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In re Marriage of Sale

April 23, 2004

[5] IN RE MARRIAGE OF MARY SALE, N/K/A MARY NEWTON, PETITIONER-APPELLANT, AND SCOTT SALE, RESPONDENT-APPELLEE.


[6] Appeal from the Circuit Court of St. Clair County. No. 02-D-155 Honorable Stephen R. Rice, Judge, presiding.

[7] The opinion of the court was delivered by: Justice Goldenhersh

[8]  Three weeks after a joint-parenting-agreement order was entered, the petitioner and custodial parent, Mary Sale, now known as Mary Newton, petitioned the trial court for leave to remove the parties' son, D.S., from the State of Illinois to Vader, Washington. The trial court denied the petition for removal. We affirm.

[9]  BACKGROUND

[10]   The parties were married on June 4, 1988. D.S., the parties' only child, was born on January 1, 1997. The parties separated in October 2001. The petitioner filed a petition for the dissolution of the marriage on February 13, 2002, and she sought the custody of D.S. On June 3, 2002, the respondent, Scott Sale, filed his answer and a counterpetition for dissolution, and he also sought the custody of D.S. A marital settlement agreement was entered on September 19, 2002. An order of dissolution and a joint-parenting-agreement order were entered on October 8, 2002. The parties agreed, inter alia, that the petitioner would be the custodial parent, with the respondent having custody on Tuesdays and Thursdays from 5:30 p.m. to 8 p.m. (except in the summer when the respondent would have custody from 6 p.m. to 9 p.m. every Tuesday and Thursday), every other weekend, and every federally recognized holiday from 3 p.m. until 9 p.m.

[11]   On October 9, 2002, the petitioner married Edgar Newton, who resides in Vader, Washington. The petitioner met Mr. Newton through the Internet in January 2001. They first met face to face in April 2002. On October 29, 2002, the petitioner filed a motion for leave to remove D.S. from Illinois. A hearing was conducted on the motion to remove, at which time the following evidence was adduced.

[12]   The petitioner testified that the respondent initiated the parties' separation and advised her to get a job. The petitioner found a job as a part-time hair stylist at J.C. Penney. The petitioner currently earns approximately $8,000 per year. She testified that she will be able to work at a J.C. Penney Salon in Kelso, Washington, and that her income will increase to approximately $10,000 per year. The petitioner currently resides with her parents and D.S., because she is unable to afford her own home. If she moves to Washington, she will reside with her new husband, who owns a three-bedroom home located on 25 acres.

[13]   The petitioner's new husband testified that he earns $62,000 per year as one of four partners in a steel fabrication business. His recently refurbished home is only a few blocks from Vader Elementary School, which D.S. would attend. Both the petitioner and Mr. Newton said that their schedules would allow them to care for D.S. after school, thereby eliminating the need for day care. Mr. Newton has two children, ages 17 and 21, from a previous marriage, and they live nearby. He also has a number of relatives who live in the area. Mr. Newton testified that he looks forward to helping to care for D.S. and would like to help coach his little league teams.

[14]   The petitioner testified that Vader Elementary School offers smaller classes than D.S.'s present school in O'Fallon; however, she did not offer any test scores or testimony from educators about the benefits or drawbacks of either school. The petitioner testified that if she is allowed to move D.S. to Washington, the respondent can have visitation during Christmas, Easter, and most of the summer. The petitioner offered to travel with D.S. during such visitation.

[15]   The respondent has exercised all his visitation with D.S. He testified that he even attempted additional visits with D.S., but the petitioner would not allow it. On the other hand, the petitioner and her mother testified that while the respondent exercised all his visitation, he had not made any attempt to visit with D.S. outside the scheduled visitation. The respondent and the respondent's mother testified that D.S. has several relatives in Illinois with whom he has regular contact, including cousins who are around his age. One cousin is just a few months older than D.S.; they often spend the night together and are particularly close. The respondent testified that neither he nor his family has the means to travel to Washington should the petitioner be granted leave to remove. The respondent is concerned that if D.S. goes to Washington, he will be forced out of D.S.'s life and might even become an inconvenience to D.S.

[16]   After hearing all the evidence, the trial court denied the petition for removal, stating in pertinent part as follows:

[17]   "Number one, it's hard for me. If you-if you crossed Mr. Newton out of this equation, it would be hard for me to accept that someone had to move as far away and still be in the continental United States[,] but move as far away from Belleville as you could get[,] to find a job in a J C Penneys [sic]. That's a tough proposition to accept.

[18]   I found the testimony concerning the improvement in her lot on that point to be rather speculative. Quite frankly, it's obvious to this [c]court that the-that this move would not be taking place but for the relationship with Mr. Newton, and it doesn't matter whether it started on the Internet or not. That-it seems to be a thing of today.

[19]   But the point is that is a relationship taken up that results in a change almost immediately-actually it was in anticipation of the impending dissolution.

[20]   Under these circumstances, I do not believe the case law permits me-that would permit me to allow removal. I know this is a harsh result, but it's a harsh result either way I cut this. There is no easy answer. I have to make the call. To me, it's an easy call on the facts. It's just ...


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