SECOND DISTRICT
In re MARRIAGE OF LISA STAHL, Petitioner-Appellant, and CARL DeLEO, Respondent-Appellee. | ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Kane County. No. 99--D--1082 Honorable |
JUSTICE GILLERAN JOHNSON delivered the opinion of the court:
The petitioner, Lisa Stahl, appeals from the August 27, 2003, order of the circuit court ofKane County denying her petition to remove her children and those of the respondent, Carl DeLeo,to Wisconsin. On appeal, Lisa argues that (1) the trial court's decision was against the manifestweight of the evidence and (2) the trial court erred in requiring her to demonstrate the direct benefitsthat her children would experience by moving to Wisconsin. We affirm.
The parties' marriage was dissolved on December 13, 2000. Pursuant to the order ofdissolution, Lisa and Carl were awarded joint custody of their children: Christiana, born July 22,1994; and Tony, born May 6, 1996. On April 16, 2002, Lisa filed a petition seeking to removeChristiana and Tony to Cedarburg, Wisconsin, a town 20 miles north of Milwaukee.
On August 19, 2003, the trial court conducted a hearing on Lisa's petition. Lisa testified that,prior to the divorce, she began operating a business with Allen Hansen, Hansen Stahl Sales andMarketing (HSSM). Hansen originally started the business in 1996 as Allen Hansen & Associatesin Grafton, Wisconsin. HSSM provides sales representatives for several small manufacturingcompanies. Most of their clients and customers are located in Wisconsin, but they do have a limitednumber of Illinois-based clients and customers. Until recently, HSSM maintained offices in Geneva,Illinois, and Grafton, Wisconsin. Lisa ran the Geneva office and Hansen managed the Grafton office. When Lisa and Hansen first started HSSM, Lisa, who was still married to Carl at the time, could notmove to Wisconsin because Carl's position as a fireman required him to maintain Illinois residency. Most of the main business functions were carried out at the Grafton office. At the Geneva office,Lisa performed duties related to the accounts entrusted to her care. A full-time office manageroperated the Grafton office, while two part-time employees performed administrative duties at theGeneva office.
Apparently beginning sometime in 1999, Lisa and Hansen's business relationship evolved intoa romantic relationship. Lisa described her relationship with Hansen in the following words:
"It's a wonderful relationship. It is truly great to have a partner that works with meon day-to-day issues with the children and responsibilities, and I'm very much in love withhim, and pending the decision, I'm hoping we'll be able to marry."
Hansen is divorced and has two children, 14-year-old Christopher and 10-year-old Nicholas. Hansenhas spent time with Lisa's children and, according to Lisa, has developed a close relationship withthem. If allowed to move, she intends to purchase a house in Cedarburg, Wisconsin. Cedarburg isjust a few minutes' drive from HSSM's main office in Grafton.
Lisa believes that operating two separate offices has caused HSSM several problems. Lisaand Hansen have trouble coordinating and communicating between the offices on client matters. Inmany instances, they had trouble when they attempted to meet with vendors or clients at the sametime.
Lisa testified that there are a couple of different parts of Carl's visitation schedule. First, Carland Lisa have alternated their visitation with the children on holidays such as Christmas. The secondpart of the scheduling is more irregular. Carl is a fireman with the fire department in Woodridge. Heworks a "one day on, two days off" schedule that results in his working about 100 days a year. Carlgives his work schedule to Lisa about two or three months in advance and they then work out avisitation schedule for his days off work. His unique work schedule permits him to see the childrenabout two to three days during the week, as well as on weekends, which amounts to about 10daytime visits and 2 overnight visits each month. After Lisa filed her petition for removal, Carl madean effort to increase his contact with the children. Lisa claims that she does whatever she can tofoster the relationship between Carl and the children. She further tries to encourage the children tospend time with Carl's family, including their paternal grandparents. Lisa primarily oversees thechildren's education and health care, but acknowledged that Carl has become more involved since theremoval petition was filed.
Lisa testified that she began thinking about moving to Wisconsin because she wanted to becloser to Hansen. She explained:
"My relationship with Allen was growing, and we wanted to be able to be in the samearea, we talked about getting married, we talked about the stresses of being single--myselfbeing a single parent, taking care of the children, the house, and running the business in aseparate location."
Lisa said that she then began looking into the schools and real estate in the area of Grafton. Sheconsulted with the family's therapist, Valerie Jencks, to help determine if the children were ready forthe move. She also spoke with her parish priests about parenting values and how to help the childrenmove beyond the divorce.
