{ "id": 75305, "name": "In re MARRIAGE OF JUDY ELLIOTT, n/k/a Judy Duncalf, Petitioner-Appellant, and WILLIAM R. ELLIOTT, Respondent-Appellee", "name_abbreviation": "In re Marriage of Elliott", "decision_date": "1996-05-17", "docket_number": "No. 3\u201495\u20140716", "first_page": "1061", "last_page": "1067", "citations": [ { "type": "official", "cite": "279 Ill. App. 3d 1061" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "604 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1071" } ], "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162105 ], "year": 1992, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0510-01" ] }, { "cite": "172 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55992 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "320" }, { "page": "324-25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0312-01" ] }, { "cite": "615 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383659 ], "year": 1993, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0531-01" ] }, { "cite": "518 N.E.2d 1041", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 1988, "pin_cites": [ { "page": "1044" }, { "page": "1044" }, { "page": "1046" }, { "page": "1045-46" }, { "page": "1046" }, { "page": "1045" }, { "page": "1045" }, { "page": "1046" }, { "page": "1046" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192736 ], "weight": 10, "year": 1988, "pin_cites": [ { "page": "325" }, { "page": "325" }, { "page": "328" }, { "page": "326-27" }, { "page": "327" }, { "page": "327" }, { "page": "327" }, { "page": "328" }, { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0316-01" ] } ], "analysis": { "cardinality": 672, "char_count": 13805, "ocr_confidence": 0.757, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0024374007905480204 }, "sha256": "b5973f2473043b862eaf0915b9bd07ca56978292500f6003066748f1bfed8c10", "simhash": "1:41a9f16d1765cb55", "word_count": 2358 }, "last_updated": "2023-07-14T19:15:35.504495+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JUDY ELLIOTT, n/k/a Judy Duncalf, Petitioner-Appellant, and WILLIAM R. ELLIOTT, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE McCUSKEY\ndelivered the opinion of the court:\nAppellant, Judy Elliott, n/k/a Judy Duncalf, filed two separate petitions requesting leave to remove her children to Ohio. See 750 ILCS 5/609(a) (West 1994). Following denial of the second petition, Judy filed a timely notice of appeal. After carefully reviewing the record, we affirm.\nI. Background\nJudy and William Elliott (William) were married on October 6, 1984. They have two children, Courtney, born May 21, 1986, and Maggie, born April 25, 1988. On August 1, 1991, the parties were awarded a judgment of dissolution of marriage. Joint custody of the parties\u2019 two minor children was awarded, with Judy serving as the primary custodial parent. Except for Judy\u2019s sister, all of Judy\u2019s and William\u2019s immediate families live in the Quad City area. Courtney and Maggie have lived in the Quad City area their entire lives.\nOn December 20, 1994, Judy filed a petition to remove the children from Illinois to Ohio. On February 1, 1995, a hearing was held. Judy testified that she graduated from chiropractic school following her divorce. She was employed as a receptionist at her father\u2019s chiropractic office at a rate of $8 per hour. Judy took the exam to become licensed as a chiropractor in Iowa, but failed the bookkeeping portion of the test. Judy said that to become licensed as a chiropractor in Illinois there is no written test, but a fee is required. She said that she could not afford the fee. Judy also acknowledged that she could retake the Iowa exam as many times as necessary to pass the test.\nJudy further testified that she was licensed to practice as a chiropractor in Ohio. At the time of the first hearing, Judy had a job offer in Sterling, Ohio. The position paid $600 per week, and a bonus was available if she produced a certain level of business. Judy found a place to live in Ohio where the rent was $650 per month. At the time of the hearing, Judy and the girls lived in a house owned by her parents and paid no rent or child care expenses. Judy was engaged to William Pring. He lives in Ohio and is a licensed chiropractor in that state. Judy testified that they planned to marry as soon as possible.\nWilliam testified that he is employed as a dock worker for Roadway Express. He is a union member and has an irregular work schedule because he is on call. William was granted visitation with the children for two full weeks in the summer, two full days and nights every other week, one day during the week he does not have them overnight, and any other times agreed upon by Judy and William. Judy testified she did not preclude William from exercising additional visitation when his work schedule allowed. In addition, William\u2019s parents spend Thanksgiving and Christmas with Courtney and Maggie. William\u2019s mother sees Courtney every school day because she took a job in the cafeteria of Courtney\u2019s grade school. William\u2019s father also sees the girls very often. Judy\u2019s parents see the girls up to four times per week, and the girls regularly stay with them on Friday nights. It is undisputed that all four grandparents have a very close relationship with Courtney and Maggie and see the children frequently.