In re MARRIAGE OF | ) | Appeal from the Circuit Court |
SORYIA COLLINGBOURNE, | ) | of Kane County. |
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Petitioner-Appellee, | ) | |
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and | ) | No. 99--D--723 |
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GEOFF B. COLLINGBOURNE, | ) | Honorable |
) | Stephen Sullivan, | |
Respondent-Appellant. | ) | Judge, Presiding. |
JUSTICE McLAREN delivered the opinion of the court:
Petitioner, Soryia Collingbourne, filed a petition to removeher minor child, Tyler, from the State of Illinois. The trialcourt granted the petition. Respondent, Geoff B. Collingbourne,the father, appeals. We reverse.
Petitioner and respondent dissolved their marriage onSeptember 1, 1999. Two children had been born to the partiesduring their marriage--Geoff, born January 11, 1986, and Tyler,born January 10, 1991. The judgment for dissolution of marriageincorporated a marital settlement agreement and a joint parentingagreement. Pursuant to the terms of the joint parenting agreement,the parties were awarded joint custody of the children. However,the primary residential custody of the children was split. Respondent had primary residential custody of Geoff, and petitionerhad primary residential custody of Tyler.
On June 15, 2001, petitioner filed a petition to remove Tylerfrom the State of Illinois to the State of Massachusetts. Anevidentiary hearing was conducted. Petitioner testified that shewas engaged to be married to Mark Rothman, who resides in Sharon,Massachusetts, a town located one-half hour from Boston and one-half hour from Providence, Rhode Island. She wanted to move toSharon, Massachusetts, with Tyler so she could be with Mr. Rothman. Mr. Rothman owns a three-bedroom home on 1.5 acres in Sharon andowns a sales manufacturing business.
At the time of the hearing, Tyler was 10 years old. Theapartment he shared with petitioner had two bedrooms and two bathsand did not have a yard. Petitioner is employed as a sales managerfor Pet-Ag, Inc., located in Hampshire, earning approximately$50,000 annually and working 40 hours per week. If petitionermoved to Massachusetts, she would work for Mr. Rothman's company insales and would work during Tyler's school hours only. Petitioner's current position required her to place Tyler in daycare from the end of the school day at 2:30 p.m. until she pickshim up between 5:30 and 6 p.m.
Tyler attends Hampshire Elementary School. Petitionertestified that she hired a company known as School Match andpurchased information concerning the school system in Sharon,Massachusetts. In her personal opinion, the school system inSharon would offer Tyler a wonderful education that would besuperior to his present school system. Tyler would attend HeightsElementary school, which is located seven minutes from Mr.Rothman's home and offers a wide range of extracurricularactivities.
Petitioner proposed a visitation schedule for Tyler in theevent the court granted her petition for removal. The proposalwould allow Tyler visitation in Illinois with his father for 8 to10 weeks during the summer months, during two spring breaks thatoccur in February and April, during Thanksgiving break, and for aportion of the Christmas break.
Petitioner testified on cross-examination that respondent'svisitation with Tyler, which was once flexible, had become morescheduled. She related a vacation with Mr. Rothman and Tylerwherein Tyler became unhappy and returned to respondent after threedays. She is aware that Tyler is very unhappy with the day carecenter he presently attends and that respondent's sister andpresent wife have offered to watch him some of the days. Petitioner has not followed up to obtain alternate arrangements.
Mark Rothman resides in Sharon, Massachusetts, a town ofapproximately 16,000 residents. He described the community asaffluent and upscale with some of the finest schools in the state. Mr. Rothman's business does not allow him to live in the State ofIllinois. He has offered petitioner a sales position in hiscompany that would allow her to structure her own work hours. Mr.Rothman testified that he has the financial means to assist infostering respondent's relationship with Tyler through out-of-townvisitation, computers, e-mail, phone calls, and visits back andforth by airplane.
Mr. Rothman has made frequent trips between Boston andChicago. The flight time is two hours, and he has experienceddelays and cancellation in flights. The travel from his home tothe Boston airport is approximately 45 minutes.
Amy Joan Conry was Tyler's fourth-grade teacher. Shedescribed Tyler as an above-average student who is well-behaved. Ms. Conry has been involved with petitioner with respect to Tyler'seducation through telephone calls and various school meetings. Shesaw respondent one time at an open house but has not been involvedwith him concerning Tyler's education.
Respondent resides in Hampshire, Illinois, with his wife,Carol Lynn, her 6-year-old son, and his 15-year-old son, Geoff.They live in a single-family home consisting of three bedrooms witha backyard. His home is located eight blocks from HampshireElementary School, where Tyler has attended since kindergarten.