According to Lisa, the move to Cedarburg would permit her to spend much more time withthe children and avoid the need for a child care provider. She believes that the children could stillhave a "very good relationship" with Carl and visit with him on a regular basis. Lisa investigated theschool in Wisconsin that the children would attend, St. Francis Borgia. She believes that St. FrancisBorgia is better than the school the children currently attend in Illinois, St. Peter's. For instance, Lisalikes that the Wisconsin school has a full-time school counselor, offers foreign language classes, andserves "home-cooked" meals in the cafeteria.
The move to Wisconsin would permit her to remain at home until the children leave for schoolin the morning and also to be home when they return from school. She said that she would havesignificantly more time to spend with the children to help them with homework or take them to after-school activities. In the past, the children have been unable to participate in extracurricular activities. In Cedarburg, Lisa stated, Christiana would be able to participate in gymnastics at a local academy. Tony would be able to join the local children's ice hockey and basketball teams.
Lisa also has family living in Wisconsin. Her parents live approximately four hours away fromCedarburg, in Sayner.
Lisa and Hansen plan to purchase a house in Cedarburg. Hansen and his two children wouldmove in with Lisa and her two children after Lisa and Hansen married. Thus, in their new family, Lisabelieves that she and Hansen would be able to pool their finances and share their child-rearingobligations. Moreover, Lisa believes that they would have more flexibility in coordinating their dailylives, given that Lisa and Hansen would be working in the same office.
Lisa also testified that she believes HSSM will experience substantial savings due to theconsolidation of the business into a single location. She predicted that the move to Wisconsin wouldsave HSSM about $35,000 annually.
Lisa testified that Carl drove for approximately 30 minutes when he traveled from his homein Woodridge to pick up the children from Lisa's former residence in Geneva. If Lisa moved toCedarburg, a drive from Woodridge would take about two hours. However, Lisa testified that shehas offered to arrange for Carl to pick up the children at Gurnee Mills Mall in Gurnee, Illinois. Underthis arrangement, Lisa would drive the children to Gurnee Mills herself. From there, Carl's drivehome to Woodridge would take about 45 minutes.
Lisa also testified about closing the Geneva office and selling her home in Geneva before thecourt ruled on her removal request. She claimed that she closed HSSM's Geneva office becausefinancial pressures forced her to find a way to reduce costs. She further explained that she did nottruly intend to sell the house before the court ruled on her removal request. However, the court date,she explained, was moved back several times and she had hoped to sell her home before the childrenstarted school in the fall. She placed the house on the market in May and it sold 10 days later. Therefore, when the hearing started in August, she had already sold her home.
In the event that her removal request was denied, Lisa testified that she planned to move toLake Villa or Antioch. Carl's drive to pick up the children from either location would be about anhour. However, Lisa further planned to commute daily to the Grafton office, approximately a 75-minute drive. Lisa said that she would be gone each day from 8 a.m. to 6 p.m. The children wouldneed to enter an after-school care program. Moreover, Hansen and Lisa's plan to marry would nolonger be feasible. She claims that there are simply too many barriers preventing Hansen's andHSSM's relocation to Illinois.
On cross-examination, Lisa admitted that nothing in HSSM's operating agreement requiresher to move to Wisconsin. She discussed how she occasionally goes on overnight business trips thatmay extend up to two or three days. She believes that these trips would become much less frequentif she were allowed to move to Wisconsin. Lisa testified that the Geneva office was operated froman office she had set up in her home. She had agreed with Hansen that she would work each day atleast from 8 a.m. to 5 p.m. Thus, she would be at the house most of the day unless she was visitingclients or vendors, or traveling out of town. While working from her home office in Geneva, she wasgenerally around when the children left for school and when they returned home. She claimed that,even though she was home when the children arrived home from school at 3 p.m., she was not"available for them" until at least 5 p.m. At the Grafton office, her work hours would be 9 a.m. toabout 3:15 p.m. In Cedarburg, Lisa would be able to focus her full attention on the children. Thesituation would be "very different" than it was in Geneva.
Lisa testified that there is no statistical data available on St. Francis Borgia, the Cedarburggrammar school, pertaining to such things as the college matriculation rate or average SAT scoresof its graduates. Lisa described each of her children as bright and said they are doing well in school. Christiana usually receives "straight A's and some B's."
Lisa acknowledged that Carl often visited with the children during the week on days he wasnot working. Typically, he would pick the children up after school at 3 p.m. and then drive them backto Woodridge. He would then drive back to Geneva and drop them off at Lisa's house at 7:30 p.m. She does not believe that this type of visitation would have to cease if she moved to Cedarburg,which is over an hour's drive beyond Geneva. She proposed that Carl could simply travel up toCedarburg and spend the time with the children there instead of taking them back to his home inWoodridge.
