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09/19/96 MARRIAGE JAN MARIE KRIVI

September 19, 1996

IN RE MARRIAGE OF JAN MARIE KRIVI, PETITIONER-APPELLEE, AND JOSEPH CHARLES KRIVI, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Jefferson County. No. 91-D-87. Honorable Kathleen M. Alling, Judge, presiding. This Opinion Substituted for Vacated Opinion of October 4, 1995, Previously

The Honorable Justice Welch delivered the opinion of the court: Maag, J., concurs. Justice Chapman, concurring in part and dissenting in part:

The opinion of the court was delivered by: Welch

ORDER

This cause has been considered on rehearing, and the court being advised in the premises finds:

This court previously filed a decision in this cause on October 4, 1995, but granted petitioner-appellee's petition for rehearing on October 30, 1995; and

IT IS THEREFORE ORDERED that the decision previously filed in this cause on October 4, 1995, shall be, and the sane hereby is, VACATED AND HELD FOR NAUGHT.

IT IS FURTHER ORDERED that the opinion being filed on this date shall stand as the decision of this court.

The Honorable Justice WELCH delivered the opinion of the court:

The respondent, Joseph C. Krivi, appeals from a judgment of dissolution entered by the circuit court of Jefferson County. Petitioner, Jan M. Krivi, and respondent were married on April 13, 1985. The parties, who resided in Mt. Vernon, Illinois, had two children together. Julia L. Krivi Was born July 9, 1987, and Jenna L. Krivi was born November 14, 1988. Respondent is also the father of Justin Krivi, who lived with the parties during the entire time of their marriage. Petitioner is a registered nurse with a certified occupational therapist certificate. Respondent, who holds a bachelor's degree in educational training and development, is employed as an assistant electric superintendent with Illinois Power. On February 16, 1991, petitioner left Mt. Vernon and took Julia and Jenna to Minnesota. Petitioner has remained in Minnesota and is now remarried.

On April 11, 1991, petitioner filed a petition for dissolution of marriage in the circuit court of Jefferson County. On April 6, 1992, the trial court entered an order dissolving the parties' marriage. On April 29, 1993, the trial court entered a final judgment that, inter alia, awarded custody of the children to petitioner, approved petitioner's removal of the children to Minnesota, granted respondent visitation rights, awarded petitioner temporary maintenance, ordered respondent to pay child support in the amount of $381.15 every two weeks, and ordered respondent to pay petitioner's attorney fees in the amount of $19,088.19.

On May 24, 1993, the trial court entered two amended qualified domestic relations orders relating to petitioner's interest in respondent's retirement and savings plans. On June 1, 1993, respondent filed a petition to vacate, modify, or reconsider the final judgment and the amended qualified domestic relations orders. On August 2, 1993, the trial court entered an order amending the final judgment with respect to visitation; however, the trial court denied respondent's posttrial motion in all other respects.

Respondent raises the following issues on appeal: (1) whether the trial court erred in approving petitioner's removal of the children to Minnesota; (2) whether the trial court erred with respect to the issues of custody and visitation; (3) whether the trial court erred in ordering respondent to pay $19,088.19 of petitioner's attorney fees; (4) whether the trial court erred in apportioning respondent's pension benefits; and (5) whether the trial court erred in its distribution of marital property.

Because a great deal of evidence and testimony was presented in the trial court, we will set forth only those facts necessary to an understanding of this court's decision. Relevant facts will be discussed in the analysis of the issues to which they are pertinent.

I. Removal Of The Children To Minnesota

"With the increased number of parents who are divorced and the increasing mobility of society, divorced or legally separated custodial parents frequently seek to move out of the jurisdiction that granted the divorce to another jurisdiction. H. Joseph Gitlin, Gitlin On Divorce: A Guide to Illinois Matrimonial Law sec. 12.00, at 265 (1995).

