Marriage of Bednar, In re

• Decision Date: 24 July 1986
• Docket Number: 85-2191,Nos. 85-2113,s. 85-2113
• Citation: 146 Ill.App.3d 704,496 N.E.2d 1149,100 Ill.Dec. 84
• Parties: , 100 Ill.Dec. 84 In re the MARRIAGE OF BEDNAR. Michael F. Bednar, Plaintiff-Appellee, and Carol Bednar, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1149

496 N.E.2d 1149

146 Ill.App.3d 704, 100 Ill.Dec. 84

In re the MARRIAGE OF BEDNAR.

Michael F. Bednar, Plaintiff-Appellee,

and

Carol Bednar, Defendant-Appellant.

Nos. 85-2113, 85-2191.

Appellate Court of Illinois,

First District,

Fourth Division.

July 24, 1986.

Marvin A. Miller and Vincent L. DiTommaso (Washlow, Chertow & Miller, of counsel), Chicago, for defendant-appellant.

Charles Locker and Michael Mallen, Chicago, for plaintiff-appellee.

Justice McMORROW delivered the opinion of the court:

Pursuant to this court's allowance of her petition for leave to seek permissive interlocutory appeal in accordance with Illinois Supreme Court Rule 308 (87 Ill.2d R. 308), Carol Bednar (Carol) appeals from the order of the Cook County circuit court which denied her motion to dismiss the petition of her former husband, Michael Bednar (Michael), to remove Bradford, the son of Carol and Michael, from the jurisdiction of the State of Illinois. Carol and Michael had previously agreed to the joint custody of Bradford, with Michael to have physical residence of the son and Carol to have substantial and specific rights of visitation. This agreement was embodied in a trial court judgment which dissolved the parties' marriage in 1984. Since Michael's petition for removal from Illinois was filed within a few months following the marriage dissolution, Carol filed a motion to dismiss the petition on the basis that a petition for removal where both parents are granted joint custody is, in effect, a petition for modification of custody under section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). (Ill.Rev.Stat.1983, ch. 40, par. 610.) The trial court denied Carol's motion to dismiss the removal petition, and we granted permissive interlocutory appeal based upon the following pertinent findings and conclusions contained in the trial court's order of certification:

"The Court finds that Order of June 20, 1985, denying Defendant's Motion to Strike involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that Order may materially advance the ultimate termination of this litigation; and that

The question of law involved in the June 20, 1985, order is whether Plaintiff's Petition for Removal which was filed less than three months after the date of the Court's joint custody judgment herein is governed by Section 603.1 and Section 610 of the Illinois Marriage and Dissolution of Marriage Act and whether Plaintiff's Petition for Removal is fatally deficient as a matter of law as a result of its failure to include affidavits showing that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health, as required by Section 610 which states that no motion to modify a custody judgment may be made earlier than two years after its date, unless the Court permits it to be made on the basis of such affidavits."

We conclude that Michael's petition for removal is governed by section 609 of the IMDMA (Ill.Rev.Stat.1983, ch. 40, par. 609) regarding removal petitions and does not constitute a "modification of custody" under sections 603.1 and 610 of the IMDMA. (Ill.Rev.Stat.1983, ch. 40, pars. 603.1, 610.) Consequently, we find that Michael's petition for removal was not deficient as a

                [100 Ill.Dec. 86] matter of law because of its failure to include affidavits alleging that there was reason to believe the child's present environment might endanger seriously his physical, mental, moral or emotional health.  (See Ill.Rev.Stat.1983, ch. 40, par. 610(a).)   Accordingly we remand the cause for further proceedings consistent with the views expressed herein
                

BACKGROUND

Carol and Michael Bednar were married on January 8, 1977. One child, Bradford, was born to the marriage, on February 18, 1978. Their marriage was dissolved pursuant to judgment entered in the Cook County circuit court on June 12, 1984, retroactive to May 2, 1984. At that time, Carol was 27 years old, Michael was 34 years old, and Bradford was six.

Pursuant to the judgment of dissolution incorporating the parties' agreement, Michael received residential custody of their son and Carol was granted specified rights of visitation. The trial court's judgment for dissolution of marriage and other relief of June 12, as ultimately corrected by the trial court in an order entered May 2, 1985, effective nunc pro tunc to June 12, 1984, provided for joint custody as follows:

"That both parties are fit and proper persons to have the joint care, custody, control, health, education and religious training of the minor child, and it is in the best interest of child that both parties have the joint care, custody, control, health, education and religious training of the minor child and, accordingly, the care, custody, control, health, education and religious training of the minor child of the parties shall be jointly vested in the parties.

