissa. However, he was ordered not to harass petitioner or make disparaging remarks to Melissa during the phone calls. The trial court made no findings with respect to respondent’s petition for contempt, and the record contains no order disposing of that petition.

In April 1991, petitioner filed her petition to remove Melissa to Georgia, alleging that she was engaged to be married, her prospective husband was employed in Georgia, and he had rented a house there with an option to purchase it. She further alleged she was a licensed practical nurse (LPN) and had arranged for job interviews in Georgia. In count II of the petition, petitioner asked for modification of the judgment of dissolution of marriage, changing the visitation of both parties with the minor children to accommodate her proposed move to Georgia. She proposed that she have visitation with Patrick and Matthew for the first half of the summer and, at the end of that period, Melissa would return to Illinois with the boys for visitation with respondent. Melissa would remain in Illinois until the end of her summer vacation from school. Petitioner proposed that respondent pay for Melissa’s transportation to Illinois and back to Georgia, and that petitioner pay for the boys’ transportation to Georgia and their return to Illinois. Petitioner also proposed continuing to split the children’s Christmas vacations, with the children to be together during these periods.

Respondent filed no formal response to the petition. However, at the hearing on the petition on May 1, 1991, it was clear that respondent objected to the removal of Melissa from Illinois.

Petitioner testified at the hearing that she resided in Argenta, Illinois, and worked at a pharmacy as a technician. She has an LPN license; however, this was not required in her current employment. She earned $7.75 per hour for 40 hours per week. She and Melissa lived in a three-bedroom house, which she owned subject to a mortgage. She had been dating her fiance Allen Sample for 18 months and had been engaged to him for six months. Their wedding date was June 29, 1991. If allowed to take Melissa to Georgia, they would be moving in July. Sample had rented a three-bedroom house in Washington, Georgia, with an option to purchase. It was comparable to the house she and Melissa had in Argenta. Melissa would have her own bedroom. The house was on four acres of land located in a rural area. There was a public and private school there. Melissa would be in first grade when the new school year began. Petitioner had interviewed for a position in Augusta, Georgia, where she could work full-time as an LPN. Since Augusta was an hour’s drive from Washington, however, she would prefer to work in Washington, where she had interviewed for two jobs. She could work at either place as an LPN. At Wills Memorial Hospital (Wills Memorial), she would be making $8 to $8.50 per hour, with hours from 3 p.m. to 11 p.m., either full-time or part-time four days per week. Petitioner testified she might take a part-time position so that she could be home more with Melissa. At Washington Dialysis Facility, Inc. (Washington Dialysis), her hours would be 7 a.m. to 5 p.m., and her salary would be at $9 per hour, with increases at three months and again at six months. To substantiate these statements, petitioner produced letters from the two prospective employers. They were admitted into evidence without objection from respondent. The letter from Wills Memorial, signed by the director of nursing, stated petitioner had been interviewed for an LPN position and that the director would offer her a position there, pending reference checks and petitioner’s license application to the Georgia Board of Nursing. The letter stated the salary would be $8.50 to $8.75 per hour, with shift differentials available. The letter further stated there were two positions open: full-time Monday through Friday 3 p.m. to 11 p.m., and part-time every other weekend from 7 a.m. to 7 p.m. The letter from Washington Dialysis merely stated petitioner had completed an application for an LPN position there and that she was being considered for this position if it was still open in July.

Upon cross-examination, petitioner admitted that there was a period of time after the boys went to live with respondent that she denied him visitation with Melissa. If she worked the 3 to 11 p.m. shift, Allen would watch Melissa during her work hours, or she would hire a baby-sitter until Allen returned home from work. She worked from 9 a.m. to 5 p.m. at her present job. Melissa stayed with a baby-sitter in Argenta, except that she was with her father on Wednesday mornings. Petitioner testified she could find work as an LPN in Decatur if she wanted, but she did not know what she would be paid. When she worked for a hospital three years ago, she made $7.10 per hour. She had worked as an LPN in Mt. Zion at a nursing home making $7.75 per hour and in a doctor’s office for $7.75 per hour. She was fired from the job at the doctor’s office because of her job performance.

Petitioner also testified that since the divorce there had been some problems with comments respondent had made to the children about her. Respondent had at times been hostile and verbally aggressive with her, and she had at times reciprocated. She stated that she had no intention of trying to sever respondent’s relationship with Melissa.

Allen Sample testified that he had resided in Washington, Georgia, for approximately 90 days.

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Cite This Page — Counsel Stack

Bluebook (online)
594 N.E.2d 734, 229 Ill. App. 3d 653, 171 Ill. Dec. 590, 1992 Ill. App. LEXIS 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-davis-illappct-1992.