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February 10, 1995


Appeal from Circuit Court of Adams County. No. 90D183. Honorable David K. Slocum, Judge Presiding.

As Corrected March 31, 1995.

Honorable James A. Knecht, P.j., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Petitioner Lisa Eaton appeals from a denial by the circuit court of Adams County of her request to remove her three minor children from Illinois. Petitioner and respondent Timothy Eaton were granted a judgment of dissolution of marriage September 11, 1990. The parties were married in 1977 and during the course of the marriage had three children, ages 7, 10, and 12 at the time of the hearing on the petition for removal.

Pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609 (West 1992)) petitioner sought leave to remove the children to live in Bonita Springs, Florida. Section 609 of the Act provides approval may be granted by the court if it is in the best interests of the child or children. The party seeking removal has the burden of proving removal is in the best interests of the children.

Following a hearing and an in camera interview with the three children, the trial judge denied Lisa's request for removal. The trial court found the proposed removal of the children to Florida would not enhance the general quality of life for the children. The court also found removal of the children to the State of Florida would substantially impair Timothy's involvement with the children, and the visitation schedule proposed by Lisa would not preserve and foster the relationships among the children and Timothy. We find the denial of the petition to remove was against the manifest weight of the evidence and reverse.

The parties were granted a dissolution of marriage on September 11, 1990, which awarded custody of the parties' children to Lisa. Timothy was granted visitation rights consisting of alternate weekends, Wednesday overnights during the summer, and Wednesday evenings during the school year, one-half of holidays, and two weeks' extended visitation during the summer. During their marriage the parties had resided in Chicago, Burlington, Iowa, and Palm Springs, California; they then moved to Florida, where they resided from November 1982 until their separation in December 1989. The two younger children were born in Florida. Timothy was employed as a golf professional during this time, and the moves were dictated by his employment.

Lisa and the children moved to Quincy, Illinois, from Florida in December 1989. Timothy traveled to Illinois at that time, but returned to Florida to continue his employment in late December or early January 1990. He then moved to Quincy permanently in April 1990. During the time when he was in Florida and the children were living in Quincy, Timothy had phone contact with the children, he came to Quincy to visit them in January 1990, and they traveled to Florida to visit him in March 1990. Timothy remarried in January 1993. He now works as a real estate salesman and building manager. Both Timothy and Lisa grew up in Quincy.

Lisa has a degree in special education and has been employed since the fall of 1990 as a teacher at the Adams County Youth Home, where her take-home pay is approximately $1,140 per month. She receives $550 per month in child support. As a single parent she has been financially pressed. Her earnings and the child support are insufficient to meet the costs of supporting herself and the children. This has forced her to borrow money from her parents. She further testified her life was more difficult socially as a single parent, and being single created problems in terms of child-care arrangements when it was necessary to run errands or perform some other responsibility on short notice. Lisa relied on her parents for child sitting when she was ill or worked late, but did not feel comfortable requesting their assistance for very brief periods.

Lisa sought permission to remove the children to Florida because she was planning to marry John Spear, an attorney originally from Quincy, who had been practicing law in Florida for several years. Spear testified it would not be feasible, from either a professional or financial perspective, to attempt to move his practice to Illinois. Timothy opposed the petition for removal on the grounds the removal would interfere with his visitation and relationships with the children.

Lisa testified, as a result of her pending marriage, she would be better off financially, she would have someone to share the daily chores of parenting with, and she would be in a better position socially and within the community. Spear testified to his 11-year residence in Florida, to his established law practice and to his involvement in the local Chamber of Commerce and Rotary. Both of these groups sponsored family-oriented activities. Spear and Lisa both testified Spear's home in Florida was comparable in size to the home occupied by Lisa and the children in Quincy, but was more modern. There was also testimony a larger home would be purchased or built following the children's move to Florida.

The schools the children would attend in Florida if the move were allowed had physical, academic, and recreational facilities equivalent to those available in Quincy, and the Florida schools had received awards for excellence.

Spear testified to the cultural, educational, and recreational opportunities available in the area to which Lisa sought permission to move the children. Lisa would be moving to Bonita Springs, Florida, with a population of approximately 25,000 year-round residents. Bonita Springs is approximately a 45-minute drive from Marco Island, where the parties lived during their marriage. Naples, Florida, is four or five miles south of Bonita Springs and has a population of 80,000 to 100,000. Ft. Myers is approximately 10 miles north of Bonita Springs, and has a population of 100,000 to 150,000.

Timothy has exercised all of his scheduled visitation since the dissolution, with the exception of the extended summer visitation. Lisa testified Timothy had not taken the two weeks of summer visitation until 1993, after the filing of the petition to remove. Timothy testified he thought he had taken the two weeks' visitation in 1992, and specifically remembered taking the children to St. Louis and to the Ozarks. He was not certain as to what other time he had the children or as to what they did ...

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