Finally, Lisa testified that, if compelled by the judgment, she could buy another house inIllinois. Lisa's income would not significantly change if she moved to Wisconsin. In 2001, heradjusted gross income was $230,310. Lisa claims that she does not have much discretionary monthlyincome and, currently, she can contribute only limited amounts to the children's educational fund. If her monthly expenses were lower due to sharing expenses with Hansen, she could contribute agreater amount to the children's educational fund. To her knowledge, Carl does not contribute anymoney toward the children's future education.
Allen Hansen testified that he currently resides in Cedarburg. He testified that, at one point,it made business sense to maintain an Illinois office. However, the Chicago market changed overtime. In the past, HSSM maintained about eight accounts in the Chicago area, but that number hasdwindled to about two or three. In addition, Hansen explained that the two offices were performingmany redundant functions and, thus, incurring unnecessary costs.
Hansen further testified that he and his two children get along well with Lisa's children. Inhis view, he could not possibly move to Illinois.
Carl testified that he moved to Woodridge from Geneva in May 2002. He testified that hewas not angry when Lisa filed for removal, but he was saddened by her actions. Carl denied that hischallenge to Lisa's removal request was motivated by spite. He acknowledged, though, that he didnot speak to Lisa about the possible benefits to the children if they moved to Cedarburg. He testifiedthat Lisa was generally cooperative in terms of arranging visitation, except with regard to visitationaround the holidays. Carl testified that he did not believe an arrangement could be created that wouldallow him to maintain a meaningful relationship with his children.
On cross-examination, Carl stated that the drive time between Woodridge and Cedarburg isapproximately 2 hours and 20 minutes. In addition, Carl explained that occasionally he works as anarson investigator. Consequently, he must remain near Woodridge while on call.
Later, when Carl testified on his own behalf, he spoke in detail about the frequency of hisvisits with the children. He averaged about 10 daytime visits and 2 overnight visits each month. However, as 2002 progressed, his visits apparently increased by about 30%. As a fireman, Carl said,he has great flexibility in his work schedule. For instance, he often trades shifts with otherfirefighters. However, at times, Carl's additional duties as an arson investigator require him to be oncall and restrict his ability to leave the Woodridge area.
Carl testified that the children often stay overnight with him when Lisa travels for work. Onthe days Carl visits with the children from 3 p.m. to 7:30 p.m., Carl either takes the children back tohis home in Woodridge or meets them when their after-school activities have ended and then takesthem to a restaurant for dinner. Carl has attended two "daughter-daddy dances" with Christiana since2000. He explained that he attends parent-teacher conferences when he is told or learns about them. Moreover, Carl takes the children to various after-school activities and spends time with thembowling, sledding, and playing games.
If the removal request is denied and Lisa moves to Lake Villa, Carl stated that he also plansto move to Lake Villa, even though it would be about a one-hour drive to Woodridge. If the requestis granted, Carl fears that the children will be "out of [his] life" and that he will lose the regularcontact he has had with them. He claims that he does not have any objection to the children livingwith Allen Hansen.
On cross-examination, Carl acknowledged that he could move to Lake Villa if the childrenmoved to Cedarburg. Then, he would be only about an hour's drive away from the children and alsoan hour away from his job. On the days he wanted to participate in the children's activities, Carlacknowledged that he would be an hour away from the children instead of half an hour away. Carlfurther agreed that, on days he brings the children back to Woodridge after school and then returnsthem to Lisa's house, he drives a total of two hours to complete the trip. Thus, Carl's driving timewould be approximately the same if he drove to Cedarburg and spent the evening with the childrenthere. Carl also admitted that nothing would prohibit him from driving to Wisconsin on the days hedoes not work. Moreover, he acknowledged that he could continue to enjoy the majority of theactivities he participates in with the children if the children lived in Cedarburg. However, he believesthat it is in the children's best interests to live in the same community as their father.
Also, as part of Carl's case, Kim Lage testified that she worked for Lisa from November 2001through May 2002, providing child care for Christiana and Tony. She said that some weeks she sawCarl at Lisa's house visiting the children two or three times during the week, but other weeks she didnot see him at all. According to Lage, the children were always excited to visit with Carl.
Jeanne Alter, Christiana's third-grade teacher at St. Peter's, testified that Christiana is anexcellent student. Alter testified that she saw Carl at the school either picking up or dropping off thechildren about once a week during the 2002-03 school year. One time, Carl spoke to Christiana'sclass about his job as a fireman. He also attended a parent-teacher conference. Alter's testimonyindicated that Lisa principally oversaw the children's education. Lisa attended several schoolfunctions throughout the year.
