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12/30/94 MARRIAGE ALEXANDRA GIBBS N/K/A ALEXANDRA

December 30, 1994

IN RE MARRIAGE OF ALEXANDRA GIBBS, N/K/A ALEXANDRA ENGLER, PETITIONER-APPELLANT AND CONTEMNOR, AND PETER GIBBS, RESPONDENT-APPELLEE.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EDWARD E. PLUSDRAK and MICHAEL C. CLOSE, JUDGES PRESIDING.

Rehearing Denied January 26, 1995.

Presiding Justice Hoffman delivered the opinion of the court: Johnson* and Theis, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

The petitioner, Alexandra Engler, appeals from several orders which denied her petition to remove her son, Palmer Gibbs, from Illinois to Florida, found her in contempt of court, and allowed extended visitation for Palmer's father, Peter Gibbs. This court stayed those orders pending appeal. We consider: (1) whether the trial court's denial of Alexandra's request to remove Palmer from Illinois to Florida was against the manifest weight of the evidence; (2) whether the finding of contempt against Alexandra was an abuse of discretion; and (3) whether the trial court had jurisdiction to enter the order allowing Peter extended visitation when it was entered after this court entered a stay order. For the following reasons, we affirm in part, reverse in part, and vacate in part.

The marriage between Alexandra and Peter was dissolved in 1989. Alexandra was initially awarded sole custody of Palmer, who was born on November 28, 1985, but the judgment of dissolution was later amended and provided that "major issues regarding Palmer's health and education shall be made jointly by Alex and Peter."

Alexandra filed a petition to modify and enforce the judgment on February 19, 1991, requesting an order allowing her to remove Palmer to Florida because she was engaged to Alexander Engler who was a resident of Florida. She amended her petition on June 7, 1991, to state that she had married Engler. She alleged that it was in Palmer's best interest to move to Florida because she wished to continue sole permanent custody of Palmer, Palmer wanted to live with his mother and not his father, Palmer had a close relationship with Engler, and Palmer was enrolled in school in Florida.

In a court hearing on other matters on April 23, 1991, Alexandra's lawyer informed the court that Alexandra married Engler and would be leaving for Florida on May 1. During the hearing, the judge stated: "I'll give the mother the right, without prejudice, to go to Florida ***"; and "I'll let the mother go on vacation to Florida." He later stated: "I'm not giving her permission to leave the state, period," and "I'm leaving everything status quo." In a later hearing, when advised that Alexandra had moved to Florida, the judge stated: "all of this has not been done with the approval and consent of the court."

The trial judge held an evidentiary hearing on Alexandra's petition for removal which took place over a period of more than a year where he heard the testimony of several witnesses.

Alexandra testified that she worked as a flight attendant for 12 years but quit in April 1991 because she was having back and elbow problems. She could not stand or sit for long periods of time. At the time she left, she was earning about $25,000 per year. Anticipating that she would need to change jobs, Alexandra telephoned two department stores between October 1990 and April 1991 to inquire about sales clerk positions. Apparently, there were no openings. At the time, she was living in a house in the suburbs of Chicago.

Alexandra also testified that Peter was about $10,000 in arrears on child support. Child support was reduced from $1,600 per month to $650 per month in January 1991 after Peter became unemployed. Alexandra has no other source of income and her new husband supports her and Palmer.

In 1989, Peter saw Palmer 23 out of 25 weekends, and 38 out of 52 weekdays. In 1990, Peter saw Palmer 23 out of 25 weekends, and 40 out of 51 weekdays. Palmer was resistant to see Peter in 1989 and 1990. Since Alexandra and Palmer moved to Florida, Peter has seen Palmer 54 out of 59 days that he has been allowed visitation.

Alexandra and Palmer moved to Florida in May 1991 when she married Engler. Engler has been a resident of Miami for about 30 years and has close family and friends there. Alexandra's parents also live in Florida, about four hours away by car, and they visit often. Since the move, Palmer is not as resistant to seeing Peter as he was before.

Alexandra testified that their lives would change drastically if she was required to move back to Illinois because she would have to work while now she is a full-time mother. She could not afford a similar house in a comparable school district. It would also put a strain on her marriage. According to Alexandra, moving back to Illinois would make Palmer "miserable." Palmer has no relatives other than his father in Illinois. If ordered to return, she would have to work as a sales clerk if her back improved. If allowed to remain in Florida, Alexandra would assume Palmer's medical expenses and share in the travel expenses. She would also grant Peter three weeks of visitation in the summer, one week to Peter's parents, three days each month, and split other school vacation time. In addition, Peter would be welcome in Florida at any time.

Engler testified that he had a wonderful relationship with Palmer and they were best friends. He has never considered moving to Illinois because he has deep roots in Florida. He worked as a pilot based in Washington, District of Columbia, although he was transferred to Miami prior to the trial's end. He could work out of Chicago for the same airline but he would have to take a pay cut of possibly $5,000; he currently earns $96,000 per year. To maintain his current position and salary but live in the Chicago area, he would have to fly to Miami a day before his scheduled flight and stay in a hotel and then fly back to Chicago after his trip. Engler had not given any thought as to whether he would come with Alexandra if she was ordered to return to Illinois with Palmer. He had not requested to be transferred to Chicago. He has been married four times and he has one child from another relationship.

Peter testified that he did not want Palmer to live in Florida because it would hurt their relationship; he would not be able to spend as much time with Palmer or be involved in his life. After Palmer moved to Florida, it was difficult to visit with Palmer or to telephone him. Often the answering machine would be on or there would be no answer and his call would not be returned. Because of the move, Peter has not been able to see Palmer on the regular visitation schedule. Peter has heard Palmer refer to Engler as "dad" and Palmer refers to Peter as "Peter" on the telephone. When they are together, however, Palmer refers to Peter as "dad." Peter believed that if Palmer was allowed to move to Florida, his contact would be severely limited. He was concerned that Engler was a bad influence on Palmer and he was concerned for Palmer's safety because Engler had a history of violence against women and children. One of Engler's ex-wives and one of his former girl friends testified that he had physically hurt them and threatened them.

Palmer was interviewed by the trial judge in chambers. Palmer had already moved to Florida. He stated he did not like living in Chicago because it was too "freezing." He ...


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