In re Marriage of Matchen

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0749 NRel

Case Date: 04/12/2007

Preview:No. 2--06--0749 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re MARRIAGE OF JAMES R. MATCHEN, ) Appeal from the Circuit Court ) of McHenry County. ) Petitioner-Appellee, ) ) and ) No. 95--DV--233 ) JEANETTE MATCHEN, ) Honorable ) Michael W. Feetterer, Respondent-Appellant. ) Judge, Presiding. _____________________________________________________________________________ JUSTICE CALLUM delivered the opinion of the court: Respondent, Jeanette Matchen, timely appeals the judgment of the circuit court of McHenry County denying her petition for leave to remove the parties' two minor children from Illinois to Wisconsin. On appeal, respondent argues that the trial court's findings are against the manifest weight of the evidence. For the following reasons, we affirm. I. BACKGROUND Respondent testified that she and petitioner, James Matchen, divorced in August 1995. Pursuant to the judgment of dissolution, the parties shared joint custody of their three children. At the time of the removal hearing, Jeremiah, 20 years old, lived with petitioner, and Jeffrey,14 years old, and Jessica,12 years old, lived with respondent. Both parties and the children reside in McHenry County.

No. 2--06--0749 In August 2002, respondent met and fell in love with Tom Mayer, a retired electronics engineer and professional inventor. After working in Hoffman Estates for 22 years, Mayer retired to 88 acres of land in the Wisconsin Dells area that are held in a trust for him and his brother. The land has been in his family since 1955. In 2004, respondent petitioned to remove Jeffrey and Jessica to live with her and Mayer at his home in the Wisconsin Dells. Respondent and Mayer are engaged; however, they have delayed setting a wedding date, pending the resolution of the petition for removal. The trial court held a hearing on the removal petition on August 24 and 25, 2005, September 2, 2005, and January 11, 2006. Respondent, a house cleaner, testified that she has been self-employed for two years. She works approximately 15 hours per week. According to respondent's tax return, her total gross income for 2004 was $7,347. She testified that she earns approximately $690 per month, has approximately $1,846.49 per month in expenses, and does not have sufficient funds to pay her bills. Accordingly, Mayer pays respondent's entire rent--$750 per month--and helps her pay for gas and car repairs. Respondent testified, however, that she believes it is important to be home with her children when they are not at school--to supervise them and give them the stability and comfort of an adult presence. Respondent's work schedule permits her to be home if the children are sick, as well as when they leave for and come home from school. When the children get home from school, respondent prepares their after-school snacks, helps them with homework, organizes their belongings for the next day, and takes them to their activities. She also spends time with them playing games on the computer, biking, or going for walks. Respondent testified that it was more difficult for her to do many of those things when she was previously employed full time. Although respondent has looked in the newspaper for other job opportunities, she testified that she does not have the

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No. 2--06--0749 qualifications for the postings and that she has not seriously looked for alternative employment in the past two years. Respondent further testified that she currently rents a run-down, three-story home, one block from Highway 120 in McHenry. She testified that there is constant traffic in front of her house. Until recently, Jeffrey and Jessica shared an attic loft; however, to give them their own rooms, respondent now sleeps on the couch and Jessica has moved into respondent's former room. Respondent testified that her landlord is nosy and comes to the house unannounced. He peers through windows and tries the door before he knocks. The children find him "creepy." As a result, they shut the blinds, lock the doors, and stay inside because respondent does not want him in their presence. The house is musty, and the air quality poor. Respondent testified that she sought alternate housing, but could not afford it. She testified that the McHenry County Housing Department was not helpful to her in finding new housing, although she conceded that she had not used it as a resource in six years. Mayer's Wisconsin home sits on his 88-acre property in a very quiet neighborhood. It is a three-bedroom, loft house with a full basement. The property has a pond for swimming and a shooting gallery where the children can shoot clay pigeons and engage in target practice. After some remodeling, the children would have their own bedrooms and respondent would have a bedroom as well. Since becoming involved with Mayer, respondent and the children go to Wisconsin every other weekend. When there, they spend significant time outdoors. Respondent testified that Jeffrey is interested in hunting. In Wisconsin, he hunts, shoots, plays paintball, drives a bulldozer, rides go-carts, and fishes. She testified that he could not do many of these things near their home in McHenry, although she later conceded that her current home is

