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Johnson v. Johnson

FEBRUARY 5, 1969.

DOLORES JOHNSON, PLAINTIFF-APPELLANT,

v.

AXEL JOHNSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, of Chicago; the Hon. NORMAN N. EIGER, Judge, presiding. Affirmed in part, reversed and remanded in part.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment granting the petition of defendant (husband of the plaintiff) for leave to remove the three minor children of the parties from Illinois, and from a subsequent denial of the wife's motion to vacate the aforesaid judgment, to award her attorney's fees and for other relief.

CONTENTIONS ON APPEAL

(1) The granting of husband's motion to take the children out of Illinois violates the Separate Maintenance Act, Ill Rev Stats 1967, c 68, § 22.1.

(2) The judgment allowing removal of the children is not supported by any evidence that the removal is in the best interests of the minor children.

(3) The court abused its discretion in failing to require defendant to furnish bond to guarantee the return of the children to the jurisdiction of the court in the event the best interests of the children required return.

(4) The court erred in refusing a hearing on plaintiff's petition for a change of custody.

(5) The court abused its discretion in refusing to permit plaintiff to present evidence in connection with attorney's fees incurred in connection with the removal petition and a prior appeal.

Pleadings

On April 27, 1967, the husband filed a petition seeking an order allowing the minor children to accompany him for residence in Florida at the termination of the school year in June 1967. The petition alleged that at the time of the entry of the judgment appealed from the parties were the parents of three minor children: Douglas, age 16; Hans, age 13; and Stephen, age 12. It referred to a decree of separate maintenance entered July 9, 1965, by which custody of the minor children was awarded to the husband, and granted certain visitation rights to the wife. The decree also provided that the wife have custody of a daughter, Blanche, now of age; provided for the payment to the wife of $75 per week as separate maintenance; made provision for the support of Blanche; and provided that the "removal of the three minor boys from this state shall be solely on a temporary basis and then only for the purpose of accompanying or being with one or the other of the parents." The petition further stated that there were excellent business opportunities available to defendant in Florida and that the best interests of the children would be served if they were permitted to accompany him there.

The wife answered denying that the best interests of the children would be served if they were permitted to accompany the husband to Florida. She also alleged that the granting of husband's petition would deprive the wife of the visitation rights afforded her by the decree of separate maintenance.

On June 28, 1967, the court granted defendant leave to remove the children to Florida and on August 25 denied the motion of plaintiff to vacate that order and also denied plaintiff's petition for change of custody and attorney's fees. Plaintiff appealed from both judgments.

THE EVIDENCE

Testimony of Axel Johnson, defendant

He is in the construction business; his income for 1966 was $20,300; he has done only some minor jobs in 1967; he has had some bids outstanding but none had culminated in contracts. He looked for employment ...


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