Opinion
No. 2-18-0481
10-22-2018
In re MARRIAGE OF RUBY REYES, Petitioner-Appellee, and ARCHIEBAL REYES, Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Lake County. No. 09-D-0194 Honorable Joseph V. Salvi, Judge, Presiding. JUSTICE JORGENSEN delivered the judgment of the court.
Presiding Justice Hudson and Justice Burke concurred in the judgment.
ORDER
¶ 1 Held: The trial court's decision granting the mother's petition to relocate to Texas with the parties' son was not contrary to the manifest weight of the evidence. Affirmed. ¶ 2 Petitioner, Ruby Reyes, and respondent, Archiebal (Archie) Reyes, divorced in 2010. In 2017, Ruby petitioned the court to relocate to Texas with the parties' son, B.R., age 9, due to her current husband's new job there. On June 14, 2018, after a hearing, the trial court granted the petition. Archie appeals. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. General Background
¶ 5 At the time of the hearing, Archie was 36 years old and Ruby was 39 years old. In 2007, the parties married. In February 2009, Ruby petitioned for dissolution of the marriage. At that time, both parties lived in Chicago, and Ruby was pregnant. The parties' son, B.R., was born on March 30, 2009. Archie attended his birth and baptism. During dissolution proceedings, the parties arranged a flexible parenting schedule, with Ruby acting as primary residential parent and Archie's parenting time being decided based on work schedules and convenience for both parties. For the first two months of B.R.'s life, Archie stayed at Ruby's apartment, but otherwise he lived with his parents in Gurnee. ¶ 6 The dissolution judgment was entered on March 12, 2010, incorporating a marital settlement agreement, wherein Ruby was granted sole custody, while Archie was granted "reasonable visitation *** as the parties agree. If the parties cannot agree then [Archie] shall have visitation with the minor child every Sunday from 9:00 a.m to 7:00 p.m. and Monday from 9:00 a.m. to 7:00 p.m. with no overnights until the minor child is at least one year of age." ¶ 7 Approximately six months later, in September 2010, Ruby and B.R. moved from Chicago to Minooka, approximately 50 miles away. Archie's parenting time continued to be decided by agreement, with one weekday overnight and one weekend overnight occurring regularly. The parties worked together to facilitate transportation, and Ruby agreed for Archie to pay slightly less in child support to account for additional gas expenses. ¶ 8 On June 20, 2011, Ruby married Linu Thomas. Linu had a daughter, A.T. On September 18, 2011, Ruby and Linu had a child, E.T. The parties continued to cooperatively co-parent B.R. and, if issues arose, Archie, Ruby, and Linu would gather at the Minooka home to arrange a solution. ¶ 9 From around 2012 to 2016, Archie had parenting time with B.R. on Wednesdays after work overnight until Thursday morning, and, on weekends, from Saturday at 9 a.m. until Sunday at 9 a.m. ¶ 10 On February 25, 2017, Archie married. He and his wife, Karen, live in Chicago, at an address that is now 60 miles away from B.R.'s Minooka home. Karen is a teacher in the Chicago Public Schools and is required to live in Chicago for her employment. Archie and Karen have a son, I.R., who was seven months old at the time of the hearing. They live upstairs in a two-unit building, with Karen's parents residing in the lower-level unit. Karen's mother watches I.R. while Karen and Archie work. ¶ 11 On April 7, 2016, Archie moved to allocate parenting time, seeking more time with B.R. On October 11, 2016, the court entered an agreed, final allocation judgment, wherein Archie was awarded parenting time on alternating weekends from 7 p.m. on Friday through 7 p.m. on Sunday, parenting time on alternating holidays, two weeks of B.R.'s vacation time, and increased decisionmaking authority. ¶ 12 In March 2017, Archie filed a petition alleging that Ruby was not allowing him to participate in joint decisionmaking and did not give him proper notice of temporarily removing B.R. from the state. The matter was resolved after a pretrial conference with a judge. ¶ 13 On June 30, 2017, Ruby filed a notice of intent to relocate with B.R. to San Antonio, Texas. Archie objected. Moreover, on January 29, 2018, Archie moved the court to appoint a guardian ad litem. The motion was noticed to be presented to the court on February 2, 2018. On February 2, 2018, the court denied the motion. The order reflects that the motion came before the court and that the court, "being advised in the premises," denied it, but no hearing transcript or other report of proceedings from that date is included in the appellate record. ¶ 14 On May 23, 2018, the court commenced the hearing on Ruby's petition to relocate. Evidence presented at the hearing included the following.
