In re Marriage of Demaret
2012 IL App (1st) 111916
Ill. App. Ct.2012Background
- Elizabeth Demaret petitioned to remove the four children from Illinois to New Jersey; James Demaret opposed removal and sought attorney-fee contributions.
- Following hearings, the circuit court denied Elizabeth’s removal petition and James’s fee-petition; Elizabeth appealed the removal denial.
- Elizabeth’s career move: she accepted a Marsh offer with a projected total minimum compensation of $475,000, implying relocation to the New York area; she relocated to Schaumburg and planned a Middleton, NJ home.
- Elizabeth’s anticipated travel reductions and more home time were offered as reasons for improvement, while James faced reduced visitation time if removal occurred.
- The trial court found Elizabeth dominated decision-making, removal would impair James’s visitation, and there was no convincing evidence of improved quality of life for the children; the court denied removal and denied increased child support.
- On appeal, the court held postdissolution petitions may be treated as new actions; it then addressed the Eckert factors and affirmed the trial court’s denial of removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to hear the appeal? | Demaret: fees petition unrelated to removal; jurisdiction preserved. | Demaret: fees petition pending affects jurisdiction under Rule 304/a and related cases. | Jurisdiction exists; merits proceed. |
| Whether removal denial was against the best interests under Eckert? | Demaret: removal could improve life and access; trial court erred. | Demaret: removal would harm visitation and family stability; not in best interests. | Denied; Eckert factors support keeping children in Illinois. |
| Impact of removal on quality of life for children? | Demaret: higher income and proximity to maternal family improve life. | Demaret: no substantial life-quality improvement proven; travel and schooling concerns persist. | Against removal; no clear quality-of-life enhancement demonstrated. |
| Effect of removal on noncustodial visitation? | Demaret: visitation can be preserved with adjusted schedule and travel. | Demaret: removal would substantially reduce James’s visitation time and quality. | Against removal; substantial visitation disruption weighed against relocation. |
| Is a realistic visitation schedule feasible if removal occurs? | Demaret: flexible travel arrangements could maintain similar schedule. | Demaret: practical obstacles make a similar schedule unlikely. | Against removal; feasible schedule unlikely under proposed plan. |
Key Cases Cited
- In re Marriage of Eckert, 119 Ill. 2d 316 (1988) (guides Eckert factors for best-interests removal analysis)
- In re Marriage of Collingbourne, 204 Ill. 2d 498 (2003) (recognizes deference to trial court; multiple Eckert factors)
- In re Marriage of Gutman, 232 Ill. 2d 145 (2009) (rule for finality and Rule 304(a) context; separation of petitions)
- Carr, 323 Ill. App. 3d 481 (2001) (Carr-type immediate appeal for unrelated final dispositive order)
- A’Hearn, 408 Ill. App. 3d 1091 (2011) (postdissolution petitions are generally new actions; supports Carr contrast)
- Gaudio, 368 Ill. App. 3d 153 (2006) (view of postdissolution proceedings; supports Carr/A’Hearn lineage)
- Alyassir, 335 Ill. App. 3d 998 (2003) (split authority on Rule 304(a) applicability; informs jurisdiction analysis)
- In re Marriage of Gutman, 376 Ill. App. 3d 758 (2007) (illustrates contempt/pendency interplay in final judgments)