In Re Marriage of Herkert

615 N.E.2d 833, 245 Ill. App. 3d 1068, 186 Ill. Dec. 29, 1993 Ill. App. LEXIS 890
CourtAppellate Court of Illinois
DecidedJune 17, 1993
Docket4-92-0832
StatusPublished
Cited by12 cases

This text of 615 N.E.2d 833 (In Re Marriage of Herkert) 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 Herkert, 615 N.E.2d 833, 245 Ill. App. 3d 1068, 186 Ill. Dec. 29, 1993 Ill. App. LEXIS 890 (Ill. Ct. App. 1993).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Petitioner Steve Herkert appeals an order of the circuit court of Jersey County granting a motion for court approval to remove minor children from Illinois, under section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (111. Rev. Stat. 1991, ch. 40, par. 609(a)). He also appeals the trial court’s denial of his petition for rule to show cause, requesting the court to hold his ex-wife in contempt for her failure to allow petitioner visitation with his two children. We affirm.

Steve Herkert and Lisa Herkert (now Fitzpatrick) were divorced for the second time on December 11, 1990. They received joint custody of their children, Stephanie (born March 28, 1979) and Christine (born January 6, 1981), with primary custody awarded to Lisa. The dissolution proceedings have been highly antagonistic, with repeated court appearances to enforce particular provisions of the agreement. The parties came to the conclusion that the two children, Stephanie and Christine, were adversely affected by this continuing litigation. As a result, on December 20, 1991, both parties signed an agreement to withdraw all pending motions and resolve future disputes within the terms of the joint-parenting agreement previously entered.

During the hearing in the case at hand, both parties were required to limit testimony to events occurring after this agreement had been signed. The intent was to avoid, to the extent possible, relitigating past behavior of the parties that gave rise to the various disputes. Also as a result of this agreement, a psychologist’s evaluation of the family, ordered prior to December 20, 1991, was not considered in these proceedings. However, the psychologist who prepared this report was called as a witness and her testimony admitted. Facts are as follows.

Lisa had remarried and lived in Jerseyville, Illinois, with her husband, Paul Fitzpatrick. In addition to the Herkert children, they also support a six-year-old girl and a nine-week-old infant. Lisa has been on furlough from her job as a flight attendant with Trans World Airlines (TWA) and is currently unemployed. Her new husband has been searching for a year and has been unable to find full-time employment in the Jerseyville area. He is currently working part-time as a bartender. Lisa estimates they are $12,000 in debt (not including accumulated attorney fees), and her husband testified that his current income is insufficient to meet family expenses.

Lisa was recently recalled to TWA and, in order to avoid falling even further into debt, Lisa' requested she be allowed to move the family to Plain view, New York. If allowed to live in New York, she could resume her position with TWA and be assigned “turnarounds,” round-trip flights that would allow her to return home each night after work to care for her children. Her only alternative is to resume work in St. Louis, where her lack of seniority would force her to be-away from home as much as 20 days out of each month.

Her husband, Paul, currently worked as a bartender, making approximately $200 per week. He received no health or other insurance benefits. His parents had agreed to allow him to move his family into their home in Plainview, New York, where they could live at almost no cost. Furthermore, his father had told him he had a job waiting for him with the Treasurer’s and Ticket Seller’s Union, paying $24 per hour and offering some benefits. The home has a finished basement which includes two bedrooms, a large living room area, and a large area for another bedroom. They would have their own bathroom and full use of the upstairs of the house. Paul’s mother currently worked part-time, but she would be leaving this position to care for the newborn while Lisa is at work.

Steve contends that he would lose his father-daughter bond if the children were allowed to be removed to New York. Steve testified that he loves and cherishes his children, saying they mean everything to him. Unfortunately, both his daughters are currently estranged from their father. At an in camera hearing, the girls testified they would rather not participate in court-ordered visitation with their father. Prior visitations had resulted in . Steve losing his temper, yelling and screaming at the children about how he was going to take their mother back to court and how this time he was going to win. The children were seeing him every other weekend, and this behavior occurred almost every time. Sometimes he would have the children sit down to read articles about men’s rights that he had collected from magazines and newspapers. Afterward, he would talk to them about how he was going to win in court. Both children described his attitude during these spells as violent in nature. He told the children that their mother was in contempt, which led the girls to believe that their mother would go to jail.

When asked how she felt about her dad, Christine responded that she was “kind of mad at him, because *** he wants to just have revenge on mom because she remarried.” Stephanie was asked if she might change her mind about her father if he promised not to raise his voice and talk about divorce matters. She replied that she doubted he would be able to do that.

Stephanie was asked whether her father had done anything to make them afraid, other than raising his voice. She responded he had disciplined them a few years ago by knocking their heads together. On another occasion, he allegedly disciplined Christine on the rear with a razor strap. They also described an occasion when he scared Christine about how easily she could catch the “AIDS” virus. Christine mentioned that if her father drinks, he gets violent. She also mentioned that she was afraid she would get in trouble if she called her mother on the telephone during visitation with her father.

In describing their relationship to their father, the girls told of an incident prior to the divorce where, in the midst of an argument with Lisa, he told Stephanie she might not really be his daughter. He apparently kept asking the girls to pick which parent they wanted to live with, saying he would respect their answer. He then asked which parent they loved the most. They both picked their mother and he apparently replied he did not care what they said, he would still fight for them.

The children both testified they would like to move to New York. They visited Plainview on two prior occasions and described the town as similar to Jerseyville. They said there was a lot to do in Plainview and they thought it would be fun. When asked about the friends she would leave behind, Stephanie said she would miss them but was unconcerned because she would be able to see them every summer during visitation. When asked how they felt about not seeing their father as often, both children replied that it would be okay. Both girls were aware of the fact that they might not be able to change their minds after they moved. The trial court observed that both children are articulate and mature beyond their years. They clearly stated their desire to move to New York.

In October 1991 (prior to the December 20, 1991, agreement), Steve called the girls to discuss visitation. When Christine told him she did not want to go, he allegedly began yelling at her until she was reduced to tears.

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615 N.E.2d 833, 245 Ill. App. 3d 1068, 186 Ill. Dec. 29, 1993 Ill. App. LEXIS 890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-herkert-illappct-1993.