Louis and Violet DeLeo, the children's paternal grandparents, from Downers Grove, bothtestified that they see the children about once a week. They spend time with the children doingvarious activities. The visits would occasionally occur during the week, and not just on theweekends. Louis and Violet indicated that Carl is very involved in the children's lives.
Finally, Lisa submitted Valerie Jencks's evidence deposition. Lisa initially contacted Jencks,a marriage and family therapist, in 2001 to assist her in addressing Tony's aggressive behavior towardother children. Jencks met with Lisa and Tony five times in April and May 2001.
Lisa contacted Jencks again in July 2001. This time, Lisa hoped that Jencks could help thechildren cope with the divorce. Christiana was experiencing "moments of being quiet." Tonycontinued to have occasional outbursts of anger.
Then, in early 2002, Lisa sought to bring the children back into therapy because she wantedto talk about the possible move to Wisconsin. According to Jencks, Lisa worried that Carl mightcontest removal. Thus, Lisa was concerned about the impact on the children and wanted a safe andcomfortable place for them to express their feelings. Jencks stated that the children were initiallyexcited about the prospect of moving but eventually became averse to the idea. They feared that Carlmight be unhappy if they moved too far away. However, the children later changed their view andonce again became excited about the prospect of moving.
Lisa again contacted Jencks in the spring of 2003 because she believed the litigation involvedin advancing her removal request might be adversely affecting the children. During Jencks's sessionswith the children, they told her that they were upset because their parents continuously fought overLisa's plan to move. The children also worried that Carl would become angry and not want to visitthem if they moved to Wisconsin.
Jencks stated that she was unwilling and unable to give a recommendation as to whether themove to Wisconsin was in the children's best interests. However, according to Jencks, the types ofbehaviors and feelings exhibited by the children are typical in children with divorced parents. Jencksbelieved that the move to Wisconsin would not be harmful to the children. Jencks opined:
"[A] move of an hour and a half away from their father, provided that a specificpredictable routine of visitation *** were to be preserved and followed through on, I thinkthat these children are capable of adjusting to being an hour and a half away from their father,providing that there be a regular routine visitation."
At the close of the hearing, the trial court denied Lisa's removal request. The trial courtexplained in a written order:
"The evidence in this case is mixed at best. Mr. DeLeo has a unique work schedulethat allows him extensive opportunities for visitation. Ms. Stahl states that despite this uniquesituation he moved from Geneva to Woodridge. She also states that his visitation increasedsubstantially after the filing of the removal petition. This evidence would seem to indicatethat his resistance to the move is predicated on his own selfish desires and not the bestinterests of the children.
Ms. Stahl argues that the move would benefit her by enabling her to consolidate herbusiness and save money. She would also be free to marry her friend and business partner andstart a new family. Her primary motive would thus appear to be her own happiness andgratification.
The court does not believe that either party has impure motives, but does believe,based upon the evidence, that they have each been spurred on in this litigation by a desire toimprove his or her own life, rather than by an objective view of the best interests of the minorchildren.
Based upon the evidence heard in this matter, this court does not believe that Ms.Stahl has met her burden of proof with respect to this proposed move. There is no substantialevidence of enhancement in the quality of the lives of the children either directly or indirectly. Additionally, there is no proof that there can be formulated a visitation schedule for Mr.DeLeo that can be termed 'reasonable and realistic' as required by the case law.
Finally, there is evidence in the record that the litigation process itself has causedpalpable harm to these children. They are confused and unhappy about the prospects of thismove. This fact buttresses the court's conclusion that a move to Wisconsin as suggested byMs. Stahl is not in the best interests of these children." (Emphasis in original.)
Following the trial court's ruling, Lisa filed a timely notice of appeal. Under section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (the DissolutionAct) (750 ILCS 5/609(a) (West 2002)), a trial court may approve a custodial parent's removal of theminor children from Illinois only when the removal is in the children's best interests. The burden ofproving that such removal is in the children's best interests is on the party seeking removal. 750 ILCS5/609(a) (West 2002). A determination of the children's best interests cannot be reduced to a simplebright-line test but rather must be made on a case-by-case basis, depending to a great extent upon thecircumstances of each case. In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988). A trial court'sdetermination of what is in the children's best interests should not be reversed unless it is clearlyagainst the manifest weight of the evidence and it appears that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328.
