In re Marriage of Pauley

2024 IL App (3d) 230416-U

• Court: Appellate Court of Illinois
• Decided: February 5, 2024
• Docket: 3-23-0416
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230416-U

Order filed February 5, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, JAMES PAULEY, ) Du Page County, Illinois, ) Petitioner-Appellee, ) ) Appeal No. 3-23-0416 and ) Circuit No. 20-D-2288 ) JANE PAULEY, ) Honorable ) Richard D. Felice, Respondent-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court. Justices Holdridge and Brennan concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court’s denial of mother’s petition to relocate to Nevada was not against the manifest weight of the evidence.

¶2 Respondent, Jane Pauley, appeals the Du Page County circuit court’s decision to deny her

petition to relocate to Nevada, arguing that the court placed improper weight on certain factors

and that its choice to weigh certain factors as neutral or in petitioner, James Pauley’s, favor were

against the manifest weight of the evidence. For the reasons set forth below, we affirm. ¶3 I. BACKGROUND

¶4 Jane was married to James from 2013 to 2022. They bore two children from the marriage,

and James adopted Jane’s older son from a prior marriage.

¶5 During the dissolution proceedings, Jane and James entered into an agreed allocation

judgment. The judgment provided that Jane and James would share decision-making regarding

the children and that Jane was solely responsible for all tuition costs for the children’s private

schooling. It further provided that during the school year, the children would primarily reside

with Jane, and James would receive parenting time every Tuesday starting after school until 7:00

p.m., as well as alternating Thursdays starting after school until 7:00 p.m. The children would

reside with James on alternating weekends, beginning Thursday after school until Sunday at 7:00

p.m. The parties would equally share parenting time when school was not in session.

¶6 The judgment for dissolution was filed on May 19, 2022. The judgment stated that Jane

“lacked sufficient income and financial resources to be self-supporting,” and James would pay

Jane 19 months of maintenance in addition to child support.

¶7 On November 21, 2022, Jane filed a notice of intent to relocate. James filed an objection

in response. Jane then filed a petition for relocation alleging that she and her fiancé, Ariel Belkin,

wished to move to Summerlin, Nevada. They intended to purchase a home in a neighborhood

located in a school district where the schools had ratings of 9 out of 10, according to

greatschools.org. Jane alleged that she would be able to better care for the children in Nevada,

they would have access to good schools, and her plan to move and enroll the children in school

would coincide with the time they would no longer be attending their private school. The

children’s scholarship for tuition was no longer available and she could not afford to pay for the

private school without it. She further alleged that she and Belkin both had family in California

2 and that her mother intended to move to Summerlin as well. Additionally, James repeatedly

expressed interest in moving to a different state, and she believed that he would be able to move

to Nevada, too. She asserted that any objection he made now was not in good faith.

¶8 James’s response to the petition alleged that the children already enjoyed a high standard

of living in Wheaton. They had a good home and a good education. He stated that if the

scholarships for their private school tuition was no longer available, he would be willing to

contribute to the costs to keep them enrolled. Additionally, he was able to see the children often,

and the impact on his relationship with the children would be “monumental” if the relocation

occurred. He argued that no alternative schedule could be fashioned to replace that time.

¶9 A guardian ad litem (GAL) was appointed and distributed his opinion and

recommendations on March 13, 2013. Ultimately, the GAL recommended the relocation be

allowed.

¶ 10 The hearing on Jane’s petition took place over several days spanning from July 20, 2023,

until August 9, 2023. The GAL testified regarding his recommendation. Out of the eleven

statutory factors to consider for relocation, the GAL found that five favored Jane, two favored

James, and four were neutral. See 750 ILCS 5/609.2(g) (West 2022).