Illinois law provides that a court may allow a child to be removed from the State of Illinois when such removal is in the best interest of the child. 750 ILCS 5/609(a) (West 1992); In re Marriage of Young, 263 Ill. App. 3d 901, 903, 636 N.E.2d 1092, 1094, 201 Ill. Dec. 660 (1994); In re Marriage of Branham, 248 Ill. App. 3d 898, 902, 617 N.E.2d 1317, 1320, 187 Ill. Dec. 596 (1993). The burden of proving that removal is in the best interest of the child is on the party seeking removal. 750 ILCS 5/609(a) (West 1992); In re Marriage of Deckard, 246 Ill. App. 3d 427, 430, 615 N.E.2d 1327, 1330, 186 Ill. Dec. 270 (1993); In re Marriage of Davis, 229 Ill. App. 3d 653, 660, 594 N.E.2d 734, 739, 171 Ill. Dec. 590 (1992). The Illinois Supreme Court has identified five factors to consider in determining whether removal is in the child's best interest: (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the child; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the removal; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. In re Marriage of Eckert, 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46, 116 Ill. Dec. 220 (1988).

In addition to the factors enumerated in Eckert,

" trial court's examination of a removal petition should be guided by the policy of the Illinois Marriage and Dissolution of Marriage Act in custody matters, which states, inter alia, that the purpose of the Act is to 'secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.'" Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046 (quoting Ill. Rev. Stat. 1985, ch. 40, par. 102(7) (now 750 ILCS 5/102(7) (West 1992))).

A trial court's determination regarding removal should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. Notwithstanding the fact that a trial court has broad discretion in removal cases, that discretion is not unlimited, and when the decision is against the manifest weight of the evidence, it will be reversed. Davis, 229 Ill. App. 3d at 660-61, 594 N.E.2d at 739. Our analysis of the Eckert factors leads us to conclude that petitioner failed to prove that moving the children to Minnesota, some 850 miles away from their father, was in their best interests. As a result, the trial court's decision granting removal was against the manifest weight of the evidence and must therefore be reversed. To hold otherwise would result in manifest injustice.

We will examine each of the Eckert factors in light of the evidence adduced in this case. There is no evidence that the move to Minnesota enhanced the quality of life for petitioner or the children. Petitioner testified that there was not any financial reason for her to leave Mt. Vernon. She did not leave Mt. Vernon for a better job in Minnesota. Petitioner's job in Mt. Vernon was comparable to her present job in Minnesota. Furthermore, petitioner testified that her home in Mt. Vernon was adequate for the children's needs, that the children were "basically" happy in Mt. Vernon, that the children had friends in Mt. Vernon to play with, that there were adequate babysitting arrangements in Mt. Vernon, and that the children could receive adequate care, housing, training, and opportunity in Mt. Vernon.

Petitioner also stated that she would be willing to return to Mt. Vernon in order to keep custody of the children, and that there was nothing to prevent her from moving back to Mt. Vernon. We note that petitioner's move to Minnesota disrupted the children's lives not merely once, but three additional times. Petitioner first lived in Lakeville, Minnesota, from February 18, 1991, until the end of August 1991. Petitioner then lived in Redwood Falls, Minnesota, until June 1993. At present, petitioner and the children live in Franklin, Minnesota.

Regarding the motives of the custodial parent in seeking the move, we note that the mere desire to move to another State, without more, is insufficient to show that the move is in the child's best interest. Deckard, 246 Ill. App. 3d at 430, 615 N.E.2d at 1330; Davis, 229 Ill. App. 3d at 661, 594 N.E.2d at 739. Courts must remain vigilant to ensure that custodial parents do not "employ removal as a weapon especially in light of the severe statutory limitations placed upon restriction or termination of visitation." In re Marriage of Creedon, 245 Ill. App. 3d 531, 535, 615 N.E.2d 19, 22, 185 Ill. Dec. 724 (1993). The trial court found that "the children were certainly removed because of the act of violence on the part of Mr. Krivi." Additionally, the trial court found that petitioner removed the children to "separate them from a hostile environment."

We find that the trial court's findings regarding petitioner's motivation for removing the children from their home in Mt. Vernon are against the manifest weight of the evidence. The evidence does show that on September 20, 1990, the parties had a physical altercation which began when petitioner slapped respondent and ended with petitioner having to seek medical treatment for injuries inflicted by respondent's beating. There was no evidence of a pattern of violence or of previous physical altercations between the parties. The parties cohabited together without another incident of physical violence for five months after first coming to blows on September 20, 1990. When asked to state her reason for leaving, petitioner, who had recently undergone treatment for her varicose veins, said she left because respondent went on a golf outing without saying goodbye to her or asking how she felt.

