In re Marriage of Sale

Case Date: 04/23/2004
Court: 5th District Appellate
Docket No: 5-03-0382 Rel

                       NOTICE
Decision filed 04/23/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-03-0382

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIFTH DISTRICT


In re MARRIAGE OF

MARY SALE, n/k/a MARY NEWTON,

     Petitioner-Appellant,

and

SCOTT SALE,

     Respondent-Appellee.

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Appeal from the
Circuit Court of
St. Clair County.



No. 02-D-155

Honorable
Stephen R. Rice,
Judge, presiding.



JUSTICE GOLDENHERSH delivered the opinion of the court:

Three weeks after a joint-parenting-agreement order was entered, the petitioner andcustodial parent, Mary Sale, now known as Mary Newton, petitioned the trial court for leaveto remove the parties' son, D.S., from the State of Illinois to Vader, Washington. The trialcourt denied the petition for removal. We affirm.

BACKGROUND

The parties were married on June 4, 1988. D.S., the parties' only child, was born onJanuary 1, 1997. The parties separated in October 2001. The petitioner filed a petition for thedissolution of the marriage on February 13, 2002, and she sought the custody of D.S. On June3, 2002, the respondent, Scott Sale, filed his answer and a counterpetition for dissolution, andhe also sought the custody of D.S. A marital settlement agreement was entered on September19, 2002. An order of dissolution and a joint-parenting-agreement order were entered onOctober 8, 2002. The parties agreed, inter alia, that the petitioner would be the custodialparent, with the respondent having custody on Tuesdays and Thursdays from 5:30 p.m. to 8 p.m.(except in the summer when the respondent would have custody from 6 p.m. to 9 p.m. everyTuesday and Thursday), every other weekend, and every federally recognized holiday from 3p.m. until 9 p.m.

On October 9, 2002, the petitioner married Edgar Newton, who resides in Vader,Washington. The petitioner met Mr. Newton through the Internet in January 2001. They firstmet face to face in April 2002. On October 29, 2002, the petitioner filed a motion for leaveto remove D.S. from Illinois. A hearing was conducted on the motion to remove, at which time the following evidence was adduced.

The petitioner testified that the respondent initiated the parties' separation and advisedher to get a job. The petitioner found a job as a part-time hair stylist at J.C. Penney. Thepetitioner currently earns approximately $8,000 per year. She testified that she will be ableto work at a J.C. Penney Salon in Kelso, Washington, and that her income will increase toapproximately $10,000 per year. The petitioner currently resides with her parents and D.S.,because she is unable to afford her own home. If she moves to Washington, she will residewith her new husband, who owns a three-bedroom home located on 25 acres.

The petitioner's new husband testified that he earns $62,000 per year as one of fourpartners in a steel fabrication business. His recently refurbished home is only a few blocksfrom Vader Elementary School, which D.S. would attend. Both the petitioner and Mr. Newtonsaid that their schedules would allow them to care for D.S. after school, thereby eliminatingthe need for day care. Mr. Newton has two children, ages 17 and 21, from a previous marriage,and they live nearby. He also has a number of relatives who live in the area. Mr. Newtontestified that he looks forward to helping to care for D.S. and would like to help coach his littleleague teams.

The petitioner testified that Vader Elementary School offers smaller classes than D.S.'spresent school in O'Fallon; however, she did not offer any test scores or testimony fromeducators about the benefits or drawbacks of either school. The petitioner testified that if sheis allowed to move D.S. to Washington, the respondent can have visitation during Christmas,Easter, and most of the summer. The petitioner offered to travel with D.S. during suchvisitation.

The respondent has exercised all his visitation with D.S. He testified that he evenattempted additional visits with D.S., but the petitioner would not allow it. On the other hand,the petitioner and her mother testified that while the respondent exercised all his visitation,he had not made any attempt to visit with D.S. outside the scheduled visitation. Therespondent and the respondent's mother testified that D.S. has several relatives in Illinois withwhom he has regular contact, including cousins who are around his age. One cousin is just afew months older than D.S.; they often spend the night together and are particularly close. Therespondent testified that neither he nor his family has the means to travel to Washington shouldthe petitioner be granted leave to remove. The respondent is concerned that if D.S. goes toWashington, he will be forced out of D.S.'s life and might even become an inconvenience toD.S.

After hearing all the evidence, the trial court denied the petition for removal, stating inpertinent part as follows:

"Number one, it's hard for me. If you-if you crossed Mr. Newton out of thisequation, it would be hard for me to accept that someone had to move as far away andstill be in the continental United States[,] but move as far away from Belleville as youcould get[,] to find a job in a J C Penneys [sic]. That's a tough proposition to accept.

I found the testimony concerning the improvement in her lot on that point to berather speculative. Quite frankly, it's obvious to this [c]ourt that the-that this movewould not be taking place but for the relationship with Mr. Newton, and it doesn't matterwhether it started on the Internet or not. That-it seems to be a thing of today.