\nWilliam testified that he is very close to both his daughters, especially Courtney. He is Courtney\u2019s basketball and softball coach and has encouraged Courtney and Maggie to become involved in a variety of other sports. In addition to his in-person visitation schedule, William and his daughters talk on the telephone several times per week. He follows the girls\u2019 progress at school and meets occasionally with their teachers. He testified that both girls were doing very well in school.\nCourtney was interviewed in camera by the trial court and both attorneys. She said that she did not want to move to Ohio. She told her mother that she did not want to move and Judy responded by telling her \"too bad.\u201d (Emphasis added.) She testified that her mother was mean to her when they were in Ohio, and she did not like her mother\u2019s fiance or his parents. Courtney said that her mother\u2019s fiance used profanity in her presence, made fun of William, did not let the girls use William\u2019s name, yelled at her, and punished her when she made too much noise in the mornings.\nOn February 3, 1995, the trial court issued an opinion which denied the petition. The court applied the factors of In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988). The court specifically found: (1) Judy did not meet her burden to show that removal of the children to Ohio was in their best interests; (2) Judy would increase her income with a move to Ohio, but her expenses would also increase; (3) Judy could retake the Iowa chiropractic exam and become licensed to work with her father; (4) all of the children\u2019s relatives live in Illinois, including their father and both sets of grandparents; (5) the children\u2019s quality of life would not be enhanced by the move to Ohio; and (6) due to the distance, and William\u2019s irregular work schedule, no realistic or reasonable visitation schedule could be crafted which would preserve William\u2019s relationship with his children. On May 22, 1995, the court denied Judy\u2019s motion to reconsider.\nOn July 10, 1995, Judy filed a second petition for leave to remove. A second hearing was held on August 23, 1995. At this hearing, the parties stipulated that the transcript from the first hearing would be admitted as evidence. At the second hearing, Judy testified that she had a new job offer in Ohio, paying $850 per week, plus bonus possibilities. Judy\u2019s fiance had a job offer from the same chiropractic office. She and the children and her fiance would live in Strongville, Ohio, about 30 miles south of Cleveland.\nAt the second hearing, Judy proposed driving the children every other weekend from Ohio to Illinois to visit William. The trial court stated the proposal was \"impractical and unreasonable.\u201d The court said the children will make friends in Ohio and become involved in weekend activities which would make the children reluctant to leave every other weekend. Also, William testified that his work schedule is erratic and he never knows if he will be off on the weekends. William typically has only one hour\u2019s notice before he must report to work to start his shift as a dock worker.\nThe trial court denied Judy\u2019s second petition on August 28, 1995. The court found her visitation proposal inadequate and unrealistic. The court also found the motives of each party to be sincere and proper. The court conceded that the move to Ohio would benefit Judy, and, indirectly, the children. However, the court concluded that removal of the children from William, both sets of grandparents, and the environment in which the girls had grown up would cause harm to the children which outweighed any potential benefit. The court finally concluded that Judy had not met her burden of proving that removal of the children was in their best interest. Judy filed a timely notice of appeal.\nII. Applicable Law and Standard of Review\nThe sole issue before us is whether the trial court\u2019s determination is against the manifest weight of the evidence.\nSection 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) governs a custodial parent\u2019s right to remove a child or children from the state. 750 ILCS 5/609 (West 1994). The Illinois Supreme Court has interpreted the statute such that the paramount issue is whether the move is in the best interest of the child. Eckert, 119 Ill. 2d at 325, 518 N.E.2d at 1044. The burden of proving that removal is in the child\u2019s best interest lies with the party seeking removal. Eckert, 119 Ill. 2d at 325, 518 N.E.2d at 1044; 750 ILCS 5/609(a) (West 1994).\nA reviewing court will not set aside a trial court\u2019s determination of what is in the best interest of the children unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. The standard of review is indicative of the fact that the decision to grant removal of a child from this state is a decision especially within the province of the trial court. In re Marriage of Creedon, 245 Ill. App. 3d 531, 536, 615 N.E.2d 19, 23 (1993).\nIn Eckert, our supreme court stated various factors which the trial court should consider in determining whether removal is in the best interest of the child: (1) the likelihood for an enhanced quality of life for the custodial parent and the child; (2) the motives of both parents; (3) the visitation rights of the noncustodial parent; and (4) whether a reasonable and realistic visitation schedule can be reached if the move is allowed. Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46. A reasonable visitation schedule is one which fosters and preserves the relationship between the child and the noncustodial parent. Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.\nMore recently, our supreme court\u2019s unanimous opinion in In re Marriage of Smith, 172 Ill. 2d 312 (1996), affirmed the Eckert principles. Smith also confirms the long-standing principle that \"the paramount question in a removal case is whether the move is in the best interests of the children.\u201d Smith, 172 Ill. 2d at 320.\nIII. Analysis\nOn appeal, Judy argues: (1) the trial court placed undue emphasis on the difficulty of establishing suitable visitation for William if she were allowed to take the children to Ohio; and (2) the trial court did not give enough weight to the direct benefits she would receive if she were allowed to move to Ohio.\nIn reviewing the record, we are mindful the law is clear that it is not the function of a court of review to reweigh the evidence. Smith, 172 Ill. 2d at 324-25; In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513, 604 N.E.2d 1069, 1071 (1992).\nThe trial court concluded, after analyzing the Eckert factors, that while Judy\u2019s quality of life would improve with a move to Ohio, any indirect benefit to Courtney and Maggie would not outweigh the negative impact the move would have on the girls. We agree. After reviewing the record, we find the trial court\u2019s conclusion is not against the manifest weight of the evidence.\nThe statute in question demands the primary focus must be on the best interests of the children. Any improvement of the custodial parent\u2019s lifestyle is important only to the extent the improvement benefits the children. The record reflects that both girls are well-adjusted and doing well in school. They have strong family and social ties to the Quad Cities area and are involved in a variety of extracurricular activities. They see both sets of grandparents very regularly and love them very much. In addition, Courtney indicated to her mother and told the trial court that she does not want to move to Ohio. She says the family environment in Ohio is less desirable than the family environment in the Quad Cities.\nThe trial court found that Judy\u2019s and William\u2019s motives were proper and sincere. Judy wants to pursue better job opportunities in Ohio and wants to marry a man who lives in Ohio. William loves the children and wants to be near them and nurture their development as they grow up. The record also supports these conclusions as consistent with the manifest weight of the evidence.\nNext, we note that our courts have always recognized that it is in the best interest of the children to maintain a healthy and close relationship with both parents, as well as other family members. Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045. For this reason, we must carefully consider the visitation rights of the noncustodial parent. Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045. Towards this end, it is also vital that trial courts be guided by the stated purpose of the Act to \"secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.\u201d (Emphasis added.) 750 ILCS 5/102(7) (West 1994); see also Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046. It is clear in this case that the trial court gave proper consideration to William\u2019s visitation rights.\nLastly, the ability of the trial court to fashion a reasonable visitation schedule is especially important \"[wjhen a parent has assiduously exercised his or her visitation rights.\u201d Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046. The trial court determined that given the distance from the Quad Cities to Strongville, Ohio, and William\u2019s erratic work schedule, no reasonable visitation arrangement was possible. We agree. It is undisputed that William has steadfastly exercised his visitation rights. He has been a constant and important figure in his daughters\u2019 lives, and he wants to continue to be a full-time father to his daughters. The record supports the trial court\u2019s findings.\nAs a result, we conclude the trial court did not abuse its discretion in finding that removal of the children to Ohio would severely limit William\u2019s visitation rights and prevent a reasonable visitation schedule from being implemented.\nIV. Conclusion\nFollowing our review of the record and after applying the principles set forth in Eckert, we find the denial of Judy\u2019s petition to remove Courtney and Maggie is not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Rock Island County is affirmed.\nAffirmed.\nBRESLIN, P.J., and LYTTON, J., concur.", "type": "majority", "author": "JUSTICE McCUSKEY" } ], "attorneys": [ "Peter W. Church (argued), of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellant.", "C. Stephan Marsh (argued), of Ruud, Scovil, Neppl & Marsh, of Rock Island, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF JUDY ELLIOTT, n/k/a Judy Duncalf, Petitioner-Appellant, and WILLIAM R. ELLIOTT, Respondent-Appellee.\nThird District\nNo. 3\u201495\u20140716\nOpinion filed May 17, 1996.\nPeter W. Church (argued), of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellant.\nC. Stephan Marsh (argued), of Ruud, Scovil, Neppl & Marsh, of Rock Island, for appellee." }, "file_name": "1061-01", "first_page_order": 1079, "last_page_order": 1085 }