¶ 15 B. Hearing Evidence
¶ 16 1. Ruby
¶ 17 Ruby testified that she has been B.R.'s primary caretaker since birth. Ruby and Linu live in a three-bedroom home in Minooka; B.R. shares a room with E.T., and A.T. and Ruby's parents also live with them. If relocation to San Antonio were allowed, Ruby's parents would move with them and her sister would strongly consider moving, too. Linu's parents live in Minooka and have a very good relationship with B.R., who considers them his grandparents; they are researching early retirement and are considering moving to San Antonio. Ruby has a cousin, aunt, and uncle in McAllen, Texas. However, she has not communicated with them since before 2009. ¶ 18 At the time of the hearing, B.R. was a third grader at Aux Sable elementary school in Minooka. Ruby is heavily involved in B.R.'s school, volunteering there around three or four times monthly, and she does all of the drop-offs and pick-ups. In addition, Ruby arranges B.R.'s extracurricular activities, which, as there is no park district in Minooka, requires Ruby to research activities in other areas and, sometimes, travelling to those activities can be time consuming. B.R. has participated in swimming, soccer, chess club, baseball, and hockey. B.R. has several friends, and he is very active in a church group; he "loves" his church. ¶ 19 Linu has been a daily presence in B.R.'s life since he was one year old. They share a close bond. When he started to speak, B.R. called Linu "Daddy," in part because he heard A.T. calling her father, "Daddy." For a period, B.R. called Archie "Papa" or "Other Daddy." Linu spends time with B.R. doing activities B.R. enjoys, such as drawing and video games, and Linu has coached B.R.'s soccer team for multiple seasons. Ruby and Linu worked the snack stand for B.R.'s baseball league. Linu volunteered for B.R.'s baseball team and attended games, and Linu obtained approval from his prior employer, Blue Cross Blue Shield (BCBS) to leave early to participate in the kids' activities, as long as he made up the missed time on other days. ¶ 20 Ruby is self-employed with Acute Chic, LLC, selling clothing and jewelry approximately eight hours per week. The business can be done remotely, through a website, and she earns approximately $10,000 annually. As such, Linu is the family's primary breadwinner. In May 2017, for reasons described more fully below, Linu obtained a new job with USAA that has resulted in his spending significant time in Texas. Ruby testified that Linu now spends most of his time in Texas and it has "very much" impacted their day-to-day life. His constant daily presence in B.R.'s life has been reduced, and this has impacted B.R. For example, B.R. used to do semi-private swim lessons in Naperville with his brother, but, since Linu took the job at USAA, it has been too difficult for Ruby to get him to his lessons and she dropped that activity. In addition, Linu had been B.R.'s soccer coach for multiple seasons. B.R. should have started travel soccer, but it was impossible for Ruby to manage B.R.'s soccer schedule for practices and games without Linu's help. According to Ruby, Archie did not offer to help with transportation for soccer. The time Linu has spent in Texas has resulted in Ruby taking care of the three children as, essentially, a single parent. "I have three kids and for the most part [it] feels like I'm single-parenting them. [A.T.'s] biological father is not there. [E.T.'s] biological father is not there and a step-dad that [B.R.] has known in his life since he was one and had been there every day isn't there." Ruby testified that B.R. misses Linu "terribly." ¶ 21 When asked about the impact that moving to Texas would have on B.R., as well as how B.R. would benefit from the move, Ruby testified:
"[Linu] would be home a lot more and I know he's very close to him. We would superficially—we'd have a bigger home. We'd have more of everything. We'd have more resources, more activities that he could—more options, and then he would still have all of us under one roof[,] including my parents[,] and I think he could really benefit from that.
***
¶ 22 Ruby testified that, after considering Linu's new income and investigating mortgages, they could afford a four- or five-bedroom home in the Rogers Ranch or Stone Oak neighborhoods in San Antonio. Both neighborhoods are approximately 20 minutes away from the airport and from Linu's work. Ruby conducted an internet search on schools and spoke with Linu's co-workers about them. Based upon her internet research, which included a "grading" of schools and comparison between the potential Texas and current Minooka elementary schools, Ruby believes the schools are better in San Antonio than in Minooka. She was unable to visit the schools, however, as it was summer. Ruby attached to her notice of intent to relocate copies of her internet research, but those exhibits were not introduced or admitted into evidence. Ruby testified that, unlike in Minooka, there are also many nearby options for extracurricular activities. ¶ 23 According to Ruby, B.R. is "incredibly well-adjusted," gets straight A's, and excels in math and reading. Ruby has no concerns with B.R.'s ability to make new friends, as he does so easily, and she has no concerns about his ability to integrate into a new church. ¶ 24 Ruby agreed that B.R. has a "good" relationship with Archie and that "I know he's happy when he's with him. I know he's taken care of when he's with him." Ruby testified that it's a good balance for B.R. to have her, Linu, Archie, and Karen in his life. "The last thing I want is for [B.R.] to feel he was without either parent." However, Ruby did not believe the relocation would "at all" have a negative impact on B.R.'s and Archie's relationship, as they already talk on the phone regularly, and she suggested that it might actually benefit their relationship, because she was offering a parenting schedule that would result in more "unbroken" time together. She explained that Archie's time with B.R. would be longer and uninterrupted, as opposed to shuttling B.R. back and forth to Minooka. Specifically, Ruby proposed the following parenting schedule for Archie and B.R., if allowed to relocate: (1) every spring break; (2) the first 30 days after school ends; (3) October three-day weekend (Columbus Day); (5) every Thanksgiving; (6) February three-day weekend (President's Day); (7) at least two or three visits in San Antonio for up to five days; and (8) the last two or three weeks in the summer, before school starts. Christmas break would remain the same (alternating). Ruby believed that the aforementioned schedule would allow Archie to also enroll B.R. in activities close to home, and would allow B.R. uninterrupted time with Archie, Karen, and I.R. Ruby also offered to pay the first $3000 for transportation and split the costs above $3000; moreover, she offered to include the cost of Archie's visits to San Antonio in the $3000 or to split it. ¶ 25 Ruby agreed that Archie utilizes his parenting time. She further agreed that the 2016 allocation judgment was developed because Archie wanted to spend more time with B.R. Ruby conceded that on six occasions since 2016, Archie sought additional days or time with B.R., beyond the allocation judgment, and she denied those requests. She explained that she "has been strongly advised by the Court and [her] attorneys to follow that agreement." Ruby testified that B.R. often uses Facetime with Archie, but she admitted that B.R. does not really enjoy communicating on the telephone or using Facetime, and he does not Skype. Ruby took the children to San Antonio over Labor Day weekend in 2017; B.R. missed a couple of days of school, but Ruby was not sure if Archie was informed that B.R. would miss school. ¶ 26 Ruby testified that her relationship with Archie was currently "strained," and that co-parenting with him had been easier when B.R. was younger. She noted that they had been in litigation for almost three years, and she hoped that, when litigation ended, the tension would ease. Ruby testified that, prior to entering litigation, co-parenting with Archie was easy and that they would communicate and try their best together to work out solutions to issues.
