Shinall v. Carter

964 N.E.2d 619, 357 Ill. Dec. 940
CourtAppellate Court of Illinois
DecidedJanuary 5, 2012
Docket3-11-0302, 3-11-0436
StatusPublished
Cited by1 cases

This text of 964 N.E.2d 619 (Shinall v. Carter) 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
Shinall v. Carter, 964 N.E.2d 619, 357 Ill. Dec. 940 (Ill. Ct. App. 2012).

Opinion

964 N.E.2d 619 (2012)
357 Ill. Dec. 940

Jessica SHINALL, Petitioner-Appellee,
v.
Jeremy CARTER, Respondent-Appellant.

Nos. 3-11-0302, 3-11-0436.

Appellate Court of Illinois, Third District.

January 5, 2012.

*622 Richard W. Zuckerman (argued), Law Offices of Richard W. Zuckerman, Peoria, for Jeremy Carter.

Judith A. Serritella (argued), Michael A. Fleming, Peoria, for Jessica Shinall.

OPINION

Presiding Justice SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 The respondent, Jeremy Carter, appeals from an order of the trial court denying joint custody and awarding his former girlfriend, Jessica Shinall, sole custody of their three-year-old daughter, Ava. Jeremy also appeals the trial court's order granting Jessica's petition for removal of Ava from Illinois to Colorado. We affirm in part and reverse in part.

¶ 2 FACTS

¶ 3 On September 26, 2008, Ava was born to Jessica and Jeremy, who lived together but never married. They separated in October of 2009. On January 14, 2010, Jessica filed a petition for paternity for an order declaring Jeremy the natural father of Ava. In his answer, Jeremy acknowledged paternity of Ava. Both parties requested an order regarding custody, support, and visitation. On April 27, 2010, a mediator's report indicated that there was no realistic likelihood of a mediated agreement. On June 15, 2010, Jessica filed a petition for leave to remove Ava from Illinois to Colorado, due to her recent engagement and upcoming wedding in August of 2010 to Nate Johnson, who resided in Colorado. Evidentiary hearings began on October 28, 2010, and continued through February 16, 2011.

¶ 4 At the hearings, evidence indicated that Jessica had sole custody of her 11-year-old son, Cesar, from her first marriage, which had been dissolved in December of 2003. In 2007, Jessica had earned her license to be a licensed practical nurse (LPN) and had had 8 jobs in the past 10 *623 years. Jeremy had served in the Navy as a hospital corpsman from 1992 to 2003. After the Navy, Jeremy worked for Caterpillar from 2003 to the present and currently earned $78,336 per year plus medical and retirement benefits.

¶ 5 In January 2006, Jessica and Jeremy began dating. In October 2006, Jeremy, Jessica, and Cesar started living together in Chillicothe, Illinois. On April 13, 2007, Jeremy and Jessica became engaged to be married. On September 26, 2008, Ava was born, and both Jeremy and Jessica equally participated in her care. In October 2009, Jeremy and Jessica mutually agreed to separate due to disagreements regarding Cesar. Jessica moved two blocks away with Cesar and Ava. Without court intervention, the parties agreed upon a visitation schedule and child support. Jeremy paid $900 per month in child support in addition to half of Ava's day care. Jeremy's visitation schedule coincided with Jessica working 12-hour shifts as an LPN on Tuesdays and Thursdays and every other weekend, from Friday to Sunday. On Tuesdays and Thursdays Jessica took Ava to day care at 6:30 a.m., Jeremy picked her up at 5 p.m., and Jessica picked her up from Jeremy at 8 p.m.

¶ 6 On November 18 and 25, 2009, Jeremy's two grandmothers passed away. Unbeknownst to Jeremy, the same week Jessica began dating Nate Johnson. For a few months after their breakup Jeremy had attempted to reconcile with Jessica, sending her numerous text messages and e-mails. On one occasion he sent her over 100 text messages in 2½ hours. On January 7, 2010, Jeremy began crying uncontrollably while holding Ava and begged Jessica to get back together with him. In January 2010, Jeremy called Jessica's mother, crying uncontrollably. On January 8, 2010, Jessica obtained an emergency order of protection against Jeremy, which was dismissed after the parties entered an agreed civil restraining order prohibiting each party from harassing, abusing, or threatening the other.