¶ 11 Relevant to this appeal, the GAL again recommended relocation. During his testimony,

he noted that James had a desire to also leave Illinois and that Belkin’s children lived in

California, which would make moving to Nevada beneficial for him. Speaking on educational

opportunities, the GAL believed this consideration was neutral because the schools in both areas

were “comparable.” The GAL noted that he was familiar with the schools in which the children

were currently enrolled, but his knowledge of Nevada schools was limited to that which he

3 gleaned from online research. The GAL also testified that Nevada had a more established and

structured gifted program than that available in the children’s current schools.

¶ 12 The GAL also believed that the court could fashion a reasonable allocation of parenting if

relocation occurred and provided a recommended schedule for parenting time. It allocated to

James a substantial period of time during school breaks because he would not be able to exercise

parenting time often during the school year due to the distance. Further, the GAL opined

technology allowed for long distance parenting, which would allow James to continue exercising

parental responsibilities even when he was not physically present. He also believed his

recommended schedule would still provide James ample parenting time with the children in

order to minimize the impact of his relationship with them if relocation occurred. Finally, when

questioned if there was anything else the court should consider, the GAL noted that both Jane

and James could work from anywhere, Belkin was financially stable, and that James’s significant

other was unwilling to relocate.

¶ 13 In addition to the GAL, Belkin, Jane, James, James’s girlfriend, Jane’s mother, James’s

mother, and one of James’s neighbors testified as to the parties’ relationships with the children,

their current living situation, and the potential situation waiting for them in Nevada.

¶ 14 Belkin testified that he and Jane were engaged and had already purchased a home in

Summerlin that had four bedrooms and plenty of space for both Jane’s children and his two

daughters when they came during his parenting time. He stated that a reason they chose to move

to Nevada was because it was near his children in California, and it was his understanding that

the location would work for James. Belkin would primarily travel to Los Angeles during his

parenting time with his children, but his daughters would come to Nevada during his parenting

time as well.

4 ¶ 15 Jane testified that she had considered relocating to California where Belkin’s daughters

lived, but she decided to choose another location when James indicated to her that he did not

want to live in the state of California. She and James had text message conversations over the

years where James suggested moving out of state to a more southern location. In the fall of 2022,

Jane wrote James a letter stating that she wanted to relocate to Nevada and hoped that he would

move there as well. She would have liked to move in summer 2023 so the children could start the

school year there. When asked about the school system in Nevada, Jane testified that she had

already confirmed with personnel in the local school district that their oldest son’s IEP would be

accepted and that their middle child would be accepted into the gifted and talented program. She

explained that the gifted program was structured in a way that was not offered at their school in

Illinois. Jane testified that James always exercised all of his time with the younger two children

but did not with their oldest. She also believed the move to Summerlin would be in all of her

children’s best interest because of the nice weather, the good school programs, and because she

would be happier in Nevada.

¶ 16 James testified that his job is completely remote and that he has no travel or in-office

requirements. He stated that if Jane were allowed to relocate, he could work remotely in Nevada

or be able to travel around his work schedule to see his children. While he admitted he had a

desire to relocate, his proposed locations did not include Nevada.

¶ 17 James also testified that he takes all his parenting time with his youngest two children

without Jane’s interference, but he sees his oldest less often. He stated that he tries to see his

oldest son separately from the younger children and also texts him during the week. James

believed he was involved with helping his children with homework during his parenting time and

in their extracurricular activities. James also testified that while he was originally against the

5 parochial school his youngest two children attended, he was now willing to pay their tuition if

the relocation was denied. His parents lived in the area, and the children saw them regularly. The

children also had a relationship with his girlfriend and her family. When asked about his reasons

for objecting to the move, he testified that he did not want his children to live so far away, he

believed the Nevada schools were inferior, they had several friends and family members where

they currently lived, and that the move would interfere with his relationship with them.

