*1 reversing County entry for of an order Kane and remand the case awarding proper other relief. the Commission’s decision and remanded. Reversed KAPALA, JJ.,
BOWMAN and concur. MATCHEN, OF Petitioner-Appellee, re MARRIAGE JAMES R. MATCHEN,Respondent-Appellant. JEANETTE Second District No. 2 — 06—0749
Opinion April filed 2007. Firm, Brady, EC., appellant. Schaumburg, Ann C. of Minton for Buxton, Lake, Buxton, Crystal Renee A. of Law Office of Renee A. appellee. *2 opinion the of the court:
JUSTICE CALLUM delivered Matchen, appeals judgment the of Respondent, timely Jeanette her McHenry County denying petition the of for leave circuit court children Illinois to Wisconsin. On parties’ remove two minor findings against trial are appeal, respondent argues that court’s reasons, weight following For we af- the manifest evidence. firm.
I. BACKGROUND Matchen, Respondent petitioner, that she and James testified dissolution, in August judgment 1995. Pursuant divorced At time of the parties joint custody of their three children. shared old, Jeremiah, years petitioner, 20 and Jef- hearing, lived old, old, Jessica, respondent. frey, years years 12 lived with and McHenry County. in children reside parties Both 2002, Mayer, and with Tom August In met fell love working After engineer professional a and inventor. retired electronics of land Mayer for 22 retired to 88 acres years, Hoffman Estates his a trust for him and area that are held in Wisconsin Dells 2004, in his Since 1955. The land has been brother. her Jeffrey and Jessica to live with to remove respondent petitioned Mayer Respondent in the Wisconsin Dells. home date, however, they setting wedding pend- delayed have engaged; are held a removal. The trial court ing petition for the resolution 25, 2005, September 24 and August on hearing on the removal 2, 2005, January 2006. cleaner, been self- testified that she has
Respondent, a house per 15 hours week. years. approximately She works employed for two return, gross for 2004 her total income According respondent’s tax per approximately $7,347. $690 that she earns She testified was expenses, and does $1,846.49 per month in month, has approximately Accordingly, Mayer pays pay her bills. not have sufficient funds to pay gas helps her for per month —and entire respondent’s $750 rent — testified, however, believes repairs. Respondent and car they not at when her children important to be home with stability and comfort give them the them and supervise school—to presence. Respondent’s permits an adult her to be work schedule sick, they home the children are as well when for and come leave school, get respon- home from school. When the children home from snacks, homework, prepares dent them with helps their after-school organizes belongings day, their for the next and takes them to their spends playing games activities. She also time with them on the computer, biking, going Respondent that it walks. testified things more many previ- difficult for to do of those when she was ously employed Although respondent full time. has looked newspaper job opportunities, for other she testified that she does not qualifications have the postings seriously for the and that she has not employment past looked for alternative years. two Respondent run-down, currently further testified that she rents home, three-story Highway one block from in McHenry. She testi- fied that there is constant recently, traffic front of her house. Until loft; however, give Jessica shared an attic them their rooms, own respondent now sleeps the couch and Jessica has moved into former room. testified that her landlord nosy and comes to the peers through house unannounced. He windows and tries the door before he knocks. The find him “creepy.” result, blinds, As doors, shut the stay lock the inside does not presence. want him The *3 musty, is house poor. air Respondent testified that she sought housing, alternate but could not afford it. She testified that the McHenry County Housing Department helpful was not in her find- ing housing, new although she conceded that she had not used years. resource in six
Mayer’s Wisconsin home on his property very sits 88-acre in a quiet neighborhood. three-bedroom, It is a loft house with a full base- ment. The property pond has a for swimming shooting gallery and a where the clay children can shoot and pigeons engage target in practice. After some remodeling, the children would have their own bedrooms and respondent would have a bedroom as well. Since becom- ing Mayer, respondent involved with go and the children to Wisconsin there, other weekend. significant When spend time outdoors.
