Opinion
3-12-0485
11-22-2013
In re MARRIAGE OF CAROL MEYERS, Petitioner-Appellant, and EDWARD MEYERS, Respondent-Appellee.
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 the 14 Judicial Circuit,
Rock Island, Illinois,
Appeal No. 3-12-0485
Circuit No. 09-D-617
Honorable
Clarence M. Darrow,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Wright and Justice O'Brien concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in denying the petitioner's request to remove her children from Illinois where the petitioner failed to establish that removal was in the best interest of the children. ¶ 2 The petitioner, Carol Meyers, filed a petition for removal of the parties's minor children to Cheyenne, Wyoming. After a hearing, the circuit court denied the petition, finding that the petitioner failed to establish that it was in the best interest of the children to be relocated to the state of Wyoming. She appealed to this court, maintaining that the circuit court's ruling was against the manifest weight of the evidence. For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 3 FACTS
¶ 4 On December 3, 2009, Carol filed a petition for dissolution of marriage. Edward filed an answer on February 23, 2010. The couple's two children, Nicole (age 12) and Matthew (age 8), were placed in the temporary custody of Carol with a visitation schedule established for Edward. On September 1, 2010, Carol filed a pro se pleading seeking to relocate with the children to "Colorado or surrounding area." During the pendency of this pleading, Carol, now represented by counsel, filed with the court a document purporting to be a release signed by Edward agreeing to Carol's request to relocate in another state. A judgment of dissolution of marriage was entered on December 3, 2010, awarding permanent custody of the two children to Carol. Edward was granted visitation from Friday evening to Sunday evening on alternate weekends, and every Wednesday evening. ¶ 5 On August 17, 2011, eight months after the original custody order was entered, Carol filed a petition seeking to relocate the children to Cheyenne, Wyoming. A hearing on the motion was held seven months later on March 12, 2012. At the hearing, Carol testified that in June 2011 she became engaged to Scott Seely. Seely was a sergeant in the Air Force who was assigned to Warren Air Force Base in Cheyenne. The couple had been visiting each other for several months, with Carol traveling to Cheyenne, and Seely traveling to the Quad Cities. Carol testified that the couple planned to marry after the court granted her petition to relocate the children to Cheyenne. ¶ 6 Carol testified that the children had accompanied her on several trips to Cheyenne and met children there and established "friendships" with some of the children. She also testified that the children would benefit from living with Seely's two daughters, Megan and Autumn, who were of similar ages to Nicole and Matthew. Carol further testified that, in her opinion, the schools in Wyoming would be "significantly better" than the schools the children were attending in the Quad Cities. Finally, she opined that she had been unemployed since she was laid off in May 2012 and that her prospects for employment were much better in Wyoming. She testified that she had a job offer to work as a file clerk with Great Lakes Airlines in Cheyenne. She testified that if she got the job at Great Lakes, she would have free air transportation for the children to visit with Edward in the Quad Cities after they relocated to Wyoming. ¶ 7 Regarding Edward's visitation if the removal petition were allowed, Carol proposed that Edward could maintain telephone and text communication and that trips for the children back to the Quad Cities could be arranged. Carol noted that Edward had not exercised his full visitation schedule with the children since the judgment of dissolution had been entered. She acknowledged that she had been held in contempt of court on one occasion for interfering with Edward's visitation. She also testified that, at the time of the hearing, the children had expressed a desire not to talk to their father. ¶ 8 The trial court questioned the oldest child, Nicole, in camera. Nicole told the court that she wanted to move to Wyoming because she liked it better there than in the Quad Cities. She mentioned the variety of recreational activities available in Wyoming and that she had a good relationship with Seely's two daughters. She did not think she would miss contact with her father. She thought that they could maintain telephone and text communication and she could visit during the summer months and on school breaks. ¶ 9 Edward testified that he currently lives only a mile or two from his children. At the time of the hearing he was employed as an assembler at John Deere, working a 12-hour shift. He testified that, due to his work schedule, he had not been able to attend all scheduled visitation, but he had been able exercise visitation more recently. He told the court that he loved his children very much and that the proposed visitation schedule of summer vacation and school breaks would not allow him to have a proper relationship with them. ¶ 10 Following the hearing, the trial court ruled from the bench, denying Carol's petition to relocate the children to Wyoming. The court held that Carol had failed to establish that relocation would be in the children's best interest. The court was not convinced by Carol's testimony that the quality of life would be better for the children, nor was the court convinced that Carol's prospects for employment in Wyoming were more than speculative. The court noted that Nicole expressed a preference for living in Wyoming, but noted that many children her age would be enamored with the recreational opportunities there. ¶ 11 The circuit court was most concerned with the impact the proposed move would have on Edward's visitation opportunities. The court noted that Edward had done his best at all time to exercise visitation with the children, but noted that some of his lack of vigilance may have been due to his work schedule. The court also noted that Carol had not always cooperated with Edward's efforts to visit with the children, culminating in her being held in contempt on one occasion for interfering with Edward's visitation rights. The court did not accept Carol's proposal that summer and school breaks, along with telephone contact would provide an adequate visitation schedule. The court also expressed great concern that the distance between Wyoming and the Quad Cities. The court questioned Carol's representation that her employment with Great Lakes Airline would provide free travel for the children to visit Edward in the Quad Cities. For those reasons, the court found that Carol had failed to establish that removal of the children to Wyoming was in their best interest. ¶ 12 On May 11, 2012, the trial court's oral ruling was reduced to a written order, and Carol filed her timely appeal.