In Eckert, 119 Ill. 2d at 326-27, the supreme court identified five factors that should beconsidered in determining whether removal is in the children's best interests. Those factors are (1)whether the proposed move will enhance the quality of life for both the custodial parent and thechildren, (2) whether the proposed move is a ruse designed to frustrate or defeat the noncustodialparent's visitation, (3) the noncustodial parent's motives in resisting removal, (4) the noncustodialparent's visitation rights, and (5) whether a reasonable visitation schedule can be worked out. Eckert,119 Ill. 2d at 326-27. A reasonable visitation schedule is one that would preserve and foster thechildren's relationship with the noncustodial parent. Eckert, 119 Ill. 2d at 327.
Applying these factors to the instant case, we cannot say that the trial court's decision wasagainst the manifest weight of the evidence when it denied Lisa's petition to remove the children toWisconsin. As to the first Eckert factor, the record reveals that Lisa's life would likely be somewhatenhanced if she moved to Wisconsin. Due to the closing of her office in Illinois, Lisa would beworking in Wisconsin. Thus, her work commute would be shorter if she were allowed to move toWisconsin. By moving to Wisconsin, Lisa could also marry someone with whom she is "very muchin love." By doing so, she could pool resources with her new husband and thus have moreexpendable income for herself.
As for the children, the record is mixed as to whether a move to Wisconsin would enhancetheir lives. The children would be transferred to another private Catholic school, comparable to theone that they would be leaving. The only distinctions that Lisa was able to draw between the schoolswere that the Wisconsin school offered foreign language classes, its cafeteria served "home-cooked"meals, and it had a full-time counselor.
By moving to Wisconsin, the children would be part of a new combined family. Lisaexplained that if she moved to Wisconsin, she would marry Allen Hansen and she and the childrenwould live with him and his two children. By doing this, Lisa would have more expendable incometo spend on the children. However, the record is not clear as to what effect Lisa's new relationshipwith Hansen would have on the children. Thus, the record is mixed as to whether this new livingarrangement would be in the children's best interests.
Moreover, it is clear that by moving to Wisconsin, the children's relationship with Carl wouldbe adversely affected. Due to the limited hours he works, Carl has been able to visit with the childrenseveral times during the week. He has averaged 10 daytime visits with the children and 2 overnightvisits with them each month. Due to his flexible hours, Carl has been able to frequently pick up thechildren after school. He has also been able to take them to various after-school activities and spendtime with them bowling, sledding, and playing games. The children have also been able to haveweekly visits with their paternal grandparents. If the children were to move to Wisconsin, this wouldnecessarily impede Carl's ability to spend as much time with his children. This fact would not be inthe children's best interests.
We also note that the record reveals that the children would likely be able to spend even moretime with Carl if the removal petition was denied. Lisa testified that if the removal petition wasdenied, she would move to Lake Villa or Antioch. Carl testified that if Lisa moved to that area, hewould also move to Lake Villa. As such, Lisa and Carl would be living in the same town or ingeneral proximity to each other. Such a living arrangement would greatly facilitate Carl's ability tovisit the children on a regular basis. Carl could also provide greater assistance in picking the childrenup after school and taking them to more extracurricular events. As such, based on all of these facts,it appears that the children's lives would be most enhanced if Lisa's removal petition was denied andboth Lisa and Carl moved to the Lake Villa or Antioch area.
As to the second and third Eckert factors, the trial court found that both Lisa and Carl werespurred on by a desire to improve their own lives rather than by an objective view of the best interestsof the children. We note that, as the trier of fact, the trial court was in the best position to determinethe credibility of the witnesses and to determine how much weight to place on their testimony. SeeIn re Marriage of Lee, 246 Ill. App. 3d 628, 642 (1993). Accordingly, as we defer to the trial court'scredibility determinations, the second and third Eckert factors do not weigh in the favor of eitherparty. See In re Marriage of Parr, 345 Ill. App. 3d 371, 378 (2003).
The final Eckert factors address Carl's visitation. As noted above, Carl has visited with hischildren frequently. He has taken full advantage of living in close proximity to them. For example,he has taken the children to after-school events and he has attended parent-teacher conferences. Therecord reveals that Carl will not be able to visit as frequently with his children if they move toWisconsin with Lisa. These factors by themselves do not require that Lisa's removal petition bedenied. See Parr, 345 Ill. App. 3d at 378 (trial court's concern about preserving the children'srelationship with the respondent must be weighed against the enhancement of the quality of life forboth the petitioner and the children). Nonetheless, considering all of the Eckert factors, we agreewith the trial court that the evidence was mixed as to whether the children's lives would be enhancedby moving to Wisconsin with Lisa. Thus, we cannot say that the trial court's decision to deny Lisa'sremoval petition was against the manifest weight of the evidence.