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No. 2--06--0749 within a mile of a lake, that the children fish at that lake with petitioner, and that petitioner occasionally takes Jeffrey shooting and paintballing in McHenry County. While Jeffrey is not currently playing any sports, he used to play soccer and respondent was his soccer coach for three years. Sports are available to him in Wisconsin, should he wish to participate. Jeffrey also enjoys playing guitar, swimming, and video games. In Wisconsin, an entertainment section was built on the heated porch for video games, for television, and as a place for Jeffrey to play his guitar. In the past, Jessica played basketball and was in the school band. She currently participates in chorus, arts and crafts, painting, and drawing. She enjoys swimming and catching frogs, and is interested in flora and fauna. According to respondent, all of those activities are available in Wisconsin. Mayer built an art gallery on the porch for Jessica to keep her crafts, paints, brushes, and easels, and she can leave her art materials set up there. Respondent stated that Jessica cannot leave her materials set up and work on arts and crafts in her current home because the only possible location, the basement, is musty, and Jessica has asthma. However, respondent conceded that Jessica has a desk set up at petitioner's home where she works on arts and crafts. Jeffrey will be a freshman at McHenry West High School and receives A and B grades in his classes. According to respondent, the high school in the Wisconsin Dells area offers the same classes, including Spanish, that Jeffrey would take in McHenry. In addition, Wisconsin Dells High School offers German classes and higher-level history classes. The class sizes at the two high schools are approximately the same. Jessica will be in the seventh grade and performs well academically. The middle school in the Wisconsin Dells has a slightly smaller class size than her school in McHenry. Certain extracurricular activities in McHenry may be cut for budgetary reasons. Respondent testified that the art classes at Jessica's school might be cut if a referendum fails. In

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No. 2--06--0749 contrast, art classes would remain available to her in Wisconsin. While it costs $200 to enroll Jeffrey in the high school in McHenry, it would cost $20 to enroll him in the Wisconsin Dells school. Similarly, while it would cost $115 to enroll Jessica in the McHenry middle school, it would cost $20 to enroll her in the Wisconsin Dells school. Petitioner, however, pays half of the school registration fees for both children. Respondent testified that Jeffrey spends time with two friends in McHenry, but that he has an outgoing personality, is likeable, and would have no trouble making friends in Wisconsin. Respondent testified that Jessica spends time with primarily one friend in McHenry, but that she is "a very friendly bubbly little girl. She is always cheerful. She makes friends everywhere she goes." Jeffrey and Jessica have extended family in both locations. Respondent's brother lives in Oxford, Wisconsin, approximately 10 minutes away from Mayer's home. He is married with two children--a son and a daughter, ages 22 and 18 respectively. Jeffrey goes paintballing with his cousin and uncle. Respondent's parents also live in Oxford. Respondent testified that, prior to her relationship with Mayer, she and the children saw her parents and brother once a year, but now they see them more regularly. She testified that the children spend the night at their grandparents' house if they are in Wisconsin for longer than a weekend and that they try to see respondent's family as much as possible while there. In McHenry, Jeffrey and Jessica have a good relationship with Jeremiah. Respondent testified that she was not concerned that a move would affect their relationship with Jeremiah. Two of respondent's sisters and their children live approximately 5 to 10 minutes away from respondent's home in McHenry. Jeffrey and Jessica maintain relationships with their aunts and cousins and see them at least twice per month and sometimes twice per week. Respondent's third sister and her

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No. 2--06--0749 children live approximately 15 to 20 minutes away from them in McHenry County, and Jessica and Jeffrey see them once every other month. Petitioner also has family in the McHenry area, including a brother and his two children, and a sister and her daughter in Marengo. Both parties agree that Jessica and Jeffrey are close to all of their family members in the McHenry area. According to respondent, it is important that the children continue to maintain those relationships if they move to Wisconsin. Respondent testified that Mayer makes her happy and more relaxed and that her relationship with Jeffrey and Jessica has thereby been enhanced. Respondent testified that, although the children initially were not happy about her relationship with Mayer, their relationship with him is much improved and they get along well with him. Respondent testified that she does not see how her relationship with Mayer could continue if she does not move to the Wisconsin Dells. She testified that she has not discussed with Mayer whether he would terminate his financial support in the event the petition were denied. If that were to happen, however, she would need to obtain full-time employment to meet her living expenses. If she moved to Wisconsin, she would not work because Mayer would provide for her and the children. She would not have to worry about leaving the children home alone or getting a full-time job and babysitters. She testified that the move would make her happier and more stable, which would enhance the children's quality of life. She believes that the children would also benefit from the move in that they would be able to more easily participate in activities they enjoy, be close to their grandparents, and have more quality time with respondent because she would be available to them at all times. Finally, respondent testified it would be better for the children to have a stable home to live in, instead of constantly traveling back and forth between Wisconsin and Illinois. For example, she explained that sometimes the children