Because the education I think is better, the amount of resources that we have is better. The time he would get with Linu is far greater than he did when he worked downtown and the salary that he has now affords us so many more options."
¶ 27 2. Linu
¶ 28 Linu worked for BCBS for approximately nine years and, in his last role, was a tax planning manager. His base salary was $116,800, plus benefits including bonuses and employer contributions to his 401(k) retirement plan and pension plan. Linu traveled from Minooka to Chicago for work each day, often leaving his home at 4:30 a.m., and sometimes leaving work at 9 p.m. Nevertheless, as described above, Linu participated in B.R.'s activities and helped to push him outside of his comfort zone to try new things, like hockey. Linu testified there was very little room for advancement at BCBS, unless his boss, who was young, retired. In 2014, BCBS experienced a series of layoffs, and Linu had to personally lay off two people. In 2014, he sent out 20 to 30 resumes and applied for internal positions at BCBS, and, in 2015, he sent out approximately 10 to 20 resumes. He received no interviews. ¶ 29 In 2016 and 2017, Linu met with recruiters and expanded the scope of his search. Linu estimated that he sent out 100 resumes and worked with five or six recruiters. In 2017, he received four interviews and, ultimately, two job offers. The first offer was with Northern Trust. Although in Illinois and offering a $123,000 base salary with an incentive plan, Linu turned down the offer because there appeared to be no upward mobility, it would require significant work hours during busy seasons, and there was reduced vacation time and higher costs for health benefits. ¶ 30 The second offer was for the position of director of tax compliance with USAA insurance company. USAA's corporate office is in San Antonio. At his interview, Linu was told he could work remotely from Illinois around 50% of the time. Although he would need to meet with executives in San Antonio, his impression was that his time working remotely from Illinois might ultimately increase. The offer included a base pay of $125,000, a pro-rated bonus of $28,000, a holiday bonus of $4,800, a sign-on bonus of $10,000, an 8-percent match for his 401(k) retirement plan, health insurance, and five weeks of paid time off. (The trial court later found that Linu's initial total compensation, with benefits, with USAA was approximately $190,346). Further, there appear to be opportunities at USAA for upward mobility. ¶ 31 Linu accepted the offer and began working on May 1, 2018. Initially, he met with executives in Texas once a week or once every two weeks. However, he discovered various tax issues that required his frequent presence in Texas for meetings. He rents an apartment in San Antonio for $1000 monthly. In 2017, Linu averaged a return to Minooka every other week, leaving San Antonio on a Thursday and returning on Sunday evening. In April 2018, however, he returned to Minooka three or four times. Since his employment commenced, Linu has received a promotion, an increase in his base salary to $130,000, various bonuses, and $30,000 in retirement benefits. His work day is approximately 7 a.m. to 4:30 p.m. ¶ 32 Linu agreed that he was not terminated from BCBS, nor was he told he was going to be terminated from his position there. Further, he agreed that USAA did not tell him, when hired, that he had to move to San Antonio, nor did it order him to move when he was promoted. He continues to receive calls from recruiters, but stated that he was not actively looking for work and that the recruiters get paid to fill positions and "[t]here's not a lot of insurance tax specialists out there with my profile." ¶ 33 Linu testified that he has a "really good" relationship with B.R. and that they spend a lot of time together. B.R. calls Linu "Daddy," and has done so since he could speak. In addition, Linu testified that he used to have a very good relationship with Archie and they would meet to work out and discuss issues but, then, and "I don't know what the catalyst was," at some point Archie no longer wanted to talk or meet and everything was through email or a legal proceeding. Nevertheless, Linu testified that, if relocation were allowed, he would work to minimize any impact on B.R.'s relationship with Archie by maintaining a continuing dialogue, continuing communications between them through Facetime, having Archie come to San Antonio, and helping to pay for some of the travel costs. ¶ 34 Linu agreed that, in 2018, when he made a last-minute request to Archie for parenting time with B.R. for Ruby's birthday, Archie did not give him any problems and Linu was able to pick up B.R. and take him to the celebration. He further agreed that, in 2015, he wrote the following email to Archie concerning the distance between their two homes:
"Your decision to live in Chicago is your decision, but [B.R.'s] home is in Minooka. The school and activities are in Minooka, the friends he's going to grow up with are going to come from Minooka. That's not going to change since we have no plans on moving. Being 60 miles away from him is not going to make scheduling easy for anybody. If you want to spend more time with him, you need to find a way to be closer or more involved in his activities."In that same email, Linu apparently asked Archie or offered him the option of participating in coaching B.R.'s soccer team, but Archie did not assist with coaching. The email exchange included, from Ruby, the comments that:
"His home is in Minooka. I moved here when [B.R.] was a little over a year old. In the span of his life[,] Chicago was a short stay and not what I could consider much of his life. His education has primarily been here and[,] as Linu said[,] will primarily be here so for future planning purposes understand that that isn't going to change. I am his custodial parent."
