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Johnson v. Pisowicz

September 17, 2004

IN RE MARRIAGE OF JOAN K. JOHNSON, N/K/A JOAN K. POKRIEFKA, PETITIONER-APPELLANT,
v.
JOSEPH A. PISOWICZ, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 99-D-937. Honorable Brian R. McKillip, Judge, Presiding.

The opinion of the court was delivered by: Justice Gilleran Johnson

PUBLISHED

The petitioner, Joan Pokriefka, appeals from the January 4, 2004, order of the circuit court of Du Page County denying her petition to remove her children and those of the respondent, Joseph Pisowicz, to Arizona. On appeal, Joan argues that the trial court's denial of her removal petition was against the manifest weight of the evidence. We affirm.

The parties were married on October 10, 1980. Two children were born to the marriage: Katherine, born October 4, 1989, and Erik, born August 22, 1991. The parties' marriage was dissolved on June 7, 2000. The judgment for dissolution and incorporated joint parenting agreement provided the parties with joint custody of the children. The children were to reside primarily with Joan but visit with Joseph every Wednesday and alternate Tuesdays, weekends, and holidays.

On February 18, 2003, Joan petitioned for leave to remove the children to Arizona. In her petition, she alleged that her husband, Michael Pokriefka, was informed that his employment with JDA Software would terminate unless he accepted a transfer to Arizona. She alleged that moving the children to Arizona was necessary to maintain and support the family unit. Thereafter, on March 11, 2003, Joseph petitioned for a modification of custody.

The trial court conducted a hearing on Joan's and Joseph's petitions between October 30, 2003, and November 6, 2003. Michael Pokriefka testified that he met Joan in February 2002. They began dating in April 2002. Michael and Joan became engaged to be married in August 2002. Michael moved in with Joan in November 2002 and they resided in Joan's home in Lombard, Illinois. Michael and Joan married on December 14, 2002.

Michael works for a company known as JDA Software. At the time of the hearing, Michael had been working for JDA Software for four years. Michael currently earns $72,000 per year as salary and typically receives quarterly bonuses of approximately $1,500. In October 2002, Michael learned that he would be required to transfer to Arizona or accept a severance package. While he was contemplating the transfer, Michael sent resumes to two other companies. Michael admitted however, that he did not follow up with these applications. Michael agreed to the transfer sometime before he and Joan married.

Michael testified to living in nine different places over the past 30 years. Before moving in with Joan in Lombard, he lived in Lisle, Illinois, for two years. Prior to that, in reverse chronological order, he lived in Jackson, Michigan, for five years; Columbus, Ohio, for four years; Dearborn, Michigan, for four years; East Lansing, Michigan, for four years; Denver, Colorado, for three years; East Lansing, Michigan, for six years; Germany for two years; and St. Claire Shores, Michigan, for 18 years.

Michael testified that he is quiet around Joan's children because that is his nature. Michael believes that he has a good relationship with Joan's children. Michael spends half of his time in Arizona now, but when he is in Lombard, he gets home shortly after the children get home from school. He, Joan, and the children usually have dinner together. Sometimes Michael takes the family out to the movies. On occasion, he assists the children with homework. Michael acknowledged that he tends to pay more attention to Joan than to the children.

Michael has a 15-year-old son from a previous marriage, Joe Pokriefka, who lived with him and Joan until June 2003. While Joe was staying with Michael and Joan, he attended an alternative educational facility. Joe had been suspended from two other schools, Glenbard East and Naperville North, for fighting. Joe now lives in Columbus, Ohio, with his mother. However, Michael is open to the possibly of Joe moving back in with him and Joan. Michael is looking for a five-bedroom home in Arizona. Joe has a friendly relationship with Joan's children, although Joe tends to keep to himself.

Joan Pokriefka testified that the majority of her family ties are in Illinois. She grew up in Illinois and has lived in Illinois her entire life, with the exception of attending college in Columbia, Missouri, for two years. Joan's brother, his wife, and their children live in Illinois. She also has many aunts, uncles, and cousins who live in Illinois. Joan does have a sister who resides in Phoenix, Arizona.

Joan met Michael in February 2002 on an Internet dating site. They immediately began exclusively dating. She and Michael became engaged in July or August 2002 and married in December 2002. They did not set their wedding date until after deciding that Michael would accept the transfer.

After Joan and Michael decided that Michael would accept the transfer, they began looking at property in the area of Scottsdale, Arizona. She and Michael are looking to purchase a larger house in Arizona than the one they currently own in Lombard. They hope to find a house with amenities such as a pool, a spa, and a fireplace. Joan believes that Erik's asthma would improve from the dryer climate. Joan has researched the schools in Arizona and found them to be comparable to the schools in Lombard.

In Joan's opinion, the children would benefit by being allowed to move to Arizona with her. If the children were allowed to move to Arizona, they would be able to remain in her care. Joan has been the primary caretaker of the children since their birth. Additionally, Joan would be able to remain a stay-at-home mom if the children were allowed to be removed to Arizona. Also, the children would have a traditional family setting with two parents. The children would have both her and Michael's love and stability.

Joan is an accountant. However, she works out of her home and does not work full time. She is always home when the children leave for school. In 2000, Joan earned between $30,000 and $40,000. In 2001, Joan earned $35,000. In 2002, Joan lost some of her clients and started working less. Since September 2002, Joan has worked on some tax returns and done some substitute teaching.

Despite her previous testimony that she would remain a stay-at-home mom in Arizona, Joan admitted that she was actively seeking employment in Arizona. She has browsed through employment opportunities listed on the Internet site Monster.com. She also applied for a part-time accounting position within her husband's company. Additionally, Joan has considered teaching full-time, although she would need to get a teaching certificate.

Joan is very active in the children's school and extracurricular activities. She participates in the PTA, has accompanied the children on field trips, and helps out with Katherine's Girl Scouts and Erik's Boy Scouts. She has gone to the "Bring Your Parent to School Day" at the children's school for the past three years. She has attended three parent-teacher conferences since June 2000.

On the other hand, Joan described Joseph's involvement in the children's school and extracurricular activities as minimal. According to Joan, Joseph attended only one parent-teacher conference since June 2000. He has participated in only one "Bring Your Parent to School Day." Joseph has not participated in any of Katherine's Girl Scout activities or ...


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