¶ 18 On August 16, 2023, the court made an oral ruling denying relocation. The court made

specific findings regarding each statutory factor and explained to the parties what evidence it

considered when approaching each factor. Of note, the court remarked that it considered the fact

that Jane had already purchased property in Nevada knowing her petition was pending and that

she did not have any job offers in the area. It also considered the distance, amount of time, and

logistics of the children travelling between Illinois and Nevada, as well as how that time

travelling would impact the time spent with either parent. While the court acknowledged that

James could still have frequent contact with his children if the relocation occurred, it recognized

that the quality and type of parenting would change, as it would be more difficult for James to

participate in homework, school activities, coaching, and other extra-curricular activities.

Finally, the court also noted the parties’ financial resources and employment opportunities, the

relationships the children had with extended family members, and that relocating would help

Jane’s fiancé remain close to his own children in California.

¶ 19 Ultimately, the court found that relocation would not be in the children’s best interest and

denied Jane’s petition to relocate. It later entered a written order denying relocation and attached

the oral ruling as its reasoning. Jane timely appealed.

¶ 20 II. ANALYSIS

6 ¶ 21 A parent with a majority of parenting time or equal parenting time may seek to relocate

with the minor children. 750 ILCS 5/609.2(b) (West 2022). If the other parent objects to the

proposed relocation, the parent wishing to relocate must file a petition seeking permission to do

so. Id. § 609.2(f). In determining whether to grant the petition for relocation, the court must base

its decision on the best interests of the child. In re Marriage of Fatkin, 2019 IL 123602, ¶ 32.

¶ 22 Section 609.2(g) enumerates the following best-interest factors the court must consider

when making its determination: (1) the circumstances and reason for the relocation; (2) the

reasons a parent is objecting to the relocation; (3) the history and quality of each parent’s

relationship with the children and whether either parent has substantially failed or refused to

exercise parenting time or responsibilities under the parenting plan or allocation judgment; (4)

the educational opportunities for the children at the current and proposed new locations; (5) the

presence or absence of extended family at either location; (6) the anticipated impact of the

relocation on the children; (7) whether the court will be able to fashion a reasonable allocation of

parenting responsibilities between the parents if the relocation occurs; (8) the wishes of the

children, based on their maturity and ability to express independent preferences; (9) possible

arrangements for the exercise of parental responsibilities appropriate to the parental resources

and circumstances, and the children’s developmental levels; (10) minimization of impairment to

the relationship caused by the relocation; and (11) any other relevant factors bearing on the

children’s best interests. 750 ILCS 5/609.2(g) (West 2022).

¶ 23 The party seeking relocation must establish by a preponderance of the evidence that the

relocation is in the best interest of the child. In re Marriage of Tedrick, 2015 IL App (4th)

140773, ¶ 49. In deciding whether relocation is in the child’s best interests, a trial court should

hear “any and all relevant evidence.” In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988). A

7 determination of the child’s best interests cannot be reduced to a simple bright-line test; rather,

the decision must be made on a case-by-case basis, based on the circumstances of each case. Id.

As our supreme court has found, “ ‘[t]he presumption in favor of the result reached by the trial

court is always strong and compelling in this type of case.’ ” Id. at 330 (quoting Gallagher v.

Gallagher, 60 Ill. App. 3d 26, 31-32 (1978)). Such deference is appropriate because the trier of

fact has significant opportunity to observe the parents and children and is able to assess and

evaluate the individuals. Id.

¶ 24 A reviewing court does not reweigh the competing considerations. In re P.D., 2017 IL

App (2d) 170355, ¶ 19. We will not reverse the circuit court’s determination of what is in the

best interests of a child unless it is against the manifest weight of the evidence, and it appears

that a “manifest injustice” occurred. Id. at 328. A court’s decision is against 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).

¶ 25 Jane raises various reasons why, in her opinion, the court’s order denying relocation is

against the manifest weight of the evidence. Out of the eleven statutory factors the court must

consider, Jane argues that the circuit court improperly weighed five factors. We address each of

these factors in turn.

¶ 26 A. Reasons for Relocation

¶ 27 Jane argues that the court’s categorization of the first factor, the reasons for the

relocation, as neutral was against the manifest weight of the evidence. Specifically, she contends

that the court faulted Jane for not having visited Summerlin before that year and that she did not

have a job offer in the location.

