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February 2, 1996


Appeal from the Circuit Court of St. Clair County. No. 90-D-184. Honorable Robert L. Craig, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Maag and Chapman, JJ., concur.

The opinion of the court was delivered by: Welch

The Honorable Justice WELCH delivered the opinion of the court:

Petitioner, David Johnson, appeals from the trial court's order granting the petition of respondent, Donna Horton, to remove the parties' daughter, Kara, from Illinois to Texas. David Johnson and Donna Horton (f/k/a Donna Johnson) were married on December 11, 1976. Kara, their only child, was born on January 17, 1987. The couple divorced on February 14, 1990. A joint parenting agreement provided for joint custody with Donna as the primary residential parent, and it provided that both parents shall jointly decide the important matters pertaining to Kara's upbringing.

In February of 1991, Donna married Bill Horton. In April of 1993, Bill was permanently transferred to Dallas, Texas.

On April 18, 1994, Donna filed a petition to remove Kara to Texas. A hearing was conducted on October 20, 1994. On January 18, 1995, and April 17, 1995, the court made findings pursuant to the hearing. On June 12, 1995, the circuit court granted Kara's petition, finding that in light of the standards set out in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, 116 Ill. Dec. 220, the petition should be granted. David Johnson appeals this ruling, alleging that it is against the manifest weight of the evidence. We agree and reverse the order of the circuit court.

At the hearing, testimony was elicited from Donna Horton, Bill Horton, David Johnson, Cindy Johnson, and David Johnson's parents. Testimony revealed that Bill Horton is originally from Texas and was transferred to St. Louis in July of 1989. Bill was previously married and has two sons from his previous marriage who reside in Texas. Donna met Bill in May of 1990. They married in February of 1991 and have one child, Emily, who was 10 months old at the time of the hearing. Both Donna and Bill have been employed by Southwestern Bell for more than a decade, and both intend to finish their careers with Southwestern Bell.

At the time of his transfer to St. Louis, Bill knew that he would not permanently remain in the St. Louis area because he was on a rotational assignment. As expected, in May of 1992, Bill was reassigned to Dallas, Texas. He was given a temporary assignment in San Antonio, Texas, but as of April 1993, he was permanently assigned to Dallas. According to Bill's testimony, he did not oppose a transfer to Texas because he wanted to be close to his sons and he felt that by not accepting a transfer, he would be harming his career with Southwestern Bell.

Since the transfer, Bill has been living in an apartment in Texas, and Donna has been living in Illinois. Donna testified that the distance has put a strain on their relationship and that ultimately they will not to be able to financially maintain this living arrangement. Donna testified that she feels confident that if she moves to Texas, Southwestern Bell will have a position for her. Donna also stated that she and Bill intend to purchase a four-bedroom home if the removal is granted. Finally, Donna testified that Kara has met Bill's family and that Kara gets along with Bill's sons.

During the first six months of Kara's life, Donna was the primary care giver. After the first six months, David became the primary care giver. This arrangement was established because David was a registered nurse and Donna was earning a higher salary than David. David was employed part-time during this period. This arrangement continued until Kara was 2 1/2 years old, at which time David returned to working full-time as a registered nurse.

The evidence shows that since the parties' divorce David has been extensively involved in Kara's life. Donna testified that David would see Kara two out of five days a week and that 40% to 50% of Kara's time would be spent with David. Cindy Johnson, David's new wife, testified that they would take Kara on picnics, to parades, to church, for bicycle rides, and to the library. David testified that he provides most of Kara's transportation so that he can visit her more frequently. David testified that it is important for him to be with her on a regular basis and that if the removal is allowed, phone contact could not replace the day-to-day personal contact he currently enjoys. There was no evidence disputing that Kara has a very close relationship to both Donna and David.

Kara's paternal grandparents testified that they have had contact with Kara at least two or three times a month, that Kara has spent the night at their house, that they have picked Kara up from school, and that they have participated in various activities with her, such as bicycling and camping. Kara has a close relationship with her paternal grandparents. Further, the evidence shows that most, if not all, of Kara's relatives reside in close proximity to her Illinois home.

In ruling on the petition, the circuit court noted in its findings that it did not consider this to be an easy decision. It stated:

"At the conclusion of the testimony in this matter I was inclined to believe that the extraordinary involvement of Mr. Johnson in Kara's life *** was so overwhelming that the petition for removal filed by Mrs. Horton probably should be denied. However, *** in the light of the Eckert factors [( In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, 116 Ill. Dec. 220)] and other case law, I am persuaded that the petition should be granted. In fact, I believe denial of the petition would be ...

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