Respondent testified that is in In Jeffrey hunting. interested Wisconsin, hunts, shoots, bulldozer, he plays paintball, drives a rides go-carts, and fishes. She testified that he could many not do these things near their home McHenry, although in that she later conceded her lake, current home is within a mile of a that the fish at lake petitioner, petitioner occasionally Jeffrey takes shooting and in paintballing County. Jeffrey McHenry While is not and
currently any sports, play he used to soccer playing in Sports are to him years. was his soccer coach for three available Wisconsin, Jeffrey enjoys playing he to participate. should wish also Wisconsin, guitar, and In an entertainment swimming, games. video television, games, for porch on the heated for video section built place play guitar. and as a for played In and was in the school band. past, Jessica basketball crafts, painting, participates chorus, in arts and currently She and in catching frogs, is interested drawing. enjoys swimming She and and According respondent, activities are flora and fauna. all those porch gallery art on the for Jes- in built an available Wisconsin. crafts, brushes, easels, can her and she leave keep paints, sica to Jessica cannot up her art materials set there. stated that arts and crafts her current up her materials set and work on leave location, basement, musty, only possible home because the However, that Jessica has has asthma. conceded Jessica on arts and crafts. up petitioner’s set at home where works desk High McHenry West School Jeffrey will be freshman According respondent, grades B in his classes. receives A and classes, includ- Dells area offers same high school the Wisconsin addition, McHenry. Spanish, would take ing higher-level High Dells offers German classes Wisconsin School high ap- at the schools are history The class sizes two classes. grade will in the seventh proximately same. Jessica in Wisconsin Dells academically. The middle school performs well McHenry. Certain size than her school slightly has a smaller class budgetary McHenry may be cut activities extracurricular art classes at Jessica’s school Respondent testified that the reasons. contrast, fails. In art classes would cut if a referendum might be enroll Jef- her in Wisconsin. While it costs $200 remain available to to enroll him high McHenry, $20 it would cost in the school frey cost enroll Similarly, $115 it would the Wisconsin Dells school. while school, to enroll $20 it would cost in the middle Jessica however, Petitioner, pays half of the in Wisconsin Dells school. Respondent testified that children. registration fees for both school an McHenry, has two friends in but Jeffrey spends time with making likeable, have no trouble and would outgoing personality, *4 spends time that Jessica Respondent testified friends in Wisconsin. very friendly “a that she is McHenry, friend in but primarily one with everywhere makes friends always cheerful. She bubbly girl. little She goes.” family in both locations. have extended Jeffrey and Jessica Wisconsin, Oxford, approximately brother lives Respondent’s away Mayer’s minutes home. He is married children —a with two ages daughter, respectively. Jeffrey goes paint- son 22 and balling Respondent’s parents with his cousin uncle. also live in Oxford. Respondent that, prior relationship Mayer, testified to her with parents she and the children saw year, her and brother once a but now they regularly. see spend them more She testified that the children night at their if grandparents’ they longer house for Wisconsin they than try respondent’s family weekend to see as much as possible while there. Jeffrey McHenry, good relationship and Jessica have Jer- with Respondent
emiah. testified that she was not concerned that a move would affect their relationship with Jeremiah. Two sisters and their children approximately away live 5 to 10 minutes from respondent’s Jeffrey home in McHenry. and Jessica maintain relationships with their aunts and cousins and see them at twice least per month per and sometimes Respondent’s twice week. third sister and her approximately children away five 15 to 20 minutes from them County, and Jeffrey Jessica and see them once other month. Petitioner family area, also has in the McHenry including a children, brother and his two daughter a sister and her Marengo. parties agree Both that Jessica and are close to all of their in McHenry According members area. respondent, important it is that the children continue to maintain those relation- ships they move to Wisconsin.
Respondent Mayer testified that happy makes her and more relaxed and that her relationship with thereby Jessica has been enhanced. although testified the children initially not happy were about her relationship Mayer, with relationship improved with him is much and they get along well him. Respondent testified that she does not see how her relationship Mayer could continue if she does not move to the Wisconsin Dells. She testified that Mayer she has not discussed with whether would terminate his support financial in the event the were denied. If happen, however, that were to she would need to obtain full- employment time to meet her If living expenses. she moved to Wisconsin, she would not work because provide leaving children. She would not to worry have about getting home alone or job babysitters. a full-time She stable, testified that happier the move would make her and more which would quality enhance the children’s She life. believes that the children would also benefit from the move in that would be easily able to participate they enjoy, more in activities be close to their grandparents, and have more time with *5 respondent testi- Finally, be to them at all times.
she would available the to have a stable home to live fied it would be better for children in, traveling and forth Wisconsin constantly instead of back between example, explained she that sometimes the children and Illinois. For trip to car for the home from get tired and not do want Nevertheless, regardless the outcome of her removal Wisconsin. to traveling intends to continue petition, respondent testified that she every other weekend. Wisconsin with the children relationship “exceptional” Mayer described his with very His relation- gets along “very he well” with Jessica. testified that that good,” explained and he ship respondent “exceptionally with her mood in is a noticeable difference between there Wisconsin, opens up. He testified just relaxes and mood where absolutely benefit that, moving opinion, in his to Wisconsin would children, finances, schools, and the in terms of respondent ap- be setting, and because the children would pristine, peaceful only surviving grandpar- from their away minutes proximately seven him and agreed it would be difficult for Mayer ents. that not live under the marriage if could to maintain successful Il- moving he back to would consider same roof. When asked whether linois, he testified: year I a 30 say live now it’s been
“A. I would have to where Well very very hard for the working I on this dream and have been I It be an develop life what have. would my second half extremely I if I had suppose It hard. difficult decision. would be It be it’s in a trust. can’t property to—I can’t sell in a somewhere certainly or so I would like to reside divided sold city. my fill of the pretty I much had rural area. any you would consider
Q. place there Illinois Would living? I again in the farmlands south. likely would be back
