In re Marriage of Parr

Case Date: 12/31/2003
Court: 4th District Appellate
Docket No: 4-03-0732 Rel

 

NO. 4-03-0732

 IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 
In re: the Marriage of
THERESA MARGARET PARR,
                         Petitioner-Appellant,
                         and
ERIC NORMAN PARR,
                         Respondent-Appellee.
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Appeal from
Circuit Court of
Vermilion County
No. 01D54

Honorable
Joseph P. Skowronski,
Judge Presiding.




JUSTICE TURNER delivered the opinion of the court:

In February 2001, petitioner, Theresa Margaret Parr,filed a petition for dissolution of her marriage to respondent,Eric Norman Parr. In December 2002, petitioner filed a motion toamend her petition for dissolution, seeking sole custody of theparties' minor children and for leave to remove the children toColorado. In August 2003, the trial court entered an order,awarding petitioner sole custody of the children but denying herrequest to remove the children to Colorado. The order alsoawarded respondent the federal and state tax exemptions for twoof the three minor children for the years 2002, 2003, and allsubsequent years.

Petitioner appeals, asserting the trial court erred by(1) denying her leave to remove the children to Colorado and (2)awarding respondent the federal and state tax exemptions for twoof the three children. We affirm in part, reverse in part, andremand with directions.

I. BACKGROUND

The parties were married in May 1988 and, during theirmarriage, had three children, Chelsie (born in October 1988),Brynn (born in August 1990), and Colton (born in May 1993). In1990, the parties built a log cabin in Catlin, Illinois, wherethe parties resided the rest of their marriage. The three-bedroom home is built on 20 acres of land and has a barn thathouses the family's numerous pets, including horses and donkeys.

At the time of their marriage, both parties had bachelor degrees, and during the marriage, both parties worked outsidethe home. In January 1998, respondent obtained his master'sdegree in animal science. Shortly before graduation, he obtainedemployment with United Feeds in Frankfort, Indiana, which wasabout a 1-hour-and-25-minute drive from Catlin. Initially, hecommuted daily to his job but, in spring 1998, he got an efficiency apartment in Frankfort and came home to Catlin on theweekends. At the time of the hearing, respondent was stillemployed at United Feeds as a research manager, earning approximately $46,173 per year.

In January 1999, petitioner obtained her master'sdegree in animal science. She then quit her full-time job withthe University of Illinois and pursued her doctor of philosophydegree (PhD) in animal nutrition. While working on her PhD, shewas a graduate assistant, earning $1,100 a month and receiving atuition waiver. To help with living expenses, petitioner alsoobtained loans from the federal government, totaling $64,294.67,and checks from her father, Louis Cambier, totaling $50,000,which the trial court later found were gifts, not loans. Petitioner's assistantship was to end in March 2003, and she was toreceive her PhD in May 2003.

Since starting school, the children have attendedCatlin Grade School and are involved in numerous activities. Each child has many friends that he or she has known sincekindergarten. All three children are straight A students.

In February 2001, petitioner filed a motion for dissolution of marriage. In June 2001, the trial court granted adissolution judgment on grounds only. In May 2002, the trialcourt appointed a limited guardian ad litem for the child-custodyissue. In October 2003, the trial court ordered respondent topay $417.28 in child support every other week (average of $904.10per month).

In November 2002, Colorado Quality Research, Inc.(CQR), offered petitioner a position as investigator/director ofnutrition with a base salary of $67,650 and a reasonable expectation of an additional 10% to 15% performance/profit-sharingbonus. CQR would also pay $5,000 to cover moving expenses andwould pay 85% of petitioner's health insurance premium. Theposition's hours are 7 a.m. to 4 p.m., Monday through Friday,with almost no travel. CQR is located in Wellington, Colorado.

In December 2002, petitioner filed a motion to amendthe petition for dissolution of marriage, requesting that thetrial court grant her sole custody of the children and leave toremove them to Colorado so she could accept the CQR job offer. After a December 2002 hearing, the trial court granted petitioner's motion.

