Banister v. Partridge
| Citation | 2013 IL App (4th) 120916,984 N.E.2d 598,368 Ill.Dec. 652 |
| Decision Date | 26 February 2013 |
| Docket Number | Docket No. 4–12–0916. |
| Parties | Leah Guffey BANISTER, Petitioner–Appellant and Cross–Appellee, v. Randolph PARTRIDGE, Respondent–Appellee and Cross–Appellant. |
| Court | United States Appellate Court of Illinois |
2013 IL App (4th) 120916
984 N.E.2d 598
368 Ill.Dec. 652
Leah Guffey BANISTER, Petitioner–Appellant and Cross–Appellee,
v.
Randolph PARTRIDGE, Respondent–Appellee and Cross–Appellant.
Docket No. 4–12–0916.
Appellate Court of Illinois,
Fourth District.
Feb. 26, 2013.
[984 N.E.2d 599]
Peggy J. Ryan (argued) and J. Scott Williams, both of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellant.
Randy S. Paswater (argued), of Barber, Segatto, Hoffee, Wilke & Cate, of Springfield, for appellee.
Presiding JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
[368 Ill.Dec. 653]¶ 1 After petitioner, Leah Guffey Banister, and respondent, Randolph Partridge [368 Ill.Dec. 654]
[984 N.E.2d 600]
(hereinafter, Randy), ended their relationship, Leah gave birth to her son, D.G. (born September 7, 2002). On Leah's later petition under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 to 28 (West 2010)), the trial court entered several orders, establishing Randy's paternity, his support obligation, and granting Leah custody of D.G. subject to Randy's visitation.
¶ 2 In July 2009, Leah married Thomas P. Banister, who lived in Kentucky as a senior enlisted soldier serving in the United States Army. Two years later, Leah filed a “petition for leave to remove minor child from state,” requesting to move D.G. from Illinois to Kentucky to reside with her husband. Randy objected and filed separate pleadings to prevent the move and obtain primary custody of D.G. Randy also filed contempt charges against Leah for moving D.G. to Kentucky in violation of the trial court's order. In December 2011, the court granted Leah's petition, and in March 2012, the court dismissed Randy's contempt claim.
¶ 3 In April and July 2012, the parties filed the following pleadings: (1) Randy filed a motion to reconsider the trial court's approval of Leah's petition for leave to remove D.G. to Kentucky; (2) Leah filed a petition for leave to remove D.G. to Maine, explaining that Thomas had recently received military orders to the University of Maine to serve as a Reserve Officer Training Corps instructor; and (3) Randy filed a motion to reopen proofs, requesting that the court “allow testimony as to the changes in circumstances” with regard to Leah's petition for leave to remove D.G. to Maine and “any additional changes relating thereto” since the court's December 2011 order. Following a July 2012 hearing, the court dismissed Randy's pleadings on jurisdictional grounds and denied Leah's petition for leave to remove D.G. to Maine.
¶ 4 Leah appeals, arguing that (1) the trial court lacked the statutory authority to consider her petition for leave to remove D.G. to Maine and (2) the court's best-interest finding, denying her petition to remove, was against the manifest weight of the evidence. Randy cross-appeals, arguing that the court erred by (1) dismissing his emergency petition for rule to show cause, seeking cause as to why Leah should not be held in contempt for moving D.G. to Kentucky in violation of the court's oral admonishment and (2) finding that Illinois Supreme Court Rule 304(b)(6) (eff. Feb. 26, 2010) divested the court of jurisdiction to address his motions to reconsider and reopen proofs.
¶ 5 Because we disagree that it was in D.G.'s best interest to deny Leah's petition for leave to remove him to Maine, we reverse that portion of the trial court's judgment.
¶ 8 Prior to January 2002, Leah, who lived in Williamsville, Illinois, had a relationship with Randy. In September 2002, after that relationship had ended, Leah gave birth to D.G. In April 2003, Leah filed a petition to determine the existence of the father and child relationship under the Parentage Act. Genetic testing later confirmed Randy was D.G.'s biological father. In October 2003, the trial court entered an order of parentage and support, finding that Randy was D.G.'s biological father. In December 2003, the court granted Leah custody of D.G. subject to the parties' visitation agreement and ordered
[984 N.E.2d 601]
¶ 9 In August 2006, Randy filed an amended motion to modify, requesting termination of his child-support obligation. Randy explained that in July 2005, he was involved in a motorcycle accident that caused him to remain in a comatose state for over a month and hospitalized for over three months. Randy subsequently lost his job as a heavy equipment mechanic and had lingering injuries, which included the inability to sit or stand for extended periods. In January 2006, the federal government classified Randy as disabled and began disbursing monthly social security disability benefits of $1,661 for himself and $831 for D.G. Following a September 2006 hearing, the trial court terminated Randy's child-support obligation.