A. More enjoy the south.” denied, did he petition if were testified relationship off his or cut engagement intend to break off the remain the children children; goal to ensure that primary However, proceedings. of the removal of the outcome
happy regardless provides he financial assistance testified that the he were denied. be difficult maintain every other and Jessica Currently, petitioner visits Tuesday Sunday, Friday p.m. to 6 on p.m. weekend from Respondent testified evening p.m. to 7 Thursday from 3 “religiously.” every-other-weekend petitioner exercises his manage visita- parties have been able testified that Petitioner smoothly however, tion flexibility; issues and with there have been relatively frequent trips minor issues that arisen have since began. Wisconsin Petitioner four regularly exercises weeks of visita- intervals; summer, however, tion with the children in two-week during judg- often works those weeks. Pursuant dissolution ment, petitioner may also visit with the children on alternate Christmas holidays spring alternate breaks. testified visitation, petitioner four days exercises his Christmas but that he does spring not exercise his break visitation. Petitioner testified that he spring does not exercise the break visitation because he has to work and the prefer spend their spring breaks Occasionally, Wisconsin. petitioner stops by respondent’s home for *6 Jeffrey extra visits and has ridden petitioner’s his bike to house. that, children, Petitioner testified when they typi- he with the cally errands, run such groceiy by as shopping, followed board games cards, trips movies, or camping. the Petitioner cooks them breakfast and big cooks them a Sunday dinner on evening before he takes them Jeffrey home. He testified that play paintball, loves to shoot, hang and out with friends. enjoys puzzles, Jessica coloring, spending him, time with fishing, riding and her bike. Jessica also engages in arts and spending crafts when time with him. He testified participate in numerous him, outdoor with activities including fishing, swimming at the community pool, paintball, and shooting. snows, petitioner When it hills, takes them they go where sledding. Most of these activities take place McHenry area. petitioner most, testified that came to watch but not all, Jeffrey’s games. soccer She testified that his attendance increased after she wanted to move to Wisconsin. She testified that he did not attend open houses at the schools, children’s attended only parent-teacher one past years, conference five and does not ask respondent for report the children’s cards or school schedules. Respondent later acknowledged that she petitioner advised that it was unnecessary parent-teacher for him to attend the conferences because doing the children were report well school and he sees their cards copies. because the children him give Respondent testified that petitioner has attended all of Jessica’s band recitals and choral concerts. She petitioner described and as “buds” and Jessica “daddy’s as girl.”
If her granted, for removal is proposes that petitioner visitation schedule be altered to allow a full week break, spring visitation at every year, other possibly another week of visitation in up the summer. order to make weekday the one lose, that he suggested would she he speak could with then, during three-day if a weekend phone Jessica the week children, he have the extra fell on a weekend he was to have could addition, p.m. Sunday drop- day them. In instead of the usual with time, p.m. trip to the Wisconsin drop off he could them off The long, approximately three hours so McHenry Dells from drop-offs they way pick-ups. drive for the proposed that each half driving positive time have a ef- She believed that the extended would they relationship petitioner with fect on the children’s they com- in the car and would be able to have full attention way. municate for that hour and 30 minutes each driving Petitioner, however, spent testified that the three hours he will alternating constitutes time and from Wisconsin on weekends spent with the driving, attention to traffic and not time paying be might disagrees peaceful, car children. While time the children. He that it constitutes time with enjoy will the six hours the car does not think that the children hours back hours to Wisconsin three other weekend —three is in their best period he does not think that 48-hour —and gone McHenry schools He that the children have interests. testified friends He is they both have there. their entire lives on their cutting back after- concerned that schools pleased the education that the but is otherwise programs school Moreover, would not affect provided. cutbacks schools have children, any that would be are not enrolled activities eliminated. respondent’s McHenry home and testi- familiar with
Petitioner is the children are Highway the home is close to fied while *7 three testified that the home has outside the road. He never Moreover, he office. being one used as an bedrooms but bedroom long as she takes is under control as testified that Jessica’s asthma objects to the removal testified that he medication. Petitioner to see the children as not feel that he will be able he does because visitation, weekday explained, with the elimination often. As he that, year. as days per He feels will see them 52 fewer their own lives and become older, they developing will start get Jessica trip every Illinois other make the back to busy and will not want to a their part harder him to be of Thus, it will become for weekend. testified, happy. my That’s just “I want the kids to Petitioner lives. the children would be I He does not believe that only guess.” purpose testified granted. were Both children happy if the removal to move to Wisconsin. they did not wish in camera that petition 2006, respondent’s denied 29, the trial court On June all relevant fac- applied and balanced noted that it The court removal.
945
to,
in In
Eck
including,
Marriage
tors
but not limited
the factors
re
of
ert,
(1988),
II. STANDARD OF REVIEW 609(a) Section of Marriage the Illinois and Dissolution of Mar (Act) (750 5/609(a) (West riage Act 2004)), ILCS governs which petitions, provides: *** may grant “The any party having custody court leave of any minor child or remove such child or children from Illinois approval whenever such in the such best interests of proving child children. The burden that such removal is in the best party seeking interests such child or children is on the 5/609(a) (West 2004). removal.” ILCS Thus, paramount question in a removal case is whether the move Eckert, is in the children’s best interests. 2d at 325. This basis, case-by-case determination must be made consider given Eckert, ation 2d the circumstances of each case. certain, Nevertheless, 326. there are nonexclusive factors a trial court should consider in in the determining whether removal is children’s best Ill. Marriage interests. re 2d Collingbourne, (2003). (1) likely These include: move is proposed whether general enhance the of life for both custodial *8 (2) children; parent, the the the motives of custodial as to whether the 946 (3) merely visitation;
removal is
ruse
intended
defeat
frustrate
(4)
removal;
resisting
the motives of the noncustodial
the ef
(5)
parent’s
rights;
fect on the noncustodial
and
whether a
realistic and reasonable visitation schedule can be reached
the move
522-23; Eckert,
is
Ill.
