{ "id": 5283349, "name": "In re MARRIAGE OF LORI SHELTON (now Newton), Petitioner-Appellee, and DALE SHELTON, Respondent-Appellant", "name_abbreviation": "In re Marriage of Shelton", "decision_date": "1991-05-02", "docket_number": "No. 5-90-0462", "first_page": "26", "last_page": "45", "citations": [ { "type": "official", "cite": "217 Ill. App. 3d 26" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "529 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554919 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0184-01" ] }, { "cite": "518 N.E.2d 1041", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "119 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192736 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/119/0316-01" ] }, { "cite": "158 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2761857 ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0530-01" ] }, { "cite": "496 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "145 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536715 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/145/0746-01" ] }, { "cite": "538 N.E.2d 862", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "866" }, { "page": "865" }, { "page": "866" } ], "opinion_index": 1 }, { "cite": "182 Ill. App. 3d 377", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2621977 ], "weight": 3, "pin_cites": [ { "page": "384" }, { "page": "382" }, { "page": "384-85" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/182/0377-01" ] }, { "cite": "529 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "175 Ill. App. 3d 184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3554919 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/175/0184-01" ] }, { "cite": "518 N.E.2d 1041", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "pin_cites": [ { "page": "1045" }, { "page": "1045-46" }, { "page": "1046" }, { "page": "1045" } ], "opinion_index": 1 }, { "cite": "119 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192736 ], "weight": 8, "pin_cites": [ { "page": "326" }, { "page": "326-27" }, { "page": "328" }, { "page": "327" }, { "page": "327" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/119/0316-01" ] } ], "analysis": { "cardinality": 1235, "char_count": 45278, "ocr_confidence": 0.791, "pagerank": { "raw": 6.940861089362915e-08, "percentile": 0.4209701028901685 }, "sha256": "ace52d9acaf0ba88319ba636802aa910ccd84c11d1bc0c9a7405d569fe491677", "simhash": "1:2961e15232c9825f", "word_count": 7504 }, "last_updated": "2023-07-14T18:40:18.082759+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF LORI SHELTON (now Newton), Petitioner-Appellee, and DALE SHELTON, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE LEWIS\ndelivered the opinion of the court:\nLori Shelton (now Newton) (petitioner), the custodial parent, filed a petition to remove her minor children, Ryan and Kyle, aged 13 and 11 at the time of the hearing, with the circuit court on May 9, 1990. The circuit court granted the petitioner\u2019s removal petition. Subsequently, Dale Shelton (respondent) filed a motion to stay enforcement of the judgment, which was denied, and respondent filed his appeal of the court\u2019s order granting removal.\nAt the hearing on the petition for removal on June 5, 1990, the petitioner testified that she and the respondent were divorced in August 1985. After the divorce, she and the two children lived in an apartment in Brighton, Illinois, for eight or nine months. Because she was financially unable to live on her own, she and the children moved in with her parents. When she moved, the petitioner notified the respondent. She and the children lived with her parents from April 1986 until August 1989. During that time, she went to school and finished a teaching degree in 1988. After the petitioner had moved from her parents\u2019 home, her children still saw her parents almost daily.\nIn August 1989, the petitioner purchased a home in Wood River, Illinois, through the Federal Housing Authority by putting $1,000 down and paying mortgage payments of $418 per month. The house in Wood River had three bedrooms, so each of the children had his own room. The house was four blocks from the school the children attended, and they walked to school each day. According to the petitioner, there were no other children in the neighborhood where they lived. At present, the petitioner has put her house up for sale. The petitioner explained that she had planned on moving from this house even before the planned move to Florida, as she had been informed that her neighbor was in jail for molesting children.\nIn January 1990, the petitioner remarried. At the time of her marriage, her husband, David Newton, was unemployed. Her husband\u2019s skills for employment were as a certified electrician and plumber and he also worked in heating and air conditioning. After their marriage, the petitioner\u2019s husband looked for work from St. Louis, Missouri, to Springfield, Illinois. Because her husband had injured his lower back in February 1989, he looked for an office-type job. Her husband was unsuccessful in finding a job in the area, but he succeeded in finding a job in Naples, Florida, as an ABC estimator for Boren, Craig and Barber.\nAt the beginning of her marriage to Newton, the petitioner supported the family. She worked as an elementary school teacher for the St. Louis public school system where she earned $17,000 per year. The petitioner testified that she had resigned from her job in May 1990, and she was currently unemployed. Her reasons for quitting her employment were that she was going to move to Florida; that the area where she was teaching was bad in that there was a \u201ccrack house\u201d across the street from the school and when \u201cthey\u201d got \u201chigh,\u201d \u201cthey decided to take a shotgun to the school on several occasions\u201d; and that the school district was preparing to close her school and to lay off teachers. She explained that even if she were not moving to Florida, she would have resigned from her job. She stated that she had planned on substitute teaching in area schools until she found a job. The petitioner testified that she had had applications for full-time teaching positions in the area schools ever since she had graduated from school. When asked what she would do if she were not granted permission to remove the children to Florida, the petitioner stated that she would have to find a job at \u201cWal-mart\u201d or something of that nature.