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In re: Marriage of Seitzinger
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-0743 Rel
Case Date: 08/23/2002

NO. 4-01-0743

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from
KIMBERLY J. SEITZINGER, ) Circuit Court of
              Petitioner-Appellant. ) Sangamon County
              and ) No. 00D1008
ROGER E. SEITZINGER, )
              Respondent-Appellee. ) Honorable
) Charles Gramlich,
) Judge Presiding.

JUSTICE KNECHT delivered the opinion of the court:

In June 2001, the trial court granted petitioner,Kimberly Seitzinger, and respondent, Roger Seitzinger, a dissolution of marriage. The trial court awarded the parties jointcustody of their only child, Sabrina (born October 18, 1996),with Kimberly to have primary physical custody provided sheremained in either Sangamon or Cass County. The trial courtestablished a visitation schedule for Roger, ordered him to pay$292.68 per month in child support and half of the day-carecosts. The court divided the parties' personal property betweenthem and ordered them to split equally the costs of their formermarital residence until it was sold; it ordered Roger to payKimberly for health insurance she previously provided Sabrina,and ordered Kimberly to maintain further health insurance.

Kimberly appeals the award of joint custody, theprovision that she remain in Sangamon or Cass County, the visitation schedule, the division of property, and the failure of thetrial court to order Roger to pay one half of Sabrina's healthinsurance premiums. We affirm in part as modified, reverse inpart, and remand with directions.

I. BACKGROUND

On October 27, 2000, Kimberly filed a petition fordissolution of marriage pursuant to the Illinois Marriage andDissolution of Marriage Act (Dissolution Act) (750 ILCS 5/101 etseq.) (West 2000)). Kimberly sought sole custody of their onlychild, Sabrina. Both parties filed petitions for temporarycustody and support. On November 1, 2000, the trial courtentered a temporary agreed order whereby the parties agreed tosplit time with Sabrina equally. Each party would decide whereSabrina would go to day care while in that party's care. Theparties were to decide on a specific schedule.

Roger and Kimberly agreed Kimberly would have custodyof Sabrina on Monday and Tuesday, Roger on Wednesday and Thursdayand they would alternate Friday through Sunday. They came tothis arrangement without further court input. This scheduleremained in effect until the permanent custody determination wasmade by the trial court on March 21, 2001. By the time the courtbegan hearing evidence on custody on January 16, 2001, however,both parties concluded the temporary schedule was not inSabrina's best interest and both sought sole custody.

Roger is a school teacher and basketball coach inAshland, Illinois. The family moved to the Springfield area forRoger to take this job in August 2000. Previously, Roger held asimilar position in Fairfield, Illinois, as he had throughout theparties' marriage. Kimberly is a licensed speech pathologist atMemorial Medical Center in Springfield. She previously workedfor health-care providers while the parties resided in Fairfield. Sabrina has been in day care while the parties are at workthroughout their marriage.

Roger works during the school year and has the summersoff. He previously cared for Sabrina during the summers andschool vacations instead of her attending day care. Kimberlyworks Monday through Friday from 8 a.m. to 4:30 p.m. She alsoworks one Saturday every two months, and when she does so, shehas the following Monday off.

While in Kimberly's care, Sabrina attended day care atMemorial Medical Center. Kimberly frequently ate lunch withSabrina there. While in Roger's care, Sabrina attended day careat Noah's Ark Christian Preschool and Day Care in Ashland. Rogeris a member of the board of directors of the day care and attendsthe church which runs the day care. He occasionally ate lunchwith or visited Sabrina at the day care. Both day care centersprovided a good environment for Sabrina and neither party had anycriticisms of the other's day-care choice.

Kimberly arranged for Sabrina to attend counseling dueto the separation of the family. Roger cooperated in gettingSabrina to the counseling sessions when he had custody, and theparties agreed to split the costs of counseling.

Both parties presented witnesses stating both Kimberlyand Roger were good parents and could care for Sabrina appropriately. Only minor criticisms were raised. Neither party suggested the other party was not a proper parent.