permitted. Collingbourne,
III. ANALYSIS first, Respondent challenges findings the trial court’s fourth, factors, that and fifth Eckert as well as its ultimate conclusion First, argues is not in best interests. the children’s it was that the concluding trial erred in that unclear that the court of life for likely to Wisconsin would enhance move contends Jeffrey, Respondent Jessica. respondent, enhance all of lives established the move would evidence finances, recreation, housing, family relationships, respect to programs, stability. school Eaton, Marriage In likens this case to re (1995). Eaton, peti trial denied a mother’s court
App. 3d moving parties’ The for removal. court found tion improved and cultural Illinois recreational to Florida would offer social sitúa- improved financial and for the children and an activities Nevertheless, petition, the court denying tion for the mother. the amount of contact drastically found that the move would reduce *9 uncles, grandparents, and in Il- the children had with their cousins children, the impair linois and father’s with would involvement preserved the by and that the was not mother’s father’s involvement schedule, which the same amount of time proposed provided visitation blocks, long frequent, year-round the children but in rather than not the contacts. The court concluded it was convinced that move the improve would of life for the children. that, appeal, years,
On the court and the reversed noted mother social, financial, scheduling had suffered the and of a pressures single parent. parents She forced to to meet her money was borrow from financial child obligations. By remarrying, rearing she would receive love, help as well home in security, as economic and comfortable desirable The locale. court found that the trial court failed to suf ficiently the consider benefits that children derive from the financial well-being Eaton, and emotional of their custodial 269 Ill. parent. App. Moreover, 3d at 515. in petition the court held the denying because the children’s family contact with their extended and father impaired, Illinois would be did acknowledge the trial court the custodial parent’s duty relationships to foster with the noncusto parent dial family extended does not the require custodial give up Eaton, the right pursue a new App. life. 269 Ill. 3d at 513- 14.
Respondent argues that, Eaton, like mother the she has established that both her living financial and situations would be greatly improved if granted the removal were the trial court failed to consider benefits and Jessica would derive from Further, her enhanced circumstances. she contends that the trial court’s consideration of the separation that occur between effectively the children and their in Illinois penalizes fostering her for actively encouraging between relationships father, friends, Thus, children and their family. she concludes that finding the trial court’s that it was unclear that Jeffrey’s Jessica’s likely lives would against enhanced move manifest weight of the evidence. It disagree. important
We emphasize that the court Eaton considered improved part the mother’s financial but one situation as its balancing Main, of overall analysis. Similarly, the courts in App. 990, Ludwinski, 3d In re Marriage 3d of (2000), 500-01 respondent, also cited by considered the custodial parents’ improved financial and living situations in their overall analyses However, weighing factors in favor of removal. all three cases, these other in favor weighed there were critical factors that example, Eaton, removal. For unable to the mother’s fiancé was Illinois, cultural, educational, op-
move to and recreational portunities clearly superior. Main, Florida were the noncustodial and, rights although father did not he did not exercise Switzerland, live want the children to move refused to let them Ludwinski, parent’s op- in his home. In motives in noncustodial posing questioned. were removal
“[Rlarely separate will the facts and circumstances two comparable. Reviewing cases be courts and trial courts alike should case, particular take care to of each removal as one review facts likely Johnson, case is next.” Ill. 3d distinguishable words, In other in a removal at 616. the best-interests determination specific requires consideration and balanc extremely case case ing factors, weight varying depending of all factor each Here, did that the enhance the case. the trial court note move would situation, undoubtedly benefit respondent’s financial fact that would However, children. the court the children would determined *10 gain and, thus, the they they still lose more than would if moved that is to weighed against first Eckert removal. Our task on review factor is a in record for the trial court’s examine whether there basis the that there is. decision. We conclude
First, that the to Wisconsin the record demonstrates move in meaningful for provide any not enhancement circumstances would in the schools the children terms of schools. The evidence shows that in size. relatively terms of curriculum and class equivalent in changes Although of some curriculum possibility there was and, upcoming referendum vote McHenry, changes the were tied to an activities, Second, such as thus, speculative. recreational were as to crafts, and evidence swimming, and arts the shooting, paintballing, that available in Wisconsin are also available showed most activities right they may slightly more Illinois. The fact that be accessible — away significantly the of a short drive not outside door instead —would Finally, housing, as while children’s lives. materially improve or the attractive, remains the fact appear and location the Wisconsin home rooms, their whether Wisconsin that the children will have own on the longer sleeping no be McHenry. respondent It who will is McHenry testimony couch, although petitioner’s note that that we as an office house one bedroom used is a three-bedroom home has a the Wisconsin home it is true that unrebutted. While crafts, would be available arts and which separate room for Jessica’s aside week, there is also room set throughout we note that to her use the Jeffrey home. can petitioner’s Jessica’s arts and crafts no guitar but there was playing games, room for and video Wisconsin his things he do those testimony suggest that was unable to may musty, not be McHenry Although home. Wisconsin home her if she takes shows that Jessica’s asthma is controlled record Thus, essentially would regard housing, the children medication. gain anything not new. contends, found,
