In re Marriage of Ross

• Decision Date: 16 February 2005
• Docket Number: No. 5-03-0613.,5-03-0613.
• Citation: 824 N.E.2d 1108,355 Ill. App.3d 1162,291 Ill.Dec. 858
• Parties: In re MARRIAGE OF Deborah L. ROSS, Petitioner-Appellant, and Scott A. Ross, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

824 N.E.2d 1108

355 Ill. App.3d 1162

291 Ill.Dec. 858

In re MARRIAGE OF Deborah L. ROSS, Petitioner-Appellant, and

Scott A. Ross, Respondent-Appellee.

No. 5-03-0613.

Appellate Court of Illinois, Fifth District.

February 16, 2005.

C. Stephen Swofford, Campbell, Black, Carnine, Hedin, Ballard & McDonald, P.C., Mt. Vernon, IL, for Appellant.

Jay J. Zanton, Law Office of Jay J. Zanton, Centralia, IL, for Appellee.

Justice HOPKINS delivered the opinion of the court:

The petitioner, Deborah L. Ross, filed a petition to modify her child support obligation and her visitation privileges with the parties' two minor children, MacKenzie, born September 6, 1993, and Megan, born March 27, 1997. On appeal, Deborah argues that the circuit court erred in refusing to modify her child support obligation, in declining to order visitation privileges to her parents, in determining the place of the exchange for the children's visitation, and in reducing her visitation with the children.

We affirm.

FACTS

On September 5, 2000, the circuit court entered its judgment for the dissolution of the parties' marriage. In its judgment, the circuit court designated the respondent, Scott A. Ross, as the custodial parent for MacKenzie and Megan, ordered Deborah to pay child support of $440 per month, and awarded Deborah visitation pursuant to the following schedule: (1) every other weekend from Friday at 6 p.m. to Sunday at 6 p.m., (2) holidays during alternating years, (3) Mother's Day, (4) one week in June, July, and August, for a total of three weeks, and (5) one half of Christmas vacation and any extended spring break period. On February 2, 2001, the court amended its order to allow Deborah the following additional visitation: (1) every Wednesday from 4:30 p.m. to 8 p.m., (2) one additional week in June, for a total of two weeks in June, and (3) one additional week in July, for a total of two weeks in July.

On May 30, 2003, Deborah filed a petition to modify visitation and child support. In the petition, Deborah alleged that she was moving to Indianapolis, Indiana, and she requested that the court modify the visitation schedule and establish procedures for transporting the children for visitation. Deborah further alleged that she had changed employment, which resulted in a substantial change in circumstances, and she requested that the circuit court modify her child support obligation. In his response, Scott requested that the court deny Deborah's petition to reduce her child support obligation because Deborah had quit her employment without appropriate cause or justification.

On August 18, 2003, at the hearing on Deborah's petition to modify visitation and child support, Deborah testified that she had moved to Indianapolis, Indiana, approximately seven weeks before the hearing. Deborah testified that she had been previously employed by North American Lighting in Salem, Illinois, earning approximately $12.40 per hour and working from 7 a.m. to 4 p.m. Deborah testified that she had also worked at Farm Fresh, where she earned $6.25 per hour and worked from 4:30 p.m. to 10 p.m. Deborah testified that in 2002, she earned $28,000 from North American Lighting and $7,000 from Farm Fresh.

Deborah testified that she had worked at North American Lighting for 15 years when she resigned her position on June 13, 2003. Deborah testified that from October 1994 through June 2003, she had not been promoted at North American Lighting and did not see a future prospect for advancement at North American Lighting or at Farm Fresh. Deborah testified that she sought employment in Marion County but was unsuccessful. Deborah testified that although she considered St. Louis and Springfield in her search for new employment, she did not send resumes to employers located in St. Louis or Springfield.

Deborah testified that she moved to Indianapolis because of its additional opportunities and because of the continuing strife between her and Scott. Deborah also testified that she was dating a gentleman who lived in Indianapolis. Deborah testified that she was unemployed from June 13, 2003, to July 13, 2003, but that on July 13, 2003, she began working as an administrative assistant for Crane America, earning $11 per hour. Deborah testified that she considered her current employment as a transition job while she sought other employment. Deborah testified that she would not seek a second job because she planned to attend one of the many universities located within 30 minutes of her home in Indianapolis to obtain a bachelor's degree in social work or business.

