In Re Marriage of Zamarripa-Gesundheit

529 N.E.2d 780, 175 Ill. App. 3d 184, 124 Ill. Dec. 799, 1988 Ill. App. LEXIS 1381
CourtAppellate Court of Illinois
DecidedSeptember 22, 1988
Docket1-87-2537
StatusPublished
Cited by29 cases

This text of 529 N.E.2d 780 (In Re Marriage of Zamarripa-Gesundheit) 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 Zamarripa-Gesundheit, 529 N.E.2d 780, 175 Ill. App. 3d 184, 124 Ill. Dec. 799, 1988 Ill. App. LEXIS 1381 (Ill. Ct. App. 1988).

Opinion

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Petitioner, Susan Pfefer (formerly Susan Zamarripa-Gesundheit), appeals from the denial of her petition for leave to remove the parties’ daughter, Dafna, 11 years old at the time of the hearing, from Illinois to Seattle, Washington. Petitioner’s only argument on appeal is that the trial court’s conclusion that the best interest of the child is served by denying the petition for removal is against the manifest weight of the evidence.

Petitioner and respondent, Ariel Zamarripa, were married in 1973. The parties’ marriage was dissolved in 1983. Custody of the parties’ only child, Dafna, was awarded to petitioner subject to the visitation rights of Ariel. Susan remarried in December of 1986. In March of 1987, Susan filed a petition for leave to remove Dafna from Illinois, to Seattle, Washington. The basis for the removal was that Susan’s second husband, Martin Pfefer, was transferred to Seattle.

A hearing was held at which Susan, Martin, and Ariel testified. Dafna was interviewed by the trial judge in camera.

Martin testified that he has been employed by the postal service for the last 16 years. He was a letter carrier for six years and has' been a postal inspector in Chicago for 10 years. Martin was required to remain in Chicago with the postal service until February 1986. At that time he requested a transfer to Seattle, Washington. This was before he was engaged to Susan. He had always dreamed of living in Seattle and settling with a family. In his opinion, Seattle is one of the most “liveable” cities in the United States. He has visited Seattle several times by himself and with Susan and Dafna.

When Martin initially applied for the transfer, he did not know if and when it would be approved. When he married Susan in December of 1986, he still did not know if he would be transferred. Martin’s transfer was eventually- approved in April of 1987. Martin accepted the transfer and was scheduled to report to Seattle on June 22, 1987. Because Martin wanted to remain in Chicago until the matter of removal was resolved, he asked for an extension of time to report to Seattle until July 15,1987.

Prior to the time that he received notice of the transfer, Martin could have withdrawn his request. However, once the transfer became effective, Martin did not have the option to stay and bid on another job with the postal service in Chicago. Martin testified that if he does not report to Seattle, he is in effect fired. If he were to leave the postal service now, he would lose many of his benefits which have accumulated over the years. Martin stated that he currently earns approximately $50,000 per year, which is what he would earn in Seattle.

Susan testified that Dafna currently attends Solomon Schechter school and, although Susan is not obligated under the divorce decree to pay for a private education, it is important to both Susan and Ariel that Dafna continue her Jewish education. Susan has looked at a private Jewish day school for Dafna in Seattle and has spoken with the vice-principal of the school and several teachers. The Jewish school in Seattle is comparable to the school which Dafna currently attends. Although Dafna is ahead of the Seattle school in Hebrew classes, arrangements would be made so that she could attend special Hebrew classes.

In addition to schools, Susan has found a suitable synagogue and suitable pediatrician. Susan also testified that she currently teaches English as a second language at a community college in Chicago and based on her visits to Seattle, the prospects looked good for comparable employment.

In February of 1987, Susan spoke with Ariel about visitation rights in the event that she moved to Seattle with Martin and Dafna. Susan would allow Ariel to have visitation for a majority of the summer months, during the Passover school break, and during winter school vacation. She also suggested that Dafna could visit Ariel during the Jewish New Year for four days and also for weekends whenever secular and Jewish holidays created three- or four-day weekends. Susan further stated that Dafna could telephone Ariel weekly at Susan’s expense.

Susan also talked to Ariel about putting Ariel’s child-support payments into an escrow fund to be allocated entirely to transportation. Susan testified that she has never paid more than $200 round trip to fly to Seattle. Ariel is now required to pay 20% of his net income. Although his income fluctuates, Ariel’s child-support payments usually average approximately $300 per month.

Ariel testified that under the dissolution of marriage decree, he has liberal visitation rights. He sees Dafna every other weekend and every Sabbath from Friday night to Saturday night. Ariel has been a Hebrew teacher for approximately seven years and frequently helps Dafna with her Hebrew lessons. He has spoken to Dafna in Hebrew since infancy. He also teaches Dafna Spanish.

Ariel also testified that he participates in various programs at Dafna’s school. For example, Ariel has taught improvisational drama workshops and has attended various ceremonies which mark the beginning of the Sabbath. In addition to going to summer camp with Dafna every year, Ariel testified that he also enjoys taking Dafna to plays and concerts.

Ariel stated that he is entitled to one week vacation and six paid sick days. He does not get paid for any other days he takes off.

The trial judge interviewed Dafna in camera. Dafna is enrolled in sixth grade at the Solomon Schechter day school. Dafna testified that she did not like Seattle because it was “too small” and “like a farm.” She also testified that she does not “want to leave her dad and everything else.”

Petitions for removal are governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1987, ch. 40, par. 609(a)). This section provides:

“(a) 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 interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.”

The Illinois Supreme Court recently addressed the issue of the custodial parents’ right to remove a child to another State in the case of In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041. In Eckert, the supreme court rejected what it detected as a trend in removal cases whereby the custodial parent is presumptively entitled to removal unless rather strong negative circumstances indicated against it. The court emphasized that the amendment to the removal statute specifically states that “ ‘the burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.’ ” Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.

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Bluebook (online)
529 N.E.2d 780, 175 Ill. App. 3d 184, 124 Ill. Dec. 799, 1988 Ill. App. LEXIS 1381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-zamarripa-gesundheit-illappct-1988.