The trial and that court her financial uncontested, do improve situation will with the move. This is and we dispute note, this do that though, paints not conclusion. We full picture though certainty that she will have to work and, thus, time if the the children denied that will suffer. However, respondent testified that she had not discussed with financially if whether would continue assist her she did Further, although Mayer move Wisconsin. that it testified difficult, say he did not that he as- would discontinue financial Indeed, sistance. he testified that he did not intend to break off their relationship goal and that his was to ensure children’s happiness regardless event, of the petition. any outcome as- suming the respondent financially, allowing move would benefit basis, be more relaxed and available to the on a full-time question becomes outweigh whether those benefits things give up children would move. found,
The trial and court the record supports, that the children strong have ties family County. to their Although Jessica and family Wisconsin, father, brother, aunts, have uncles, in McHenry County. cousins all Both parties live testified relationships frequent Jessica have close contact with those family members. The court found explicitly ties, children have thrived because of those the record reflects the children are reluctant to leave these members. Contrary assertion, respondent’s the trial court’s consideration of the move’s relationships effect on the children’s with their father relatives in certainly appropriate. Illinois was While *11 encouragement relationships of these was a waiver of her to right pursue pursue removal, new life certainly the move’s effect on children’s relationships factor, among is one with friends many, to be weighed determining evaluated and their best interests. Johnson, See Ill. 3d at 352 613. We do not think the trial court in giving great erred weight analysis. this factor in its encourage that actively contends she will be to able relationships moving maintenance of these after be that she will bring able to the children back and to find forth Illinois. We respondent’s contradictory. hand, a bit testimony On the one explains that the children will benefit move they will be stable and not forced travel back forth time, and Illinois trip they
between Wisconsin all the that time, understandably make. At sometimes reluctant the same she bring asserts that she will them and forth their Illinois back to see family, relationship that petitioner will not suffer because weekend, returning every will be to Illinois other and that she every continue to them back will drive and forth Wisconsin other Thus, if although even touts stabil- weekend denied. removal, major ity appears for the children as a factor in favor of it only person truly that she is the who will be stable environ- more ment after the move.
Perhaps
importantly,
apparently
most
the trial court
found that
father,
detriment
as well
relationship
the children’s
with their
relatives, outweighed any marginal
as those with their other
benefits
may provide
specifically
the move
in other
The court
noted that
areas.
children,
extremely
relationship
has
close
petitioner
an
both
petitioner
“daddy’s girl.”
are “buds” and Jessica is
In
cases,
extremely
relationship
other
an
close
between the children and
important
weighing
has
an
factor
their noncustodial
been
See,
Smith,
In re
Ill. 2d
against
e.g.,
Marriage
removal.
(1996).
particular,
respect
and with
fourth and fifth Eck
factors,
court here found that
move to Wisconsin
ert
trial
impede petitioner’s
his children and that
would
visitation with
inadequate.
revised
It noted that the
proposed
visitation schedule was
forced to travel six hours
other weekend to
children
their father
that their
visits with their father would
weekday
visit
on
Although
always
impact
have some
be eliminated.
will
visitation,
can
question
is whether a reasonable visitation schedule
Here, proposed the court schedule found supported by the only first blush.” This conclusion is reasonable “at making up weekday the loss of example, record. For three-day weekends offering petitioner time with the children examination, But, appears upon closer initially appears reasonable. fall on they happen only offers those weekends essentially This would do petitioner’s already-scheduled weekends. blush, of- year. Also at first nothing weekdays per to offset the 52 lost reasonable, but, appears alternating spring breaks fering petitioner examination, entitled to already it is that he closer clear upon judgment. The alternating pursuant breaks to the dissolution spring currently stops noted, supports, petitioner and the record court has ridden say occasion hello to by on
951 petitioner’s his bike to house. The that petitioner record reflects exercises most of rights “religiously,” his visitation has attended the games, spends children’s choral concerts and soccer quality time with the they together. type accessibility children when This reduced, eliminated, the children drastically peti- would be if not if the granted. tion were The trial court noted parent regularly when a exercises his “
visitation, ‘a court should by permitting be loath to interfere with it removal of the children unpersuasive inadequate for frivolous or or ” Eckert, 327, reasons.’ 119 Ill. 2d at quoting D’Onofrio, v. D’Onofrio (1976). 200, 206, 144 Super. N.J. 365 A.2d 30 takes is sue with the findings Mayer’s trial court’s refusal to move to Il linois unpersuasive was an and inadequate reason for removal and the apparent finding court’s was responsible for the family’s financial situation in McHenry. While is correct that neither the requires Act nor Eckert Mayer that she or exhaust employment housing opportunities or in Illinois for removal to be (see granted Ludwinski, App. 500-01), 3d at the court should consider all circumstances of the case in considering the best interests of the children. See Collingbourne, 522-23, Eckert, Ill. 2d 204 at Ill. 2d Indeed, at 326. ability removal-petitioner of the or his or her spouse or partner to cases, relocate is often considered in removal even if dispositive it is not Eaton, ultimate issue. In the court recalled that the mother’s fiancé had an established practice law Florida and that it was unfeasible for him Eaton, to move to Illinois. 269 Ill. App. Johnson, 3d at 509. In the court noted that the mother’s husband required was to take a accept transfer to Arizona or a sever ance package and that he had sent companies. resumes to two other Johnson, 352 Ill. App. 3d at Marriage 607. In re Repond, 349 Ill. 910, 912, (2004), 3d mother, we noted the fact that the physicist, had job lost her and could not find a new one the United States but was able to obtain employment addition, Switzerland. In husband, the mother’s professor a former Illinois, at the University of had unsuccessfully tried to extend employment university with the and, thus, resided and taught in Repond, Switzerland. 3d at 912.
