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Hickey v. Hickey

AUGUST 5, 1975.

DAVID HICKEY, JR., PLAINTIFF-APPELLANT,

v.

PHYLLIS HICKEY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID LINN, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This appeal arises from an order of the circuit court which modified, pursuant to petition, a judgment for divorce entered in the Circuit Court of Cook County on October 7, 1970. Defendant, Phillis Hickey, filed an amended post-judgment petition seeking permission to remove the parties' minor child to the State of Arizona, an increase in alimony and child support, and reasonable attorneys' fees. After a hearing, the trial court ordered that: (1) defendant be given leave to remove the parties' 5-year-old minor child to the State of Arizona; (2) plaintiff pay to defendant increased alimony in the amount of $1,000 per month and continue to pay child support of $500 per month; and (3) plaintiff pay defendant's attorneys' fees in the amount of $1,250. On appeal, plaintiff contends that the trial court abused its discretion in granting the above relief to defendant.

In 1970, plaintiff, David Hickey, Jr., obtained a divorce from defendant, Phyllis Hickey. Under the judgment, which incorporated the settlement agreement of the parties, Phyllis was to receive $500 per month alimony, $500 per month child support, the 1968 Buick automobile she was driving, and one-half of the proceeds from the sale of the marital home. Defendant was awarded custody of their minor child, Patrick.

The parties had been married for 23 years and have three children, two of whom are emancipated and one, Patrick, who was 2 years old at the time of their divorce. David, for the last 14 years, has been the manager of a State Farm Insurance Company agency. While they were married, Phyllis, who is 48 years old, did all of David's office work. Since she became pregnant with Patrick, she has not worked, and has no source of income other than her alimony. Her only savings is a $750 mutual fund and she enumerated her monthly expenses at $1,393.

David remarried and owns a condominium in which he has $10,000 equity. He also owns a parcel of land in Wisconsin for which he paid $12,000. He is building a summer home on the Wisconsin parcel for a projected cost of $60,000. He owns land in Florida for which he paid $6,000 and has stock worth $8,000. He has two cars, a 1965 Mustang and a 1974 Cadillac. Both he and his wife recently vacationed in France. In 1970, David's gross earnings were $57,069, his adjusted income was $41,832, and his after-tax income was $30,124. In 1973 his gross income was $90,554, *fn1 his adjusted gross income was $70,135, and his after-tax income was $46,710. Included in David's 1973 business expenses were $977 for event tickets, $2,227 for Christmas gifts, $3,900 for entertainment, $1,120 for conventions, and $2,961 for automobile expenses. Plaintiff testified that his income for the year 1974 would be approximately $10,000 less than 1973 due to a decline in business, thus resulting in an adjusted gross income of $60,000.

Defendant introduced into evidence the Consumer Price Index prepared by the United States Department of Labor. The Consumer Price Index stood at 118.4 in October of 1970 and at 142.1 in March of 1974.

Patrick was 2 years old at the time of the judgment for divorce and 5 1/2 at the time of the hearing. When he was 4, he commenced to be treated by an allergy specialist for chronic asthma. Patrick is severely sensitive to molds, several animal dander, house dust, feathers and possibly egg yolk, milk, and his own infections and their by-products. Patrick's asthma attacks last from 1 to 5 hours, and within a 5-month period he had missed 16 days of school because of his attacks. Patrick requires medication; previously, he was receiving three shots a week, but at the time of the hearing, he was receiving two shots a week. Drugs administered to the child have been Benxlin, Dimetane, Tylenol, Bronkolizir, Principen, Quadrinal, Ampicillian, Decomamine, Marax, Erthromycin, Susphrine, and Sympatomine. November and May are particularly bad months in terms of the frequency and severity of the attacks, while September and August are good months.

Patrick has visited Arizona on three different occasions, the last being for a period of 12 days. While he was there, he had no asthma whatsoever, even though he was active. Phyllis has two sisters in Arizona whom she would be close to in case of emergencies.

Dr. Lawrence Elegant testified on behalf of plaintiff. After testifying to his education and qualification as an allergist, the doctor stated that the he has been treating Patrick since January of 1973 for asthma. Immunotherapy was begun and the episodes of asthma are much less severe now than they had been in the past. The witness stated that a number of factors affect asthma, namely, climate, infections, emotional problems, and barometric pressure change. He was familiar with the environmental conditions of Arizona and could not state with certainty that Patrick would do better in Arizona than he would here; on the other hand, "he wouldn't do any worse." When asked by the court whether doctors have sent people to Arizona to obtain relief from an asthmatic condition, the witness responded by stating that the theory was of questionable validity.

On cross-examination, the witness admitted a causal relationship between moisture and the production of mold, but added that certain molds thrive in a hot and dry climate. In response to a hypothetical question, the witness stated that a 2-week stay in Arizona is too short a time to test the effect of the Arizona climate on the child's asthmatic condition. The doctor explained that had the child remained in Arizona for a 6-month period, some significant comparisons could be made. Again, pursuant to questions by the court, the witness stated that climate is an important factor in treating chronic asthma, that temperature, humidity, and barometric changes are all important factors, and that there is a difference between the general climate in the Chicago area and that of Arizona.

The trial court found that it would be in the best interests of the minor child to allow his removal to Arizona. Instead of awarding an increase in both alimony and child support as requested, the court awarded an increase of $500 per month in alimony alone. *fn2 Additionally, David was ordered to pay Phyllis' attorneys' fees in the sum of $1,250.

• 1 Plaintiff's initial contention is that defendant failed to demonstrate that the removal of the minor child to Arizona was in the best interests of the child. Pursuant to statute, the trial court is empowered to allow any party having custody of the child to remove him from Illinois whenever such removal is in the best interests of the child. (Ill. Rev. Stat. 1973, ch. 40, par. 14; Reddig v. Reddig, 12 Ill. App.3d 1009, 299 N.E.2d 353.) The trial court's determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Rosenberger v. Rosenberger, 21 Ill. App.3d 550, 316 N.E.2d 1.

The evidence reflects that subsequent to the award of custody in 1970, Patrick developed chronic asthma and was severely sensitive to molds and various other substances. That his illness has substantially intruded upon his life is amply borne out by his absenteeism at school, the limitation of his activities, and the abundance of drugs which are administered to him. Dr. Elegant admitted that climate is an important factor in the treatment of chronic asthma, and in this regard, the record reveals that the frequency of Patrick's attacks are greater in damp months than they are in dry months. On the three occasions when Patrick had been in Arizona, he has been completely free of asthmatic symptoms. Based on this evidence, we find no error in the trial court's decision.

We recognize that the evidence does not conclusively demonstrate that Patrick's asthmatic condition will improve as a result of the Arizona climate. In his opinion, Dr. Elegant stated that sending patients to Arizona for asthmatic relief was of questionable validity. The expert testimony did indicate, however, that the period of time in which Patrick had been exposed to the climate of Arizona was not long enough to make any meaningful correlations, *fn3 and that there was a causal relationship between moisture and the production of mold. The doctor testified that although he could not state with certainty that Patrick's condition would improve in Arizona, he did render an opinion that Patrick would do no worse in Arizona. It is not within the province of this court to judge the ultimate medical correctness of the trial court's decision. We need only adjudge whether the trial court's determination — that the best interest of the child would be served by his removal to ...


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