\nThe petitioner further testified that she and her husband had gone to Florida in April 1990. At that time, the petitioner and her husband rented a three-bedroom home on a month-to-month basis in Cape Coral, Florida, for $600 per month, and thus, each of her children still had his own bedroom. This home was six blocks from the school which her children would attend. To get to the school, her children would have to ride their bicycles to the end of the block and then catch the school bus. The school was in a nice area and was new. There were other children living in the neighborhood where they were to live. While she and her husband were in Florida, the petitioner applied for work at schools in the Cape Coral-Ft. Myers area. The petitioner had applied previously for teaching jobs in Florida in 1988 when she had graduated from college. She was aware that two new schools were being built in Naples, and that the schools would be hiring teachers; however, she had not yet applied for employment there. When she had investigated possible teaching jobs in April, she found out that the starting salary for teachers was $24,000 per year.\nThe petitioner admitted that in the summer of 1989, she took the children to Minnesota for eight weeks. She told the respondent she was going to do this. She further admitted that the respondent did not like her taking the children to Minnesota, but that he agreed that the children could go.\nThe petitioner also testified that she currently drove a 1986 Dodge Aries. Her husband drove a 1989 Ford truck which was purchased in April 1990.\nThe petitioner stated that the respondent\u2019s payment of child support was sometimes irregular. According to the petitioner, the respondent\u2019s right to visitation was every other weekend from 6 p.m. on Friday to 6 p.m. on Sunday, and that the respondent regularly exercised his visitation rights. The petitioner was aware that approximately one of the respondent\u2019s weekends per month, her sons spent the weekend at the respondent\u2019s parents\u2019 farm. In the summer, her children\u2019s visits at the respondent\u2019s parents\u2019 home were more frequent. She believed that her sons had a good relationship with the respondent\u2019s parents as well as with her own parents.\nThe respondent testified that he was currently employed as a site superintendent for Mega Homes. His wife, to whom he had been married for two years, worked as a physical therapy assistant. He stated that he tries to see his children as much as possible, and that he has a good relationship with his sons. He also stated that he paid $300-per-month child support.\nThe respondent admitted that from December through February, his parents would pick his children up for visitation as he refereed basketball on Friday nights. He would then pick his children up on Saturday morning. He also stated that many times during the summer his parents would pick his children up and take them to their farm to stay for the weekend. His parents\u2019 farm was a two-bedroom home, and his parents also had a meat-processing plant on the premises. His brother, who has four children, sold seed goods on his parents\u2019 property. His brother\u2019s children often stayed with his sons at his parents\u2019 farm.\nWhen questioned about his activities with his children, the respondent answered that he takes them to ball games and he plays catch with them, but that his philosophy was that he was not an entertainer. The respondent stated that he tries to treat his children as though they were there all the time. He said that the children \u201chelp me mow the yard, clean trucks up. For Mom and Dad we do chores.\u201d\nThe respondent attempted to show that the petitioner tried to frustrate his visitation rights. He testified that he was unaware of the petitioner\u2019s move from Brighton to her parents\u2019 home, and when he went to pick his children up for visitation, he was unable to find them. The respondent conceded that the petitioner \u201csupposedly\u201d told his grandmother she was moving. Because his grandmother was hard of hearing, she told the respondent the petitioner had moved to Fourth Street when in actuality they had moved to Forest Street. The respondent found the petitioner the same day that he was unable to locate his children.\nAdditionally, the respondent testified that he did not agree that the petitioner could take his sons to Minnesota. However, he stated there was nothing he could do to prevent them from going.\nThe respondent admitted that he had been delinquent in paying his child support to the petitioner, and that she had taken him to court because of the arrearage of $1,700. He further admitted that the petitioner had taken him to court approximately a year after their divorce because he had had a girlfriend stay with him when his sons were visiting. The respondent lastly explained that his new wife and his sons did not get along when he was first remarried, and that it took five or six months before his sons adjusted to his new marriage.\nThe respondent\u2019s father, William Shelton, testified that he and his wife live on a 640-acre farm. He stated that he has seen the respondent\u2019s sons regularly since the respondent and petitioner\u2019s divorce. According to Shelton, he sees his grandsons once a month, and in the summer, they may stay for a few days at a time. He testified that his wife sometimes picks his grandsons up, and that upon occasion, the petitioner brings the children to them. When his grandsons visit him, the respondent is present \u201cquite often.