Deborah testified that the driving time between Salem and her Indianapolis home was approximately 2½ hours. Deborah testified that the halfway point between Salem and Indianapolis was Terre Haute at exit seven on Interstate 70. Deborah testified that after moving to Indianapolis, she visited the children on the weekends but was unable to visit them on Wednesdays because of the distance involved. Deborah testified that the relationship between her parents and her children was good, although her parents only visited upon Deborah's initiative because Scott did not allow visitation between her parents and the children. Deborah testified that she wanted her parents to exercise her Wednesday visitation.

Scott testified that when Deborah lived in Marion County, she exercised her weekend and Wednesday visitation. Scott testified that when Deborah moved to Indianapolis, she exercised her visitation during the summer, and the children missed two to three weeks of swimming lessons, ball games, and bible school. Scott testified that since Deborah's move to Indianapolis, he did not facilitate visitation with Deborah's parents because they never asked to visit the children. Scott testified that he worked the night shift at North American Lighting in Salem on Sunday through Thursday, from 10:30 p.m. to 6:30 a.m., but that on Sunday evenings, he often began at 6:30 p.m. for the start-up shift.

After the hearing, the circuit court found that Deborah left the job in which she had worked for 15 years to move to Indianapolis, away from her parents and her children, relinquishing a good-paying job and Wednesday night visits. The circuit court characterized Deborah's testimony concerning her plans for future education as vague and uncertain. The circuit court characterized Deborah's explanation for choosing Indianapolis, i.e., job advancement, as not credible in light of similar, and closer, opportunities in Springfield or St. Louis. The circuit court also noted that due to a modification of the new guidelines, Deborah's support obligation would be modestly reduced in any event. The circuit court encouraged Scott to allow visitation with Deborah's parents but declined to order it in light of recent holdings of the Illinois Supreme Court. See Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002).

In its September 4, 2003, order, the circuit court held that Deborah's change in employment had not been made in good faith, and the court denied Deborah's request to decrease her child support obligation. The circuit court granted Deborah's request to modify visitation and awarded Deborah the following visitation:

1. The first and third weekends of every month, from 7:30 p.m. on Friday until 4:30 p.m. on Sunday.

2. Labor Day weekend, Columbus Day weekend, Martin Luther King Day weekend, Presidents' Day weekend, and Easter weekend, from Friday at 7:30 p.m. until Monday at 4:30 p.m.

3. Thanksgiving weekend, from Thanksgiving Day at 4 p.m. until Sunday at 4:30 p.m.

4. From Christmas Day at 4 p.m. until December 30 at 4:30 p.m.

5. Fourteen consecutive days after school is completed for summer break.

6. Twenty-one days at the end of summer prior to school commencement for the fall semester.

The court ordered that the parties exchange the children in Effingham, Illinois.

On October 3, 2003, Deborah filed her timely notice of appeal.

ANALYSIS

Deborah's Petition to Modify Child Support

Deborah argues that the circuit court erred in finding that her job change had not been made in good faith and in refusing to modify her child support obligation. The decision to grant or deny a petition to modify an award for child support lies within the sound discretion of the circuit court, and this court will not disturb the circuit court's decision on appeal absent an abuse of discretion. In re Marriage of Horn, 272 Ill.App.3d 472, 476, 209 Ill.Dec. 130, 650 N.E.2d 1103 (1995).

The circuit court's order for child support may be modified upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a) (West 2002). "A good-faith, voluntary change in employment which results in diminished financial ability may constitute a substantial change in circumstances justifying a reduction in child support payments. [Citation.]" In re Marriage of Horn, 272 Ill.App.3d at 476, 209 Ill.Dec. 130, 650 N.E.2d 1103. The crucial consideration, to determine if a decision was made in good faith, is whether the change was prompted by a desire to evade financial responsibilities for supporting the children or to otherwise jeopardize their interests. In re Marriage of Hardy, 191 Ill.App.3d 685, 690, 138 Ill.Dec. 909, 548 N.E.2d 139 (1989). "The party seeking the modification must present evidence of a motive, other than evasion of financial responsibilities for support of the children, in support of the petition for modification. [Citation.]" In re Marriage of Horn, 272 Ill.App.3d at 476-77, 209 Ill.Dec. 130, 650 N.E.2d 1103; In re Marriage of Imlay, 251 Ill.App.3d 138, 142, 190 Ill.Dec. 539, 621 N.E.2d 992 (1993). "Unless good faith is shown, a voluntary termination of employment by a supporting spouse is not considered a material change in circumstances sufficient to warrant abatement or modification of support obligations. [Citation.]" In re Marriage of Dall, 212 Ill.App.3d 85, 95-96, 155 Ill.Dec. 520, 569 N.E.2d 1131 (1991).

The...