In Re Marriage of Shelton

JUSTICE CHAPMAN,

dissenting:

Every day thousands of parents send their children off to school and one of the last questions they ask is, “Do you have your lunch money?” 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’s 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’s 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.

Hearsay has been defined as “testimony 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.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801, at 562 (5th ed. 1990).

“The 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.” In re Marriage of Kutinac (1989), 182 Ill. App. 3d 377, 384, 538 N.E.2d 862, 866.

As the majority points out, respondent claimed that the trial court erred in admitting the following hearsay testimony from petitioner at trial: that petitioner’s 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’ salaries in Florida are $24,000.

With regard to the first point I agree with the majority that respondent has waived the issue of whether petitioner’s testimony that her husband was employed in Florida was improperly admitted hearsay testimony by failing to object to it.

The majority also asserts that petitioner’s 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, “[t]he crucial information was that her husband was unemployed at the time of her remarriage, and that subsequently, he found employment in Florida.” (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’s 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’s 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 “she’s married to the man.” 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.

The majority also asserts that admission of petitioner’s testimony that Florida teachers’ salaries are $24,000 was proper. It states:

“[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.” 217 Ill. App. 3d at 33.

I cannot agree with the majority’s 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’s financial condition. I believe that the trial court relied on this testimony in reaching its decision, and, therefore, the testimony was in fact “crucial.”

The majority not only asserts that the testimony is not crucial, but also argues that it is not hearsay because petitioner “investigated” and “found out” that starting salaries were $24,000. The only testimony on this issue is as follows:

“Q. Have you looked into the ability to get income of your own in Florida?
A. Yes.
Q. What steps have you taken?
A. When we were down there in April I took resumes to all the schools in that area.
Q. Have you investigated the possibility of obtaining employment down there?
A. Yes. They built two new schools in Naples this year and they are hiring for both schools.
Q. And you have turned an application in for those schools?
A. No, not as of yet.
* * *
Q. Can you tell me the salary range of schools that you checked in Florida?
MR. SCHREMPF: Objection.
THE WITNESS: Yes.
MR. SCHREMPF: Hearsay, Your Honor.
THE COURT: The objection is overruled.
THE WITNESS: Yes. The school systems I checked out in Cape Coral and Ft. Myers start at $24,000 a year.”

It 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’s reasoning would result in the virtual destruction of the hearsay rule as we know it today. Instead of the witness testifying “he said ...” and then being rudely interrupted by the lawyer’s “objection” and the trial court’s almost inevitable response of “sustained,” the witness now need only state the magic words, “I investigated and found out” 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’s testimony that she “checked out” Florida employment and found that teachers’ salaries were $24,000 is equivalent to her stating “I was told (by some unknown person) the salaries were $24,000 a year.” Petitioner’s testimony on this issue was obviously hearsay and should have been excluded by the trial court.

Unfortunately, not only has the majority approved these obvious evidentiary errors, it has also determined that the trial court’s 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’s conclusion.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609(a)) provides:

“The 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.” (Emphasis added.)

The result achieved by the majority, in contravention of the supreme court’s mandate in Eckert, “dilutes the burden of proof which the legislature has placed on the custodial parent in the statute governing removal of children from this State.” Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.

“The mere desire of the custodial parent to move to another State is not sufficient to establish that the move is in the child’s best interests.” (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.

“The 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.” (Emphasis added.) (Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.)

The court also indicated that the trial court should be guided by the purpose of the Illinois Marriage and Dissolution of Marriage Act “to 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.” Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.

A 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’s 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 “she will be at home for [them].” (217 Ill. App. 3d at 34.) These conclusions are simply not supported by the record. The majority makes much of the fact that petitioner’s 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’s $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’ financial status is petitioner’s hearsay testimony involving Florida’s supposed $24,000-per-year teacher’s 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’s 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’s 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.

The majority also asserts, when discussing the quality-of-life factor, that the quality of the children’s 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’ economic circumstances.

All 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’s lives will be “significantly enhanced.”

Another 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’s 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’s extended family live in the metro-east area. They frequently visited with their cousins, they often spent time at their paternal grandparents’ home, and they had lived with their maternal grandparents for three years after the parties’ divorce. Even after moving out of the maternal grandparents’ home, the children saw them on a daily basis.

The majority considers only the relationship between respondent and the children and states:

“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’s visitation time was spent at his parents’ home. On numerous occasions, the respondent’s 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 ‘entertainer.’ ” 217 Ill. App. 3d at 35.

While it is true that during the winter months respondent’s 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’s parents’ 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’s visits to respondent’s parents’ home were during respondent’s visitation periods. Respondent’s 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’s weekends and on “other occasions *** they’ve called and wondered if they could come up and Ethel usually goes and gets them, picks them up. Lori has brought them occasionally.” Respondent’s father also testified that respondent was “quite often” present at the farm when the children were there visiting. The record does not support the trial court’s nor the majority’s conclusion that 50% of respondent’s visitation time was spent at his parents’ home. Moreover, even if 50% of his visitation time was spent at his parents’ home, this would not be significant. The record reveals that during most of the visits to respondent’s parents’ farm, respondent was in fact present.

The majority next somehow concludes that respondent does not spend quality time with his children. The relevant testimony on this issue is as follows:

“Q. What are some of the things you do with your children during your weekends of visitation?
A. 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’m not — I’m 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.”

The majority’s 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, “All work and no play makes Jack a dull boy,” 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.

The 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.

The 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’s 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’s 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’s 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.

In this case, petitioner’s evidence, briefly summarized, was “We are moving to Florida.” She has not even begun to fulfill her burden of proving that the move to Florida is in the best interests of the children.

This 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’s medical condition. The supreme court reversed the appellate court and affirmed the circuit court’s order denying the removal of the child to Arizona, concluding that petitioner’s financial status would remain the same in Arizona and that there was no evidence introduced on how the move would affect the child’s medical condition.

In 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.

“While 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.” 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.

Petitioner 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.

For all the foregoing reasons, I would reverse the judgment of the circuit court of Madison County.