In March 2003, the trial court held a three-day hearingon the remaining issues, devoting the first two days solely tothe issues of custody and removal. The last day dealt withfinancial issues. On that day, respondent requested he receivethe state and federal tax exemptions for all three children forthe year 2002 and all future years.

At the hearing, petitioner testified the University ofIllinois did not have any positions available in her field.Petitioner had sent out 19 resumes and had worked with a headhunter. Most of the companies she contacted were in the Midwest. She only received one other job offer, which was from a companyin Princeton, Missouri, paying $50,000 a year. She saw littleopportunity of advancement with that job. Princeton was about aseven-hour drive from Catlin. According to petitioner, Catlinand the immediate area had no employment opportunities in whichshe could use her degree.

Petitioner further testified the CQR job offer wasstill available with the same terms. Since the November 2002 joboffer, she has done a small amount of part-time work for CQR. Petitioner stated it is very difficult to do work from homebecause she needs to be out in the barns participating in theresearch. She sees a lot of potential with the CQR job, including the possibility of co-ownership.

Petitioner had been to the Wellington area four times,taking the children on one of the trips. Wellington is a town of1,500 people, about 10 miles north of Fort Collins. Petitionerhad contacted a realtor and had looked at homes in the ruralWellington area. She would like to buy a home with some acreageso she and the children can bring their pets with them. Becauseof the uncertainty of whether she can accept the CQR offer, shehad not purchased or rented a home in Colorado. Petitioneracknowledged she has no relatives in Colorado.

Petitioner also investigated the schools and themedical facilities in the Wellington area. The Wellingtonschools offered similar extracurricular activities as the Catlinschools, and the children could ride the bus to school as they doin Catlin. Fort Collins has a youth medical clinic, offeringservices to both children and young adults.

If the trial court were to allow petitioner to move toColorado, she was willing to work with respondent so he couldhave the children whenever the opportunity arose. She proposedallowing him to have the children six to eight weeks in thesummer and half of Christmas break and other feasible breaks. Petitioner was willing to split the cost of transportation. According to petitioner, a flight from Indianapolis, Indiana, toDenver, Colorado, is about 2 1/2 hours and costs $188 round trip. Wellington is approximately a 1-hour-and-15-minute drive fromDenver.

Respondent testified he has the children every otherweekend in Indiana and some holidays. He also went to some ofthe children's sporting events that were not during his visitation time. Respondent also does not have any family in Colorado.

The guardian ad litem recommended that the removalrequest be allowed but noted all of the children preferred tolive in Catlin. However, the two older children did not expressa strong preference against the move. The guardian ad litem alsostated respondent had a close relationship with the children.

From January 2002 to September 2002, respondent paidthe mortgage and barn loan payments, a total of $798.45 permonth, in lieu of child support. Petitioner's May 2001 financialaffidavit indicated her monthly net income was $3,420 and hermonthly expenses were $5,423. Petitioner's March 2003 financialaffidavit showed she had a monthly net income of $1,985 andmonthly expenses of $5,561.45.

At the end of the hearing on custody and removal, thetrial court announced it was awarding custody to petitioner butdenying her request for removal. At the end of the hearing onthe financial issues, the court requested the parties submitwritten closing arguments. In July 2003, the trial court sent aletter to the parties' counsel, setting forth its determinationon all the remaining issues. In August 2003, the trial courtentered a supplemental order to the dissolution judgment, (1)awarding petitioner sole custody of the children; (2) denyingpetitioner's request to remove the children to Colorado; (3)ordering respondent to pay $525 every other week in child support(average of $1,137.50 per month); (4) ordering the parties tosplit equally the children's uncovered medical expenses; and (5)awarding respondent tax exemptions for Brynn and Colton for theyears 2002, 2003, and all subsequent years. This appeal followed.

II. ANALYSIS

A. Removal

Petitioner first argues the trial court erred indenying her request for leave to remove the children to Colorado.

