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11/29/89 In Re Marriage of Diane Gratz

November 29, 1989

IN RE MARRIAGE OF DIANE GRATZ, N/K/A DIANE KENT,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellant, and GEORGE GRATZ,

Respondent-Appellee

548 N.E.2d 1325, 193 Ill. App. 3d 142, 139 Ill. Dec. 611 1989.IL.1834

Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Diane Gratz Kent appeals from an order of the circuit court of Lake County denying her petition to remove her minor son, Gary, from Illinois to Arizona and granting the petition of her former husband, George Gratz, for modification of custody. Diane argues on appeal that the denial of her petition to remove was against the manifest weight of the evidence, that the trial court relied upon improper factors in denying the petition, and that the trial court erred by granting George's petition to modify custody solely because of Diane's move to Arizona. We reverse and remand.

The marriage of Diane and George was dissolved by court order on June 4, 1981. Their son Gary was almost two years old at the time. The parties agreed that Diane would receive custody of Gary and George would be granted reasonable visitation. Diane married her current husband, David Kent, on March 20, 1983. George married his current wife, Lori, about two years and nine months prior to the hearing on Diane's petition to remove and his petition for modification of custody, which was held from September 29 to October 6, 1988.

David Kent retired from his position as a mechanical engineer with Abbott Laboratories on July 31, 1988. At the time, David, Diane, and Gary lived in a house in Glenview. George and Lori lived in a house in Waukegan. Gary generally spent most of the week in the Kent household. George would usually pick Gary up from the Kents on Saturday evening at about 6 p.m. Gary would then stay with the Gratzes until Monday morning, when George would drive him to the parochial school he attended in Glenview. Most of Gary's close friends resided near the Gratzes in Waukegan. He did not have many friends at school or in the Kents' neighborhood in Glenview. Gary would also spend one to two weeks per year with the Gratzes during the summer.

At the time of David's retirement he owned 13 houses in Arizona. David had long desired to move to Arizona after retirement. Diane and David purchased a house in Glendale, Arizona, in the early part of August 1988. They took Gary out to Arizona for a vacation that month and enrolled him in a public school near the new home. On August 17, 1988, Diane filed her petition for leave to remove Gary to Arizona. On August 23, George filed a response opposing Diane's petition and filed his petition to modify custody. During the pendency of the proceedings on these petitions, Diane and Gary temporarily resided in a motel located at the intersection of Routes 21 and 45 in Lake County.

Diane alleged at trial and alleges on appeal that the move would be in Gary's best interests for the following reasons: (1) Gary's health would be improved because he is allergic to ragweed and there is much less ragweed in Arizona; (2) David's health would be improved because he suffers from sleep apnea syndrome, a condition which causes him to snore loudly, and the condition improved during his August 1988 trip to Arizona; and (3) Diane would not have to work full time in Arizona because of the reduced cost of living and reduced expenses necessary to manage David's real estate holdings, thus enabling her to spend more time with Gary. In arguing against removal, George has relied primarily upon Gary's expressed preference to live with him in Waukegan and the potential disruption that the move would cause in Gary's relationship with his friends in Illinois and with George.

Dr. Lawrence Elegant, a specialist in treating allergies, testified about Gary's allergies. Dr. Elegant first examined Gary on September 15, 1988, two weeks prior to the hearing on the parties' petitions. Gary had an itchy, badly running nose with itching and tearing in his eyes. Dr. Elegant noticed that Gary's throat was severely irritated as well and that there was fluid behind his left eardrum. According to Dr. Elegant, Gary had an allergic rhinitis. Gary also displayed some evidence of atrophic rhinitis, which means that certain areas of the mucous membranes had become flattened, affecting his ability to smell and taste.

Dr. Elegant conducted tests with regard to the cause of the allergies. His preliminary finding was that Gary had a marked ragweed hay fever. Dr. Elegant testified that the Great Lakes area has the highest degree of ragweed pollen production during the ragweed season in the United States. He ...


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