MICHAEL F. BEDNAR shall have the right of physical (residential) custody of the minor child, and the minor child shall reside primarily with him, subject to the rights of visitation of CAROL S. BEDNAR, which such visitation is as follows:

a. Each Thursday, from 5:00 to 7:00 p.m.

b. The first and third weekend of each month from Friday at 6:00 p.m. to Monday at 8:00 a.m., Carol to return said child to said child's babysitter.

c. Alternating national and legal holidays.

d. Father's Day with the father, Michael.

e. Mother's Day with the mother, Carol.

f. On either the 2nd or 4th weekend of the month from 6:00 p.m. Friday to 6:00 p.m. Saturday."

Michael's petition to remove Bradford from the State of Illinois was filed pursuant to leave of court on September 6, 1984. In it Michael alleged that he was presently earning $1,000 per month in pre-tax salary, and that he had been offered an opportunity for employment as a drywall patchman in the State of Colorado, which provided a starting salary of $600 per week. Michael's petition also stated that his mother, who lived in California, advised him that she would leave her residence in California and take up residency with him in Colorado, thereby enabling her to provide "constant supervision for the minor child of the parties during such time as [Michael] is employed." Michael stated in his petition that the present babysitting for the child in Illinois was not accomplished by individuals who are related to Michael.

Michael also alleged in his petition that it would be in Bradford's best interests for the court to permit removal of the child to Colorado with his father, on the ground that "removal will permit [Michael] to substantially increase his earnings, thereby making greater funds available for the necessary care, health, and welfare of the minor child, and that by virtue of [Michael's] mother being available to provide both supervision and babysitting chores during the period that [Michael] is at work."

Michael's pleading further noted that he was "willing to make adequate provisions" for Carol's visitation with Bradford to preserve her relationship with the child. He also observed that the increase in his salary "would more than offset any reduction which the Court might grant to [Carol] in Carol's motion to dismiss Michael's petition for removal was filed on September 28, 1984. In it she argued that Michael's petition amounted to a request for modification of custody pursuant to section 610 of the IMDMA, and that as such the petition was deficient for failure to allege facts showing that the child's present environment might seriously endanger his physical, mental, moral, or emotional health. See Ill.Rev.Stat.1983, ch. 40, par. 610.

[100 Ill.Dec. 87] the current support allowances provided by her * * *."

Michael subsequently filed a response to Carol's motion to dismiss, and the parties thereafter filed memoranda of law in support of their positions and presented oral argument to the trial court on their respective views. In its oral pronouncements denying Carol's motion to dismiss Michael's removal petition, on June 20, 1985, the court observed that it was denying the motion "on the theory that physical custody [is] in the father, we are not asking for a change, physical custody will still be in the father * * * joint custody is just a placebo, and physical custody is what matters * * *."

The trial court denied Carol's motion to dismiss the removal petition on July 19, 1985. Subsequently, this court allowed Carol's petition for permissive interlocutory appeal based upon Illinois Supreme Court Rule 308. 87 Ill.2d R. 308.

OPINION

The question presented for our review, one of first impression in Illinois, is whether a parent's petition for removal constitutes a petition to modify custody governed by section 610 of the IMDMA when the judgment for dissolution of marriage awards both parents joint custody. We conclude that a removal petition, filed by the residential custodial parent, is not a petition for modification of custody where both parents are granted joint custody of the child.

Section 603.1 of the IMDMA (Ill.Rev.Stat.1983, ch. 40, par. 603.1, repealed by Pub.Act No. 84-795, 1985 Ill.Laws 767, and replaced by Ill.Rev.Stat.1985, ch. 40, par. 602.1) provides in pertinent part that an award of joint custody may be modified or terminated under the standards of section 610. (Ill.Rev.Stat.1983, ch. 40, par. 603.1(c).) Under section 610 of the IMDMA, any custody award (sole or joint) may be modified by the trial court within two years from the date such judgment is entered only where the moving parent demonstrates in his or her petition that the child's current environment seriously endangers the child's physical, emotional, mental, or moral well-being. (Ill.Rev.Stat.1983, ch. 40, par. 610(a).) A custody determination may be modified more than two years following judgment where the moving parent demonstrates that there has been a substantial...