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In re Sobol

August 26, 2003

IN RE: THE MARRIAGE OF STEVEN MARK SOBOL, PETITIONER-APPELLEE, AND JILL R. SOBOL, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Macon County No. 98D126 Honorable Albert G. Webber, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

UNPUBLISHED

In February 2002, petitioner, Steven Mark Sobol, filed a petition for modification, requesting that he not be required to move with the minor children, Brett Isacc Sobol (born November 1989) and Valerie Gale Sobol (born May 1992), to Eagle County, Colorado, where respondent, Jill R. Sobol, resided. After a three-day hearing, the trial court granted petitioner's petition. Respondent appeals, contending (1) the trial court imposed the wrong standard for modification, (2) the trial court erred in admitting prejudgment evidence, and (3) petitioner failed to meet his burden of proof. We affirm.

I. BACKGROUND

The parties were married in July 1987. In March 1998, petitioner filed a petition for dissolution of marriage. On November 8, 2000, the trial court entered a judgment of dissolution, granting petitioner custody of the minor children with respondent having reasonable visitation rights subject to the terms of the November 1, 2000, marital settlement agreement (Agreement). The Agreement provided the following:

"Because the parties believe that the children will be best served by having frequent, regular contact with both parents, [petitioner] shall relocate himself and the children to Eagle County, Colorado, by September 2002, hereinafter referred to as the 'relocation date.'"

The Agreement then set forth different visitation schedules for respondent prior to the relocation (Illinois visitation schedule) and after the relocation. Additionally, after the relocation date, petitioner was to remain the legal custodian of the minor children, but the parties were to cooperate in making all important decisions regarding the children's "upbringing, health care, education, religious training, and extracurricular activities."

In June 2001, petitioner married his present wife, Jill E. Sobol. Petitioner, his present wife, the minor children, and petitioner's five-year-old stepdaughter, Carlie, live in a home in Forsyth, Illinois. Petitioner and the minor children have resided in the home since January 2000. Petitioner is a board- certified ear, nose, and throat specialist with subspecialty training in head- and neck-tumor surgery and skull-base surgery and maintains a medical practice in Decatur, Illinois.

Respondent lives in a home in Edwards, Colorado. She moved to Colorado in August 1999 with the minor children, who lived with her until Christmas 1999. Respondent works part-time as a merchandiser and, at the time of the hearing, was negotiating a partnership interest in a store.

On February 7, 2002, petitioner filed a petition for modification, requesting that he not be required to move to Colorado. In April 2002, respondent filed a petition to dismiss petitioner's petition, asserting petitioner failed to allege serious endangerment under section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610(a) (West 2000)). That same month, the trial court denied respondent's petition to dismiss. In May 2002, respondent filed a motion to reconsider. In June 2002, respondent filed a petition to compel compliance with the dissolution judgment.

Beginning in July 2002, the trial court held a hearing on the motion and two petitions. Petitioner testified on his own behalf and presented the testimony of respondent as an adverse witness; Carol Jones, petitioner's nurse; Rita Colee, petitioner's neighbor; Mallory Nelson, petitioner's neighbor; Dr. Lisa Orf, the minor children's psychologist; petitioner's present wife; Julie Mikels, the minor children's baby-sitter and family friend; and Nalini Taylor, mother of one of Brett's friends. Respondent testified on her own behalf and called petitioner as an adverse witness.

In total, the trial court heard from eight witnesses over three days. The parties are well aware of the evidence presented at the hearing, and it need not be set forth in detail.

In October 2002, the trial court entered a lengthy docket entry, finding the standards of section 607(c) of the Act (750 ILCS 5/607(c) (West 2000)) applied to the case, determining that remaining in Illinois was in the children's best interests, granting petitioner's petition for modification, and denying respondent's motion to reconsider and petition to compel compliance with the dissolution judgment. This appeal followed.

II. ANALYSIS

A. Legal Standard

Respondent first asserts the trial court applied the wrong legal standard in this case. The appropriate legal standard in evaluating a modification of a marital settlement's relocation provision is a question of law, and we review de novo such questions. See Illinois Licensed Beverage Ass'n v. Advanta Leasing Services, 333 Ill. App. 3d 927, 932, 776 N.E.2d 255, 260 (2002).

The Agreement contained a modification clause that provided a party could petition the court to modify the custodial and visitation provisions of the Agreement where "a substantial and material change in circumstances of either party or either child, or both" occurred. However, neither party asserts this provision applies, and the trial court found it was not bound by the provision. Accordingly, the trial court's notation that the Agreement's modification provision was "the key to the present controversy" was irrelevant to its ultimate determination of the case.

We agree with the trial court that the Agreement's modification provision is not controlling. Section 502(f) of the Act (750 ILCS 5/502(f) (West 2000)) allows a marital settlement agreement incorporated in the dissolution judgment to expressly preclude or limit modification of its terms "[e]xcept for terms concerning the support, custody[,] or visitation of children." Accordingly, the trial court had the right to modify the Agreement pursuant to the provisions of the Act. See In re Marriage of Loffredi, 232 ...


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