Here, Mayer understandably wishes to remain on his
property
Wisconsin, but the court did not err in considering this fact or
considering that there
nothing
prevent
coming
Indeed,
Illinois.
the trial court should hear any and all relevant
Eckert,
evidence.
penalized respondent Rather, recognized that her housing. simply the court improved provide linked to her decision to current undesirable conditions were to her children. other benefits did testified in camera that
Finally, we note that the children preference in a the children’s not wish to move to Wisconsin. While (see, Ill. 2d eg., Collingbourne, 204 is not determinative removal case their wishes 534), gave here due consideration to the trial court *13 analysis. its best interests denial of the sum, that the trial court’s
In we cannot conclude against weight manifest of the evidence. petition for removal was the reasons, the circuit court of foregoing judgment of For the County is affirmed. Affirmed.
BYRNE, J., concurs. BOWMAN,dissenting:
JUSTICE of opinion, In the trial court’s denial my I dissent. respectfully Illinois to the children from Wisconsin respondent’s request to remove Thus, judgment evidence. weight the manifest of the against reversed. should be 609(a) Marriage of Marriage and Dissolution of the Illinois
Section 2004)) 5/609(a) (West (Act) (750 ap allows a trial court Act ILCS minor children from Illinois removal of the parent’s a custodial prove denying respondent’s In interests. it is in the children’s best when and balanced” “applied that it the trial court stated request, removal Marriage re court In supreme set forth our factors various of (1) (1988). the likeli factors include: Eckert, Ill. 2d 316 The Eckert 119 quality of life general enhance the move will proposed that the hood (2) children; whether parent and for both the custodial the noncusto frustrate or defeat designed ruse move is a proposed (3) motives in resist visitation; parent’s the noncustodial parent’s dial (5) (4) rights; and parent’s visitation removal; the noncustodial ing Eckert, be worked out. schedule can a reasonable whether court, unclear that a trial it was According to the Ill. 2d at 326-27. 119 of life for likely enhance move to Wisconsin addition, court found that In the children. respondent and did not favor to visitation pertaining fifth Eckert factors fourth and removal. in the children’s best is of what determination
A trial court’s determination unless that appeal not be reversed interests will 953 against weight appears the manifest of the evidence and it that a Parr, injustice Marriage manifest has occurred. In re (2003). 371, 3d I majority agree 376 While the that the manifest- weight applies, majority standard trial court’s concludes disagree. decision cannot reversed under I A decision this standard. against weight opposite the manifest of the evidence where the unreasonable, clearly findings conclusion is evident or where the arbitrary, and based In upon any Marriage of the evidence. re (2005). Main, 983, 361 Ill. App. my 3d Based on review of the record, against weight the trial court’s decision is the manifest of the evidence opposite clearly because the conclusion is and a evident injustice manifest preventing will result from the children’s removal. Thus, majority, application unlike the I believe of the manifest- weight requires standard reversal this case. See In re Marriage of (2000) Ludwinski, 495, 3d (“Although the trial court has cases, broad discretion in these that discretion is not unlimited and, against evidence, when the decision is weight the manifest of the reversed”). Otherwise, it will be the manifest-w„eightstandard becomes tantamount to no review at all. Marriage In re Collingbourne, (2003), 204 Ill. 2d our
supreme court purpose cautioned that the factors set forth Eckert is not to establish a test in parent seeking which the every prong; rather, must meet the Eckert factors are to be considered *14 by and balanced the trial court and controlling. no one factor is Further, while the Eckert considered, factors should be they are not exclusive and a trial may validly factors, court consider other relevant specific dictated circumstances in the Collingbourne, case. 204 Ill. 2d reasons, at 522-23. For the following disagree I trial court’s assessment of the in addition, Eckert factors this case. In I believe that there are other relevant factors that favor the children’s move to Wisconsin. respect factor,
With to the first Eckert the trial found court visit, while the Wisconsin Dells place is beautiful the children “strong family, have ties with in Il- community McHenry, friends linois.” The following: court further found the negative aspects
“The in living of their current situation exist, large in part, [respon- because of the choicesthat [Respondent] only dent] has made. chooses work 15 hours a [respondent] spend week. While this choice has more allowed school, time with her requires children before and after it her fam- ily to live in a house that she does not like. This choice has also prevented [respondent] making [szc] ends meet without the financial assistance of her fiancé.” conclusion, majority’s I believe that the trial court Contrary to the seeking op improperly penalized respondent for not increased income Ludwinski, App. 312 Ill. 3d at portunities improved housing. See (the may inappropriately penalized the custodial trial court have Illinois). in seeking opportunities for not increased income parent requesting employment seeks Illinois Whether removal Ludwinski, must consider. is not one of the Eckert factors that courts Moreover, parent seeking 312 Ill. 3d at 500-01. the custodial required is to make effort to remain Illinois or to not Ludwinski, in Illinois. employment opportunities exhaust all approximately Respondent explained 3d at 500. that she works important it is to be home with 15 hours a week because she feels that Respondent’s schedule Jessica and when are not school. school, the children her to at home before and after when permits sick, Respondent testified that based on stay home the summer. place Respondent better to live. salary, her she could not afford a children due to spend fewer hours and time with her able work However, Mayer Mayer’s financial assistance. testified "Illinois, sup be difficult to continue to respondent remains will Illinois, Thus, ongoing an basis. unless moves port her on job support family. find a full-time her be forced to will Also, children. full time means less time with her Obviously, working qualified jobs not for most respondent testified that she is Accord training beyond