\u201d Shelton believed that his relationship with his grandsons was \u201cnot too bad,\u201d and that his son\u2019s relationship with his children was \u201cpretty good.\u201d Shelton said that if the respondent\u2019s sons moved to Florida, the physical relationship would be lessened, but that their love for and appreciation of his grandsons would not change.\nFollowing this hearing, the court took the matter under advisement. On June 23, 1990, the court entered its written order in which the court found that the petitioner was a credible witness; that the petitioner had established by clear and convincing evidence that her motive for moving the children was related to improving and enhancing the family\u2019s life-style; that the general quality of life for the children and the family would improve by the resultant move; and that the move was in the best interests of the children. The court further found that the respondent\u2019s concern was his impaired visitation with his children; however, the court determined that a great majority of the respondent\u2019s visitation time was spent at his parents\u2019 home; that it was possible to alter the present visitation schedule without impairing the amount of time, both in quality and quantity, that the respondent spends with his children; and that a reasonable visitation schedule can be established which would nurture, foster, and preserve the children\u2019s relationship with the respondent and the grandparents. Further, the court determined that the ages of the children were such that the availability of transportation and the telephone diminished the potential harm imposed by the distance of the move. The court granted the petitioner leave to remove the children to Florida and established a visitation schedule whereby the respondent was to have the children for the summer commencing one week after the last day of school and ending two weeks before the fall term (with the exception that the petitioner may have the children one week during the summer upon 60 days\u2019 advance notice to the respondent); for each spring or Easter break; for each Christmas vacation, commencing on December 24 of the even-numbered years and on December 26 of the odd-numbered years; for every other Thanksgiving vacation; and for such other times upon which the parties may agree. At the hearing on the respondent\u2019s motion to stay enforcement of the judgment, the court held that the new visitation schedule was to begin as of Thanksgiving 1990.\nOn appeal, the respondent contends that the court\u2019s finding that the removal of the minor children to Florida was in their best interests was contrary to the manifest weight of the evidence, and that the admission of certain hearsay testimony was improper. Because of the nature of the issues, we will first address the respondent\u2019s contention that the court improperly admitted hearsay evidence at the hearing.\nThe specific evidence which the respondent claims was erroneously admitted at trial because it was hearsay was the petitioner\u2019s testimony that her husband was employed in Florida; that her husband had unsuccessfully attempted to find employment in Illinois; that her husband had been injured; and that the teachers\u2019 salaries in Florida were $24,000. With regard to two of these allegations, i.e., that her husband had unsuccessfully attempted to find employment in Illinois and that her husband had been injured, we find that this testimony was irrelevant, and thus, the admission of this testimony, if considered hearsay, was harmless. The crucial information was that her husband was unemployed at the time of her remarriage, and that subsequently, he found employment in Florida. A further discussion of this information will be given in our following analysis of the manifest weight of the evidence issue. We next consider the remaining testimony objected to by the respondent as hearsay.\nWith regard to the respondent\u2019s allegation that the petitioner\u2019s testimony that her husband was employed in Florida was erroneously admitted at the hearing because it was hearsay, we determine that the respondent waived this issue. As the respondent has noted, the petitioner testified on more than one occasion that her husband was employed in Naples, Florida. Our review of the record reveals that the respondent did not object to the petitioner\u2019s testimony that he was employed at any of these points where the testimony occurs. There was a hearsay objection made at one juncture by the respondent when the petitioner was asked the amount of income her husband earned in his job, and this objection was sustained by the court. However, there was no objection to the claimant\u2019s specific testimony that her husband was employed as an estimator by Boren, Craig and Barber. The respondent\u2019s objection to this testimony by the claimant comes too late on appeal, and this point is waived. Village of Northbrook v. Steerup (1959), 16 Ill. 2d 530, 158 N.E.2d 630.\nThe respondent\u2019s last contention regarding inadmissible evidence is that the petitioner\u2019s testimony that the starting salary for teachers in Florida is $24,000 is hearsay. Initially, we note that this information is not crucial to this case; however, we also determine that this testimony was information of which the petitioner had personal knowledge, and therefore, the testimony was not hearsay. The petitioner testified that she applied for and investigated teaching opportunities in the Cape Coral-Ft. Myers area when she was in Florida in April 1990. During her investigation, she found out that the starting salary for a teacher was $24,000. Because of her personal investigation, she had personal knowledge of the salaries, and she could testify regarding this information.