Kimberly testified she would like to move back toFairfield because she had friends there and Sabrina could attendher old day care. Kimberly thought she had job opportunities inFairfield and she was willing to buy the parties' home therewhich, while listed for sale, had not been sold. However, shestated she would not move to Fairfield if it would jeopardize herreceiving custody of Sabrina. Roger stated he intended to stayin Ashland.

Though both parties sought sole custody, the trialcourt awarded joint custody, finding "the parties exhibited anability to communicate with each other regarding the interest oftheir child." The court further found both parties had healthyand suitable environments to care for Sabrina and had cultivatedfamilial contacts to assist them. While the court found thiscase to be an appropriate situation for joint custody, the courtdid not believe it was in the best interest of Sabrina to dividephysical custody. The court awarded primary physical custody toKimberly so long as she remained in Sangamon or adjacent CassCounty (where Ashland is located). If she elected to move fromeither of those counties, primary physical custody was to changeto Roger. If Roger moved from either of those counties andKimberly remained there, Kimberly was to have sole custody ofSabrina.

Roger received visitation on Wednesday evenings, twoconsecutive weekends from 5 p.m. on Friday to 6 p.m. on Sunday, plus certain holidays and school breaks and four weeks in thesummer. Kimberly would have weekends with Sabrina every thirdweek. Roger was to have decision-making authority over Sabrina'seducation and Kimberly was to have decision-making authority overSabrina's religious development.

The trial court divided the personal property of theparties as they requested except it gave some additional items toRoger upon his request in his posthearing memorandum. (Theseitems were not considered by either party at the time of thehearing.) The court ordered Roger to pay Kimberly $1,952.01within 60 days to equalize the division of property. The courtordered Roger to pay child support of $292.68 per month, pay halfof Sabrina's day care costs, and reimburse Kimberly $455 forhealth insurance she previously provided Sabrina. The courtordered Kimberly to provide health insurance for Sabrina and theparties to equally divide health-care costs not covered byinsurance.

Both parties filed motions for reconsideration. Kimberly asked that the joint custody, visitation, and thedivision of personal property determinations be reconsidered andthat Roger be ordered to pay half the cost of Sabrina's healthinsurance. Roger asked the primary custodian, summer visitation,and costs of day-care decisions be reconsidered. The trial courtgranted the portion of Kimberly's motion requesting Roger'ssummer visitation be divided into two 14-day periods, withKimberly to have Sabrina for at least one week in between thoseperiods. The remainder of both parties' motions to reconsiderwere denied. This appeal followed.

II. ANALYSIS

A. Joint Custody

Kimberly first argues the trial court erred in awardingjoint custody. She contends the court should have awarded hersole custody of Sabrina because the parties cannot cooperate withrespect to raising Sabrina jointly.

"In determining custody, the trial court should consider all relevant factors, including those listed in section 602of the [Dissolution] Act [750 ILCS 5/602 (West 2000)], and decidewhat custodial order serves the best interest of the child." Inre Marriage of Dobey, 258 Ill. App. 3d 874, 876, 629 N.E.2d 812,814 (1994). In cases regarding custody, a strong presumptionfavors the result reached by the trial court and the court isvested with great discretion due to its superior opportunity toobserve and evaluate witnesses when determining the best interests of the child. Dobey, 258 Ill. App. 3d at 876, 629 N.E.2d at814. Therefore, the trial court's ruling will not be disturbedunless it is against the manifest weight of the evidence or is anabuse of discretion. Dobey, 258 Ill. App. 3d at 876, 629 N.E.2dat 814.

Section 602.1(c) of the Dissolution Act provides:

"The court may enter an order of jointcustody if it determines that joint custodywould be in the best interests of the child,taking into account the following:

(1) the ability of the parents to cooperate effectively and consistently in mattersthat directly affect the joint parenting ofthe child. ***

(2) [t]he residential circumstances ofeach parent; and

(3) all other factors which may be relevant to the best interest of the child." 750ILCS 5/602.1(c) (West 2000).

Thus, the standards for an award of joint custody are the bestinterests of the child, the agreement of the parents and theirmutual ability to cooperate, the geographic distance betweenparents, the desires of the child if he/she is of suitable age,and the relationships previously established between child andparents. In re Marriage of Drummond, 156 Ill. App. 3d 672, 679,509 N.E.2d 707, 712 (1987).