Petitioner testified that she relocated to Minnesota because her mother, brother, and sister lived there. However, the mere desire to move to another State, without more, is simply not sufficient to show that the move is in the children's best interest. Deckard, 246 Ill. App. 3d at 430, 615 N.E.2d at 1330; Davis, 229 Ill. App. 3d at 661, 594 N.E.2d at 739. We note that Justin, who has a close brother-sister relationship with Julia and Jenna, lives in Mt. Vernon. Petitioner's motivation for moving to Minnesota does not weigh in favor of removal.

Insofar as the motives of the noncustodial parent in resisting the removal are concerned, there is no evidence to suggest that respondent's motives are based on anything other than a desire to maintain close contact with his children. There is no evidence in the record to suggest that respondent is anything other than a loving and caring parent who is interested in being a part of his children's lives. The evidence shows that respondent has had an excellent relationship with his children since the separation. During visitation, respondent shows his children love, reads books to them, plays with them, and takes them on camping trips in the motor home. Respondent testified that he wanted the children to stay in Mt. Vernon because:

"[They] should be where their home is. [Mt. Vernon] is where they were born and *** raised. They have a brother and a family and a home. They have friends. They have *** a home where they had a huge sunroom where they played *** and watched their dog run in the back yard ***."

We can ascribe no improper motives to respondent's opposition to removal. Respondent raises serious and legitimate reasons for resisting removal.

Lastly, we consider the fourth and fifth Eckert factors together--i.e., the visitation rights of the noncustodial parent and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. The negative impact that removal of the children to Minnesota, some 850 miles away from Mt. Vernon, has on respondent's visitation rights is great. A child has an interest in maintaining significant contact with both parents following a divorce. Eckert, 119 Ill. 2d at 325, 518 N.E.2d at 1044. "It is in the best interests of children to have a healthy and close relationship with both parents, as well as with other family members, and thus the visitation rights of the non-custodial parent should be carefully considered." In re Marriage of Stone, 201 Ill. App. 3d 238, 243, 559 N.E.2d 92, 95, 147 Ill. Dec. 92 (1990); see also In re Marriage of Shalashnow, 159 Ill. App. 3d 760, 766, 512 N.E.2d 1076, 1079, 111 Ill. Dec. 535 (1987) (it is self-evident that it is in a child's best interest to have a healthy and close relationship with both parents).

A reasonable visitation schedule is defined as follows:

" reasonable visitation [schedule] is one that will preserve and foster the child's relationship with the noncustodial parent. This decision is determined in part on the extent to which the noncustodial parent has exercised his visitation rights. If the noncustodial parent has diligently exercised his rights, then the court should not interfere with those rights for frivolous, unpersuasive, or inadequate reasons; however, if the noncustodial parent has not exercised his rights, the custodial parent should be free to move if it is in the child's best interests." In re Marriage of Gibbs, 268 Ill. App. 3d 962, 968-69, 645 N.E.2d 507, 513, 206 Ill. Dec. 502 (1994).

Respondent has diligently exercised his visitation rights. In fact, as far as we can determine, respondent has never missed a scheduled visitation opportunity. The biggest impediment to effective visitation in this case is the sheer distance involved. Distance is a proper consideration in determining the feasibility of a visitation schedule. See, e.g., Branham, 248 Ill. App. 3d at 900, 904, 617 N.E.2d at 1319, 1322 (reasonable visitation schedule possible where distance involved was 230 miles); In re Marriage of Pribble, 239 Ill. App. 3d 761, 768, 607 N.E.2d 349, 354, 180 Ill. Dec. 455 (1993) (reasonable visitation schedule possible where distance involved was 404 miles).

The trial court awarded respondent the following visitation:

(1) one long weekend in February each year for winter break;

(2) Memorial Day weekend every year and Labor Day weekend ...


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