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05/05/89 In Re Marriage of Janice Kutinac

May 5, 1989

IN RE MARRIAGE OF JANICE KUTINAC, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THOMAS KUTINAC, Respondent-Appellant

538 N.E.2d 862, 182 Ill. App. 3d 377, 131 Ill. Dec. 487 1989.IL.680

Appeal from the Circuit Court of Lake County; the Hon. John G. Radosevich, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and McLAREN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Thomas Kutinac appeals from an order of the circuit court of Lake County granting the petition of his former wife, Janice, to remove their two minor children, Christopher and April, to Florida. On appeal, Thomas raises the following issues: (1) that Janice failed to set forth a prima facie case that removal was in the best interests of the children; (2) that the trial court's decision to grant the petition for removal was against the manifest weight of the evidence; and (3) that the trial court erred by refusing to strike two letters attached to a conciliation services report. We reverse.

Janice has not filed a brief with this court. The record is brief, however, and the issues raised can easily be decided without the aid of the appellee's brief. We shall therefore fully review the merits of this appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Furthermore, the interests of Justice would dictate such a course since the interests of the children are at stake.

The circuit court entered a judgment dissolving the marriage of the parties on December 19, 1980. Under the terms of a marital settlement agreement incorporated into the judgment, Janice received sole custody of the children. On August 11, 1987, the trial court entered an agreed order modifying some of the terms of the judgment of dissolution. The agreed order stated that Janice and Thomas would have joint custody of the children, with Janice having physical custody. On August 31, 1987, Janice filed a petition for leave to remove the children to Florida. The parties attempted to resolve the matter through mediation but their efforts failed. The trial court held a hearing on the petition on August 31, 1988. At the time, April was 9 years old and Christopher was 10.

Ellen Wcislo testified that she was a program supervisor for the Lake County special education district. According to Wcislo, Christopher was in the special education program because of a learning disability and had been enrolled in the program since he was six or seven. Parents of children in the program were expected to come in for at least three meetings per year in order to review the progress of their child. Janice came in for more than three meetings per year while Thomas had only attended one meeting.

Dorothy Doerle testified that she was a friend of Janice and that Janice had epilepsy. According to Doerle, Janice did not own a car and did not have a driver's license. Janice traveled by bicycle or bus and did not go out during winter if it was too cold.

Janice testified that she resided with her children in Grayslake. Between 1982 and 1987, Thomas, who resided in Ingleside, exercised his visitation rights about once every five weeks. After the joint custody order was entered, he only exercised his visitation rights once every 2 1/2 months. Thomas would also see the children briefly when he went to Janice's home to drop off child support or insurance payments. According to Janice, Thomas seldom went with the children to activities such as soccer or religious education classes.

Janice wanted to move with the children to Clearwater, Florida. One of the reasons was that it would be easier to get around because of the climate. Her Illinois driver's license had been taken away because she had been involved in three accidents. Janice did not wish to attempt to get a new license until she was positive her epileptic seizures were under control. Janice stated that she and the children did much of their traveling by bicycle, but it was very difficult to ride a bicycle during the winter months. She also traveled by bus sometimes, but had to travel over a mile to catch the bus. During winter, she had to get rides to the store from her sister and neighbors. If her children could travel to activities on their bicycles, they would do so, and Janice would often go with them. Otherwise, she would have to arrange rides for the children from neighbors or her sister. It would be easier to live in a warmer climate, according to Janice, because she could still ride her bicycle in the winter months. Janice also had been told by a Clearwater Chamber of Commerce representative that the town had excellent bus service.

Another reason for the move was to relieve stress. Janice had noticed that she tended to suffer seizures more often when she was aggravated or suffering from stress. She felt that moving to Florida would greatly resolve her transportation problems, causing her to suffer less stress. She stated that ...


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