\nWe lastly consider the respondent\u2019s argument that the court\u2019s granting of the petitioner\u2019s petition for removal of the children to Florida as it was in the children\u2019s best interests was against the manifest weight of the evidence. The respondent argues that the evidence did not support a finding that the quality of the children\u2019s lives will be enhanced if they are removed to Florida; that the evidence reveals that the petitioner\u2019s only motive for moving to Florida is to be with her new husband; that the respondent\u2019s motive for contesting the removal of the children is because he is a \u201cconcerned parent who wishes to maintain the close relationship he currently shares with his children\u201d; and that the respondent will be unable to have a reasonable level of visitation with his children, and thus, the court\u2019s granting of the petition for removal was erroneous.\nThe paramount question in removal cases is whether the move is in the best interests of the children (Ill. Rev. Stat. 1989, ch. 40, par. 609), and in determining this issue, numerous factors must be evaluated. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.) The factors to be considered in determining the best interests of the children are (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move, i.e., is it a ruse to frustrate or defeat visitation; (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, 518 N.E.2d 1041.) A circuit court should consider these factors in determining whether the move is in the children\u2019s best interest, and this determination by the court will not be overturned on appeal unless the court\u2019s determination is clearly against the manifest weight of the evidence. In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041.\nIn the instant case, the evidence revealed that, at the time of the hearing on the petition, the petitioner had remarried. At the beginning of the marriage, the petitioner\u2019s husband was unemployed and she was the sole source of income for the family. The reason for the petitioner\u2019s husband\u2019s unemployment was not important, the fact remained that he was not employed. Subsequently, he became employed in Florida. Newton\u2019s employment cannot help but enhance his family\u2019s quality of life, for now he will be able to help his family financially. Additionally, if the petitioner should also find employment, then the Newtons will now have two incomes which will improve the quality of life for the children. Even if the petitioner should not gain employment, she will be at home for the children, and this too will enhance the quality of the children\u2019s lives. The move to Florida will significantly enhance the quality of the petitioner\u2019s life, as well as the children\u2019s. Further, the petitioner did not have direct control over where her husband sought employment, so she should not be penalized by being made to choose between her new husband and her two children if her petition for removal were denied.\nThe other evidence presented established that the children\u2019s lifestyle in both Florida and Illinois will be comparable. In Illinois, each of the children had his own bedroom. They lived four blocks from the school they attended, and they walked to school. In their neighborhood in Illinois, there were no children. However, the petitioner did testify that she did not want to stay in their home in Wood River because she had discovered that her neighbor was in jail for child molesting. In Florida, again each child would have his own bedroom. The home in Cape Coral was six blocks from the school, and to get to school, the children would have to ride their bicycles to the end of the block and catch a bus. The school they were to attend was in a nice neighborhood and was new. Additionally, other children lived in the neighborhood where their new home was. Thus, the living situations in Florida and in Illinois were not substantially different.\nIn considering the motives of the custodial parent and the noncustodial parent with regard to the removal of the children, we do not find that the motives of either were improper. The petitioner\u2019s motive for moving was to be with her husband, a legitimate reason, and one which cannot be deemed as an attempt to frustrate the respondent\u2019s visitation. Likewise, the motives of the respondent were that he did not want to lose his visitation rights with his children as they currently existed.\nThe next consideration must be of how the respondent\u2019s visitation rights will be affected by the move of the children to Florida. The record established that the respondent had visitation rights with his children every other weekend, which he exercised on a regular basis. However, as the circuit court found in its order, approximately 50% of the respondent\u2019s visitation time was spent at his parents\u2019 home. On numerous occasions, the respondent\u2019s parents would pick up his children for the visitation, especially in the winter when the respondent was a referee on Friday nights. When the respondent did exercise his visitation rights, he did not necessarily spend quality time with them, but instead, he had the children help with chores. As he himself said, he was not an \u201centertainer.\u201d\nFrom the evidence regarding the respondent\u2019s visitation, we conclude that the respondent is a loving father and that he does spend time with his children. However, under the new visitation schedule, the amount of time the respondent will be able to spend with his children is not diminished, and in fact, has been somewhat increased. Additionally, as the court noted, the children are old enough that they can travel alone and can talk on the telephone so there is no reason a close relationship cannot be maintained between the respondent and the children.