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In re Ludwinski

March 31, 2000


Appeal from Circuit Court of Champaign County No. 91C724 Honorable Ann A. Einhorn, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

In July 1998, petitioner, David V. Ludwinski, petitioned to remove his two minor children from Illinois. In January 1999, the trial court denied the petition. David appeals, arguing that the trial court erred in ruling that removal would not be in the best interests of the children. We agree and reverse.


Petitioner and respondent, P. Gretchen Siler-Shafer, married in 1986. Two children were born to the marriage, David A. and Michael. Gretchen's two daughters from a previous marriage also lived with the parties during their marriage.

In December 1991, the trial court granted the parties a dissolution and entered judgment as to grounds; the parties then agreed to temporary joint custody under which each parent had equal time with the children. After further hearing, in July 1993, the trial court entered judgment awarding custody of the children to David. The court awarded Gretchen liberal visitation, including liberal telephone contact. Gretchen's visitation consisted of alternate weekends, one day midweek from 3:30 p.m. to 8 p.m., eight weeks during the summer (subject to weekend and midweek visitation by David), two days at Thanksgiving, one-half of Christmas break, Mother's Day, spring break in alternate years, and 24-hour periods for remaining holidays in alternate years. Slight modifications in the schedule were made over the years, and Gretchen exercised her visitation regularly.

In December 1992, David remarried. He and his wife, Rochelle, had three daughters, one of whom died in infancy. David and Rochelle lived with their two daughters and David A. and Michael in Monticello, Illinois. Gretchen also remarried and, at the time of the hearing on the removal petition, was living with her husband, Steve Shafer, in Tolono, Illinois.

In July 1998, pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609 (West 1998)), David sought permission to remove the children to Utah because he had a job offer from the Logan Agency (Logan Agency), an insurance business co-owned by Leland Cottle (Rochelle's uncle) and Melvin Olson.

After hearing copious amounts of testimony, the trial court denied David's request for removal. The trial court concluded that (1) the proposed removal of the children to Utah would not enhance the general quality of life for the children; (2) the removal would seriously impact Gretchen's involvement with the children; and (3) the proposal for visitation and other methods for the children to keep in touch with Gretchen would not preserve and foster the close relationship between the children and Gretchen. This appeal followed.


On appeal, David argues that the trial court erred in ruling against his petition to remove the children from Illinois because it was, in fact, in their best interests to move to Utah. Section 609 of the Act provides that removal may be granted by the trial court if it is in the children's best interests. Therefore, in removal cases, the paramount question is whether the move is in the children's best interests. The party seeking removal has the burden of showing that removal of the children is in their best interests. While removal cases must be judged on their own unique set of facts (In re Marriage of Berk, 215 Ill. App. 3d 459, 463, 574 N.E.2d 1364, 1367 (1991)), our supreme court has provided some guidance to the courts of this state in deciding these cases. In In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988), the court identified five factors that should be considered in determining whether removal is in the best interests of the children sought to be removed. Those factors are (1) whether the proposed move will enhance the quality of life for both the custodial parent and the children; (2) whether the proposed move is a ruse designed to frustrate or defeat the non-custodial parent's visitation; (3) the motives of the non-custodial parent in resisting removal; (4) the visitation rights of the non-custodial parent; and (5) whether a reasonable visitation schedule can be achieved if the move is allowed. Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46. A reasonable visitation schedule is described as one that would preserve and foster the children's relationship with the non-custodial parent. Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.

In applying the above factors to the evidence adduced in the present case, we are mindful that the trial court's decision is not to be disturbed unless it is clear that its decision was against the manifest weight of the evidence and that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. Although the trial court has broad discretion in these cases, that discretion is not unlimited and, when the decision is against the manifest weight of the evidence, it will be reversed. In re Marriage of Davis, 229 Ill. App. 3d 653, 660-61, 594 N.E.2d 734, 739 (1992), citing In re Marriage of Bush, 170 Ill. App. 3d 523, 529, 525 N.E.2d 163, 166 (1988).

The first factor to consider is the likelihood of enhancing the general quality of life for David and the boys. The trial court found that the proposed move would not enhance the general quality of life for the children. The court found that the boys would be moving from one middle-class environment to another, both with good schools. The court expressed its concern that, although Rochelle had extensive family in Utah, the boys would be leaving actual blood relatives in Illinois.

We disagree. The evidence indicates that the boys' quality of life would indeed be enhanced. David and Rochelle hope to settle in Smithfield, Utah, and made an offer on a home there, contingent on selling their home in Monticello. Rochelle's father, a teacher in the school district David A. and Michael would attend in Utah, testified that the schools in the district are very good and rate above the national norm. The church that the family would attend is within a few blocks of David and Rochelle's proposed new home. That area has a large population of people of the Mormon faith, the religious faith observed by David, Rochelle, and the minors, and previously observed by Gretchen. Cultural and recreational activities are plentiful in the area of Utah where David wishes to relocate. David A. and Michael, ages 11 and 9, respectfully, at the time of the hearing on the petition for removal, had been to Utah nine times since Rochelle married David, staying up to 10 days. They get along well with Rochelle's family, who treat them as they do the other grandchildren, cousins, or nephews. Rochelle's parents live on a farm. When the boys visit, they play football and soccer in the yard, and their grandfather takes them four-wheeling. They have enjoyed their visits to Utah.

Even if we were to conclude that the boys' quality of life would not be enhanced directly, we find that it would be indirectly, also a factor to be considered. If only the direct benefits that affected children were considered, rarely would a situation arise where removal would be permitted where children were in a good environment with good schools, good parents, and good friends. The move to Utah will significantly affect the general quality of life for David, the custodial parent, and Rochelle, therefore indirectly enhancing the boys' quality of life, and this indirect benefit should be considered. See In re Marriage of Carlson, 216 Ill. App. 3d 1077, 1081, 576 N.E.2d 578, 580 (1991) (it is necessary to also consider indirect benefits to the children ...

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