Respondent is employed as an electrician. He works 40 hoursper week from 7 a.m. until 2:30 or 3 p.m. His annual earnings ata rate of $33 per hour total $70,000. Respondent's wife, CarolLynn, is employed part-time as an ultrasound technician. She worksthree days per week from 8 a.m. until 5 p.m. The currentvisitation schedule for Tyler allows respondent to have Tyler athis home two weekends every month, starting on Friday evening andending on Sunday evening. Respondent testified that he has nevermissed his weekend visitation with Tyler. The allotted visitationwas shortened only if respondent had to work for half a day on aSaturday, which meant he would miss four hours at the most. Duringthis time, Tyler stayed with either his brother or his mother. Inthe past respondent's visitation with Tyler was very flexible,occurring virtually any time that he wanted to see Tyler and wasable to care for him, including both weekdays and weekends. In themonths prior to the hearing, petitioner would not allow respondentto pick Tyler up from school and take him home until she picked himup after work. Instead, petitioner enrolled Tyler in day care.
Respondent has family living in the Hampshire area, includingseveral cousins, aunts, uncles, and grandparents. Tyler would seehis extended family often but now only sees them approximately onetime per month.
Respondent described his relationship with Tyler as very closeand loving. He opposes petitioner's move to Massachusetts withTyler. Respondent believes it is in Tyler's best interests to stayin Illinois with him and his extended family. He described hiswife's relationship with Tyler as good. There have been someproblems with jealously between Tyler and Carol Lynn's son, butrespondent indicated the relationship is getting better.
The trial court conducted an in camera interview of Tyler. Atthe time of the interview, Tyler was 10 years old. When askedabout his thoughts concerning Boston and a proposed move, heresponded that it was "okay." He stated that he was "scared" aboutthe move because he does not want to leave his father. He furtherstated that he has informed his mother he does not want to move toBoston and was unsure of whether the proposed move was even goingto happen.
He stated that his mother travels out of town for work threetimes per month and that either his father or his mother's friendwill watch him. He also indicated that he does not like the daycare center he attends because most of the children are babies. Tyler has traveled alone on an airplane in the past. He is notafraid to fly alone.
Tyler stated that he does not want to move to Boston. He doesnot want to leave his father, brother, friends, and family on hisfather's side, including his grandparents, aunts, and uncles.
After considering the testimony at the evidentiary hearing, arguments of the parties, and the in camera interview with Tyler,the trial court granted the petition for removal. In a writtenorder, the trial court considered the requirements of section 609of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS5/609 (West 2000)) as well as the decision of our supreme court inIn re Marriage of Eckert, 119 Ill. 2d 316 (1988). The trial courtfound that neither party had an improper motive in requesting orobjecting to the removal. The trial court also found that therewas no evidence of a substantial direct benefit to Tyler by theproposed move and that, consequently, any benefit to Tyler had tobe indirect.
The trial court considered that the move would allowpetitioner to enroll Tyler in a school system with superioropportunities, obtain a job with a greater salary, conform her workto Tyler's school schedule, and afford air transportation to enableTyler to visit Illinois by plane. Although the move would separateTyler from his father, brother, and extended family, and requirehim to take 9 or 10 extended trips by airplane, the trial courtfound that the evidence favored the proposed move since petitionerwill substantially enhance her quality of life and thus indirectlybenefit Tyler. In the court's view, the best interests of Tylerwere served by allowing petitioner to remove him to Massachusetts,subject to the following visitation schedule:
8 to 10 weeks during summer vacation;
1 week during February break;
1 week during spring break;
Every Thanksgiving holiday from Thursday to Sunday;
1 week during Christmas break; and
Such other times as agreed by the parties.
This appeal followed.
Section 609(a) of the Illinois Marriage and Dissolution ofMarriage Act governs petitions for removal. 750 ILCS 5/609(a)(West 2000). The statute provides as follows:
"The court may grant leave *** to any party havingcustody of any minor child or children to remove such child orchildren from Illinois whenever such approval is in the bestinterests of such child or children. The burden of provingthat such removal is in the best interests of such child orchildren is on the party seeking the removal." 750 ILCS5/609(a) (West 2000).
In a removal case, the paramount question is whether removalis in the best interests of the child. In re Marriage of Eckert,119 Ill. 2d 316, 325 (1988). When making a determination as to thebest interests of the child, there is no bright-line test. Rather,the decision must be made on a case-by-case basis, depending, to agreat extent, on the circumstances of each case. Eckert, 119 Ill.2d at 326. A trial court's determination as to the best interestsof the child will not be reversed on appeal unless it is clearlyagainst the manifest weight of the evidence and it appears that amanifest injustice has occurred. Eckert, 119 Ill. 2d at 328.