\nWe find that this case is analogous to In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780. In Zamarripa-Gesundheit, the appellate court found that the petitioner\u2019s removal petition was properly granted by the trial court. The facts in that case established that the petitioner\u2019s new husband wanted to move simply because he had visited Seattle on a few occasions and liked the city. Therefore, he asked to be transferred there, which was granted. His income would not change by the move, and the petitioner\u2019s employment opportunities in Seattle were comparable to what she could find in Illinois. The court determined that the child\u2019s quality of life itself would not be directly enhanced, for the move would place her in an equivalent educational situation and her financial support would remain the same. The court did find that the move to Seattle would enhance the petitioner\u2019s quality of life, and therefore, the child\u2019s quality of life was indirectly enhanced. Further, the court determined that the respondent, who exercised his visitation rights rigorously (even more so than the respondent in the case sub judice did), would still be able to maintain a close relationship with his daughter by having an extended visitation during the summer and during school breaks. The court in Zamarripa-Gesundheit determined that the trial court\u2019s granting of the removal petition was not against the manifest weight of the evidence, and we similarly do not find that the decision of the court in the instant case was against the manifest weight of the evidence.\nWe note that the respondent discusses the lack of evidence as to whether the petitioner could afford to return the children for visitation. The statute provides in pertinent part as follows:\n\u201cWhen such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.\u201d (Ill. Rev. Stat. 1989, ch. 40, par. 609.)\nFrom this language, evidence of the ability, financial or otherwise, to return a child to Illinois is discretionary by the use of the word \u201cmay.\u201d Thus, while evidence of how the petitioner would return the children for visitation would have been helpful, it was not necessary unless required by the court. Therefore, the lack of evidence in this regard is not a basis for reversal of the court\u2019s order allowing removal of the children to Florida.\nFor the foregoing reasons, the judgment of the circuit court of Madison County granting the removal petition is affirmed.\nAffirmed.\nHOWERTON, J., concurs.", "type": "majority", "author": "JUSTICE LEWIS" }, { "text": "JUSTICE CHAPMAN,\ndissenting:\nEvery day thousands of parents send their children off to school and one of the last questions they ask is, \u201cDo you have your lunch money?\u201d The trial court and the majority have sent two young children from Illinois to Florida with absolutely no evidence as to how these children will be supported. This is the thought which crosses my mind after carefully reviewing the record and the majority opinion in this case. It could not be clearer that the trial court\u2019s rulings in this case were erroneous. Not only did the trial court base its decision on improper hearsay testimony, but even if the evidence admitted can be classified as nonhearsay, which it cannot, the trial court\u2019s decision was undoubtedly against the manifest weight of the evidence. For these reasons I dissent. The evidentiary issues raised by respondent will be addressed first.\nHearsay has been defined as \u201ctestimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.\u201d M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7801, at 562 (5th ed. 1990).\n\u201cThe rule against hearsay is a fundamental rule of evidence, not a technical one. [Citation.] The rule exists primarily because of the importance and necessity of cross-examination. [Citation.] In cases such as the one at bar in which the interests of children are at stake, it is vital for the trial judge to have as complete a picture of the facts as possible in order to determine what course is in the best interests of the children. Relaxation of the rule against hearsay is therefore not appropriate in proceedings involving the interests of children.\u201d In re Marriage of Kutinac (1989), 182 Ill. App. 3d 377, 384, 538 N.E.2d 862, 866.\nAs the majority points out, respondent claimed that the trial court erred in admitting the following hearsay testimony from petitioner at trial: that petitioner\u2019s husband was employed in Florida; that her husband had unsuccessfully attempted to find employment in Illinois; that her husband had been injured; and that teachers\u2019 salaries in Florida are $24,000.\nWith regard to the first point I agree with the majority that respondent has waived the issue of whether petitioner\u2019s testimony that her husband was employed in Florida was improperly admitted hearsay testimony by failing to object to it.\nThe majority also asserts that petitioner\u2019s testimony that her husband unsuccessfully attempted to find employment in Illinois and that her husband was injured is irrelevant and therefore the testimony if hearsay constituted only harmless error. The majority states, \u201c[t]he crucial information was that her husband was unemployed at the time of her remarriage, and that subsequently, he found employment in Florida.\u201d (217 Ill. App. 3d at 33.) I note initially that the irrelevancy of evidence does not cure otherwise inadmissible hearsay testimony. The fact that the evidence is irrelevant is a reason to exclude it from a case, not a justification for erroneous hearsay rulings. However, the majority cannot seriously contend that this evidence was irrelevant. It concedes that In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, requires the trial court to consider the petitioner\u2019s motive for seeking removal of the children. The evidence was introduced by petitioner to prove that her motive for moving was not to frustrate respondent\u2019s visitation rights, but because her husband was injured and could not find work in Illinois. While the evidence was certainly relevant under Eckert, it should not have been admitted because it was hearsay. The only foundation required by the trial court was that \u201cshe\u2019s married to the man.