Joint custody should be awarded only where the evidenceindicates the parents are willing to cooperate in the upbringingof their child. In re Marriage of Marcello, 247 Ill. App. 3d304, 310, 617 N.E.2d 289, 293 (1993). This court has set asidejoint custody orders where the evidence showed the parents hadtoo much animosity toward each other to be able to cooperate. Inre Marriage of Bush, 191 Ill. App. 3d 249, 263, 547 N.E.2d 590,598 (1989); Drummond, 156 Ill. App. 3d at 680-82, 509 N.E.2d at713-14. However, where the evidence showed the parents wereloving and capable and were sufficiently able to cooperate, anaward of joint custody may be affirmed even if neither partyrequested it. In re Marriage of Hacker, 239 Ill. App. 3d 658,661, 606 N.E.2d 648, 650-51 (1992).

Kimberly argues the parties could not cooperate withrespect to raising Sabrina. As examples, she argues the partiescould not agree on day care or preschool pending the outcome ofthe case, the parties held separate religious beliefs, Roger wasnot good about giving Sabrina her medicine, and the partiessimply could not cooperate. She argues conflicts are inevitablewhere the court's order provided Roger with decision-makingauthority for Sabrina's schooling but gave Kimberly decision-making authority on religious upbringing. Kimberly contends shecould not then raise Sabrina in a religious educational settingof her choice since Roger had decision-making authority overschooling.

Evidence on cooperation was to the contrary. Theparties were able to agree to the basis of the temporary relieforder in November 2000, which provided a 50-50 split in eachparty's time with Sabrina. This order remained in effect untilthe court made its custody determination on March 21, 2001. Theparties agreed on a specific custody schedule and apparentlyabided by the schedule.

The parties cooperated on counseling for Sabrina. Theydid not dispute the other was a good parent. Neither voicedsubstantial criticisms of the quality of care provided by theother. Both parties agreed in the temporary order they wouldeach decide on a day-care provider while Sabrina was with them. Presumably they each chose a day care that worked best for themwhen going to work in the morning. Kimberly had no criticisms ofthe day care where Roger enrolled Sabrina.

While Kimberly asserted the parties could not cooperate, no evidence in the record shows any specific instances oflack of cooperation. As part of the dissolution proceedings,both parties signed a joint-parenting agreement to implement thecourt's joint custody order.

Joint custody means joint responsibility and not sharedphysical custody. It is simply a tool to maximize the involvement of both parents in the life of a child. In this case, bothparents had a great deal of involvement in Sabrina's life duringtheir marriage and both desired to continue with their involvement as both sought sole custody. Ample evidence showed theparties' ability to cooperate. Therefore, the trial court didnot abuse its discretion in awarding joint custody; neither wasits decision against the manifest weight of the evidence.

No evidence showed the parties actually had differentreligious beliefs. The evidence indicated during their marriagethe parties both attended the Christian Church. No evidenceshowed either party attended a different church after theyseparated. Roger was unlikely to object to Kimberly placingSabrina in a religious educational setting and he had, in fact,enrolled Sabrina in a preschool run by the church he was thenattending and which provided religious training as part of itscurriculum. Kimberly apparently had no objection. At the sametime, we believe joint parenting should require the parties todiscuss important issues and make joint decisions. Thus, weconclude the parties should share the decision on schooling andreligion; we affirm the custody award as modified to reflect thisshared decision making.

B. Conditional Primary Physical Custody

Although we agree with the trial court this is anappropriate case for joint custody, we disagree about conditioning Kimberly's primary physical custody on her remaining inSangamon or Cass County.

It is not necessary for a custodial parent or a parentwith primary physical custody to obtain permission from a courtbefore moving to another location in Illinois. In re Marriage ofWycoff, 266 Ill. App. 3d 408, 416, 639 N.E.2d 897, 904 (1994). Thus, once she has been awarded primary physical custody ofSabrina, Kimberly may move within the State of Illinois withimpunity. However, parental agreements or court orders mayimpose reasonable limitations on a custodian's choice of residence. Section 608(a) provides:

"Except as otherwise agreed by the parties in writing at the time of the custodyjudgment or as otherwise ordered by thecourt, the custodian may determine thechild's upbringing ***." (Emphasis added.) 750 ILCS 5/608(a) (West 2000).

