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08/27/87 In Re Marriage of Mark A. Shalashnow

August 27, 1987

IN RE MARRIAGE OF MARK A. SHALASHNOW, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and DONNA E. SHALASHNOW n/k/a Donna E. Cable,

Respondent-Appellee

512 N.E.2d 1076, 159 Ill. App. 3d 760, 111 Ill. Dec. 535 1987.IL.1255

Appeal from the Circuit Court of McHenry County; the Hon. Wallace B. Dunn, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This case involves a petition for leave to remove the minor children of the parties from Illinois to Ohio. The petition for removal was filed by respondent, Donna E. Shalashnow. The trial court allowed removal. We affirm.

On February 20, 1986, a judgment was entered dissolving the marriage of Donna and Mark Shalashnow. Incorporated in that judgment was a written separation agreement entered into by the parties and dated February 20, 1986. At the time of the separation, the parties had five children: Vennessa, born February 28, 1973; Courtney, born February 22, 1975; Leslie, born July 23, 1977; and twins, Ryan and Nathan, born July 21, 1979.

With respect to the custodial arrangements of the children, the agreement provided for joint custody with physical possession being with respondent. Visitation rights were given to petitioner, Mark Shalashnow. The agreement further set forth certain provisions governing specific rights, duties, and obligations of the parties as to the joint parenting of the children.

On May 25, 1986, respondent remarried. On August 13, 1986, respondent filed her petition for leave to remove the minor children from Illinois alleging that her new husband's office had been moved to North Royalton, Ohio. On September 11, 1986, petitioner filed a petition for leave to file a custody modification supported by affidavit, pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 610). Petitioner's petition for leave to file a custody modification was denied, and the petition was allowed to stand as an affirmative defense to the removal petition.

Hearing on respondent's removal petition began on September 19, 1986. At the close of respondent's case, the trial court stated that it was missing two "salient points": when the move was to take place and where the children were to reside. The court also indicated that it would grant respondent leave to either reopen her case or continue it for the purpose of providing evidence regarding these two points. Immediately following this statement by the trial court, petitioner moved for a directed finding. Without ruling on petitioner's motion, the court allowed respondent to reopen her case for the purpose of providing evidence as to where the children would reside in Ohio. Following this, respondent moved for a continuance. There was no affidavit filed in support of this motion. The court stated that, in the interest of judicial economy, it would grant respondent's motion to continue the matter. On October 24, 1986, the hearing resumed. At that time, respondent presented evidence that she and her new husband had obtained a two-year lease on a home in Hudson, Ohio. She further presented evidence as to the description of the house and when the move was to occur.

At the close of respondent's case, petitioner again moved for a directed finding. The court denied petitioner's motion.

The court entered an order granting respondent's petition to remove the children from Illinois to Ohio. The order additionally modified the visitation rights of petitioner. Petitioner was given the right of visitation at his residence in Illinois commencing three days after the start of the children's summer vacation from school and terminating three days before school resumes in the fall. Petitioner was also given visitation in Illinois when respondent returns to Illinois. Furthermore, petitioner was given 10 days of visitation in Illinois over Christmas vacation and five days in Illinois during spring break. Respondent is to pay for transportation ...


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