8 ¶ 28 However, the court took several other factors into account beyond this, including several

considerations that were in her favor, including the fact that she wished to move in order to be

with her fiancé and to be closer to his children. While a court may find enhancement in a child’s

life by relocating because of a parent’s plans to marry, this does not automatically require a

finding that the relocation is in the best interest of the child. See In re Marriage of Davis, 229 Ill.

App. 3d 653, 661 (1992). The court, in finding this factor neutral, took into account the GAL’s

considerations and that Jane wanted to move to be with her fiancé, but it also noted that Jane had

not visited Summerlin until recently, had no experience raising a family in the area, did not have

a job offer in Nevada, and had purchased a residence in Summerlin before resolving the issue

regarding relocation.

¶ 29 It is not unreasonable, based on its reasoning and considerations, for the court to find this

factor neutral. Jane argues that the court finding this factor neutral was “not fair,” but the record

does not indicate anything “unfair” about the court’s reasoning. The court carefully considered

several pieces of information and came to a well-reasoned conclusion as to this factor. As such,

we do not find that categorizing the first factor as neutral was against the manifest weight of the

evidence.

¶ 30 B. Educational Opportunities

¶ 31 With regard to the fourth factor, educational opportunities, Jane argues that the court’s

decision that this slightly favored James was against the manifest weight of the evidence, again

because it disagreed with the GAL’s opinion on the factor. Jane also argues that the court finding

this without any discussion was manifestly erroneous given the evidence presented at the

hearing. However, this is factually incorrect. The court did indeed discuss this factor, finding that

it was slightly in James’s favor due to the length of time that the children had been enrolled in

9 their current schools. Further, the GAL merely found the two school systems “comparable,”

which the court also noted. We will not find the court’s decision was incorrect simply because it

disagreed with the GAL or because it did not explain its reasoning as thoroughly as Jane may

have wished. The court’s reasoning, though short, shows that it considered all the factors that the

GAL considered as well as the children’s history in their current schools, and it does not amount

to a manifestly erroneous finding.

¶ 32 C. Whether the Court Can Fashion a Reasonable Allocation of Parental Responsibilities

¶ 33 Jane also argues that the seventh factor, whether the court can fashion a reasonable

allocation of parental responsibilities, should have been found in her favor. Instead, the court

found that this factor weighed slightly in favor of James. Jane once again argues that the court

made this finding without explaining itself, but this is simply untrue. While Jane is correct that

an “unexplained failure” to weigh the evidence may result in a reversal, she has not demonstrated

what evidence the court failed to consider.

¶ 34 In fact, the record establishes that the court took into account several considerations when

ruling on this factor. The court stated that, in addition to all the evidence it heard during the

hearing, it also considered the travel and distance when considering this factor. Specifically, the

court stated, “I have to consider the time on the round trip back and forth from Illinois to

Nevada. I have to consider how those trips would work out for these children, I have to consider

the totality of the circumstances in getting to and from, I have to consider the amount of time that

they will spend here versus there.” The circuit court determined that this factor weighed against

relocation only “slightly.”

¶ 35 D. Arrangements for the Exercise of Parental Responsibility

10 ¶ 36 As for factor nine, arrangements for the exercise of parenting responsibilities, the GAL

opined that it weighed in Jane’s favor. He stated that the technology of Zoom, FaceTime, and

WhatsApp were helpful in minimizing the difficulties in being able to parent from a distance.

While not perfect, a long-distance move was not completely detrimental. The court made no

specific findings as to this factor and simply stated that it found it neutral.

¶ 37 Jane argues that the court did not make any specific findings regarding this factor, but it

is not required to do so. See In re Marriage of Hefer, 282 Ill. App. 3d 73, 79 (1996). “The fact

that the court did not list specifically the impact *** does not mean the court did not consider it.”