In so ruling, we also reject Lisa's contention that the trial court erred in determining thatremoval was improper because she did not demonstrate that the children would experience any directbenefits by moving to Wisconsin. Lisa argues that the trial court's decision was in directcontravention of the supreme court's decision in In re Marriage of Collingbourne, 204 Ill. 2d 498(2003).
In Collingbourne, the father argued that the trial court erred in granting the mother's removalrequest because she had failed to show that the child would reap any direct benefits by moving toMassachusetts. On appeal, the supreme court rejected this argument, finding that a distinctionbetween "direct" and "indirect" benefits that a child may incur in moving is not particularly helpfulin making a determination whether removal is in the child's best interests. Collingbourne, 204 Ill. 2dat 525. The supreme court explained that " '[i]f only the direct benefits that affected children wereconsidered, rarely would a situation arise where removal would be permitted where children were ina good environment with good schools, good parents, and good friends.' " Collingbourne, 204 Ill.2d at 525, quoting In re Marriage of Ludwinski, 312 Ill. App. 3d 495, 499 (2000). Rather, thesupreme court emphasized that the best interests of the child cannot be considered without assessingthe best interests of the other members of the household in which the child resides, most particularlythe custodial parent. Collingbourne, 204 Ill. 2d at 526.
Here, we do not believe that the trial court considered only the direct benefits the childrenwould incur if Lisa's removal petition was granted. Rather, the record reveals that the trial courtconsidered all of the possible benefits to the children and determined that there was "no substantialevidence of enhancement in the quality of the lives of the children either directly or indirectly." Assuch, Lisa's contention is without merit.
For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
Affirmed.
O'MALLEY, P.J., concurs.
JUSTICE BOWMAN, dissenting:
I respectfully dissent.
I believe that the majority has wrongly decided this matter. The trial court has failed toproperly apply the supreme court's recent ruling in In re Marriage of Collingbourne, 204 Ill. 2d 498(2003). Moreover, the trial court's findings are against the manifest weight of the evidence. I wouldreverse the trial court's denial of Lisa's removal request.
Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/609(a)(West 2002)) provides that a trial court may approve a custodial parent's removal of the minorchildren from Illinois when it is in the children's best interests. The burden of proving that suchremoval is in the children's best interests lies with the party seeking removal. 750 ILCS 5/609(a)(West 2002).
In In re Marriage of Eckert, 119 Ill. 2d 316 (1988), our supreme court identified specificfactors that should be considered in determining if removal is in a child's best interests. Eckert, 119Ill. 2d at 326-27. First, the trial court "should consider the proposed move in terms of likelihood forenhancing the general quality of life for both the custodial parent and the children." Eckert, 119 Ill.2d at 326-27. Second, the court should consider "the motives of the custodial parent in seeking themove to determine whether the removal is merely a ruse intended to defeat or frustrate visitation." Eckert, 119 Ill. 2d at 327. Also, the court should examine the motives compelling the noncustodialparent to resist the move. Eckert, 119 Ill. 2d at 327. The visitation rights of the noncustodial parentshould be considered, as the best interests of the child are served if he or she retains a healthy andclose relationship with both parents, as well as other family members. Eckert, 119 Ill. 2d at 327. Finally, the court must determine if a realistic and reasonable visitation schedule can be reached if themove is allowed. Eckert, 119 Ill. 2d at 327. A reasonable visitation schedule should aim to preserveand foster the child's relationship with the noncustodial parent. Eckert, 119 Ill. 2d at 327. If the bestinterests of the children would not be affected by a move to another state, the custodial parent'sremoval request should granted. Eckert, 119 Ill. 2d at 327.
We reverse a trial court's determination of what is in the best interests of the child only if itis clearly against the manifest weight of the evidence and it appears that a manifest injustice hasoccurred. Eckert, 119 Ill. 2d at 328. Based on my review of the record, I conclude that the trialcourt's findings are against the manifest weight of the evidence and that a manifest injustice will becreated by allowing the court's determination to stand.
The first Eckert factor, and most contentious here, is the likelihood that the proposed movewill enhance the general quality of life for both the custodial parent and the children. With respectto this factor, the trial court found that Lisa wanted to move primarily to pursue her own happiness,in that she sought to save money by consolidating her business and hoped to start a new family withAllen. Moreover, the court failed to find "substantial evidence of enhancement in the quality of thelives of the children."