¶ 35 3. Archie
¶ 36 Archie is a process manager at Performics in Chicago earning approximately $86,000 per year. He has worked there for around three years and manages a team of five people. Archie does not travel for work, works from 9 a.m. to 5 p.m., cannot work remotely, and does not work weekends. ¶ 37 In 2014 and 2015, Archie moved to Naperville to be closer to Minooka. However, the actual driving time between Chicago and Minooka versus Naperville and Minooka wound up being about the same because of highway access. Archie returned to Chicago. ¶ 38 Archie speaks to B.R. on Facetime almost every day. At different times, he has enrolled B.R. in various activities, such as swimming, a summer creative arts camp, and a cooking class. In addition, Archie volunteers at B.R.'s school, attended B.R.'s soccer games, as well as some baseball games. He could not attend all soccer practices, because some occurred during work hours. Archie believes he attended hockey practices. During his time with B.R., Archie enjoys teaching him how to draw, play chess, and make movies. Archie tries to be very involved with B.R.'s school and, in addition to attending field trips and parties, he has taken time each year to meet B.R.'s teacher, introduce himself and let the teacher know that he lives in Chicago, but can be reached by phone and email, and Archie tries to find out about B.R.'s schoolwork and if there are things he can do at home to supplement it. Over the summer, he and Karen work to ensure that B.R. is prepared for the next school year. ¶ 39 Archie testified that B.R. called Linu "Daddy." He called Archie "Other Daddy." Around one year ago, Archie and Karen successfully taught B.R. not to call him "Other Daddy," and B.R. has started calling Archie "Daddy." ¶ 40 Archie's parents live in Gurnee, as does his brother and his brother's three children. B.R. sees his grandparents every other weekend, and his uncle and cousins approximately once per month. His grandparents take him for ice cream, and his grandfather plays chess with him and takes him to Chinatown for barbecue buns. Archie has 50 to 60 relatives in Illinois, and they get together every Christmas and summer, while smaller groups of relatives get together approximately every other month. ¶ 41 Archie testified that relocation would greatly affect his bond with B.R. "[A] lot of my time and a lot of my schedule is based around how can I optimize and spend as much time as possible with [B.R][,] be it his activities or even the time that he's here with me in Chicago[.]" Further, Archie is concerned that, if he goes to San Antonio, "those are types of bonding moments and relationships that are definitely going to change as he gets older." B.R. (again, nine years old at the time of the hearing) is "coming up to an age where he's going to want to be with his friends. He's not going to be so engaged to come spend weekends or weeks in Chicago when he wants to see his friends or be on his sports, go to his sports games." Archie described B.R. as "incredibly intelligent," "incredibly creative," and "very inquisitive," noting that B.R. receives excellent grades and his teachers speak highly of him. ¶ 42 Archie has no friends with whom he could stay in San Antonio. His quick search showed airline tickets from Chicago to San Antonio to cost around $450 roundtrip, and hotel rooms around $150 per night.
¶ 43 4. Karen
¶ 44 Karen Reyes testified that she first met B.R. in July 2014. She sees B.R. every other weekend, and much of her weekday contact with him is over the telephone or Facetime. Karen testified that B.R. loves being a big brother to I.R. He loves seeing I.R. on Facetime, and when he is with I.R., he helps to take care of him by playing with him, helping to change diapers, and giving him bottles. B.R. "adores" I.R. ¶ 45 Karen described B.R. as a very intelligent, empathetic, and sensitive child who loves knock-knock jokes, puzzles, and games. When with them, B.R. is very pleasant, very playful, and always in a great mood. Karen explained that she is a full-time special education teacher at a Chicago public school, and she confirmed that her employment requires her to live within the City of Chicago. Karen feels that she and B.R. connect over her experience as a teacher, because she understands what goes on in school and his work. Karen sometimes brings home projects that are going on in her school to complete with B.R.; for example, she, Archie, and B.R. spent three weeks making a pinewood derby race car and entered it in a race at her school. Archie and Karen see B.R. on alternating weekends and for school events, if their schedules allow. They attended three events in the 2017-2018 school year: meet-the-teacher night, parent-teacher conferences, and B.R.'s musical performance. They take B.R. to swim lessons and church with them, and they also work on his homework with him. ¶ 46 Karen and Archie were planning to vacation with their family, including B.R., in Key West, Florida, in June 2018. In July 2018, Archie's extended family was to gather at the Wisconsin Dells. Archie's family has a large Christmas party every year, and they celebrate Chinese New Year. Karen explained that she would not be able to relocate to Texas because her parents cannot move, and her mother provides childcare for I.R. ¶ 47 Karen testified that Archie prides himself on being a devoted father, and Archie constantly seeks out activities or events that are happening around Chicago so that, when B.R. is with them, he might be exposed to things that he might not have an opportunity to see in Minooka. "They're very, very close."