high school education. special does not have level compounded by ingly, finding the stress of full-time work options. schooling, employment limits her which single parent must face a pressures, to financial addition Ill. 2d at 527. As scheduling Collingbourne, 204 myriad pressures. caretaker, not respondent’s responsibility it is primary the children’s her work schedule but to handle conflicts between only pay expenses (the 2d at 526-27 Collingbourne, children’s care. See face include the children’s single parent issues a must day-to-day school, their performance at well-being, and emotional physical activities, their care when the engage desire to extracurricular them). explained previous that her parent cannot be with p.m. from 7:30 a.m. to 5 job her to work required full-time full-time after school. Because pick up the children she could off, taking time flexibility only so much employment allows be able to be home she would not respondent expressed concern that *15 unsupervised the children will be are sick and that when the children during summer. Wisconsin, not need she would moved to
Conversely,
respondent
See
her children.
provide for her and
Mayer would
to work because
(an
in the financial
improvement
Furthermore,
the creation of
family
a new
unit and the social
family setting may
environment of
traditional
be considered an
important
Indeed,
benefit to children. Collingbourne,
In living the children’s conditions would be enhanced moving First, to Wisconsin. stability living Mayer’s there is home without worry nosy According respondent, of rent or a landlord. renting home, she moved several times before her current and her current problematic busy highway home is due to its location near a If permitted, landlord situation. removal were she would not Second, have to find more suitable has housing Illinois. Jessica asthma and property musty testified that the rental home, poor. Mayer the air installed a the Wisconsin furnace, high-efficiency air filter in the he testified which remedied Third, some of problems. constructing Jessica’s a room specifically shelves, tables, devoted to the children that would contain According benches. to Mayer, gal- the entertainment section/art lery provide a place Jeffrey’s for Jessica’s crafts and interests. *16 reasons, disagree majority’s
For these I conclusion with with respect housing, essentially gain anything children to would property provides greater I also note that the access to new. Wisconsin enjoy, pond, shooting in that it activities the contains gallery, and 88 acres of wildlife and nature. respect finding
With to the trial court’s that the children have strong Illinois, family ties with their extended this factor does not outweigh relationships they developed the value of the have family Respondent explained extended in Wisconsin. past, parents in the she was not able to visit her or her brother’s fam- ily very during because she full time Wisconsin often worked However, traveling week and cleaned houses on the weekends. Jeffrey and past years, Wisconsin the few both Jessica have become grandparents family. Respondent close to their and their uncle’s testi- they her Jeffrey “very fied that was now close” to brother together. Also, go paintballing often hunt and both Jeffrey grandpar- and Jessica do not see their petitioner testified that they ents as often as would like.
Moreover, maintain why there is no reason the children cannot family McHenry County they relationships with their extended move to Wisconsin. Petitioner testified that the children see month, family approximately extended twice a which could continue County. during McHenry the children’s alternate weekend visits Respondent recognized importance maintaining also relation- area. She testified ships with her members willing bring nephews her nieces and to Wisconsin or that she was relationships. Accord- bring her children to Illinois to continue those “quite often” ing respondent, one of her sisters travels Wisconsin hunt, provide opportunities can would for Jes- so that her son which history spend time with them. Given sica nothing suggest maintaining relationships, these there to move lost if and her children were allowed would be away. three hours the visitation Eckert factors relevant here involve
The next two and whether a realistic reason- rights of the noncustodial if the move is allowed. With able visitation schedule can be reached factors, following: to these the trial court found respect unwillingness case, Mayer’s Mr. present “In the the court finds unpersuasive and ‘ifI can avoid it’ to be both an to move to Illinois Thus, [respondent’s]proposed while inadequate for removal. reason blush, court will at first appears schedule reasonable visitation schools, leave their friends change and Jessica not make every other for six hours family, sit in a car and much of their father, time with and eliminate their weekend in order to see their week, Mr. chooses during simply their father not to move if he can avoid it.” regard
I of the evidence disagree with the trial court’s assessment cooperated in ing visitation. is the same mother who relationships petitioner the children’s visitation fostered the trial court noted family McHenry County. their extended While week, during the petitioner evening’s lose one upon equivalent not be to that visitation schedule removal need Ludwinski, any prior 3d at 502. Because removal. visitation, question have some effect on the real removal will can whether a visitation schedule that is both reasonable and realistic Eaton, A be created. 3d at 515. reasonable visitation relation preserve schedule is one that will and foster the children’s *17 Eckert, 2d ship parent. with the noncustodial 119 Ill. at 327. It need Parr, perfect. App. Initially, not be 345 Ill. 3d I that the at 379. note judgment provide weekday of dissolution did not with visitation However, time, petitioner. employed when full she had to weekday evening, stayed petitioner. work one and the children with Although respondent time, longer no full she has continued works schedule, that visitation which is evidence of her commitment to the relationship Eaton, children’s with their father. See 269 Ill. 3d at (“Instead assuming visitation could not be reasonably accom permission modated if granted, for removal the presumption were ought favor, i.e., to in [the mother’s] [she] be continue to cooper will ate a reasonable and designed preserve [the realistic schedule children”). relationship father’s] with his
Moreover, respondent’s request
only
to move Wisconsin involves
result,
a three-hour
McHenry County.