But the point is that is a relationship taken up that results in a change almostimmediately-actually it was in anticipation of the impending dissolution.

Under these circumstances, I do not believe the case law permits me-that wouldpermit me to allow removal. I know this is a harsh result, but it's a harsh result eitherway I cut this. There is no easy answer. I have to make the call. To me, it's an easy callon the facts. It's just a tough call because I know it has great affect [sic] on the peopleinvolved.

I certainly-I was impressed by Mr. Newton. It has absolutely nothing to do withhim. I'm quite willing to believe that-that this is an improvement in [the petitioner's]lot in life. If the relationship with Mr. Newton appears to be a loving relationship, andI'm sure that's quite the case, but the problem is that coming right on the heels of theJoint Parenting Agreement, I don't believe it's justified to the extent of removing a childand taking him as far away as you can in these United States[-] away from the otherparent, and for those reasons, I'm denying the application for removal."

The petitioner filed a motion for reconsideration, which was denied. The petitioner nowappeals.

ANALYSIS

The petitioner contends that allowing her to remove D.S. from Illinois to Washingtonis in the best interests of both her and D.S. The petitioner asserts that the trial court's decisiondenying the removal is against the manifest weight of the evidence and that the trial courtincorrectly based its decision on the belief that marriage was an improper motive for removaland she could not petition for leave to remove directly after entering into the joint-parentingagreement. We disagree.

Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS5/609(a) (West 2002)) provides that a removal may be granted by the trial court if it is in thechild's best interests. Accordingly, in removal cases the paramount question is whether themove is in the child's best interests. While removal cases must be judged on their own uniqueset of facts (In re Marriage of Berk, 215 Ill. App. 3d 459, 463, 574 N.E.2d 1364, 1367(1991)), the Illinois Supreme Court has provided guidance for determining whether a removalwould be in the child's best interests. The following five factors should be considered indetermining whether a removal is in the child's best interests: (1) whether the proposed movewill enhance the quality of life for both the custodial parent and the child, (2) whether theproposed move is a ruse designed to frustrate or defeat the noncustodial parent's visitation, (3)the motives of the noncustodial parent in resisting removal, (4) the visitation rights of thenoncustodial parent, and (5) whether a reasonable visitation schedule can be achieved if themove is allowed. In re Marriage of Eckert, 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46 (1988). A reasonable visitation schedule is one that would preserve and foster the child'srelationship with the noncustodial parent. In re Marriage of Eckert, 119 Ill. 2d at 327, 518N.E.2d at 1046. In applying these factors, we are mindful that the trial court's determinationis not to be disturbed unless it is clear that its decision was against the manifest weight of theevidence. In re Marriage of Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. Moreover, theEckert factors are by no means exclusive. "[A] circuit court may validly consider otherrelevant factors, as dictated by the specific circumstances of each case, in arriving at a bestinterests determination." In re Marriage of Collingbourne, 204 Ill. 2d 498, 523, 791 N.E.2d532, 546 (2003).

The first Eckert factor to be considered is the likelihood of enhancing the generalquality of life for the petitioner and D.S. It is clear from the trial judge's comments that he didnot believe that D.S.'s life would be enhanced by the move. The most that can be said in favorof this move regarding this factor is that the petitioner would be living with the man sheapparently loves enough to marry the day after her divorce became final; however, simplybecause a party will be happier living out of state with a new spouse than living without thespouse in Illinois is not enough to establish that a child's quality of life would be enhanced bythe removal. Because a child has an important interest in maintaining significant contact withboth parents following a divorce, a custodial parent must prove more than his or her own desireto live with a new spouse to show that a child's best interests will be served by a removal. Inre Marriage of Eckert, 119 Ill. 2d at 325, 518 N.E.2d at 1044.

The petitioner attempted to put a positive spin on the situation by claiming that shewould earn 30% more as a hairstylist in Washington than she did in Illinois; however, 30% of$8,000 is certainly not enough for a major improvement under these circumstances. We agreethat the petitioner's life stands to be enhanced by the economic security her new husband canprovide by virtue of his job and home, but we must look to more than economic factors. However, we also find noneconomic factors that do not weigh in favor of a removal. For example, the petitioner presented no evidence that the school in Vader, Washington,that D.S. would attend is any better than the school in O'Fallon, Illinois, that D.S. now attends. There was no evidence concerning higher test scores, better curriculum, or better facilities. The petitioner offered her testimony that the class size would be reduced and that an aidewould be present. She did not offer any evidence from teachers or administrators tocorroborate her claim. Likewise, there is no evidence that cultural or recreational activitiesare better or more plentiful in Washington than in Illinois.

The petitioner and her new husband both testified that they could work out scheduleswhereby there would be no need for D.S. to have after-school day care; however, because thepetitioner only works part-time in Illinois and clearly prefers to spend time with D.S. now, thisdoes not tilt the scales in favor of a removal. Nor is it enough that the petitioner's new husbandappears to be sincere in his desire to be a good stepparent, because the facts also indicate thatthe biological father is more than willing to be involved in D.S.'s life and assist him inextracurricular activities as he matures.