¶ 48 C. Trial Court's Ruling
¶ 49 On June 15, 2018, in a written ruling, the court granted Ruby's petition to relocate with B.R. to San Antonio. The ruling reflects that the court reviewed all of the evidence and testimony from the hearing, as well as counsels' arguments and case law. In introducing its factual findings, the court specified that it found Ruby credible. Further, the court explicitly found Linu credible, and it noted that Linu and B.R. have "an extremely close relationship." The court did not specify any credibility findings with respect to Archie or Karen. ¶ 50 The court found that B.R. is "by all accounts, a happy, intelligent and well[-]adjusted little boy. [B.R.] does well in school, participates in extracurricular activities and makes friends easily. *** [B.R.] has no special needs, does not have any learning disabilities, therapists or counselors. He has a strong relationship with all his close relatives." ¶ 51 The trial court also made the following findings with respect to the 11 factors set forth in section 609.2(g) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609.2(g) (West 2016)):
| 750 ILCS 5/609.2(g)Factors | Trial Court's Findings |
|---|---|
| 1. Circumstances and reasonfor relocation | Ruby's reasons and circumstances are "honest and sincere," andshe was "extremely honest and credible." Linu's acceptance of |
| the USAA position was an honest attempt to improve hisprofessional employment and help his family, including B.R."The relocation to San Antonio will maintain the family unitand its stability." Ruby's reasons for relocating are not toalienate Archie from B.R. | |
| 2. Reasons for objecting torelocation | Archie's reasons for objecting are clear and honest, and helegitimately fears that he will miss the opportunity to haveconsistent physical contact with B.R. |
| 3. History and quality ofeach parent's relationshipwith child and whether aparent has substantially failedor refused to exerciseparental responsibilitiesallocated under the parentingjudgment | Neither parent has substantially failed or refused to exercise hisor her allocated parental responsibilities.Archie and B.R. enjoy a loving relationship, and Archie hastaken on a more active parental role since B.R.'s birth. Archieis involved in extracurricular events, but, because of thedistance between their homes, it is hard for Archie to makeweekday events.Ruby's relationship with B.R. is "extremely strong" and "veryloving and close." Ruby has been B.R.'s primary caretaker anddecisionmaker since birth and has facilitated most of hiseducational, medical, and extracurricular needs. |
| 4. Educational opportunitiesat each location | The court first found, based only on Ruby's testimony, that theeducational opportunities in San Antonio are better than thosein Minooka. However, it also stated the following: "The [c]ourtacknowledges that this evidence is based on internet researchand therefore not sufficient to form a conclusion as to thisfactor." |
| 5. Presence or absence ofextended family at eachlocation | B.R. is currently 60 miles from his half-brother and 90 milesfrom his paternal extended family. If he relocates, B.R.'smaternal grandparents would follow, and B.R. would remainwith his step-sister and half-sister. |
| 6. Anticipated impact of therelocation on the child | The immediate and long-term impact to B.R. would beminimal, "understanding that any relocation would have animpact on a child, even [B.R.]." However, B.R. is well-adjusted and intelligent, and he would adapt to a new school,new friends, and new extracurricular activities. |
| 7. Whether court will be ableto fashion a reasonableallocation of parentalresponsibilities between all ifrelocation occurs | A reasonable allocation is possible. B.R. is familiar with andalready uses Facetime with Archie and Karen during the week.The parties can use technology to inform, plan, andcommunicate all major decisions. The parties work welltogether concerning B.R. Further, Ruby has offered a generousparenting arrangement, including paying for "a majority of thecost of travel." |
| 8. Wishes of the child | N/A |
| 9. Possible arrangements forexercise of parental | Bases on "the parties' and their respective spouses'commitment" to B.R.'s best interests, arrangements can be |
| responsibilities appropriate tothe parents' resources andcircumstances anddevelopmental level of thechild | reasonably made that are appropriate to the circumstances andB.R.'s developmental level. The parties have the financialresources to facilitate parenting time between Archie and B.R. |
| 10. Minimization of theimpairment to the parent-child relationship caused byrelocation | Ruby would make a good-faith effort to minimize anyimpairment to the relationship between Archie and B.R. Theparties communicate well concerning B.R. Linu and Karen alsoappear willing to cooperate and facilitate an effort to minimizethe impairment. |
| 11. Any other relevantfactors bearing on the child'sbest interests | Archie and B.R. are currently 60 miles apart in a majormetropolitan area, "which currently causes Archie to miss outon the day-to-day physical contact any parent would love toenjoy with their child. Archie is unable to attend weekdayevents unless special arrangements are made. The [c]ourt alsonotes that contact between Archie and [B.R.] betweenalternating weekends is often through Facetime." |
In her opposition to the motion, Ruby asserted that, in July 2018, they were closing on their Minooka home and were scheduled to move to Texas. --------
¶ 54 II. ANALYSIS
¶ 55 A. Appointment of a Guardian Ad Litem
