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05/17/96 MARRIAGE JUDY ELLIOTT v. WILLIAM R.

May 17, 1996

IN RE THE MARRIAGE OF: JUDY ELLIOTT, N/K/A JUDY DUNCALF, PETITIONER-APPELLANT,
v.
WILLIAM R. ELLIOTT, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 91-D-606. Honorable Larry Vandersnick, Judge Presiding.

Released for Publication June 20, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Justice McCUSKEY delivered the opinion of the court: Breslin, P. J., and Lytton, J., concur.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

Appellant, Judy Elliott, n/k/a Judy Duncalf, filed two separate petitions requesting leave to remove her children to Ohio. See 750 ILCS 5/609(a) (West 1994). Following denial of the second petition, Judy filed a timely notice of appeal. After carefully reviewing the record, we affirm.

I. Background

Judy and William Elliott (William) were married on October 6, 1984. They have two children, Courtney, born May 21, 1986, and Maggie, born April 25, 1988. On August 1, 1991, the parties were awarded a judgment of dissolution of marriage. Joint custody of the parties two minor children was awarded, with Judy serving as the primary custodial parent. Except for Judy's sister, all of Judy's and William's immediate families live in the Quad City area. Courtney and Maggie have lived in the Quad City area their entire lives.

On December 20, 1994, Judy filed a petition to remove the children from Illinois to Ohio. On February 1, 1995, a hearing was held. Judy testified that she graduated from chiropractic school following her divorce. She was employed as a receptionist at her father's chiropractic office at a rate of $8 per hour. Judy took the exam to become licensed as a chiropractor in Iowa, but failed the bookkeeping portion of the test. Judy said that to become licensed as a chiropractor in Illinois there is no written test, but a fee is required. She said that she could not afford the fee. Judy also acknowledged that she could retake the Iowa exam as many times as necessary to pass the test.

Judy further testified that she was licensed to practice as a chiropractor in Ohio. At the time of the first hearing, Judy had a job offer in Sterling, Ohio. The position paid $600 per week, and a bonus was available if she produced a certain level of business. Judy found a place to live in Ohio where the rent was $650 per month. At the time of the hearing, Judy and the girls lived in a house owned by her parents and paid no rent or child care expenses. Judy was engaged to William Pring. He lives in Ohio and is a licensed chiropractor in that state. Judy testified that they planned to marry as soon as possible.

William testified that he is employed as a dock worker for Roadway Express. He is a union member and has an irregular work schedule because he is on call. William was granted visitation with the children for two full weeks in the summer, two full days and nights every other week, one day during the week he does not have them overnight, and any other times agreed upon by Judy and William. Judy testified she did not preclude William from exercising additional visitation when his work schedule allowed. In addition, William's parents spend Thanksgiving and Christmas with Courtney and Maggie. William's mother sees Courtney every school day because she took a job in the cafeteria of Courtney's grade school. William's father also sees the girls very often. Judy's parents see the girls up to four times per week, and the girls regularly stay with them on Friday nights. It is undisputed that all four grandparents have a very close relationship with Courtney and Maggie and see the children frequently.

William testified that he is very close to both his daughters, especially Courtney. He is Courtney's basketball and softball coach and has encouraged Courtney and Maggie to become involved in a variety of other sports. In addition to his in-person visitation schedule, William and his daughters talk on the telephone several times per week. He follows the girls' progress at school and meets occasionally with their teachers. He testified that both girls were doing very well in school.

Courtney was interviewed in camera by the trial court and both attorneys. She said that she did not want to move to Ohio. She told her mother that she did not want to move and Judy responded by telling her "too bad. " (Emphasis added.) She testified that her mother was mean to her when they were in Ohio, and she did not like her mother's fiance or his parents. Courtney said that her mother's fiance used profanity in her presence, made fun of William, did not let the girls use William's name, yelled at her, and punished her when she made too much noise in the mornings.

On February 3, 1995, the trial court issued an opinion which denied the petition. The court applied the factors of In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041, 116 Ill. Dec. 220 (1988). The court specifically found: (1) Judy did not meet her burden to show that removal of the children to Ohio was in their best interests; (2) Judy would increase her income with a move to Ohio, but her expenses would also increase; (3) Judy could retake the Iowa chiropractic exam and become licensed to work with her father; (4) all of the children's relatives live in Illinois, including their father and both sets of grandparents; (5) the children's quality of life would not be enhanced by the move to Ohio; and (6) due to the distance, and William's irregular work schedule, no realistic or reasonable visitation schedule could be crafted which would preserve William's relationship with his children. On May 22, 1995, the court denied Judy's motion to reconsider.

On July 10, 1995, Judy filed a second petition for leave to remove. A second hearing was held on August 23, 1995. At this hearing, the parties stipulated that the transcript from the first hearing would be admitted as evidence. At the second hearing, Judy testified that she had a new job offer in Ohio, paying $850 per week, plus bonus possibilities. Judy's fiance had a job offer from the same chiropractic ...


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