In Re Marriage of Miroballi

589 N.E.2d 565, 225 Ill. App. 3d 1094, 168 Ill. Dec. 165
CourtAppellate Court of Illinois
DecidedMarch 26, 1992
Docket1-90-1886
StatusPublished
Cited by3 cases

This text of 589 N.E.2d 565 (In Re Marriage of Miroballi) 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 Miroballi, 589 N.E.2d 565, 225 Ill. App. 3d 1094, 168 Ill. Dec. 165 (Ill. Ct. App. 1992).

Opinion

JUSTICE JOHNSON

delivered the opinion of the court:

Petitioner, Renee Miroballi (now Renee Gandy), appeals from a directed verdict of the circuit court of Cook County denying her petition for leave to remove the parties’ two minor children from Tinley Park, Illinois, to Farmington Hills, Michigan. The only issue on appeal is whether the trial court’s finding that the best interests of the children are served in denying the petition for removal is against the manifest weight of the evidence.

We reverse and remand.

Petitioner and respondent, Joseph Miroballi, were married on March 6, 1977, and divorced on April 22, 1987. The judgment of dissolution of marriage provided for joint custody of the parties’ two minor children, Joseph Jr. and Craig. The children live with petitioner, and respondent is granted visitation. In July 1989, petitioner married James Gandy, who works and lives in Farmington Hills, Michigan. Petitioner filed a petition for leave to remove the children from Illinois to Michigan. The basis of removal was that petitioner would like to live with both her husband and children full time.

Respondent testified that he is a practicing attorney in Chicago. He further stated that his schedule requires that he work Monday through Friday, and two or three times per month on Saturday mornings. Under the terms of the joint custody agreement, respondent may see his children (1) on alternate weekends from 5 p.m. Friday until 7 p.m. Sunday; (2) one weekday per week from 4 p.m. to 8:30 p.m.; (3) during graduations and other school activities; (4) on their birthdays, on his birthday (for a reasonable time), and on Father’s Day; (5) for half of the children’s Christmas vacation; (6) for half of the children’s summer vacation; and (7) for all of Easter vacation in alternate years.

Respondent stated that he spends alternate weekends with the children. He also stated that he has attended a few of their baseball games and school activities and has seen them on special holidays. On cross-examination, respondent testified that he has never taken the children for part of their Christmas or summer vacations and has never regularly visited with the boys one weekday evening per week. He further testified that he has not consistently visited the children each year on their birthdays.

Petitioner testified that she and the parties’ two children live in a single-family townhouse located in Tinley Park, Illinois. She further stated that Joseph Jr. is in the seventh grade at Central Junior High School and that Craig is in the third grade at Sandich Grade School. The witness stated that both schools offer a general curriculum and are struggling to keep up with the national average. Both children have participated in Saturday morning bowling leagues, floor hockey, and little league baseball. The children also attend religious education classes during the weekends. Petitioner stated that she has maintained full responsibility for enrolling and taking the boys to religious classes and recreational activities.

Petitioner testified that if the children were permitted to live in Farmington Hills, they would live in a larger home and in a neighborhood that has more children in their age group. She stated that the community has an active park district which offers a wide variety of recreational activities for children, including sporting and nonsporting programs. The witness also presented evidence to suggest that the children would receive a higher quality education if they were permitted to relocate to Farmington Hills. In national testing, the Farmington Hills schools’ mean score is in the 75th percentile, with the national average being in the 50th percentile. Petitioner stated that she has worked as a special education teacher in Burbank, Illinois, for 13 years. She stated that if she could live with her husband in Michigan she would stop working and devote her time to her family.

Petitioner’s new husband, James Gandy, owns and operates his own business as an independent sales representative for lighting manufacturers. Gandy has maintained an office in and around Farmington Hills, Michigan, for the past 2½ years. His annual income is $80,000. Gandy testified that his sales territory encompasses lower Michigan and northern Ohio. The witness stated that he cannot live in Chicago and continue to service his clients. He stated that he spends five days driving around his territory and one day in the office. He returns to his Farmington Hills home at the end of each day.

During the hearing on the petition for removal, the court found that neither parent’s motives were improper with regard to either seeking or restricting removal of the children from Illinois. The court found that respondent had exercised visitation rights on a basis consistent with his profession (as an attorney) and work schedule. The court further found that petitioner had not presented any concrete evidence to compare the quality of life in Michigan over that in Illinois in relation to the schools, parks, and community services. The court granted respondent’s motion for a directed verdict, finding that petitioner had not met her burden of proving removal was in the best interests of the children. This appeal followed.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 609(a)) governs petitions for removal. This section provides:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interest of such child or children is on the party seeking the removal.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 609(a).

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, examined the application of section 609 of the Act. The court recognized that “[a] determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case.” (Eckert, 119 Ill. 2d at 326.) The court set forth factors to assist the trial court in determining whether the party seeking removal has satisfied the burden of proving that such removal is in the best interests of the child.

“These factors are: (1) the likelihood of enhancing the general quality of life for both the custodial parent and the child by allowing the move; (2) the motives of both parents: the motive of the custodial parent in seeking removal and the motive of the noncustodial parent in resisting the removal; and (3) the visitation rights of the noncustodial parent, which involves a determination of whether a realistic and reasonable visitation schedule can be reached if the move is allowed.” (In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 188, citing Eckert, 119 Ill. 2d at 326-27.)

The trial court’s decision as to what is in the best interests of the child should not be reversed unless it is against the manifest weight of the evidence. Eckert, 119 Ill. 2d at 328.

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Bluebook (online)
589 N.E.2d 565, 225 Ill. App. 3d 1094, 168 Ill. Dec. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-miroballi-illappct-1992.