¶ 56 We start by considering Archie's argument that the trial court abused its discretion when it denied his motion to appoint a guardian ad litem. See, e.g., In re Marriage of Ricketts, 329 Ill. App. 3d 173, 182 (2002) ("[t]he appointment of a guardian ad litem is subject to the sound discretion of the trial court"). However, we observe that Archie has not provided us with a complete record, which prevents us from reviewing the trial court's ruling on the motion to appoint a guardian. The record reflects that the motion was set for hearing on February 2, 2018, and the order from that date reflects that it was fully briefed and the court, "being advised of the premises," denied the motion. However, no transcript, bystander's report, or agreed statement of facts pertaining to the hearing has been included in the record on appeal. Thus, we have no means of fully knowing what was presented to the court on February 2, 2018, and we are unable to judge the court's ruling. The appellant bears "the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis." Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). This presumption "is especially strong when, as here, there is an indication that the court below was 'fully advised in the premises.' " Smolinski v. Vojta, 363 Ill. App. 3d 752, 758 (2006). Thus, in the absence of a sufficient record, we must presume that the court properly denied the motion to appoint a guardian ad litem.
¶ 57 B. Relocation Petition
¶ 58 1. Archie's Arguments
¶ 59 Next, we address Archie's argument that the trial court's decision to grant relocation was contrary to the manifest weight of the evidence. In sum, Archie asserts that the court failed to consider the totality of circumstances: namely, that Linu's position did not require relocation, while relocation would drastically impact the quality of Archie's time with B.R. Archie asserts that the court's findings were unsupported by the evidence and that denying relocation would offer the least disruption to B.R.'s life. ¶ 60 Further, Archie addresses and criticizes the court's findings with respect to most of the section 609.2 factors. As to the first factor, reasons for the relocation, Archie asserts that Linu's opportunities to advance his career should not come at the cost of Archie spending time with this son. Archie argues that Linu's job with BCBS had not been in jeopardy and, further, that USAA has not required Linu to relocate. Indeed, Archie asserts, Linu returned to Minooka three or four times in April 2018 and, on average, every other week during the year. Archie asserts that, contrary to the court's finding, there was no evidence that Linu's travel schedule had destabilized the family or that "maintaining Ruby's family unit should take priority over maintaining Archie's family unit." ¶ 61 Archie also contends, with respect to the third factor, the history and quality of each parent's relationship with B.R., that, although the court correctly found that he did not fail or refuse to exercise the responsibilities allocated to him, it failed to consider the evidence that his attempts to increase his involvement were thwarted by Ruby, when she denied his requests for additional time with B.R. Archie further asserts that Ruby has taken B.R. out of state and had him miss school without notice to him and that those unilateral decisions marginalize Archie's role in B.R.'s life. ¶ 62 As to the fourth factor, educational opportunities, Archie concedes that the court found insufficient evidence to form a conclusion as to that factor. However, Archie asserts, that factor should have fallen in Archie's favor, as it was Ruby's burden to prove that removal would be in B.R.'s best interests. ¶ 63 Archie next takes issue with the court's finding on the fifth factor, the presence or absence of extended family at the existing and proposed locations. Archie asserts that the court's reasoning was flawed, as the evidence showed the maternal extended family would remain essentially consistent, whether in Minooka or San Antonio. In contrast, however, the court has "robbed B.R. of his relationship with his father's extended family." Archie reiterates that B.R. visits with his paternal uncle, cousins, and/or grandparents, at least every other weekend, and that B.R.'s half-brother lives in Chicago. "This factor overwhelmingly favors denial of relocation, as Ruby as no real contacts in Texas at this time, except Linu[,] who commutes there four days a week." ¶ 64 As to the sixth factor, anticipated impact of the relocation on B.R., Archie asserts that the court failed to consider that B.R. is entrenched in Minooka, as evidenced by emails Linu and Ruby wrote to Archie in 2015. Archie points out that, when asked how B.R. would be impacted by relocation, Ruby responded that Linu would be home more, that they are close, and that they would "have more of everything," including resources, options, and activities. According to Archie, this reflects "an alarming lack of specificity" and, without input from a guardian ad litem, a psychologist, a teacher, or B.R. himself, the court assumed an easy adjustment without any proof. Therefore, Archie argues, the court's findings on this factor were simply speculative. ¶ 65 For factor seven, whether a reasonable allocation of parental responsibilities could be fashioned, Archie argues, again, that the court overlooked: (1) documentary evidence reflecting that Ruby was inflexible in giving him additional parenting time; (2) evidence reflecting that, although he and B.R. use Facetime, B.R. does not enjoy using the telephone or Facetime and does not Skype; and (3) that his time with B.R. and the activities that they do together over time will now be crunched into the summer months. Archie asserts that he will not retain any meaningful decisionmaking responsibilities regarding medical and extracurricular activities during the year, and Ruby will similarly not likely be involved in B.R.'s summer extracurricular activities. ¶ 66 Similarly, Archie takes issue with the court's findings on the ninth factor, arrangements for the exercise of parental responsibilities appropriate to the parents' resources and circumstances and the child's developmental level. Archie asserts that the trial court did not adequately consider the financial ramifications it placed