In re Marriage of Berk, 215 Ill. App. 3d 459, 464 (1991). Given the court’s reasonable and

thorough explanation of everything it considered when weighing every other factor, we cannot

say that the court failed to weigh all the relevant evidence for this factor as well. The record

demonstrates that the court did indeed consider what it believed was relevant when reaching its

decision.

¶ 38 E. Impact on the Parent-Child Relationship

¶ 39 Regarding the tenth factor, Jane argues that the court placed improper weight on it, as the

statute does not prioritize the weight of certain factors over others. She argues that by prioritizing

this factor and emphasizing that the structure of the parenting time would need to change if the

children relocated, the court essentially found that nothing could replace James’s parenting time,

creating an “impermissible veto” with this factor.

¶ 40 Here, the court found factor ten, the ability to minimize the impact on the parent-child

relationship, to be neutral, rather than in favor of relocation, as the GAL recommended. In so

finding, the court stated that it considered the schedules of all the parties and whether James

would still be able to have the regular contact he did with the children. It considered that

11 relocation would impact James’s ability to participate in schoolwork, coaching, and extra-

curricular activities. The court “must not only evaluate the quantitative change in visitation but

must also carefully assess the qualitative difference in visitation.” In re Marriage of

Collingbourne, 204 Ill. 2d 498, 533 (2003). Thus, “a proposed visitation schedule which

provides a noncustodial parent with the same number of visitation days as under the prior

visitation arrangement does not automatically lead to the conclusion that the quality of the

visitation between the child and the noncustodial parent will also be the same.” Id. Based on the

record and the court’s considerations, we do not agree with Jane’s position and find that it was

not unreasonable to find this factor neutral.

¶ 41 Further, while the court noted that it found this factor to be a “threshold issue,” there is

no indication here that the court placed too much weight on it. A court may balance the statutory

factors as it sees necessary due to the particular facts of each case. See id. at 524. It is plain from

the court’s careful explanation of all the factors and by the multitude of evidence it stated it

considered for each one, that the court measured them all carefully and did not place

inappropriate weight on any one consideration.

¶ 42 F. Other Relevant Considerations

¶ 43 Last, Jane argues that, while the court did not explicitly state how it was choosing to

categorize the eleventh catchall factor, it should have found that it weighed in favor of

relocation. Here, the court stated that it considered many things that could not be categorized

under any of the other statutory factors. It considered Belkin’s divorce and the amount of time

spent with his own children, the fact that the children could later be added to a private health

insurance plan when Belkin and Jane married, the resources of both parties, James’s girlfriend’s

desire not to relocate, and the parties’ employment situations. While the court did not explicitly

12 state which “side” this factor weighed in favor of, it is not required to do so. The court must only

consider all relevant considerations when making its decision; something the court very clearly

did in this case.

¶ 44 III. CONCLUSION

¶ 45 On appeal, Jane has essentially asked this court to reweigh every statutory factor that the

circuit court determined was not in her favor. We may not reweigh any factor and must only

determine whether the circuit court’s decision was unreasonable or if the opposite conclusion is

clearly warranted. See In re P.D., 2017 IL App (2d) 170355, ¶ 19. While Jane may not agree

with the court’s findings, she has presented us with no evidence that indicates that the court’s

findings on these factors were clearly erroneous or that a manifest injustice has occurred in this

case. On the contrary, we find the court’s decision to be well-reasoned and thoughtfully

explained.

¶ 46 We therefore conclude that the circuit court clearly considered all the factors, as well as

the evidence and testimony touching on each, and weighed them properly. Its ultimate

determination was more than adequately supported by the record. The circuit court conducted a

thorough analysis of the cause before it, in accordance with the requirements of the statute. We

cannot say that the evidence presented does not support the court’s findings and therefore will

not disturb its findings.

¶ 47 The judgment of the circuit court of Du Page County is affirmed.

¶ 48 Affirmed.