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No. 2--06--0749 are tired and do not want to get in the car for the trip home from Wisconsin. Nevertheless, regardless of the outcome of her removal petition, respondent testified that she intends to continue traveling to Wisconsin with the children every other weekend. Mayer described his relationship with Jeffrey as "exceptional" and testified that he gets along "very very well" with Jessica. His relationship with respondent is "exceptionally good," and he explained that there is a noticeable difference between her mood in McHenry and her mood in Wisconsin, where she just relaxes and opens up. He testified that, in his opinion, moving to Wisconsin would absolutely benefit respondent and the children, in terms of finances, schools, and the pristine, peaceful setting, and because the children would be approximately seven minutes away from their only surviving grandparents. Mayer agreed that it would be difficult for him and respondent to maintain a successful marriage if they could not live under the same roof. When asked whether he would consider moving back to Illinois, he testified: "A: Well I would have to say where I live now it's been a 30 year dream and I have been working on this very very hard for the second half of my life to develop what I have. It would be an extremely difficult decision. It would be hard. I suppose if I had to -- I can't sell the property because it's in a trust. It can't be divided or sold so certainly I would like to reside somewhere in a rural area. I pretty much had my fill of the city. Q: Would there be any place in Illinois that you would consider living? A: More likely it would be back in the farmlands again south. I enjoy the south." Mayer testified that, if the petition for removal were denied, he did not intend to break off the engagement or cut off his relationship with the children; his primary goal was to ensure that the children remain happy regardless of the outcome of the removal proceedings. However, he testified

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No. 2--06--0749 that the financial assistance he provides to respondent would be difficult to maintain if the petition were denied. Currently, petitioner visits with Jeffrey and Jessica every other weekend from 3 p.m. on Friday to 6 p.m. on Sunday, and every Tuesday or Thursday evening from 3 to 7 p.m. Respondent testified that petitioner exercises his every-other-weekend visitation "religiously." Petitioner testified that the parties have been able to manage visitation issues smoothly and with flexibility; however, there have been relatively minor issues that have arisen since the frequent trips to Wisconsin began. Petitioner regularly exercises four weeks of visitation with the children in the summer, in two-week intervals; however, he often works during those weeks. Pursuant to the dissolution judgment, petitioner also may visit with the children on alternate Christmas holidays and alternate spring breaks. Respondent testified that petitioner exercises four days of his Christmas visitation, but that he does not exercise his spring break visitation. Petitioner testified that he does not exercise the spring break visitation because he has to work and the children prefer to spend their spring breaks in Wisconsin. Occasionally, petitioner stops by respondent's home for extra visits and Jeffrey has ridden his bike to petitioner's house. Petitioner testified that, when he is with the children, they typically run errands, such as grocery shopping, followed by board games or cards, trips to the movies, or camping. Petitioner cooks them breakfast and cooks them a big dinner on Sunday evening before he takes them home. He testified that Jeffrey loves to play paintball, shoot, and hang out with friends. Jessica enjoys coloring, puzzles, spending time with him, fishing, and riding her bike. Jessica also engages in arts and crafts when spending time with him. He testified that the children participate in numerous outdoor activities with him, including fishing, swimming at the community pool, paintball, and

