In Re Marriage of Krivi

670 N.E.2d 1162, 283 Ill. App. 3d 772, 219 Ill. Dec. 274, 1996 Ill. App. LEXIS 709
CourtAppellate Court of Illinois
DecidedSeptember 19, 1996
Docket5-93-0593
StatusPublished
Cited by24 cases

This text of 670 N.E.2d 1162 (In Re Marriage of Krivi) 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 Krivi, 670 N.E.2d 1162, 283 Ill. App. 3d 772, 219 Ill. Dec. 274, 1996 Ill. App. LEXIS 709 (Ill. Ct. App. 1996).

Opinions

JUSTICE WELCH

delivered the opinion of the court:

The respondent, Joseph C. Krivi, appeals from a judgment of dissolution entered by the circuit court of Jefferson County. Petitioner, Jan M. Krivi, and respondent were married on April 13, 1985. The parties, who resided in Mt. Vernon, Illinois, had two children together. Julia L. Krivi was born July 9, 1987, and Jenna L. Krivi was born November 14, 1988. Respondent is also the father of Justin Krivi, who lived with the parties during the entire time of their marriage. Petitioner is a registered nurse with a certified occupational therapist certificate. Respondent, who holds a bachelor’s degree in educational training and development, is employed as an assistant electric superintendent with Illinois Power. On February 16, 1991, petitioner left Mt. Vernon and took Julia and Jenna to Minnesota. Petitioner has remained in Minnesota and is now remarried.

On April 11, 1991, petitioner filed a petition for dissolution of marriage in the circuit court of Jefferson County. On April 6, 1992, the trial court entered an order dissolving the parties’ marriage. On April 29, 1993, the trial court entered a final judgment that, inter alia, awarded custody of the children to petitioner, approved petitioner’s removal of the children to Minnesota, granted respondent visitation rights, awarded petitioner temporary maintenance, ordered respondent to pay child support in the amount of $381.15 every two weeks, and ordered respondent to pay petitioner’s attorney fees in the amount of $19,088.19.

On May 24, 1993, the trial court entered two amended qualified domestic relations orders relating to petitioner’s interest in respondent’s retirement and savings plans. On June 1, 1993, respondent filed a petition to vacate, modify, or reconsider the final judgment and the amended qualified domestic relations orders. On August 2, 1993, the trial court entered an order amending the final judgment with respect to visitation; however, the trial court denied respondent’s post-trial motion in all other respects.

Respondent raises the following issues on appeal: (1) whether the trial court erred in approving petitioner’s removal of the children to Minnesota; (2) whether the trial court erred with respect to the issues of custody and visitation; (3) whether the trial court erred in ordering respondent to pay $19,088.19 of petitioner’s attorney fees; (4) whether the trial court erred in apportioning respondent’s pension benefits; and (5) whether the trial court erred in its distribution of marital property.

Because a great deal of evidence and testimony were presented in the trial court, we will set forth only those facts necessary to an understanding of this court’s decision. Relevant facts will be discussed in the analysis of the issues to which they are pertinent.

I. REMOVAL OF THE CHILDREN TO MINNESOTA
"With the increased number of parents who are divorced and the increasing mobility of society, divorced or legally separated custodial parents frequently seek to move out of the jurisdiction that granted the divorce to another jurisdiction.” H. Gitlin, Gitlin On Divorce § 12.00, at 265 (1995).

Illinois law provides that a court may allow a child to be removed from the State of Illinois when such removal is in the best interest of the child. 750 ILCS 5/609(a) (West 1992); In re Marriage of Young, 263 Ill. App. 3d 901, 903, 636 N.E.2d 1092, 1094 (1994); In re Marriage of Branham, 248 Ill. App. 3d 898, 902, 617 N.E.2d 1317, 1320 (1993). The burden of proving that removal is in the best interest of the child is on the party seeking removal. 750 ILCS 5/609(a) (West 1992); In re Marriage of Deckard, 246 Ill. App. 3d 427, 430, 615 N.E.2d 1327, 1330 (1993); In re Marriage of Davis, 229 Ill. App. 3d 653, 660, 594 N.E.2d 734, 739 (1992). The Illinois Supreme Court has identified five factors to consider in determining whether removal is in the child’s best interest: (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the removal; (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, 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46 (1988).

In addition to the factors enumerated in Eckert:

"[A] trial court’s examination of a removal petition should be guided by the policy of the Illinois Marriage and Dissolution of Marriage Act in custody matters, which states, inter alia, that the purpose of the Act is 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.’ ” Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046, quoting Ill. Rev. Stat. 1985, ch. 40, par. 102(7) (now 750 ILCS 5/102(7) (West 1992)).

A trial court’s determination regarding removal should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. Notwithstanding the fact that a trial court has broad discretion in removal cases, that discretion is not unlimited, and when the decision is against the manifest weight of the evidence, it will be reversed. Davis, 229 Ill. App. 3d at 660-61, 594 N.E.2d at 739. Our analysis of the Eckert factors leads us to conclude that petitioner failed to prove that moving the children to Minnesota, some 850 miles away from their father, was in their best interests. As a result, the trial court’s decision granting removal was against the manifest weight of the evidence and must therefore be reversed. To hold otherwise would result in manifest injustice.

We will examine each of the Eckert factors in light of the evidence adduced in this case. There is no evidence that the move to Minnesota enhanced the quality of life for petitioner or the children. Petitioner testified that there was not any financial reason for her to leave Mt. Vernon. She did not leave Mt. Vernon for a better job in Minnesota. Petitioner’s job in Mt. Vernon was comparable to her present job in Minnesota. Furthermore, petitioner testified that her home in Mt. Vernon was adequate for the children’s needs, that the children were "basically” happy in Mt. Vernon, that the children had friends in Mt. Vernon to play with, that there were adequate babysitting arrangements in Mt. Vernon, and that the children could receive adequate care, housing, training, and opportunity in Mt. Vernon.

Petitioner also stated that she would be willing to return to Mt. Vernon in order to keep custody of the children and that there was nothing to prevent her from moving back to Mt. Vernon.

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Cite This Page — Counsel Stack

Bluebook (online)
670 N.E.2d 1162, 283 Ill. App. 3d 772, 219 Ill. Dec. 274, 1996 Ill. App. LEXIS 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-krivi-illappct-1996.