Under section 609(a) of the Illinois Marriage andDissolution of Marriage Act (Act) (750 ILCS 5/609(a) (West2002)), a trial court may only approve a custodial parent'sremoval of the minor children from Illinois when the approval isin the children's best interests. The burden of proving suchremoval is in the children's best interests is on the partyseeking removal. 750 ILCS 5/609(a) (West 2002). Thus, petitioner bore the burden of proving that the move to Colorado wasin the children's best interests. A determination of the children's best interests cannot be reduced to a simple bright-linetest but rather must be made on a case-by-case basis, depending,to a great extent, upon the circumstances of each case. In reMarriage of Eckert, 119 Ill. 2d 316, 326, 518 N.E.2d 1041, 1045(1988). A trial court's determination 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 amanifest injustice has occurred. Eckert, 119 Ill. 2d at 328, 518N.E.2d at 1046.

In Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46, the supreme court identified five factors that should beconsidered in determining whether removal is in a child's bestinterests. Those factors are (1) whether the proposed move willenhance the quality of life for both the custodial parent and thechildren, (2) whether the proposed move is a ruse designed tofrustrate or defeat the noncustodial parent's visitation, (3) thenoncustodial parent's motives in resisting removal, (4) thenoncustodial parent's visitation rights, and (5) whether areasonable visitation schedule can be worked out. Eckert, 119Ill. 2d at 326-27, 518 N.E.2d at 1045-46. A reasonable visitation schedule is one that would preserve and foster the children's relationship with the noncustodial parent. Eckert, 119Ill. 2d at 327, 518 N.E.2d at 1046.

Petitioner asserts the trial court did not balance theEckert factors but instead treated the factors as prongs of atest in which petitioner had to meet every prong for the court togrant removal. In its oral ruling on the motion, the courtstated petitioner bore the burden to demonstrate "she has satisfied the Eckert factors," noted that petitioner had not met thevisitation factor, and then denied removal because "these factorshave not been met." In its July 2003 letter to counsel, thetrial court recounted that it found "[p]etitioner had failed tomeet her burden of proof and had not satisfied the factors setforth in the Eckert decision and cases interpreting Eckert."

The aforementioned comments cause us concern, as theEckert court did not establish a test in which the custodialparent must satisfy every prong. See In re Marriage ofCollingbourne, 204 Ill. 2d 498, 523, 791 N.E.2d 532, 546 (2003);In re Marriage of Eaton, 269 Ill. App. 3d 507, 516, 646 N.E.2d635, 643 (1995). In subsequent decisions, our supreme court hasnoted the Eckert factors are not exclusive and are only factorsto be considered and balanced in determining whether removal isin the children's best interests. No individual factor iscontrolling, and the weight accorded each factor will depend onthe case's facts. Collingbourne, 204 Ill. 2d at 523, 791 N.E.2dat 546; see also In re Marriage of Smith, 172 Ill. 2d 312, 321,665 N.E.2d 1209, 1213 (1996). While the trial court clearlyconsidered each Eckert factor, it appears the court requiredpetitioner to satisfy each factor, rather than weighing andbalancing the relevant factors to determine whether removal wasin the children's best interests.

As to the first factor, the trial court found removalwould enhance the quality of life for petitioner and the childrenfrom a financial standpoint. The court then noted that probablythe quality of life for the children would not be better for theshort-term because petitioner would have to adjust to her newjob, the children would be in different schools, and petitionerprobably could not afford a home with acreage as she has now.

However, the children and petitioner would experiencechange no matter where they lived because petitioner was goingfrom a full-time student to a full-time job. The family dealtwith a similar situation when petitioner left her employment tobecome a full-time student. Moreover, if courts looked only atthe short term (the adjustment period), removal would be allowedonly in a rare situation when the children were in a goodenvironment with good schools, good friends, and a nice home. Adjustment is part of any move. See In re Marriage of Ludwinski,312 Ill. App. 3d 495, 504, 727 N.E.2d 419, 426 (2000) (noting thechildren would have to adjust to the move to Utah).

As to the second and third Eckert factors, the trialcourt found the motives of both parties were well-intentioned. Accordingly, those two factors do not weigh in favor of eitherparty. See Collingbourne, 204 Ill. 2d at 531, 791 N.E.2d at 550.