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No. 2--06--0749 shooting. When it snows, petitioner takes them to hills, where they go sledding. Most of these activities take place in the McHenry area. Respondent testified that petitioner came to watch most, but not all, of Jeffrey's soccer games. She testified that his attendance increased after she wanted to move to Wisconsin. She testified that he did not attend open houses at the children's schools, attended only one parent-teacher conference in the past five years, and does not ask respondent for the children's report cards or school schedules. Respondent later acknowledged that she advised petitioner that it was unnecessary for him to attend the parent-teacher conferences because the children were doing well in school and that he sees their report cards because the children give him copies. Respondent testified that petitioner has attended all of Jessica's band recitals and choral concerts. She described Jeffrey and petitioner as "buds" and Jessica as "daddy's girl." If her petition for removal is granted, respondent proposes that the visitation schedule be altered to allow petitioner a full week of visitation at spring break, every other year, and possibly another week of visitation in the summer. In order to make up for the one weekday that he would lose, she suggested that he could speak with Jeffrey and Jessica by phone during the week and then, if a three-day weekend fell on a weekend he was to have the children, he could have the extra day with them. In addition, instead of the usual 6 p.m. Sunday drop-off time, he could drop them off at 7 p.m. The trip to the Wisconsin Dells from McHenry is approximately three hours long, so she proposed that they each drive half way for the drop-offs and pick-ups. She believed that the extended driving time would have a positive effect on the children's relationship with petitioner because they would have his full attention in the car and they would be able to communicate for that hour and 30 minutes each way.

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No. 2--06--0749 Petitioner, however, testified that the three hours spent driving to and from Wisconsin on alternating weekends constitutes time he will be paying attention to traffic and driving, not time spent with the children. While the time in the car might be peaceful, he disagrees with respondent that it constitutes quality time with the children. He does not think that the children will enjoy the six hours in the car every other weekend--three hours to Wisconsin and three hours back in a 48-hour period--and he does not think that it is in their best interests. He testified that the children have gone to McHenry schools their entire lives and that they both have friends there. He is concerned that the McHenry schools are cutting back on their after-school programs but is otherwise pleased with the education that the schools have provided. Moreover, the cutbacks would not affect the children, as they are not enrolled in any of the activities that would be eliminated. Petitioner is familiar with respondent's McHenry home and testified that, while the home is close to Highway 120, the children are never outside by the road. He testified that the home has three bedrooms but one bedroom is being used as an office. Moreover, he testified that Jessica's asthma is under control as long as she takes her medication. Petitioner testified that he objects to the removal because he does not feel that he will be able to see the children as often. As he explained, with the elimination of the weekday visitation, he will see them 52 fewer days per year. He feels that, as Jeffrey and Jessica get older, they will start developing their own lives and become busy and will not want to make the trip back to Illinois every other weekend. Thus, it will become harder for him to be a part of their lives. Petitioner testified, "I just want the kids to be happy. That's my only purpose I guess." He does not believe that the children would be as happy if the removal petition were granted. Both children testified in camera that they did not wish to move to Wisconsin.

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No. 2--06--0749 On June 29, 2006, the trial court denied respondent's petition for removal. The court noted that it applied and balanced all relevant factors including, but not limited to, the factors in In re Marriage of Eckert, 119 Ill. 2d 316 (1988), and found that removal was not in the children's best interests. Specifically, the court found that it was unclear that a move to Wisconsin would likely enhance the quality of life for respondent or the children and found that the children have strong ties to family, friends, and the McHenry community. The court found that, "while [respondent's] proposed visitation schedule appears reasonable at first blush, the court will not make Jeffrey and Jessica change schools, leave their friends and much of their family, sit in a car for six hours every other weekend in order to see their father, and eliminate their time with their father during the week, simply because Mr. Mayer chooses not to move if he can avoid it." The court found that the negative aspects of the children's current living situation in McHenry exist, in large part, due to respondent's decision to work only 15 hours per week. Although the court acknowledged that marriage would provide respondent with improved financial security, it determined that respondent and Mayer were not unable to make a life together in Illinois but that Mayer "does not want to live in Illinois, if he can avoid it." The court found there was no evidence to suggest that respondent's motives in seeking removal were to frustrate petitioner's visitation, or that petitioner's objection to the removal was motivated by anything other than genuine concern for his relationship with the children. Respondent appeals. II. STANDARD OF REVIEW Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609(a) (West 2004), which governs removal petitions, provides:

