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In Re Custody of Arquilla





APPEAL from the Circuit Court of Cook County; the Hon. IRVING J. LANDESMAN, Judge, presiding.


Rehearing denied July 17, 1980.

This action was brought pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 609). Plaintiff, Sue A. Arquilla, having sole custody, petitioned for leave to remove the parties' 6-year-old child, Jason, to Louisiana. Plaintiff also sought to have the defendant, Robert B. Arquilla, pay attorney's fees incurred in the action. The trial court ruled the best interests of the child were served by his continued residence near his father in this State. The petition for removal was denied on that basis. Plaintiff appeals from the judgment. The trial court awarded plaintiff attorney's fees in the amount of $3,900. From that latter determination, an appeal was taken by defendant.

We reverse the trial court's judgment denying removal of the child, and we reverse the order awarding attorney's fees.

Sue Arquilla testified she received her bachelor's degree in education and psychology in 1972 and had taken courses toward her master's degree. She indicated that she had a teaching certificate in elementary education but little teaching experience. Her testimony revealed she had been employed as a data analyst for the American Hospital Association, and her annual salary was $10,280.

Plaintiff testified about her search for better employment. She looked into positions in her area of expertise, primarily in mental health centers. The salaries offered her were all in the area of $10,000. A factor included in plaintiff's decision to leave the Chicago area was the difficulty in finding suitable work which provided adequate salary and opportunity for career advancement.

Plaintiff stated she had spoken to various people in the New Orleans area and had been offered a job as a management trainee. The firm offer of employment came in the summer of 1978 but was closed prior to the hearing. At the time of the hearing, plaintiff disclosed, she was in contemplation of another firm offer of employment in a management and counseling trainee position in New Orleans. The offered salary ranged between $15,000 and $16,000 per year. In that position, she was to be employed in a field for which she had been trained. She testified the job remained open for her pending the conclusion of the removal hearing.

Additional testimony was received that the cost of living in the New Orleans area was considerably lower than what existed in the Chicago area. Although plaintiff had not secured housing in the area, she expressed confidence in being able to find a place within a month to 6 weeks of her arrival. Plaintiff stated her mother lives in the New Orleans area. She planned to live with her mother until she found housing of her own.

According to testimony of plaintiff's mother, the proposed temporary residence is in a quiet residential community. It is in proximity to churches, schools, homes and apartments. Plaintiff's mother also expressed intention to baby-sit while plaintiff was working.

Testimony revealed that a boy's club in the area had a summer program and an after-school program. The neighborhood park district also sponsors after-school and summer programs.

The 6-year-old child, Jason, testified. He stated he had been to New Orleans and he liked it there. He also testified he wanted to go to New Orleans to live, but he expressed regret that he would not see his father as often because it was so far away. The court noted that reasonable visitation had been suggested by plaintiff.

Dr. Roberta Bear was called as an expert witness on behalf of plaintiff. She testified to being in private practice in Chicago Heights, Illinois, and licensed by the State of Illinois as a psychologist. Dr. Bear stated she formed a professional opinion concerning the effect removal would have on the child. She found Jason to be stable and there was no reason why he could not handle the physical and emotional impact of a change in residence.

In addressing the removal issue, we point to our decision in Gallagher v. Gallagher (1978), 60 Ill. App.3d 26, 376 N.E.2d 279, for statement of the rule governing this case. In Gallagher, a petition was filed to modify the judgment for divorce insofar as it prohibited removal of the child from Illinois. In that case, this court granted the petition to remove the child from Illinois to Colorado. We clearly outlined the pertinent rules. The opinion stated:

"The court may grant leave, before or after judgment, to any party having custody of the minor child or children to remove such child or children from Illinois whenever such approval is in the best interest of such child or children. (Ill. Rev. Stat. 1967, ch. 40, par. 14.) The burden of proof is, of course, on ...

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