¶ 10 In July 2009, Leah married Thomas, a native of Springfield, Illinois, and a senior enlisted soldier stationed at Fort Campbell, Kentucky. Because of Thomas' impending deployment to Afghanistan, Leah remained in Williamsville with D.G., and Thomas commuted from Fort Campbell to Williamsville to be with them on weekends. In June 2010, Thomas deployed to Afghanistan, and in April 2011, he returned to Fort Campbell.
¶ 11 In June 2011, Leah informed Randy that she was moving to Fort Campbell. Later that month, Randy filed a motion to enjoin, alleging that such a move was not in D.G.'s best interest because it would “substantially diminish” Randy's relationship with D.G. In response to Leah's July 2011 “petition for leave to remove minor child from state,” Randy filed an emergency petition for rule to show cause, seeking cause as to why Leah should not be held in contempt for moving D.G. to Kentucky in violation of the trial court's admonishment to Leah's attorney that Leah should “not take any action that would be construed as removing [D.G.] from the State on a permanent basis until such time as a hearing was held.” At an August 2011 status hearing on Randy's emergency petition for rule to show cause, the parties stipulated that Leah and D.G. had moved to Kentucky, where D.G. was enrolled in school. The court then continued the hearing.
¶ 12 In September 2011, Randy filed, in part, the following: (1) a petition for in camera interview of D.G. and (2) a petition to modify custody, seeking permanent custody of D.G. (The record shows that Randy also filed a second petition for rule to show cause, seeking cause as to why Leah should not be held in contempt for failing to comply with the parties' child-visitation schedule, which the trial court later dismissed; that pleading is not at issue in this appeal.) In October 2011, the court conducted an in camera interview with D.G. Later that month, and continued into November 2011, the court conducted hearings on Leah's petition for leave to remove D.G. to Kentucky and Randy's aforementioned filings. After taking the matter under advisement, the court entered a written order on December 22, 2011.
¶ 15 The trial court observed that D.G., a nine-year old boy, was “friendly, respectful, intelligent, articulate, and caring.” D.G., who was active in sports, was performing well in school but required extra assistance with reading comprehension. Leah has cared for D.G. since his birth and is a “very good and loving mother” who has provided D.G. a safe and healthy living environment. Leah has maintained a cooperative relationship with Randy and has encouraged D.G. to visit with him.
[984 N.E.2d 602
[368 Ill.Dec. 656]¶ 16 Despite Randy's objection, in June 2011, Leah and D.G. moved to Kentucky at Thomas' urging so that they could experience—for the first time—life together as a family. Thomas, who resides with his daughters (20 years old and 14 years old, respectively) from a previous marriage, lives in a spacious four-bedroom home in a new housing development at Fort Campbell. Although D.G. likes his new school, where he has made new friends and enjoys Fort Campbell, he misses his old school, friends, and cousin.
¶ 17 When Leah moved to Kentucky, she ended her City of Springfield employment in administration and agreed to become a homemaker. Leah volunteered at D.G.'s school and supported military families through various military organizations. Thomas stated his intention to retire in 2015 and return to Springfield, where his extended family lives. Leah and Thomas “reportedly have a strong and happy marriage and are adjusting to their new life together,” which several witnesses corroborated.
¶ 18 Randy is single and lives in Cantrall, Illinois, in a spacious manufactured home that is appropriately furnished. His large parcel of land contains a swimming pool and an assortment of motorcycles, all-terrain vehicles, and other sporting equipment that Randy enjoys with D.G. The trial court noted that after his serious motorcycle accident, Randy had a second accident, and it “appears” that both accidents may have involved alcohol. Randy concedes he drinks alcohol but denies drinking to the point of intoxication. By all accounts, Randy is a “very good and devoted father,” attentive to D.G.'s education, and involved in all aspects of D.G.'s life. D.G. loves Randy, and his relocation to Fort Campbell has been hard on both of them.
¶ 20 With regard to Leah's petition for leave to remove D.G. to Kentucky, the trial court, citing the supreme court's decision in In re Marriage of Eckert, 119 Ill.2d 316, 326–27, 116 Ill.Dec. 220, 518 N.E.2d 1041, 1045–46 (1988), considered the following four factors, in addition to all relevant evidence presented, in determining whether Leah's proposed move to Kentucky was in D.G.'s best interest: (1) the...
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