As we recently noted in In re Marriage of Means, 329 Ill. App. 3d392, 395, 771 N.E.2d 501, 504 (2002), two aspects of this language are significant: (1) the custodian has broad power todetermine the child's upbringing, including residence; and (2)the parties may agree otherwise or the court may order otherwise.

The joint-parenting agreement in this case did notplace a restriction on Kimberly's residence, but the trial courtdid so in its order. A trial court has broad powers in custodymatters, including conditioning custody upon a custodian livingwithin a reasonable distance from the noncustodial parent sovisitation may be facilitated. In re Marriage of Manuele, 107Ill. App. 3d 1090, 1096, 438 N.E.2d 691, 695 (1982). The trialcourt in Manuele conditioned physical custody under an award ofjoint custody upon the children continuing to "reside in theSpringfield" area, which was defined in the custody order asbeing within Sangamon County. Manuele, 107 Il. App. 3d at 1092,438 N.E.2d at 692. On appeal, we found the limitation of residence to Sangamon County to be unreasonably restrictive. Manuele, 107 Ill. App. 3d at 1096, 438 N.E.2d at 695.

Here, the restriction of Kimberly's residence toSangamon or Cass County is arbitrary if the purpose of therestriction is ease of visitation. Geographical location is not,per se, determinative of ease of visitation. Ease of transportation may be just as important. Other counties located nearRoger's home in Ashland might prove just as easy to get to aswould a location in the farthest corner of Sangamon or CassCounty.

More important, however, the trial court erroneouslyconditioned not only Kimberly's primary physical custody ofSabrina on her remaining in Sangamon or Cass County but also thecontinuation of joint custody. The trial court's order, as toboth parties, was contingent solely on geography because jointcustody terminated upon Roger's or Kimberly's removal fromSangamon or Cass County. The custody status of a minor childshould not change automatically with the removal of a parent fromhis or her present location. Instead, the best interests of thechild should be considered when a change of custody is anticipated.

Section 610 of the Dissolution Act provides for themodification of joint custody judgments upon a finding by clearand convincing evidence of facts that have arisen since the priorjudgment, that a change has occurred in the circumstances of thechild or either or both parties having custody, and that themodification is necessary to serve the best interest of thechild. 750 ILCS 5/610(b) (West 2000). Even the move out ofstate of the parent having primary physical custody under a jointparenting order, while obviously a change of circumstances, doesnot necessarily provide grounds for termination of a jointparenting order, or the change of one primary custodian for theother, if it is not in the best interest of the child. In reMarriage of Good, 208 Ill. App. 3d 775, 778, 566 N.E.2d 1001,1002-03 (1991).

Joint parenting is a tool to maximize the participationand responsibility of both parents in a child's life. It neednot be automatically terminated upon the removal of one parentfrom close geographical proximity from the other. Thus, we findthat portion of the trial court's order automatically changingthe primary physical custodian or terminating the joint parentingorder upon the removal of either parent from Sangamon or CassCounty, without consideration of the best interests of Sabrina,to be an abuse of discretion, and we reverse that condition.

C. Visitation

We next review the trial court's visitation order. Thetrial court gave Roger visitation from 5 p.m. on Friday to 6 p.m.on Sunday for two consecutive weekends with Kimberly to have thecare of Sabrina every third weekend. Kimberly argues givingRoger visitation with Sabrina two out of every three weekends isan abuse of discretion. She contends that while she has Sabrinaduring the weekdays every week, this time includes all the dutiesthat come with a workweek, i.e., homework, school drop off, workschedule, et cetera, without the benefit of the "fun" withSabrina on nonhectic weekends. Kimberly contends Roger shouldreceive visitation only every other weekend.