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No. 2--06--0749 "The court may grant leave *** 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 removal." 750 ILCS 5/609(a) (West 2004). Thus, the paramount question in a removal case is whether the move is in the children's best interests. Eckert, 119 Ill. 2d at 325. This determination must be made on a case-by-case basis, with consideration given to the circumstances of each case. Eckert, 119 Ill. 2d at 326. Nevertheless, there are certain, nonexclusive factors a trial court should consider in determining whether removal is in the children's best interests. In re Marriage of Collingbourne, 204 Ill. 2d 498, 522 (2003). These include: (1) whether the proposed move is likely to enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent, as to whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting removal; (4) the effect on the noncustodial parent's visitation rights; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is permitted. Collingbourne, 204 Ill. 2d at 522-23; Eckert, 119 Ill. 2d at 326-27. None of these factors is controlling and the weight to be accorded each factor will vary depending on the facts of the case. Collingbourne, 204 Ill. 2d at 523; In re Marriage of Johnson, 352 Ill. App. 3d 605, 613 (2004). A trial court's determination of what is in the children's best interests will not be reversed unless that determination is against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Collingbourne, 204 Ill. 2d at 521-22. A decision is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the court's findings

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No. 2--06--0749 are unreasonable, arbitrary, and not based on any of the evidence. In re Marriage of Main, 361 Ill. App. 3d 983, 989 (2005). The trial court is in the best position to assess and evaluate the parties' temperaments, personalities, and capabilities, and the presumption in favor of the result reached by the trial court is always strong and compelling in a removal case. Collingbourne, 204 Ill. 2d at 522. When applying the manifest-weight standard, we are mindful that "[a] reviewing court may not overturn a judgment merely because the reviewing court might disagree with the judgment, or, had the reviewing court been the trier of fact, might have come to a different conclusion." People v. A Parcel of Property Commonly Known As 1945 North 31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 510 (2005). III. ANALYSIS Respondent challenges the trial court's findings on the first, fourth, and fifth Eckert factors, as well as its ultimate conclusion that removal is not in the children's best interests. First, respondent argues that the trial court erred in concluding that it was unclear that the move to Wisconsin would likely enhance the quality of life for respondent, Jeffrey, and Jessica. Respondent contends that the evidence established that the move would enhance all of their lives with respect to finances, housing, recreation, family relationships, school programs, and stability. Respondent likens this case to In re Marriage of Eaton, 269 Ill. App. 3d 507 (1995). In Eaton, the trial court denied a mother's petition for removal. The court found that moving the parties' children from Illinois to Florida would offer improved recreational and cultural activities for the children and an improved financial and social situation for the mother. Nevertheless, in denying the petition, the court found that the move would drastically reduce the amount of contact the children had with their grandparents, uncles, and cousins in Illinois and would impair their father's

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No. 2--06--0749 involvement with the children, and that the father's involvement was not preserved by the mother's proposed visitation schedule, which provided the same amount of time with the children but in long blocks, rather than frequent, year-round contacts. The court concluded that it was not convinced that the move would improve the quality of life for the children. On appeal, the court reversed and noted that, for years, the mother had suffered the social, financial, and scheduling pressures of a single parent. She was forced to borrow money from her parents to meet her financial obligations. By remarrying, she would receive child rearing help as well as love, economic security, and a comfortable home in a desirable locale. The court found that the trial court failed to sufficiently consider the benefits that children derive from the financial and emotional well-being of their custodial parent. Eaton, 269 Ill. App. 3d at 515. Moreover, the court held that, in denying the petition because the children's contact with their extended family and father in Illinois would be impaired, the trial court did not acknowledge that the custodial parent's duty to foster relationships with the noncustodial parent or extended family does not require the custodial parent to give up the right to pursue a new life. Eaton, 269 Ill. App. 3d at 513-14. Respondent argues that, like the mother in Eaton, she has established that both her financial and living situations would be greatly improved if the removal petition were granted and that the trial court failed to consider the benefits Jeffrey and Jessica would derive from her enhanced circumstances. Further, she contends that the trial court's consideration of the separation that would occur between the children and their family in Illinois effectively penalizes her for actively fostering and encouraging relationships between the children and their father, friends, and family. Thus, she concludes that the trial court's finding that it was unclear that Jeffrey's and Jessica's lives would likely be enhanced by the move was against the manifest weight of the evidence.

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No. 2--06--0749 We disagree. It is important to emphasize that the court in Eaton considered the mother's improved financial situation as but one part of its overall balancing analysis. Similarly, the courts in Main, 361 Ill. App. 3d at 990, and In re Marriage of Ludwinski, 312 Ill. App. 3d 495, 500-01 (2000), also cited by respondent, considered the custodial parents' improved financial and living situations in their overall analyses as factors weighing in favor of removal. However, in all three of these cases, there were other critical factors that weighed in favor of removal. For example, in Eaton, the mother's fianc

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