There was testimony that D.S. now enjoys a close relationship with his extended family,including grandparents, cousins, aunts, and uncles. D.S. is particularly close to a cousin whois the same age, and the two frequently visit and spend the night together. Relationships withhis extended family would certainly suffer by D.S.'s removal to Washington. Overall, thetestimony did not indicate that D.S.'s quality of life would improve by removing him fromIllinois

Regarding the second and third Eckert factors, we note that there was no evidence tosuggest that the proposed move is a ruse designed to frustrate or defeat the respondent'svisitation or that the respondent's motives in resisting the removal are dishonorable. Therefore, these two factors do not weigh for or against either party. However, it is clear thata removal will affect the remaining Eckert factors, which concern visitation.

A removal of D.S. to Washington would severely undermine the respondent's exerciseof his visitation rights and would do little to foster a relationship between father and son. Nevertheless, because in all instances a removal will have some adverse effect on visitation,the question becomes whether or not a reasonable and realistic visitation schedule can bedeveloped. In re Marriage of Collingbourne, 204 Ill. 2d at 532, 791 N.E.2d at 550. As itstands, the respondent has weekly visitation with D.S. every Tuesday and Thursday evening. Healso has visitation every other weekend and every federally recognized holiday from 3 p.m.until 9 p.m. By all accounts, the respondent has been diligent in exercising his visitation rights.

The petitioner proposed that if she is allowed to remove D.S., the respondent can havevisitation at Christmas, Easter, and most of the summer, but not the two weeks after school isdismissed or the two weeks prior to school resuming. This schedule would not only reducethe number of actual days the respondent sees his son but also leave large gaps in time betweenvisits. We agree with the respondent that this would not assist him in maintaining a closerelationship with his son, especially as D.S. matures and develops his own friendships. It willbecome increasingly difficult for D.S. to leave his friends for the extended periods ofvisitation proposed by the petitioner.

As previously set forth, the Eckert factors are not exclusive and other relevant factorsmay be considered. The petitioner is correct that there is nothing to prohibit her frompetitioning for a removal any time she desires; however, we believe that the fact that she didso three weeks after signing a joint-parenting agreement was a relevant factor for the trial courtto consider. It is also relevant that the petitioner married as quickly as she did after her divorceand that she married a man she had not spent much time with prior to the marriage, due to thedistance between them.

After conducting a thorough hearing and weighing the evidence, the trial courtconcluded that a removal was not in D.S.'s best interests. As previously stated, a trial court'sdetermination on a removal petition should not be reversed unless it is clearly against themanifest weight of the evidence. Under the facts presented, we cannot say that the trial court'sdetermination that a removal was not in the best interests of D.S. is against the manifest weightof the evidence.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of St. Clair County isaffirmed.

Affirmed.

HOPKINS, J., concurs.


JUSTICE WELCH, dissenting:

I believe that the circuit court's decision is against the manifest weight of the evidenceand that it has stretched the Eckert factors too far. Therefore, I respectfully dissent from themajority's decision.

Unlike In re Marriage of Eckert, where the reasons given by the custodial parent werecalled "questionable" by the Illinois Supreme Court (In re Marriage of Eckert, 119 Ill. 2d at329), the motives for the petitioner's move are sincere and the evidence in this casedemonstrates that the proposed move would enhance the general quality of life for both thecustodial parent and the child. The petitioner would be moving to her husband's home, locatedon 25 acres. The child will be able to attend a school with a smaller teacher-to-student ratio. Furthermore, the need for day care would be alleviated, because the petitioner or her husbandwould be able to care for D.S. after school. I believe that these direct and indirect benefitsreceived by D.S. were not properly considered by the circuit court. See In re Marriage ofZamarripa-Gesundheit, 175 Ill. App. 3d 184, 189 (1988) (holding that while the move maynot directly enhance the general quality of life for the child, it will significantly affect thegeneral quality of life for the custodial parent and, therefore, indirectly beneficially affect thechild's quality of life).

Furthermore, in In re Marriage of Eckert, the noncustodial parent was an "exemplaryparent" with an exceptionally good relationship with his son, such that a removal wouldfrustrate that relationship. In the instant case, although the respondent exercised his visitationrights diligently, the evidence does not bear out that he was an exemplary parent, as was thefather in In re Marriage of Eckert. I believe that a reasonable visitation schedule could becrafted whereby D.S.'s relationship with his father could be preserved and fostered. Theevidence reveals that the petitioner was willing to accommodate visitation by paying for travelexpenses. That visitation would include extended weekend visitations around school holidaysand extended summer visitation.

Accordingly, because I believe that the record demonstrates that a removal is in the bestinterests of D.S., I believe that the decision of the circuit court is against the manifest weightof the evidence and should be reversed.