on Archie. Specifically, he asserts that the court did not duly consider that his job does not easily accommodate travel to San Antonio, and that, since B.R. is too young to travel alone, the $5000 allocated budget will quickly be depleted if Ruby must travel with B.R. Archie points out the difference between his and Linu's incomes, and concludes, "Not only has Linu's new employment become the genesis of this costly litigation, now Archie must shoulder the financial burden of seeing his son after Ruby pays [$5000]." ¶ 67 Archie next argues that the court's findings with respect to the tenth factor, minimization of impairment to the parent-child relationship, again, disregard Ruby's marginalization of Archie's role as father. In addition to allowing B.R. to call Linu "Daddy," and Archie, "Other Daddy," Archie again notes that Ruby disallowed his attempts to spend more time with B.R. and he further asserts that the court clearly disregarded documentary evidence indicating that the parties have had issues seeing eye-to-eye about parenting time. ¶ 68 Finally, as to the eleventh, "catchall" factor, Archie disagrees with the court's findings that electronic communication could replace regular contact and participation in B.R.'s life. He concludes that an overwhelming number of factors disfavor relocation and only one factor supports it—Ruby's desire to have her family under one roof. Archie contends that the court improperly placed consideration of Ruby's and Linu's interests above B.R.'s and that the manifest weight of the evidence indicates that Linu could maintain his employment with USAA and commute to San Antonio with no disruption to his household, and "Linu's new position does not require an upheaval of the entire household and disruption in Archie's parenting time when, in fact, it should only impact Linu, not B.R. and Archie's relationship."
¶ 69 2. Review of Trial Court's Decision to Grant Relocation
¶ 70 In 2016, the General Assembly enacted section 609.2 of the Act, codifying the factors a court must consider when ruling on a petition for relocation. 750 ILCS 5/609.2 (West 2016). By and large, our supreme court had previously developed these factors through case law, holding that, in making a best-interests determination, the factors must be considered and balanced by the trial court, with no one factor controlling. See In re Marriage of Collingbourne, 204 Ill. 2d 498, 523 (2003); In re Marriage of Eckert, 119 Ill. 2d 316, 326-28 (1988). In deciding whether relocation is in the child's best interests, the trial court must consider the following 11 factors:
"(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) the history and quality of each parent's relationship with the child and specifically whether a parent has substantially failed or refused to exercise the parental responsibilities allocated to him or her under the parenting plan or allocation judgment;
(4) the educational opportunities for the child at the existing location and at the proposed new location;
(5) the presence or absence of extended family at the existing location and at the proposed new location;
(6) the anticipated impact of the relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to relocation;¶ 71 The party seeking judicial approval of the proposed relocation must establish by a preponderance of the evidence that the relocation is in the child's best interests. See Eckert, 119 Ill. 2d at 325. A determination of the child's best interests cannot be reduced to a simple bright-line test, but, rather, must be made on a case-by-case basis, depending to a great extent upon the circumstances of each case. Id. at 326. A trial court's determination of what is in the child's best interests should not be reversed unless it is contrary to the manifest weight of the evidence. Id. at 328. A court's decision is contrary to the manifest weight of the evidence only where the opposite conclusion is clearly apparent or where its findings are unreasonable, arbitrary, or not based on the evidence presented. Best v. Best, 223 Ill. 2d 342, 350 (2006). ¶ 72 Although Archie raises several compelling points, our standard of review does not contemplate factor-by-factor dissection of the court's findings. Rather, as noted above, we consider only whether the court's balancing of all factors, with no one factor controlling, reflects that the opposite conclusion is clearly apparent. Critically, we may not reweigh the factors. In re Marriage of Kavachak, 2018 IL App (2d) 170853, ¶ 65. Moreover, as our supreme court has stated, " '[t]he presumption in favor of the result reached by the trial court is always strong and compelling in this type of case.' " Eckert, 119 Ill. 2d at 330 (quoting Gallagher v. Gallagher, 60 Ill. App. 3d 26, 31-32 (1978)); see also In re P.D., 2017 IL App (2d) 170355, ¶ 18. Such deference is appropriate because the trial court had the opportunity to observe both parents and was able to assess and evaluate their temperaments, personalities, and capabilities. Kavachak, 2018 IL App (2d) 170853, ¶ 65. ¶ 73 In this case, the trial court observed the parties, their spouses, and weighed all of the evidence and testimony. Upon doing so, the court found Ruby "extremely honest and credible" and it also found Linu credible. In contrast, it did not make explicit credibility findings for Archie or Karen. Further, Archie's arguments understandably reflect his interpretation of the evidence, but they are ones that essentially ask us to re-weigh the evidence. Again, we are charged not with re-weighing the evidence, but considering only whether the court's findings were contrary to the manifest weight of the evidence. Here, we simply cannot so find. ¶ 74 We are sympathetic to the difficulties that relocation brings. However, the court's findings were supported by the evidence. In addition to its credibility determinations, the court noted that Linu has been an active, daily presence in B.R.'s life since he