\u201d As far as I am aware there is no married-person exception to the hearsay rule which would permit the introduction of this obviously hearsay testimony into evidence. Petitioner should have been required by the trial court to produce a proper witness for this testimony or to forego introducing that evidence.\nThe majority also asserts that admission of petitioner\u2019s testimony that Florida teachers\u2019 salaries are $24,000 was proper. It states:\n\u201c[T]his information is not crucial to this case; however, we also determine that this testimony was information of which the petitioner had personal knowledge, and therefore, the testimony was not hearsay. The petitioner testified that she applied for and investigated teaching opportunities in the Cape Coral-Ft. Myers area when she was in Florida in April 1990. During her investigation, she found out that the starting salary for a teacher was $24,000. Because of her personal investigation, she had personal knowledge of the salaries, and she could testify regarding this information.\u201d 217 Ill. App. 3d at 33.\nI cannot agree with the majority\u2019s conclusion that the evidence was not crucial to this case. As the majority indicates above, in determining if a petition to remove is proper, the best interests of the children are of paramount concern. (Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041.) A factor to be considered when determining the best interests of the children is whether the move will enhance the quality of their lives. (Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041.) It would seem impossible to determine if the move was in the best interests of the children without evidence of the financial consequences of the move. This salary evidence was the only evidence which gave even the slightest indication of the effect of the move on the family\u2019s financial condition. I believe that the trial court relied on this testimony in reaching its decision, and, therefore, the testimony was in fact \u201ccrucial.\u201d\nThe majority not only asserts that the testimony is not crucial, but also argues that it is not hearsay because petitioner \u201cinvestigated\u201d and \u201cfound out\u201d that starting salaries were $24,000. The only testimony on this issue is as follows:\n\u201cQ. Have you looked into the ability to get income of your own in Florida?\nA. Yes.\nQ. What steps have you taken?\nA. When we were down there in April I took resumes to all the schools in that area.\nQ. Have you investigated the possibility of obtaining employment down there?\nA. Yes. They built two new schools in Naples this year and they are hiring for both schools.\nQ. And you have turned an application in for those schools?\nA. No, not as of yet.\n* * *\nQ. Can you tell me the salary range of schools that you checked in Florida?\nMR. SCHREMPF: Objection.\nTHE WITNESS: Yes.\nMR. SCHREMPF: Hearsay, Your Honor.\nTHE COURT: The objection is overruled.\nTHE WITNESS: Yes. The school systems I checked out in Cape Coral and Ft. Myers start at $24,000 a year.\u201d\nIt is from this testimony that the court concludes that petitioner has personal knowledge of Florida teacher salaries thus rendering the rule against hearsay inapplicable. The majority\u2019s reasoning would result in the virtual destruction of the hearsay rule as we know it today. Instead of the witness testifying \u201che said ...\u201d and then being rudely interrupted by the lawyer\u2019s \u201cobjection\u201d and the trial court\u2019s almost inevitable response of \u201csustained,\u201d the witness now need only state the magic words, \u201cI investigated and found out\u201d to insure that his or her otherwise inadmissible hearsay testimony will be admissible. Surely the majority does not intend such a result. In this case petitioner\u2019s testimony that she \u201cchecked out\u201d Florida employment and found that teachers\u2019 salaries were $24,000 is equivalent to her stating \u201cI was told (by some unknown person) the salaries were $24,000 a year.\u201d Petitioner\u2019s testimony on this issue was obviously hearsay and should have been excluded by the trial court.\nUnfortunately, not only has the majority approved these obvious evidentiary errors, it has also determined that the trial court\u2019s decision that the Florida move will be in the best interests of the children was not against the manifest weight of the evidence. Again, I strongly disagree with the majority\u2019s conclusion.\nSection 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609(a)) provides:\n\u201cThe court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.\u201d (Emphasis added.)\nThe result achieved by the majority, in contravention of the supreme court\u2019s mandate in Eckert, \u201cdilutes the burden of proof which the legislature has placed on the custodial parent in the statute governing removal of children from this State.\u201d Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.\n\u201cThe mere desire of the custodial parent to move to another State is not sufficient to establish that the move is in the child\u2019s best interests.\u201d (Kutinac, 182 Ill. App. 3d at 382, 538 N.E.2d at 865.) Our supreme court in Eckert set forth numerous factors which should be considered by the trial court in determining the best interests of the children.\n\u201cThe court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citation.] It is also in the best interest of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed.\u201d (Emphasis added.) (Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.)\nThe court also indicated that the trial court should be guided by the purpose of the Illinois Marriage and Dissolution of Marriage Act \u201cto 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.\u201d Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.\nA review of the record in this case clearly reveals that the petitioner failed to establish that the move to Florida would be in the best interests of the children. The majority asserts the move will significantly enhance the children\u2019s quality of life because there will be two incomes in the family. Alternatively, the court states that even if petitioner does not work, the lives of the children will be significantly enhanced because \u201cshe will be at home for [them].\u201d (217 Ill. App. 3d at 34.) These conclusions are simply not supported by the record. The majority makes much of the fact that petitioner\u2019s husband is now employed in Florida. However, there is no evidence whatsoever of his income. He may be making $2 per hour, $3 per hour, or volunteering his time. He may, in fact, be making more than the petitioner\u2019s $17,000 salary; but there is absolutely no evidence of what his earnings are. Moreover, the only testimony which even remotely relates to the parties\u2019 financial status is petitioner\u2019s hearsay testimony involving Florida\u2019s supposed $24,000-per-year teacher\u2019s salary. Even if this evidence were considered nonhearsay, it is undisputed that petitioner does not have one of these $24,000-a-year jobs. She has had her applications in at Florida schools for over two years. Also, petitioner\u2019s statement that if she is not allowed to move to Florida she will have to work at Wal-Mart is questionable at best. She testified that she resigned her position from the St. Louis public schools shortly before trial and had not yet updated her resumes which were on file at area schools. I also note that petitioner\u2019s statement that she would remain in Illinois even though her husband has moved to Florida if the court denied her removal petition is somewhat belied by her actions of quitting her job, listing her home for sale, and renting a three-bedroom home in Florida, all of which were accomplished before the hearing on removal.\nThe majority also asserts, when discussing the quality-of-life factor, that the quality of the children\u2019s lives will be comparable to their life in Wood River, Illinois, because they will be living in a rented three-bedroom home which is near schools. This conclusion, however, is premised on the fact that petitioner and her husband have the money to provide this home to the children. Again, as stated earlier, the record gives no indication of the parties\u2019 economic circumstances.\nAll we know from the record in this case is that shortly before trial petitioner was earning $17,000 per year. Now she is unemployed. Her husband, for all we know from the record, could be earning as little as $1 per year. Therefore, based on the record before us, the move to Florida could be costing petitioner $16,999 per year. Moreover, petitioner has given up the security of owning her own home in exchange for renting a house on a month-to-month basis at a 50% increase in cost. I simply cannot find in this record the evidence upon which the majority concludes that the quality of the children\u2019s lives will be \u201csignificantly enhanced.\u201d\nAnother factor to be considered under Eckert is the effect of the move on the visitation rights of the noncustodial parent. When considering this factor the court should also consider the children\u2019s relationship with other family members. (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045.) The majority does not address the fact that nearly all of the children\u2019s extended family live in the metro-east area. They frequently visited with their cousins, they often spent time at their paternal grandparents\u2019 home, and they had lived with their maternal grandparents for three years after the parties\u2019 divorce. Even after moving out of the maternal grandparents\u2019 home, the children saw them on a daily basis.\nThe majority considers only the relationship between respondent and the children and states:\n\u201cThe record established that the respondent had visitation rights with his children every other weekend, which he exercised on a regular basis. However, as the circuit court found in its order, approximately 50% of the respondent\u2019s visitation time was spent at his parents\u2019 home. On numerous occasions, the respondent\u2019s parents would pick up his children for the visitation, especially in the winter when the respondent was a referee on Friday nights. When the respondent did exercise the visitation rights, he did not necessarily spend quality time with them, but instead, he had the children help with chores. As he himself said, he was not an \u2018entertainer.\u2019 \u201d 217 Ill. App. 3d at 35.\nWhile it is true that during the winter months respondent\u2019s parents often picked up the children for visitation, the testimony does not reveal that respondent left the children with his parents the entire weekend. Moreover, while petitioner testified that the children went to respondent\u2019s parents\u2019 home once a month, she did not know if respondent was with the children during these occasions. Petitioner did not testify that all of the children\u2019s visits to respondent\u2019s parents\u2019 home were during respondent\u2019s visitation periods. Respondent\u2019s father testified the children stayed with him and his wife once a month. He testified that the children would come to visit them at times on respondent\u2019s weekends and on \u201cother occasions *** they\u2019ve called and wondered if they could come up and Ethel usually goes and gets them, picks them up. Lori has brought them occasionally.