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03/15/96 SHERRI TYSL N/K/A SHERRI VISNAW v.

March 15, 1996

SHERRI TYSL N/K/A SHERRI VISNAW, PETITIONER-APPELLEE,
v.
CHRISTOPHER LEVINE, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 89-F-978. Honorable James W. Jerz, Judge, Presiding.

Released for Publication April 15, 1996.

The Honorable Justice Rathje delivered the opinion of the court: McLAREN, P.j., and Geiger, J., concur.

The opinion of the court was delivered by: Rathje

JUSTICE RATHJE delivered the opinion of the court:

Respondent, Christopher Levine, appeals from the trial court's judgment granting petitioner's, Sherri Tysl's, petition to remove their child, Kathryn, from Illinois.

The parties were never married. Kathryn was born on May 18, 1986. Initially, petitioner and Kathryn lived with the respondent at his Wheaton, Illinois, residence. Approximately 1 1/2 years later, respondent moved out of this residence to live with his parents. Petitioner and Kathryn continued to live at the residence for approximately six months and then moved to an apartment in Glendale Heights. After this move, respondent returned to live in his Wheaton home.

On January 5, 1990, a judgment of paternity and joint legal custody was entered, along with a joint parenting agreement. On July 1, 1994, petitioner and Kathryn moved from Glendale Heights to Aurora. Petitioner married Michael Visnaw (Michael) on December 30, 1994. At that time, Michael worked and resided in Georgia. On February 1, 1995, petitioner was given leave to file her petition to remove Kathryn from the State. After a hearing late in April 1995, the trial court granted petitioner's petition. On June 16, 1995, an agreed order relating to visitation, support payments, and attorney fees was entered. The agreed order provided, inter alia, that respondent's visitation with Kathryn would amount to approximately 70 days annually. This timely appeal followed.

Respondent raises one issue before this court, namely, that the trial court's decision to grant the petition was against the manifest weight of the evidence.

We initially address respondent's motion to strike portions of petitioner's brief, which is being taken with the case. Respondent argues that, in her brief, petitioner improperly refers to the agreed order entered on June 16, 1995, as a basis upon which to affirm the trial court's judgment. We agree with respondent that the agreed order was entered a number of weeks after the trial court granted the petition and that it played no part in its determination of this cause. Accordingly, we grant respondent's motion to strike the relevant portions of petitioner's brief.

Petitioner's Case

At the hearing on the petition, petitioner testified that she was 34 years old and had been living with Kathryn in an Aurora, Illinois, apartment since July 1, 1994. Prior to that, they had lived in a Glendale Heights apartment since 1988. Petitioner was employed as a secretary at Merchants Home Delivery (Merchants) and was earning $27,000 annually. Petitioner met her husband, Michael, in 1990; they were married on December 30, 1994. Michael worked for Merchants as an account executive, specializing in transportation delivery services. In mid-1994, Michael's sole Illinois account was closed, and he was transferred by Merchants from Illinois to Atlanta, Georgia. Petitioner testified that, since being transferred, Michael had flown back to visit every few months.

Petitioner and Michael had not leased an apartment in Georgia, due to uncertainty related to the petition. Petitioner testified that she did not plan to obtain a job immediately upon moving to Georgia; she hoped to work on a part-time basis. Petitioner stated that respondent had reduced his child-support payments from $110 per week to $100 per week without court order. At the time of the hearing, respondent owed $1,580 in child support. Petitioner also testified that respondent did not provide medical insurance for Kathryn.

On cross-examination, petitioner conceded that Kathryn stayed at respondent's home three nights a week. Kathryn saw petitioner's parents approximately every two weeks. Petitioner testified that she did some research on Atlanta-area school districts. She concluded that these school districts were "about even" with the Naperville school (District 204) in which Kathryn was enrolled.

On redirect examination, petitioner stated that Michael had unsuccessfully attempted to find other work with Merchants in Illinois. Michael also looked for Merchants' jobs located closer to Illinois but could not find any. Neither petitioner nor Michael wanted to move to Georgia.

Michael testified that he retired from the Air Force in 1987, after 20 years' service. Since that time, he had worked for Merchants in a number of locations. While working for Merchants in Illinois, Michael worked exclusively on the Montgomery Ward account, which was terminated late in June 1994. Michael asked Merchants if there were any job openings in Illinois; he was told there were no positions available. He stated that he would prefer to live in Illinois. Michael went to Atlanta on July 5, 1994, to work on a temporary Merchants' assignment. His salary was $60,000 per year with a $500-a-month car allowance. He also received $13,000 per year in military retirement payments.

Michael's marriage to petitioner was his third. He stated that he had three children, ages 26, 23, and 19, from his first marriage, and one child, age 13, from his second marriage. Michael stated that, if the petition was granted, he intended to "initially get [a two-bedroom] apartment and then, possibly, look for a house to rent or maybe purchase." He had checked into the local Georgia school systems and found them comparable to District 204.

According to Michael, he had a good relationship with Kathryn. He described it as a friendship, rather than a parent-child relationship. They often went to the movies, ate at restaurants, and played computer games. Michael stated that he would not interfere with respondent's relationship with Kathryn.

Respondent's Case

Michael was called as an adverse witness. He stated that, in the eight years he worked for Merchants, he had been transferred five times, including the transfer to Atlanta. Michael conceded that, besides asking about a Merchants' job in Illinois, he had made no attempt to find any other employment in the Chicago area. He acknowledged that he had no relatives in Georgia and that he had not seen his children from his first marriage since 1992. Since July 1993, he had seen his 13-year-old son from his second marriage five or six times. Michael was currently making mortgage payments of $1,296 per month on a home he owned with his second wife. When that house was sold, Michael was to assume child-support payments of $850 per month. Car payments for the two cars owned by petitioner and Michael totalled approximately $800 monthly. Michael stated that, prior to his marriage to petitioner, he was aware of the close relationship between respondent and Kathryn.

Petitioner's mother, Lois Tysl, testified that, since petitioner and Kathryn moved to Aurora, she saw the latter once every two weeks. She opined that it was in the best interests of both petitioner and Kathryn to move to Georgia.

Called as an adverse witness, petitioner stated that she did not have any relatives in Georgia. She admitted that respondent had a very good relationship with Kathryn, who stayed overnight at his home about 150 to 160 nights a year. She acknowledged an incident which occurred early on New Year's Day 1995. On ...


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