Recently, in Collingbourne, 204 Ill. 2d at 498, the supreme court observed that benefits a childmay experience should not be characterized as "direct" or "indirect"; such distinctions may divertfocus from the real issue of whether a child's life will be enhanced by the move. Collingbourne, 204Ill. 2d at 525. Rather, as the court stated in Eckert, a trial court must " 'consider the proposed movein terms of likelihood for enhancing the general quality of life for both the custodial parent and thechildren.' " (Emphasis in original.) Collingbourne, 204 Ill. 2d at 525, quoting Eckert, 119 Ill. 2d at326-27. Indeed, removal would rarely be permitted where a child was in a good environment, withgood schools, good parents, and good friends, if the court considered only the direct benefits to thechild. Collingbourne, 204 Ill. 2d at 525. "Because the principal burden and responsibility of childrearing falls upon the custodial parent, there is a palpable nexus between the custodial parent's qualityof life and the child's quality of life." Collingbourne, 204 Ill. 2d at 526. Thus, the best interests ofthe child cannot be considered without also assessing the best interests of the custodial parent. Collingbourne, 204 Ill. 2d at 526.
The Collingbourne court cautioned that not every enhancement in the quality of life of thecustodial parent automatically translates into an improvement in the quality of life of the child, or thatbenefits derived from the move will always be sufficient to warrant removal. Collingbourne, 204 Ill.2d at 528. Rather, the court wished to "emphasize that because there is a nexus between the well-being of the custodial parent and the child who is in the parent's care, all benefits afforded to the childas a result of the move must be considered by the circuit court in making its best interestsdetermination." Collingbourne, 204 Ill. 2d at 528. A trial court's examination should not simply belimited to exploring enhanced economic opportunities for the custodial parent. Collingbourne, 204Ill. 2d at 528-29. The court must also consider noneconomic factors that either contribute to ordetract from the well-being and happiness of the custodial parent and the children. Collingbourne,204 Ill. 2d at 528-29.
In this case, approving Lisa's removal request would allow her to marry Allen. From allaccounts, they would create a stable and loving family for Christiana and Tony. Allen and Lisa wouldbe able to pool their finances and share their child-rearing obligations. The creation of a new familyin the social environment of a traditional family setting constitutes an important benefit to children. See Collingbourne, 204 Ill. 2d at 529. Given the fact that Allen and Lisa operate a business together,it appears that the move would grant them tremendous flexibility in managing their daily lives. Themove to Cedarburg would allow Lisa to spend much more time with the children and avoid using achild care provider. Her new workday would be from approximately 9 a.m. to 3:15 p.m., instead of8 a.m. to 5 p.m. Her new hours would allow her to devote additional time and attention to thechildren rather than to work. In addition, the number of overnight business trips Lisa must takewould be greatly decreased.
The children's new school in Cedarburg, St. Francis Borgia, is at least comparable to and, inLisa's view, better than the school they attend in Geneva. It appears that the children would have agreater opportunity to participate in after-school activities in Cedarburg because Lisa would be freewhen the children finish school.
Carl has urged that no pecuniary benefits would result from the move, because Lisa does notexpect that her income would change substantially after the move. However, Carl ignores the factthat Lisa and the children's expenses would most certainly decrease as a result of the move toCedarburg, as Lisa would share expenses with Allen. Thus, Lisa would have greater discretionaryincome. With the additional savings, Lisa indicated that she would contribute greater amounts to thechildren's future education. Where a custodial parent's financial situation improves, children willgenerally benefit as a result of an enhanced standard of living. See Collingbourne, 204 Ill. 2d at 529.
I further observe that, as a result of the move, Lisa expects that HSSM would save about$35,000 annually by consolidating offices and operating with greater efficiency. I do not believe thatLisa's desire to move should be impugned simply because she is motivated in part by businessinterests. Although Carl argues that Lisa is placing financial interests before the well-being of herchildren, the record does not support such a conclusion. Rather, Lisa has reached a perfectly rationalconclusion that moving to Wisconsin would result in certain incidental business benefits. The trialcourt should have considered this benefit when it considered the factors identified in Eckert. See Collingbourne, 204 Ill. 2d at 525, quoting Eckert, 119 Ill. 2d at 326-27.
The second and third factors provided in Eckert require the trial court to consider the motivesof the custodial parent in requesting the move and the motives of the noncustodial parent in opposingthe move. Eckert, 119 Ill. 2d at 327. With respect to Lisa, there is no indication in the record thatLisa's desire to move to Cedarburg is "merely a ruse intended to defeat or frustrate visitation." Eckert, 119 Ill. 2d at 327. Lisa indicated and demonstrated that she considers Carl's involvement inthe children's lives very important. Carl also acknowledged that Lisa has been "pretty good" atarranging visitation, describing her level of cooperation as a "9 or 10" on a 10-point scale.