was only one year old. Although apparently painful to Archie, B.R. began calling Linu "Daddy" as soon as he could speak. This was not due to any encouragement by Ruby or an attempt by her to alienate Archie; rather, it developed naturally and reflects B.R.'s close relationship to Linu and Linu's role as "Daddy" in B.R.'s household. Indeed, the only family framework that B.R. has ever known consists of primary, day-to-day living with Ruby, Linu, A.T., and E.T., as well as, more recently, his maternal grandparents. Although we understand why Archie finds, to put it mildly, irksome and upsetting that the relocation is occurring even though Linu's job is not requiring it as a condition of employment, the court could reasonably determine that Linu's daily absence nevertheless disrupts B.R.'s family unit. We disagree with Archie's attempt to minimize the extent to which the court should weigh Ruby's desire to have her family under one roof as a benefit of relocation, because it also minimizes the unstated benefit that flows indirectly to B.R. The court could reasonably consider that Linu's commuting was taking a toll on Ruby, who was put in the position to parent three children with virtually no assistance and that easing the strain on Ruby would indirectly benefit B.R. See, e.g., Kavchak, 2018 IL App (2d) 170853, ¶ 89 (the court may consider an enhancement to the custodial parent's quality of life, as long as the court is satisfied that it has a bearing on the child's best interests). Again, Ruby has been B.R.'s primary custodial parent since birth, and there was no suggestion, nor petition for modification, seeking a change in that regard. The court's finding here that it is in B.R.'s best interests for his family stability to remain intact is simply not contrary to the manifest weight of the evidence. ¶ 75 As to Archie's other complaints, they similarly reflect his view of the evidence, but we must conclude that the court's contrary view was not unreasonable. For example, Archie argues that the court erred by ignoring that Archie's large extended family and B.R.'s half-brother remain in Chicago, whereas virtually no extended family will be in San Antonio. However, the court could have reasonably found that, although B.R.'s relationships with his paternal extended family are strong and certainly valuable, his primary relationships include those with whom he lives, including his step-sister, half-sister, and maternal grandparents. Similarly, although Archie finds flaws with the court's conclusion that B.R. can use technology to maintain contact with Archie, given that Ruby acknowledged that B.R. did not enjoy using Facetime or the telephone, the evidence nevertheless reflected that, whether he enjoyed it or not, B.R. could and did already use such technology with Archie, as Archie lived 60 miles away and technology was therefore required if weekly contact were to be maintained. The court's finding that this option, which was already being used, remained a viable means to maintaining contact was therefore not contrary to the manifest weight of the evidence. Further, Archie takes issue with the court's conclusion that the parties communicate well together regarding B.R., and he points to the evidence reflecting what he views as Ruby's lack of flexibility and marginalization of his role in B.R.'s life. Nevertheless, the court was free to weigh that evidence against the testimony reflecting that, overall, Ruby and Archie flexibly and cooperatively co-parented from the time of B.R.'s birth in 2009 until apparently around 2016. Ruby and Linu testified that they both thought that the litigation was the source of the recent strain in their working relationship with Archie, Ruby hoped the strain would end after litigation was resolved, and Ruby and Linu both testified that they would work to maintain B.R.'s relationship with Archie. Again, the court found Ruby and Linu highly credible. ¶ 76 Viewing the evidence as a whole, we cannot find that the court's decision that relocation is in B.R.'s best interests was unreasonable or that the opposite conclusion is clearly apparent. All four adults testified that B.R. is a happy, well-adjusted, intelligent child, and the court's finding that he will likely adapt well to the relocation, acknowledging that any move will affect a child, was not unreasonable. While Archie has been an active parent and his concerns regarding flaws in the allocation of parenting time are certainly not unwarranted, we do think that, overall, there exist benefits to the new plan. The evidence reflected that B.R. and Archie lived 60 miles away from each other, making in-person contact during the week difficult, if not virtually non-existent, and, therefore, the minimal weekly, in-person contact between father and son, whether B.R. is in Minooka or San Antonio, would not significantly change. However, as pointed out by Ruby and the court, the new allocation is generous in that Archie, Karen, and I.R. will now have numerous, uninterrupted, lengthier periods with B.R., instead of a few nights every other weekend, which required shuttling B.R. back and forth to Minooka. And while we understand Archie's concern about finances, we are confident that the resources on both sides and the parties' genuine interest in maintaining Archie's relationship with B.R., which, of course is in B.R.'s best interests, will combine to sufficiently finance B.R.'s time with his biological father. In sum, the trial court's decision was not contrary to the manifest weight of the evidence.
(9) possible arrangements for the exercise of parental responsibilities appropriate to the parents' resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a parent's relocation; and
(11) any other relevant factors bearing on the child's best interests." 750 ILCS 5/609.2(g) (West 2016).
¶ 77 III. CONCLUSION
¶ 78 For the reasons stated, we affirm the judgment of the circuit court of Lake County. ¶ 79 Affirmed.