drive from
As a
it is
not
type
long-distance
requires
move that
complicated
plans
travel
substantially impair petitioner’s
will
involvement with the
(when
Eckert,
children. See
The petitioner out that currently stops by on occa say children, sion to hello to the that he has attended the children’s games, choral concerts and soccer has ridden his bike petitioner’s house. According to the majority, type this of accessibil ity reduced, to the children would drastically eliminated, be if not if granted. However, stated, were always removal will impact Otherwise, have some on visitation. children could never if parent removed the custodial lives close to the parent noncustodial and the children share a relationship parent. close to the noncustodial Also, I believe that the majority petitioner’s overstates day-to-day contact with the appears children. It that Jeffrey has ridden his bike petitioner’s home on five occasions and longer is no participating in According respondent, soccer. petitioner’s unsched infrequent uled visits were and did not last than more five minutes. (2004) In Marriage Stahl, (Bowman, See re 3d (the J., dissenting) parent’s regarding noncustodial fears visitation are given relatively well founded short distance to Wisconsin the move). event, custodial wants In any question the crucial whether a reasonable visitation schedule can be created. my opinion, such a schedule can be achieved this case without end,
harming the children. To this respondent proposed a schedule in petitioner which she would meet way drop-offs pick- half for thé ups, give him time Sundays. up extra To make for the one lose, weekday petitioner respondent suggested that he could talk to phone during week, Jessica and on the three-day weekend, then weekend fell on his scheduled he could day have the extra proposed giving petitioner them. She also break, full week of at spring year, possibly other *18 another week of visitation in the summer. history, parties their amicable I
Given have no doubt that preserves petitioner’s relationship could create a schedule that respondent petitioner the children. Both testified that visitation in proceeded smoothly past has have worked together being fashioning in flexible and a schedule. There is workable no reason why parties’ mutual love for children would not cooperation Admittedly, ensure such in the future. where a noncusto parent diligent exercising rights, dial has been in the court permit should be reluctant to removal of children for frivolous or Ludwinski, However, Ill. inadequate App. reasons. 3d at 503. discussed, inadequate. reasons are neither frivolous nor Moving provide security, benefits of financial Wisconsin will conditions, stable children, living improved her increased time with setting. housing, and a traditional possess does not parent that a “noncustodial
It is established well exercising a reasonable parent from power stop a a custodial veto Ludwinski, App. remarry desire and move out of the state.” the trial court is denying respondent’s petition, removal By 3d at 504. a new husband respondent choose between essentially requiring remain with her working full time Illinois to Wisconsin (“While Eaton, the trial court’s children. 3d at 516 Cf. did make remarrying, did from prohibit petitioner decision not attractive, a new forcing choice much less choose between Illinois”). In in Florida and her children in its written husband why [respon opinion, the trial court stated that “there is no reason Illinois, together except Mayer dent] and Mr. cannot make a life Illinois, Mayer Ironically, Mayer that Mr. chooses not to.” moved to up living away, the children could end more than three hours part testified that he would want to live the southern (section Main, state. Ill. Act See 3d at 990 609 of the does apply not obtain intrastate transfers and custodial need permission moving from a court before to another within Il location linois). hardly granting This would be a better outcome than respondent’s request to remove the children to Wisconsin. light Eckert factors the other relevant factors this
case, Af- respondent’s request granted. for removal should have been firming respondent trial court’s decision this case forces away choose marrying between man who lives three hours remaining Illinois, despite with her children evidence that move general quality to Wisconsin enhance the of life both visitation, respect and her children. the bottom With schedule, change given line is reasonable in the visitation the short interpreting distance of the move. Instead of the best interests impedes exercising children in a a reason- way state, remarry able desire to out of the I believe that the move by granting respon- children’s best interests would be better served against manifest petition. finding dent’s Because the trial court’s evidence, weight of I trial denial of the would reverse the court’s purpose setting and remand for the limited a visita- tion schedule.