In making a determination as to the best interests of thechild, the trial court should hear all relevant evidence. Eckert,119 Ill. 2d at 326. In Eckert, our supreme court identified fivefactors to consider in determining whether removal is in thechild's best interest:
(1) whether the proposed move will enhance the generalquality of life for both the custodial parent and the child; (2) the motives of the custodial parent in pursuing theremoval;
(3) the motives of the noncustodial parent in resistingthe removal;
(4) the visitation rights of the noncustodial parent; and
(5) whether a realistic and reasonable visitationschedule can be reached if the move is allowed.
See Eckert, 119 Ill. 2d at 326-27.
Respondent contends that the trial court's ruling is againstthe manifest weight of the evidence. He asserts that petitionerfailed to sustain the burden of proving that removal is in the bestinterest of Tyler under the factors outlined in Eckert. He furtherasserts that the evidence did not show any direct benefit to Tylerby the proposed move, but only indirect benefit due to an improvedlifestyle for petitioner, which is insufficient to sustain theburden of proving that the move was in the child's best interest. Turning to the factors outlined in Eckert, the trial courtmade an express finding that neither parent's motives in seeking orresisting removal were improper. We have found nothing in therecord to the contrary. Therefore, we will consider the remainingfactors set forth in Eckert.
Under Eckert, the trial court must consider whether theremoval would enhance the general quality of life of both theparent and the minor child. Evidence that a court may consider indetermining whether the quality of life of the parent and the childwould be enhanced includes the possibility of a higher paying job,better schools, and improved general opportunities. See In reMarriage of Pfeiffer, 237 Ill. App. 3d 510, 513-14 (1992).
As the trial court concluded in its written opinion, theevidence did not illustrate that there would be a substantialdirect benefit to Tyler by moving to Massachusetts. Althoughpetitioner presented evidence in an effort to establish that Tylerwould receive a superior education in the Sharon school system, inour view, Tyler's present school system is comparable to that inMassachusetts. Further, both locations are within equal distancefrom a large metropolitan area with the accompanying educationaland cultural amenities.
The majority of the evidence related to benefits petitionerwould derive by moving to Massachusetts, remarrying, and livingwith the man she loves. As we held in In re Marriage of Berk, 215Ill. App. 3d 459, 465-67 (1991), it is insufficient to focus onlyon the improvement of the custodial parent's life. Rather, theimprovement in the custodial parent's quality of life is onlyimportant insofar as it increases and furthers the child's qualityof life. Berk, 215 Ill. App. 3d at 465. While respondentpresented evidence that she would enjoy an increased standard ofliving, live in a larger home, and earn a greater income workingfor her prospective husband's company, an increased standard ofliving will occur in almost every case of remarriage, as we statedin Berk. As such, the living arrangements proposed by the move toMassachusetts are considered, but cannot alone be determinative. Under Eckert, it is in the best interests of a child tomaintain a healthy and close relationship with both parents, aswell as other family members. Eckert, 119 Ill. 2d at 326-27. Therefore, the visitation rights of the noncustodial parent andwhether a realistic and reasonable visitation schedule can bereached if the move is allowed must be considered. Eckert, 119Ill. 2d at 326-27.
A visitation schedule is reasonable when it will preserve andfoster the child's relationship with the noncustodial parent. Inre Marriage of Gibbs, 268 Ill. App. 3d 962, 968-69 (1994). Whenthe noncustodial parent has diligently exercised his rights, thecourt should not interfere with those rights for frivolous,unpersuasive, or inadequate reasons. Gibbs, 268 Ill. App. 3d at968-69. When a parent has diligently exercised visitation rights,a court should be reluctant to interfere with those rights byallowing removal for unpersuasive or inadequate reasons. Eckert,119 Ill. 2d at 327.
Respondent has diligently exercised his visitation rights withTyler. He has not missed his biweekly weekend visits with Tyler. Further, the evidence indicates that, by picking Tyler up fromschool and staying with him until petitioner retrieved him afterwork, respondent has visited with Tyler even more often than setforth in the marital settlement agreement. The time thatrespondent has spent with Tyler has been at respondent's home,which has enabled Tyler to spend time also with his naturalbrother, Geoff.
The visitation schedule set forth in the trial court's ordergrants respondent approximately 96 days per year with Tyler. Although the total number of days that respondent will be withTyler is comparable to the bimonthly/every-other-holiday visitationschedule in use, the schedule ordered by the court will requireTyler to be away from his Massachusetts home during every schoolbreak for substantial periods of time. As Tyler grows older andbecomes accustomed to his Massachusetts home and school, it islikely that he will form relationships with friends from school andhis neighborhood. While it is important for Tyler to visit hisfather, brother, and extended family in Illinois, it is alsoimportant that Tyler adjust to his new home in Massachusetts. Requiring Tyler to be away from his friends and home for everyschool break is not likely to solidify Tyler's roots within his newcommunity, foster close relationships with his peers, or furtherdevelop his relationship with his mother and Mr. Rothman. Additionally, the visitation schedule set forth by the trial courtwill require Tyler to travel by air 9 to 10 times per year forvisitation, which is not only time consuming, but hectic andburdensome for adults and children alike.
