In Re Marriage of Kutinac

538 N.E.2d 862, 182 Ill. App. 3d 377, 131 Ill. Dec. 487, 1989 Ill. App. LEXIS 637
CourtAppellate Court of Illinois
DecidedMay 5, 1989
Docket2 — 88—0955
StatusPublished
Cited by10 cases

This text of 538 N.E.2d 862 (In Re Marriage of Kutinac) 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 Kutinac, 538 N.E.2d 862, 182 Ill. App. 3d 377, 131 Ill. Dec. 487, 1989 Ill. App. LEXIS 637 (Ill. Ct. App. 1989).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Thomas Kutinac appeals from an order of the circuit court of Lake County granting the petition of his former wife, Janice, to remove their two minor children, Christopher and April, to Florida. On appeal, Thomas raises the following issues: (1) that Janice failed to set forth a prima facie case that removal was in the best interests of the children; (2) that the trial court’s decision to grant the petition for removal was against the manifest weight of the evidence; and (3) that the trial court erred by refusing to strike two letters attached to a conciliation services report. We reverse.

Janice has not filed a brief with this court. The record is brief, however, and the issues raised can easily be decided without the aid of the appellee’s brief. We shall therefore fully review the merits of this appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Furthermore, the interests of justice would dictate such a course since the interests of the children are at stake.

The circuit court entered a judgment dissolving the marriage of the parties on December 19, 1980. Under the terms of a marital settlement agreement incorporated into the judgment, Janice received sole custody of the children. On August 11, 1987, the trial court entered an agreed order modifying some of the terms of the judgment of dissolution. The agreed order stated that Janice and Thomas would have joint custody of the children, with Janice having physical custody. On August 31, 1987, Janice filed a petition for leave to remove the children to Florida. The parties attempted to resolve the matter through mediation but their efforts failed. The trial court held a hearing on the petition on August 31, 1988. At the time, April was 9 years old and Christopher was 10.

Ellen Wcislo testified that she was a program supervisor for the Lake County special education district. According to Wcislo, Christopher was in the special education program because of a learning disability and had been enrolled in the program since he was six or seven. Parents of children in the program were expected to come in for at least three meetings per year in order to review the progress of their child. Janice came in for more than three meetings per year while Thomas had only attended one meeting.

Dorothy Doerle testified that she was a friend of Janice and that Janice had epilepsy. According to Doerle, Janice did not own a car and did not have a driver’s license. Janice traveled by bicycle or bus and did not go out during winter if it was too cold.

Janice testified that she resided with her children in Grayslake. Between 1982 and 1987, Thomas, who resided in Ingleside, exercised his visitation rights about once every five weeks. After the joint custody order was entered, he only exercised his visitation rights once every 21k months. Thomas would also see the children briefly when he went to Janice’s home to drop off child support or insurance payments. According to Janice, Thomas seldom went with the children to activities such as soccer or religious education classes.

Janice wanted to move with the children to Clearwater, Florida. One of the reasons was that it would be easier to get around because of the climate. Her Illinois driver’s license had been taken away because she had been involved in three accidents. Janice did not wish to attempt to get a new license until she was positive her epileptic seizures were under control. Janice stated that she and the children did much of their traveling by bicycle, but it was very difficult to ride a bicycle during the winter months. She also traveled by bus sometimes, but had to travel over a mile to catch the bus. During winter, she had to get rides to the store from her sister and neighbors. If her children could travel to activities on their bicycles, they would do so, and Janice would often go with them. Otherwise, she would have to arrange rides for the children from neighbors or her sister. It would be easier to live in a warmer climate, according to Janice, because she could still ride her bicycle in the winter months. Janice also had been told by a Clearwater Chamber of Commerce representative that the town had excellent bus service.

Another reason for the move was to relieve stress. Janice had noticed that she tended to suffer seizures more often when she was aggravated or suffering from stress. She felt that moving to Florida would greatly resolve her transportation problems, causing her to suffer less stress. She stated that she was taking medication and had not had any seizures for the past 14 months.

Janice also testified that both of her children were hearing-impaired, with Christopher suffering a more serious impairment. She stated that Christopher frequently had ear infections, especially during the winter. Janice testified that he tended to suffer the infections when he went out in cold weather without having his ears covered. During the past winter, Christopher had suffered about two ear infections per month lasting approximately two to seven days apiece. Christopher’s ear problems were more serious in the winter than in the summer. He had an operation in May 1987 to have tubes inserted into his ears.

Janice stated that if she were permitted to move to Florida, she would do nothing to hinder Thomas’ visitation rights. She admitted on cross-examination that she had not investigated the availability of public transportation in nearby Illinois cities and counties. She also stated that she knew only three people in Clearwater, a friend named Bonnie Grosses and Grossos’ parents.

Thomas loved the children, according to Janice, but she did not understand why he was not willing to attend more activities with them. She stated that on some occasions when the children called Thomas to ask if they could spend the night with him, he told them he had more important things to do. Thomas did give the children presents on their birthdays and holidays. Janice testified that the children were generally excited about the proposed move, although Christopher did cry about it once after returning from his father’s home.

The trial court denied Thomas’ motion for a directed finding after Janice rested her case. Thomas testified that he saw the children almost every weekend during the past year. He also saw them often during the week. Thomas tried to help Janice and the children with transportation, although he could not always do so when he was assigned to work evening shifts. Thomas felt that he had a close relationship with the children. He stated that the children told him they did not wish to move because they would miss him and their friends in Grayslake.

Thomas testified that he had lived with Janice off and on for the past eight years. He stated that he lived with her and the children from November 1987 until February 1988 and lived with her off and on from October 1986 until March 1987. Thomas stated that he saw Janice have a seizure in late 1987 or early 1988. He also testified that he was on the phone with April about two weeks before the hearing and April told him that Janice was having a seizure.

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Bluebook (online)
538 N.E.2d 862, 182 Ill. App. 3d 377, 131 Ill. Dec. 487, 1989 Ill. App. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kutinac-illappct-1989.