A trial court has broad discretion in determining thevisitation rights of a nonresidential parent with the bestinterest of the child being of primary concern. A visitationplan should not be reversed absent a finding the ordered visitation is manifestly unjust. Dobey, 258 Ill. App. 3d at 877, 629N.E.2d at 815. The policy of this state is to grant liberalvisitation rights. In re Marriage of Brophy, 96 Ill. App. 3d1108, 1112, 421 N.E.2d 1308, 1311 (1981). The best interest ofthe child is normally fostered by continuing a healthy and closerelationship with the noncustodial parent. Brophy 96 Ill. App.3d at 1112, 421 N.E.2d at 1311.

In this case, both Roger and Kimberly had a closerelationship with Sabrina. The visitation schedule would serveto foster the relationship between Roger and Sabrina. We assumeRoger will be required to feed and bathe Sabrina during visitation as well as launder her clothing, pick up toys, and attend toher needs. There was also evidence Sabrina had a close relationship with her paternal grandparents and the extra weekendsprovided to Roger would enable Sabrina to keep that relationshipstrong. The trial court's visitation schedule is not manifestlyunjust or an abuse of discretion.

D. Division of Personal Property

Kimberly contends the trial court should have dividedthe parties' personal property pursuant to the agreement theyreached as presented to the court in Kimberly's memorandum basedon her trial exhibits. Roger admits he added several items to bedivided in his memorandum after evidence was heard, with noopportunity for Kimberly to respond.

A trial court's distribution of property should not bereversed absent an abuse of discretion. In re Marriage ofKerber, 215 Ill. App. 3d 248, 254, 574 N.E.2d 830, 834 (1991).

While Kimberly argues the trial court should havedivided the personal property as presented to it in court, shedoes not state she disagreed with Roger's requests or state sheshould have received more of the property; nor does she claim theproperty added was of any great value. The items Roger addedafter trial were a full size bed and a 35-millimeter camera, bothof which he requested and was awarded; a video camera, which thetrial court gave to Kimberly; and two items that Roger claimedwere nonmarital, a television stand given to him by his motherand a quilt made for Sabrina by his aunt, both of which the courtawarded him. Kimberly received all of the items she requestedfrom the trial court except a refrigerator plus the video cameraRoger added after trial. We find no abuse of discretion underthese circumstances.

E. Health Insurance

While the trial court ordered Roger to reimburseKimberly for health insurance she previously provided forSabrina, it did not order Roger to contribute to future insurancebut, instead, ordered Kimberly to provide the insurance. Sheasks that he contribute half the cost.

The duty to provide health insurance is an integralpart of a parent's current and future support obligations. Franson v. Micelli, 172 Ill. 2d 352, 356, 666 N.E.2d 1188, 1189(1996). The affidavit Roger filed with the trial court reflectedhis employment and the availability of health insurance throughhis employer. When such insurance is available, the noncustodialparent is required under section 505.2(b) of the Dissolution Act(750 ILCS 5/505.2(b) (West 2000)) to provide contribution uponthe request of the child-support obligee. In re Marriage ofSelf, 265 Ill. App. 3d 804, 805-06, 638 N.E.2d 699, 700 (1994). Thus, the trial court should have ordered Roger to contributehalf the cost of health insurance for Sabrina.

Roger agrees he should be required to contribute halfthe cost of health insurance for Sabrina, but contends the trialcourt should then reconsider the amounts he is required to pay inchild support and contributions for day-care costs. We do notfind this to be necessary, however, as the child support he wasordered to pay follows the statutory guidelines in section 505 ofthe Dissolution Act (750 ILCS 5/505(a)(1) (West 2000)). Thejoint custody he enjoys with Kimberly means joint obligations aswell as joint benefits. He is just as responsible for day-careand health insurance costs now as he was when the parties weremarried.

III. CONCLUSION

We affirm the court's visitation schedule and thedivision of personal property. We affirm the trial court's awardof joint custody as modified: (1) the parties share decision-making authority as to schooling or religion; and (2) Roger mustcontribute half the costs of health insurance for Sabrina. Wereverse the restrictions on the geographical locations of eitherparent in the trial court's order. We remand with directions toissue an amended judgment of dissolution consistent with thisopinion.

Affirmed in part as modified and reversed in part;cause remanded with directions.

MYERSCOUGH and TURNER, JJ., concur.

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