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01/19/88 In Re Marriage of Carol Lee Eckert

January 19, 1988

IN RE MARRIAGE OF CAROL LEE ECKERT, APPELLEE, AND MARK


SUPREME COURT OF ILLINOIS

WILLIAM ECKERT, Appellant

518 N.E.2d 1041, 119 Ill. 2d 316, 116 Ill. Dec. 220 1988.IL.41

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Dennis J. Jacobsen, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

The custodial parent, Carol Eckert, petitioned the trial court for leave to remove the parties' son, Matthew, from the State of Illinois to Arizona. The trial court denied the petition for removal, because the court found the best interests of the child would be served by his continued residence in Illinois near his father and extended family, including all of his surviving grandparents. The petitioner appealed from that judgment, and the appellate court concluded that the trial court's denial of the petition was against the manifest weight of the evidence and that the best interests of the minor would be served by allowing removal to Arizona. (148 Ill. App. 3d 512.) We granted respondent Mark Eckert's petition for leave to appeal. 107 Ill. 2d R. 315.

Carol and Mark Eckert were married on June 30, 1976. The parties' marriage was dissolved on December 18, 1983; custody of the parties' minor son, Matthew (seven years old at the time of the instant petition), was awarded to Carol, subject to rather extensive visitation rights for Mark. The petitioner has another son from her first marriage, Bernie Plassmayer, who has asthma. On May 23, 1985, Carol filed a petition for leave to remove Matthew from Illinois to Yuma, Arizona. The petition for removal was based upon two grounds: (1) advancement of Carol's career both professionally and economically, and (2) improvement of Bernie's (her son from a previous marriage) health. Mark objected to the removal and asserted that Carol's interest in moving to Yuma was self-motivated and not in the best interests of the child, Matthew. Additionally, Mark asserted that the proposed move would cause grave psychological trauma for Matthew and would irrevocably injure the close parent-child relationship between father and son.

Mark Eckert filed a petition for the appointment of a court-ordered psychological evaluation of the parties and the minor child in order to ascertain whether the proposed move was in the best interests of Matthew. The petitioner, Carol Eckert, objected to the petition for psychological evaluation and alternatively argued that the trial court should order Mark Eckert to authorize the release of all information obtained by Dr. Tom Evans. Dr. Evans is a psychologist that extensively counseled the couple and allegedly had information which would aid the trial court in determining the best interests of Matthew. The trial court granted Mark Eckert's petition for psychological evaluation of the parties and their minor son. The trial court appointed Dr. Daniel J. Cuneo, who frequently serves the St. Clair County circuit court as a court-appointed psychologist. Petitioner, Carol Eckert, on appeal asserted that the trial court erred in denying the release of any and all information Dr. Evans may have had regarding the best interests of Matthew. No offer of proof was made by Carol Eckert that would indicate what information Dr. Evans had regarding the bests interests of Matthew.

At the time of the hearing on the petition for removal, Carol was teaching nursing at East St. Louis State Community College. She had been offered a teaching position at the Junior College of Yuma, Arizona. The associate degree nursing program at the Junior College of Yuma is fully accredited, whereas the program at East St. Louis State Community College is unaccredited. Carol testified that the pay scale for the job in Yuma ranged from $19,000 to $23,000, and that her salary was $21,350 at East St. Louis State Community College. Carol further testified that she had been looking for a position in the Belleville area through the newspapers, without success. On cross-examination, however, Carol admitted that she "wasn't really looking" for work and that she had just been offered the job in Yuma.

The second reason Carol gave for her desire to move to Arizona was Bernie's (her son from a previous marriage) asthmatic condition. Carol Eckert's father, Dr. William Knaus, testified that the climate of Belleville, Illinois, is unfavorable to asthmatics. Carol also presented evidence that the quality of life for the children would be at least equal to that offered in Belleville, because their housing, schooling and activities would be comparable, and possibly enhanced, by an improved climate. Carol had previously lived in Yuma and therefore is familiar with the living and environmental conditions there. Additionally, evidence was introduced that Carol was dating a physician in Yuma with some talk of marriage, but no definite plans.

All the evidence introduced indicated that Matthew is well adjusted and that both mother and father are excellent, loving parents. Although each party attempted to disparage, to a degree, the custody circumstances of the other, the record reflects that Matthew has developed a strong attachment for his father, as well as for his mother. The court-appointed psychologist, Dr. Cuneo, evaluated the parties and minor child and concluded that Matthew's best interest would be served by remaining in the Belleville area. Dr. Cuneo stated:

"Mr. Eckert has an excellent relationship with his son, one of the best I've seen. He is involved in all aspects of his son's life. As the

Mark Eckert is employed as a funeral home attendant, ambulance driver, and emergency medical technician. Mark's work schedule varies; nevertheless, he has never missed a visitation with his son. Several witnesses testified that Mark is an exceptional parent and that he spends a great deal of quality time with Matthew. Moreover, there was considerable testimony that Carol had attempted to interfere with Mark's visitation rights. Specifically, Karen Neimann testified that when she baby-sat for Matthew during the summer of 1982, the petitioner, Carol Eckert, told her Matthew was not allowed to call his paternal grandmother, who lived a few blocks away. Similarly, Matthew's first-grade teacher, Annie Mae Banes, testified that she allowed parents to go on field trips. According to Banes, she gave Mark Eckert permission to go on the field trip, not ...


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