¶ 13 ANALYSIS
¶ 14 Section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides:
"The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interest of the child or children. The burden of proving that such removal is in the best interest of such child or children is on the party seeking the removal." 750 ILCS 5/609(a) (West 2010).¶ 15 We will not disturb the circuit court's best interest determination "unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred." In re Marriage of Eckert, 119 Ill. 2d 316, 328 (1988). ¶ 16 Our supreme court has identified several factors that the circuit court should consider in assessing the child's best interests: (1) whether the move will enhance the quality of life for the custodial parent and for the child; (2) whether the custodial parent is motivated by a desire to hinder or defeat the noncustodial parent's visitation rights; (3) the noncustodial parent's motives for challenging removal; (4) the effect the move would have on the noncustodial parent's visitation rights; and (5) whether the move would still allow for a reasonable and realistic visitation schedule for the noncustodial parent. In re Marriage of Collingbourne, 204 Ill. 2d 498, 522-23 (2003). These factors are not exclusive. Collingbourne, 204 Ill. 2d at 523. In reaching its decision, the court should consider all relevant evidence and any other factors that are warranted by the context of the particular case. Collingbourne, 204 Ill. 2d at 522-23. ¶ 17 With regard to the first factor, the circuit court found that Carol had failed to establish that the quality of life for herself or the children would be enhanced. Other than the fact that outdoor recreational opportunities would be greater in Wyoming than in the Quad Cities, the record did not establish an enhanced quality of life. Carol's unsupported opinion that the schools would be better appears to have carried little weight with the circuit court, as did her testimony that the children would happily interact with Seely's daughters. Moreover, Carol's self-serving testimony about her job prospects in Wyoming, including a supposed job offer from Great Lakes Airlines, established little more than she appeared more motivated to seek employment in Wyoming than she had in the Quad Cities. With little more than vague and self serving testimony, the circuit court's determination that Carol failed to establish a significant improvement in quality of life cannot be said to be against the manifest weight of the evidence. ¶ 18 With regard to the second and third factors, the motivation of the parents in seeking or challenging removal, the trial court made no express finding on those factors. However, we note that Edward's desire to maintain a relationship with his children appeared to the circuit court to be genuine despite his failure to vigilantly exercise his visitation rights. Similarly, the court commented upon Carol's lack of cooperation with Edward's visitation and the instance where she was held in contempt for interfering with his visitation. Given the record herein, it would not be error for the trial court to determine that these factors did not support Carol's contention that removal was in the best interest of the children. ¶ 19 The fourth and fifth factors, regarding the effect the proposed move would have on Edward's visitation rights and whether that move would still allow for a reasonable and realistic visitation schedule, clearly weighed against Carol's petition in the view of the trial court. The court was not convinced that Carol's plan would still allow for reasonable and realistic visitation. The large blocks of time for visitation proposed by Carol have often been found to be more disruptive to parent-child relationship. In re Marriage of Creedon, 245 Ill. App. 3d 531, 537 (1993). This is particularly true where, as in the instant matter, the noncustodial parent's work schedule is not amenable to an irregular visitation schedule. Shinall v. Carter, 2012 IL App (3d) 110302 ¶47. ¶ 20 Given the great geographic distance between Wyoming and the Quad Cities, the lack of credibility regarding Carol's testimony about free air transportation, Edward's work schedule, and the unrealistic expectation that visitation in the summer and on school vacations would be in the best interest of the children, we find that the circuit court's denial of Carol's petition to remove the children was not against the manifest weight of the evidence. In re Marriage of Pfiffer, 237 Ill. App. 3d 510, 513 (1992).
¶ 21 CONCLUSION
¶ 22 For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed. ¶ 23 Affirmed.