\u201d Respondent\u2019s father also testified that respondent was \u201cquite often\u201d present at the farm when the children were there visiting. The record does not support the trial court\u2019s nor the majority\u2019s conclusion that 50% of respondent\u2019s visitation time was spent at his parents\u2019 home. Moreover, even if 50% of his visitation time was spent at his parents\u2019 home, this would not be significant. The record reveals that during most of the visits to respondent\u2019s parents\u2019 farm, respondent was in fact present.\nThe majority next somehow concludes that respondent does not spend quality time with his children. The relevant testimony on this issue is as follows:\n\u201cQ. What are some of the things you do with your children during your weekends of visitation?\nA. I take them to ballgames and, you know, play catch with them and stuff, but my philosophy on that is, which Lori will disagree with, is I\u2019m not \u2014 I\u2019m not an entertainer. I try to, you know, what we would do at home if they were there all the time. They help me mow the yard, clean trucks up. For Mom and Dad we do chores.\u201d\nThe majority\u2019s offhand conclusion that respondent does not spend quality time with his children is not only a distortion of the record, but it is also extremely unfair. The respondent not only plays with his children, but he also works with them. It seems that the majority has taken the saying, \u201cAll work and no play makes Jack a dull boy,\u201d to the extreme. Apparently it believes respondent should do nothing but play with the children when they visit. I cannot agree with this conclusion. There is nothing wrong with children learning responsibility by doing chores.\nThe next factor which should be considered by the trial court when determining if a move is in the best interests of the children is whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (Eckert, 119 Ill. 2d at 327, 418 N.E.2d at 1045.) The majority totally ignores this factor. Its lack of discussion on this issue is obviously due to the fact that there was no evidence presented whatsoever by petitioner regarding visitation should she be allowed to move the children to Florida. There were no time schedules presented and, more importantly, no evidence was presented as to how petitioner would transport the children to Illinois from Florida or whether such transportation could be afforded. It is simply impossible to determine from the record before us if a realistic and reasonable visitation schedule can be achieved.\nThe majority asserts that this case is analogous to In re Marriage of Zamarrijga-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780. That court found that the trial court properly granted petitioner\u2019s petition for removal. However, a simple reading of the case clearly reveals that it is not analogous to the facts presently before us. First, the petitioner\u2019s husband testified in Gesundheit; second, the husband was employed and would earn $50,000 in Seattle; third, there was evidence of a visitation schedule wherein the petitioner would use the respondent\u2019s child support payments to fly the child from Seattle to Chicago; and fourth, the court was able to conclude that the financial condition of the family would remain the same in Seattle.\nIn this case, petitioner\u2019s evidence, briefly summarized, was \u201cWe are moving to Florida.\u201d She has not even begun to fulfill her burden of proving that the move to Florida is in the best interests of the children.\nThis case is much more analogous to Eckert and Kutinac. In Eckert, petitioner alleged that a move to Arizona would not only help her financially, but also that it would improve her son\u2019s medical condition. The supreme court reversed the appellate court and affirmed the circuit court\u2019s order denying the removal of the child to Arizona, concluding that petitioner\u2019s financial status would remain the same in Arizona and that there was no evidence introduced on how the move would affect the child\u2019s medical condition.\nIn Kutinac the petitioner argued that she should be allowed to move with her children to Florida to improve her medical condition and the medical condition of one of her children. The trial court granted the removal petition. The appellate court reversed, finding that insufficient evidence was presented to establish the effect the move would have on the medical conditions of petitioner or her son.\n\u201cWhile Janice stated sensible reasons for moving to Florida, she failed to introduce any evidence that the move would be in the best interests of the children.\u201d Kutinac, 182 Ill. App. 3d at 384-85, 538 N.E.2d at 866; see also In re Custody of Anderson (1986), 145 Ill. App. 3d 746, 496 N.E.2d 345.\nPetitioner has clearly failed to meet her burden of proof in this case. She presented no evidence which would indicate that the move was in the best interest of the children. After reviewing the record, I was astounded at the result reached in the trial court. Unfortunately, I am even more astounded at the result reached by this court.\nFor all the foregoing reasons, I would reverse the judgment of the circuit court of Madison County.", "type": "dissent", "author": "JUSTICE CHAPMAN," } ], "attorneys": [ "James E. Schrempf, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.", "Rand S. Hale, of Pratt & Callis, P.C., of Granite City, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF LORI SHELTON (now Newton), Petitioner-Appellee, and DALE SHELTON, Respondent-Appellant.\nFifth District\nNo. 5 \u2014 90\u20140462\nOpinion filed May 2, 1991.\nRehearing denied August 16,1991.\nCHAPMAN, J., dissenting.\nJames E. Schrempf, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.\nRand S. Hale, of Pratt & Callis, P.C., of Granite City, for appellee." }, "file_name": "0026-01", "first_page_order": 48, "last_page_order": 67 }