In Re Marriage of Main

838 N.E.2d 988, 361 Ill. App. 3d 983, 298 Ill. Dec. 95
CourtAppellate Court of Illinois
DecidedNovember 10, 2005
Docket2-05-0748
StatusPublished
Cited by11 cases

This text of 838 N.E.2d 988 (In Re Marriage of Main) 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 Main, 838 N.E.2d 988, 361 Ill. App. 3d 983, 298 Ill. Dec. 95 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE O’MALLEY

delivered the opinion of the court:

Petitioner Edward Main timely appeals the judgment of the circuit court of Du Page County granting respondent Cynthia Main’s petition for permanent removal of the parties’ minor children to Florida and modifying petitioner’s rights of visitation with the children. On appeal, petitioner argues that the trial court’s finding that removal is in the children’s best interests was against the manifest weight of the evidence in concluding that (1) the proposed move would enhance the quality of life for respondent and the children; (2) petitioner’s visitation would be enhanced by the move to Florida and a reasonable visitation schedule could be devised; and (3) petitioner had not fully exercised his rights to visitation while respondent and the children lived in Illinois. For the reasons that follow, we affirm.

The parties married in 1989, and they divorced on May 8, 2003. Respondent appealed the portion of the trial court’s divorce order requiring her to move with the parties’ two minor children back to Illinois from Florida, where they had moved after the parties separated, and this court affirmed the trial court’s judgment in an unpublished order. In re Marriage of Main, No. 2 — 03—0891 (2004) (unpublished order under Supreme Court Rule 23). In August 2004, after petitioner filed a petition to enforce the divorce judgment, respondent and the children moved back to Illinois. In February 2005, respondent filed a petition for permanent removal of the children to Florida, and a hearing was held on the removal petition on May 26, 2005.

Petitioner was the first witness to testify at the hearing. He testified that the drive from his home to respondent’s home in Marshall, Illinois, takes approximately A/z hours each way and that, after incurring both an abdominal condition and a shoulder injury, such prolonged sitting was very difficult for him. He testified that he had driven to Marshall to visit the children only five times between September 2004 and the time of the hearing, and he said that, after a surgery to correct his abdominal condition in April, he had driven to Marshall only once. He stated that he has been to, but never inside, the children’s school. He testified that there was only one occasion when he visited his children on a day that was not part of his scheduled visitation days. On that occasion he watched his son compete in a Boy Scout Pinewood Derby model car racing competition. He also attended the children’s church play and his son’s first communion. The record is not clear as to whether those two events occurred during petitioner’s scheduled visitation. Though he admitted to never having attended the parties’ daughter’s swim meets or soccer matches, petitioner also stated that he was never notified that thosé events were to take place.

Petitioner said that, when he visited the children in Marshall for a weekend, he would typically arrive on Friday evening. He said that the children were usually ready for sleep by the time he would arrive, but, on the one occasion they were still awake, he took them for ice cream. Petitioner indicated that, on Saturdays, he would entertain the children by taking them to engage in various activities, such as miniature golf, movies, or bowling. On Sundays, the children would go to church, and petitioner would meet them afterwards. When he visited Marshall, petitioner would stay at a local hotel.

Petitioner stated that he and respondent rescheduled visitations on several occasions to accommodate their schedules. He admitted that he was not available when respondent and the children came from Florida for a visit on Memorial Day in 2004, but he stated that, even though the day was one of his court-ordered visitation days, he did not expect the children to come to Illinois to see him because he and respondent had not discussed a visit, as was their custom.

Petitioner testified that his home in Illinois is approximately 45 minutes away from the airport and that, on the occasions he has flown to Florida, he has arrived approximately two hours before his flight in order to allow himself enough time to pass through security. He estimated that respondent’s proposed Florida home, which he had visited before, is approximately one hour away from the Jacksonville, Florida, airport. He could not recall the duration of a flight from Chicago to Jacksonville.

Petitioner stated that, if the trial court were to grant respondent’s petition for removal, then he would bear a much greater burden in maintaining his relationship with his children. He also noted that some of the children’s family, petitioner’s nephew and sister, lived in Illinois and would be separated from the children by a move to Florida. He admitted on cross-examination that neither his nephew nor his sister had baby-sat the children or attended the parties’ son’s first communion.

Respondent also testified before the trial court. She testified that, upon returning to Illinois in August 2004, she chose to live in Marshall because it was close to her job in Indianapolis, Indiana, which she estimated to be approximately 45 minutes to V-h hours away, and because she believed the schools in Marshall to be superior to others in the area. She said that she chose not to live in Chicago because of the high cost of living and because the commute to her Indianapolis job would have been prohibitive. She testified that she and the children have a month-to-month lease on a two-bedroom space on the second floor of a two-floor home.

Respondent stated that, in order to move to Illinois, she took a “step down” job in Indianapolis with the same company for which she worked in Florida. While she earned approximately $24 per hour in her job in Florida at the time she moved, she testified that no job in Illinois has ever paid her more than $20 per hour. She also noted that Florida, unlike Illinois, did not impose a state income tax on her earnings. Respondent testified that she worked in Indianapolis until her company closed, and, after a period of unemployment, she obtained a job in Paris, Illinois, that pays her approximately $17.25 per hour. She testified that she looked for better jobs in the area surrounding Marshall, and she stated that a higher-paying job would allow her to catch up on her bill payments.

Respondent testified that she had received a Florida job offer that would pay her $25 per hour and that she would be able to obtain employment within days of moving to Florida. She also noted that, if she and the children were to move back to Florida, they would live in her mother’s home, which has four bedrooms, two bathrooms, and a front and back yard, and which is located amongst several other single-family homes on a low-traffic, dead-end street. She further observed that, in Florida, the children would be near her mother, who had lived with them previously in Illinois, as well as her brother and sister-in-law, and several of the friends the children had when they previously lived in Florida. Respondent opined that the children received a better education in the Florida schools than in the Marshall schools, and she noted that, upon returning to Illinois, the children’s school curriculum repeated much of what they had already been taught in Florida. She also stated that the children were much more involved in school activities in Florida.

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Cite This Page — Counsel Stack

Bluebook (online)
838 N.E.2d 988, 361 Ill. App. 3d 983, 298 Ill. Dec. 95, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-main-illappct-2005.