The trial court has wrongfully chastised Lisa for being guided by selfish motives in this matter. Adjustments and accommodations must be made as a result of a divorce, the entire point of whichis to permit each parent to go on his or her own way. Collingbourne, 204 Ill. 2d at 535. "Withinreason, both parties must be permitted to do so, and the child's best interests must be served withinthat context." Collingbourne, 204 Ill. 2d at 535. On the other hand, the trial court's determinationthat Carl's vigor in pursuit of this matter is "predicated on his own selfish desires" does appear to holdwater. That said, based on my review, Carl also genuinely loves his children and, amongst a swirl ofother motivations, does fear that the move is not in the children's best interests. However, I find thatCarl's fears are not well founded given the relatively short distance Lisa wants to move.
The last Eckert factors address the noncustodial parent's visitation. Under Eckert, the trialcourt must carefully consider the effect the proposed move would have on the visitation rights of thenoncustodial parent, because it is in a child's best interests to have a healthy and close relationshipwith both parents, as well as other family members. Eckert, 119 Ill. 2d at 327. A court must assesswhether a realistic and reasonable schedule can be reached if the move is allowed to proceed. Eckert,119 Ill. 2d at 327.
Here, Lisa hopes to move to Cedarburg. Cedarburg lies just north of Milwaukee. FromWoodridge, the longest time Carl would possibly have to spend traveling to visit the children is abouttwo hours. As the situation now stands, Carl must already travel an hour to visit the children,assuming that Lisa has moved to Lake Villa as she intended to do at the time of the hearing inAugust. Carl stated that he too intended to move to Lake Villa if the children moved there, so hecould be close to them. In Lake Villa, Carl would be an hour away from the children in Cedarburgand an hour away from his job in Woodridge.
Carl has great flexibility in his work schedule, working about 100 days a year as a fireman. Specifically, Carl appears to be concerned that he would no longer be able to pick the children upafter school, spend the evening with them at his house in Woodridge, and then return them to Lisa'shome later in the evening. However, in all cases, removal will have some effect on visitation. Collingbourne, 204 Ill. 2d at 532. The essential question is whether a visitation schedule that is bothreasonable and realistic can be created. Collingbourne, 204 Ill. 2d at 532. The visitation scheduleneed not be perfect. In re Marriage of Parr, 345 Ill. App. 3d 371, 380 (2003).
Carl still would be available to visit the children on his days off work. He would be able toparticipate in almost all of the children's activities. Carl acknowledged that he would be able tocontinue participating in just about all of the activities he currently enjoys with the children. Frankly,it does not appear that moving the children to Cedarburg would have any significant impact on therest of Carl's visitation schedule. For example, the children still would be able to spend entireweekends at Carl's house, just as they have done in the past.
A reasonable visitation schedule is one that will preserve and foster the children's relationshipwith the noncustodial parent. Eckert, 119 Ill. 2d at 327. I am certain that, given Lisa's requestedmove in this case, a visitation schedule could be fashioned to preserve Carl's relationship with hischildren. Thus, I disagree with the trial court's conclusion that "there is no proof that there can beformulated a visitation schedule for Mr. DeLeo that can be termed 'reasonable and realistic.' " If areasonable visitation schedule cannot be established in this case, indeed, it would be a rare occasionthat a petitioner could satisfy his or her burden. In fact, when effort is expended to establish areasonable visitation schedule, close relationships can continue and even be enhanced. Collingbourne,204 Ill. 2d at 533.
It is true that removal requests must be decided on a case-by-case basis. Eckert, 119 Ill. 2dat 326. Nevertheless, I find it inconsistent and unfair that Lisa's removal request has been deniedwhen the petitioner's request in Collingbourne was approved. Similarly situated individuals must beable to look at prior cases for guidance and anticipate that they will be afforded similar treatment. The results of the present case betray this principle.
Finally, I note that although the trial court believed that the children were "confused andunhappy about the prospects" of moving to Cedarburg, Valerie Jencks opined that both Christianaand Tony were emotionally capable of handling the move. The mixed emotions the children haveexpressed are natural and to be expected, but insufficient to justify denying Lisa's petition. SeeCollingbourne, 204 Ill. 2d at 534.
For the aforementioned reasons, I would reverse the trial court's denial of Lisa's request forremoval and remand for the limited purpose of setting a visitation schedule.