The final Eckert factors address respondent'svisitation. The trial court noted respondent had maintainedregular visitation with the children and had gone to some oftheir school events. The court then found respondent would notbe able to maintain frequent contact with the children if theylived in Colorado. After recounting his own experiences with hisdaughters, the trial judge concluded both parents have a right toshare in the children's lives, the children have a right to havetheir parents involved in their activities, and thus a reasonablealternative visitation could not be arranged.

The aforementioned finding essentially gives anoncustodial parent, who has a good relationship with his or herchildren, the right to veto the custodial parent's desire to moveout of Illinois no matter how legitimate and well-founded thatdesire is. The Eckert decision and the Act do not provide such aveto power to the noncustodial parent. See Eaton, 269 Ill. App.3d at 514, 646 N.E.2d at 641. Our supreme court has agreed withthis court that the custodial parent's interests should not beautomatically subordinated to those of the noncustodial parent ina removal issue. Collingbourne, 204 Ill. 2d at 528, 791 N.E.2dat 548; Ludwinski, 312 Ill. App. 3d at 503, 727 N.E.2d at 425.

"Indeed, 'our society is a mobile one'(Eckert, 119 Ill. 2d at 330[, 518 N.E.2d at1047]) and 'since a court has no power torequire the noncustodial parent to remain inIllinois, or to require members of theextended family to remain in Illinois, somedeference is due to the custodial parent whohas already determined the best interests ofher child[ ] and herself are served byremarriage and removal. The best interestsof children cannot be fully understoodwithout also considering the best interestsof the custodial parent.' (Emphasis inoriginal.)" Collingbourne, 204 Ill. 2d at528, 791 N.E.2d at 548, quoting Eaton, 269Ill. App. 3d at 515-16, 646 N.E.2d at 642.

While we agree with the trial court's concern aboutpreserving the children's relationship with respondent, thatconcern must be weighed against the enhancement of the quality oflife for both petitioner and the children. See Ludwinski, 312Ill. App. 3d at 503, 727 N.E.2d at 425. In this case,petitioner's financial situation is an important issue because(1) her sources of income were to soon end, (2) the child supportpayments were insufficient to meet her household's current needs,(3) petitioner expenses would soon be increasing because shewould have to start repaying her student loans, and (4) no jobsin her field were available in the Catlin area. The childrenhave a wonderful life in Catlin, but petitioner must have a jobto maintain that life.

Moreover, petitioner testified her job (1) wouldrequire virtually no travel (only to attend conferences), (2)would not require her to work weekends, and (3) was with afamily-oriented company that would allow her to have a flexibleschedule to meet the children's needs. While respondentchallenges the uncertainty of petitioner's plans to live inColorado, petitioner testified her children were more importantthan the job, and she would not take the job if she could notbring the children. Thus, the indefiniteness of petitioner'sresidence in Colorado is understandable. Petitioner hadthoroughly researched the Wellington area, which the evidenceindicates is similar to Catlin, and emphasized her desire to finda home that could accommodate the family's pets.

Additionally, "[a]ny removal will have some effect onvisitation, but the real question is whether a visitationschedule that is both reasonable and realistic can be created. It need not be perfect." Eaton, 269 Ill. App. 3d at 515, 646N.E.2d at 642. This court has been confident in its conclusionthat a visitation schedule can be fashioned to preserve anoncustodial parent's relationship with the children when thechildren are allowed to move outside the Midwest. See Ludwinski,312 Ill. App. 3d at 505, 727 N.E.2d at 427 (Utah); Eaton, 269Ill. App. 3d at 515, 646 N.E.2d at 642 (Florida). The quality ofa relationship need not be adversely affected just because thatrelationship becomes a long-distance one. Ludwinski, 312 Ill.App. 3d at 504, 727 N.E.2d at 427. When effort is expended toestablish a reasonable visitation schedule, close relationshipscan continue and even be enhanced. Collingbourne, 204 Ill. 2d at533, 791 N.E.2d at 551, quoting Ludwinski, 312 Ill. App. 3d at504-05, 727 N.E.2d at 427; see also Eaton, 269 Ill. App. 3d at515, 646 N.E.2d at 642.

Here, we are dealing with three intelligent childrenwho have two intelligent parents that love them very much. Weare again confident that a reasonable visitation schedule can beestablished to preserve respondent's close relationship with thechildren.

