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Gray v. Gray

OPINION FILED JANUARY 13, 1978.

RUBY GRAY, PLAINTIFF-APPELLANT,

v.

MARVIN GRAY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

The parties to this appeal had been divorced on June 22, 1973, which decree granted Ruby Gray custody of the minor child, Jason, and granted Marvin Gray reasonable visitation rights. The present matter arises out of the filing of cross-petitions in July of 1976 for modification of the divorce decree. Marvin Gray sought to have custody of Jason transferred to him, while Ruby Gray sought the permission of the court to remove Jason from Illinois to California. The court entered an order denying both petitions and striking that portion of a previous order of the court granting attorney's fees to counsel for Ruby Gray. This appeal is taken from the order denying permission to relocate the minor child and the order striking attorney's fees. No appeal is taken from the denial of Marvin Gray's petition for a change of custody. The pertinent facts follow.

Marvin Gray filed his petition for a change of custody on July 1, 1976, alleging therein Ruby Gray's imminent move to California, her failure to make appropriate housing, educational and child care plans for Jason in connection with the move, and Jason's desire to remain in Chicago. The petition also included Jason's latest school evaluation showing his favorable educational progress at the Francis W. Parker Elementary School. On the date of filing the petition a hearing was held at which Ruby indicated she was soon to go to California and would, upon her return, be better able to answer the petition's allegations. A hearing was set for July 22.

On that date, following her return from California, Ruby filed an answer to the petition for change of custody, and filed her own petition for permission to remove Jason to California. Hearings on the cross-petitions were held between July 22 and August 5, 1976.

Marvin Gray testified that he was an attorney in private practice in Chicago, and that he had also practiced law in Galesburg, Illinois, from October of 1974 to February of 1976. In August of 1974 he married his present wife, Marie, and they had two children, one by her previous marriage. Prior to moving to Galesburg he regularly saw Jason on weekends. After moving to Galesburg he saw Jason less frequently, perhaps once a month, visiting occasionally during business trips to Chicago. In addition, Jason came to Galesburg during the summer of 1975 for an extended stay of approximately five weeks. He indicated that a warm relationship existed between Jason and all the members of the new Gray family.

Marvin further testified that in June of 1976 he had a conversation with Ruby concerning her plans to move to California. He expressed unhappiness and disapproval of Ruby's intention to take Jason to California without her having made definite housing, educational and child care facility arrangements beforehand, and asked her to make such arrangements before the actual move. Marvin also suggested that Ruby leave Jason with him for the ensuing academic year, while she established roots in California and made the necessary arrangements for Jason to follow her. She rejected the idea.

Ruby Gray testified that since the divorce she had worked at several jobs in order to support herself and Jason. Each successive job provided an increase in salary. She had also pursued her college education and was finishing a master's degree. At the time of the hearing she was unemployed; however, she was seeking to move to California because she had obtained employment as the director of a YMCA program in Los Angeles. She would start work in August of 1976.

Ruby also stated that she had visited California a number of times prior to her being considered for the YMCA position. In 1975 Jason accompanied her on one such trip and made friends with two young boys whom he had not seen since. Ruby also had several cousins in California, but had only visited one during her trips to California. She conceded that her California relatives were not particularly close.

Ruby had visited California from July 8 through July 10 in order to arrange for the housing, schooling, and child care needs of her family, in response to the allegations contained in Marvin's petition for a change of custody. During this visit she signed an agreement to secure a two-bedroom apartment in a three-year-old complex called Tara Hill, in Culver City, California. She selected the Culver City area because it had been recommended by three residents of the area as a middle to upper-middle class community with an excellent school system. Tara Hill has an after-school child care facility for children of Jason's age. The child center would be available from 3 p.m. to 6 p.m. each school day.

Ruby also made inquiries concerning private schools in that area. She was referred to two private schools, the Oakwood and Westland Schools, by individuals who had children attending those schools. Ruby ascertained that there were fifth grade openings in both schools for the coming year. She was unable to speak with the headmaster at Westland, but did speak with the Oakwood principal for 20 minutes on the phone. While she had not completed any applications for Jason to enter these schools, Oakwood had told her that she could wait until the first week of August to formally apply. Public schools would not require any application.

Concerning her new job, Ruby stated that her working hours were not yet positively known. However, she had made arrangements with the YMCA that she would not have to work past 5 p.m. more than two nights per month. In addition, while her job would start on August 1, she would not have to report to an office on a daily basis until August 22. During that three-week period she would only have to report to an office one day per week. The rest of that period she and Jason would be together, familiarizing themselves with the area. Ruby admitted, however, that Jason had expressed a desire to remain at the Francis Parker School.

The trial court directed that the child be brought to court, and after an in camera conversation between the trial judge and Jason, the court made the following pronouncement:

"Let the record show that based on the testimony herein presented and after the Court having an in-chambers discussion with Jason, * * * the Court feels that the best interest of the child, Jason, in order for him to continue with his education at Francis Parker School that it is incumbent upon this Court to deny the petition of the plaintiff, Ruby, to remove the child from this jurisdiction."

The court further stated that no sufficient showing existed for a change of custody, and thus custody remained in Ruby. An order was then ...


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