¶ 7 On November 23, 2009, Jessica had met Nate when he was in Illinois with his two sons visiting family members. Nate was in the Air Force and stationed in Colorado. He had joint custody of his two sons from a previous marriage, who resided with their mother in the same town as Nate, Colorado Springs, Colorado. After Nate and Jessica spent a few days together in November 2009, Nate left on deployment, and they continued to communicate long distance. They did not see each other again until March or April of 2010, and then tried to see each other once per month thereafter. In May of 2010, Jessica and Nate became engaged and married on August 10, 2010, in the Bahamas. On June 15, 2010, Jessica filed a petition to remove Ava from Illinois to Colorado. She also filed a similar petition to remove Cesar in a separate case.

¶ 8 After they married, Nate remained in Colorado, while Jessica continued to reside in Illinois. Jessica had been to Colorado twice since meeting Nate. Ava spent time with Nate whenever he visited Illinois and during her visits to Colorado. Ava had been to Colorado twice for a total of one week. Jessica planned to move to Colorado to be a stay-at-home mother until Ava went to kindergarten.

¶ 9 In February of 2010, Jeremy learned of Jessica's relationship with Nate by discovering their e-mails in an e-mail account that Jeremy had set up for Jessica. Jeremy learned of their engagement in May of 2010 through friends.

¶ 10 In coparenting Ava, Jessica and Jeremy primarily communicated via text messages or e-mails, and spoke in person once per week. Since November 2009, they had sent each other hundreds or *624 thousands of messages regarding Ava's care. Various e-mail conversations between Jeremy and Jessica were entered into evidence, demonstrating they were cordial to each other while discussing issues regarding Ava, such as visitation arrangements, clothing items, doctors appointments, medication, and medical bills. Jessica acknowledged that the e-mails were not threatening or harassing; she testified that the e-mails were "fantastic."

¶ 11 Jessica testified that she did not believe that she and Jeremy could communicate well enough to share joint legal custody. Jessica cited, for example, that Jeremy was petty in his requests for specific clothing items to be packed for Ava, such as nice clothes for church or a swimsuit. Jessica felt Jeremy was being "nit-picky" when he pointed out a hole in Ava's sock. Jessica admittedly had taken Ava's wardrobe when she and Jeremy separated, but she believed that Jeremy was responsible for maintaining his own wardrobe for Ava. Jessica testified that at an exchange of Ava, Jeremy took a jacket and pair of shoes that he had purchased off of Ava, explaining to her that was the way Jessica wanted things.

¶ 12 Jessica and Jeremy also disagreed as to the proper treatment for Ava's ailments, such as a diaper rash or chapped lips. Jessica had also disagreed with Jeremy bringing Ava to urgent care for a fever of 101.5 degrees and urine that smelled of ammonia, which he informed Jessica of afterward. Jessica thought Jeremy should have communicated with her prior to taking Ava to urgent care, although she admittedly had taken Ava to the doctor without consulting Jeremy.

¶ 13 According to Jessica's witnesses, Jeremy had made disparaging comments about Jessica and Nate in front of Ava. Specifically, Jessica's friend testified that Jeremy called her a "home wrecker" in front of Ava, which Jeremy denied. Jessica testified that on April 4, 2010, Jeremy called her an "F'ing whore" in front of Ava, which Jeremy denied. After that incident, both Jeremy and Jessica decided to bring witnesses to their exchanges of Ava.

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Related

In re Marriage of Kavchak
2018 IL App (2d) 170853 (Appellate Court of Illinois, 2018)

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964 N.E.2d 619, 357 Ill. Dec. 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shinall-v-carter-illappct-2012.