In our view, the evidence presented at the hearing, inconjunction with the factors set forth in Eckert, indicates thatremoving Tyler to Massachusetts is not in his best interest. Although the move may provide an indirect benefit to Tyler byvirtue of the benefits that petitioner will experience by marryingMr. Rothman, we cannot conclude that this evidence outweighsTyler's interest in maintaining a close relationship with hisfather, natural brother, and extended family in Illinois. Whilethe proposed visitation schedule would allow substantial visitationwith respondent for lengthy periods of time, the fact remains thatrespondent has work responsibilities that would preclude him fromspending each day with Tyler and would require care and supervisionby another adult during his visitation hours. Under the facts ofthis case, we determine that the trial court's decision to grantthe petition for removal was against the manifest weight of theevidence.
The judgment of the circuit court of Kane County is reversed.
Reversed.
BYRNE, J. concurs.
JUSTICE BOWMAN, dissenting:
I respectfully dissent.
In my view, the majority's reasons for reversing the ruling ofthe trial court amount to nothing more than a substitution of itsfactual findings for those of the trial court. It is wellestablished that a trial court's determination of whether removalis in a child's best interests should not be reversed unless it isclearly against the manifest weight of evidence and it has resultedin manifest injustice. In re Marriage of Eckert, 119 Ill. 2d 316,328 (1988). Precisely because removal actions are so factspecific, and because of the trial court's far superior ability toobserve and evaluate the parents and children, the Eckert courtenunciated a policy of deference to the trial court ruling as theappropriate standard of review. Eckert, 119 Ill. 2d at 330.
In rendering its decision, the trial court evaluated theEckert factors. It found no improper motive on either parent'spart in seeking or opposing removal. The court further found that(1) petitioner would substantially enhance her quality of life bymoving to Massachusetts and thus the move would indirectly benefitTyler; (2) petitioner could not find employment in Illinois similarto her employment opportunity in Massachusetts; (3) petitioner'sfiancé could assist petitioner financially but could not relocatehis business to Illinois; (4) the school systems in Illinois andMassachusetts are comparable and reasonably close to a largemetropolitan area; (5) the "enhanced quality of life" factor showsthat the existing joint custody arrangement has already resulted inthe separation of Tyler and his brother because they live inseparate households, attend separate schools, and have a five-yearage difference, which reasonably has or will shortly create adiversity of interest between them; (6) under the proposedvisitation schedule, the actual time Tyler would spend with hisfather would be comparable to that under the existing schedule; and(7) the traveling time involved would not be more than ifpetitioner were to move to southern Illinois.
In its analysis, the majority fails to demonstrate that thetrial court's findings were contrary to the manifest weight of theevidence. The majority notes that moving to Massachusetts wouldbenefit Tyler only indirectly through the direct benefit his motherwould derive from marrying her fiancé. The majority goes on to saythat such an indirect benefit is not determinative. The trialcourt made note of this proposition as well in its writtendecision, and there is no indication that it placed too muchemphasis on the "indirect benefit" factor. Thus, I fail to see howthe court's treatment of this issue renders its decision contraryto the manifest weight of the evidence.
The majority also finds fault with the trial court'sdeterminations regarding the proposed visitation schedule, statingthat it would require Tyler to spend too much time away from hisnew home in Massachusetts. The majority seems to forget that it isnot our job to second-guess the trial court's decisions on suchmatters, but only to determine whether they are against themanifest weight of the evidence. The trial court in this casefashioned a schedule that would give Tyler approximately the sameamount of time with his father that he has now. In order to do so,however, Tyler must travel to Illinois during most of his schoolvacations. While this proposed schedule is more inconvenient thanthe current arrangement, it is a reasonable and realistic method ofhandling an obviously disruptive event in Tyler's life. It alsowould allow Tyler C. to maintain a close relationship with hisfather despite the physical distance between them.
In sum, I would affirm the trial court because the trial courtwas in the best position to observe Tyler, his parents, and theother witnesses and to evaluate their temperaments, predilectionsand capabilities in determining Tyler's best interest. Themajority's reasons for reversing the trial court do nothing morethan substitute its viewpoints for those of the trial court and,therefore, violate the requirement that the reviewing court givedeference to the trial court's findings.