In this case, respondent chose to take a job in hisfield and live outside Illinois. Petitioner desires to do thesame. Petitioner has done a thorough job search of the entireMidwest, yielding no jobs in Illinois or near Catlin. Herreasons for removal are neither frivolous or inadequate. See Inre Marriage of Branham, 248 Ill. App. 3d 898, 904, 617 N.E.2d1317, 1322 (1993) (noting when a parent has been diligent inexercising his or her visitation rights, courts should bereluctant to allow removal for frivolous or inadequate reasons). With a divorce comes adjustments and accommodations. Both thecustodial and noncustodial parent should be permitted to go onhis or her own way, and the children's best interest must beserved within that context. Collingbourne, 204 Ill. 2d at 535,791 N.E.2d at 552, quoting Helentjaris v. Sudano, 194 N.J. Super.220, 230, 476 A.2d 828, 833 (1984).

Under these circumstance, we find the denial ofpetitioner's request to remove the children was against themanifest weight of the evidence.

B. Tax Exemptions

Petitioner last contends the trial court erred inawarding respondent the state and federal tax exemptions for twoof the three children.

This court has held that in dissolution of marriageproceedings, a trial court has the discretion to allocate the taxdependency exemption to the noncustodial parent and order thecustodial parent to sign a declaration that he or she will notclaim the dependency exemption. In re Marriage of McGarrity, 191Ill. App. 3d 501, 504, 548 N.E.2d 136, 138 (1989). We will notdisturb that allocation unless it is an abuse of discretion orthe factual predicate for the decision is against the manifestweight of the evidence. Stockton v. Oldenburg, 305 Ill. App. 3d897, 901, 713 N.E.2d 259, 262 (1999).

Petitioner contends that ordering a custodial parentwho contributes a majority of a child's support to execute awaiver of his or right to claim a tax exemption for that child isa violation of the supremacy clause of the United StatesConstitution (U.S. Const., art. VI). However, she fails to citeauthority supporting her argument in violation of Supreme CourtRule 341(e)(7) (Official Reports Advance Sheet No. 21 (October17, 2001), R. 341(e)(7), eff. October 1, 2001). This court hasoften stated the failure to cite legal authority in the argumentsection of a party's brief forfeits the issue for review. SeeCampbell v. Wagner, 303 Ill. App. 3d 609, 613, 708 N.E.2d 539,543 (1999). Accordingly, petitioner has forfeited this argument.

Petitioner also alleges respondent failed to meet hisburden of proof that he was entitled to the tax exemptions. Here, respondent testified to the amount of his contributions tothe children's care and presented petitioner's financialaffidavit as evidence. While respondent did not present anactual figure of the children's monthly expenses (which would bebeneficial to both the trial and reviewing courts in analyzingthis issue), we find the above evidence was sufficient to meethis burden of proof.

Finally, petitioner argues the trial court abused itsdiscretion in awarding the tax exemptions because it failed tomake the award based on the relative contributions made by theparents to the children's monthly expenses. However, in its July2003 letter to counsel, the trial court noted it "must considerthe non[]custodial parent's contribution as it relates to theactual cost of supporting the minor children." In support of herargument, petitioner points to her financial affidavit that listsher monthly expenses as over $5,000. Her affidavit clearly listsitems that are solely related to her and not the children. Additionally, respondent presented testimony that certainhousehold expenses were also solely petitioner's.

Accordingly, we find the trial court did not abuse itsdiscretion in awarding respondent two of the three tax exemptionsfor the years 2002 and 2003.

Petitioner also asserts that the trial court abused itsdiscretion in awarding respondent two tax exemptions for futureyears because such an award is arbitrary and speculative. However, petitioner again fails to cite authority and hasforfeited this issue. See Campbell, 303 Ill. App. 3d at 613, 708N.E.2d at 543.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sallocation of the federal and state tax exemptions, reverse thecourt's denial of petitioner's request for removal, and remandfor the limited purpose of setting a visitation schedule.

Affirmed in part and reversed in part; cause remandedwith directions.

STEIGMANN and APPLETON, JJ., concur.