ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Marriage of Coulter, 2012 IL App (3d) 100973

Appellate Court

Caption

In re MARRIAGE OF MELISSA LEE COULTER, Petitioner-Appellee,

and DONALD R. COULTER, Respondent-Appellant.

 District & No. Third District

Docket No. 3-10-0973

Filed January 13, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court did not err in granting petitioner’s request to remove her

child from Illinois to accommodate her employment as a foreign service

officer for the State Department, even though removal would have a

significant impact on respondent’s visitation rights, since the proposed

move would greatly enhance the general quality of life for petitioner and

her child, a reasonable visitation schedule could be achieved, and

petitioner agreed to provide a means for substantial communication

between the child and respondent via webcam, e-mail and telephone.

Decision Under 

Review

Appeal from the Circuit Court of Rock Island County, No. 04-D-614; the

Hon. Frank R. Fuhr, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Douglas C. Scovil, of Ruud, Scovil & Marsh, of Rock Island, for

appellant.

David G. Morrison, of Rock Island, for appellee.

Panel JUSTICE CARTER delivered the judgment of the court, with opinion.

Justice Lytton concurred in the judgment and opinion. 

Justice O’Brien dissented, with opinion.

OPINION

¶ 1 The petitioner, Melissa Lee Coulter, filed a petition for removal with respect to Gwenyth,

the child whom Melissa had with the respondent, Donald R. Coulter. After a hearing, the

circuit court granted the petition. On appeal, Donald argues that removal was not in

Gwenyth’s best interests because it drastically impaired his visitation rights. We affirm.

¶ 2 FACTS

¶ 3 In 2001, the parties married and Melissa gave birth to Gwenyth. The parties divorced in

2005, and Melissa was given sole custody of Gwenyth, subject to Donald’s visitation rights.

Donald’s visitation consisted of two nights per week, every other weekend, and alternating

holidays.

¶ 4 In 2010, Melissa filed a petition to removeGwenyth from Illinois. The petition stated that

Melissa obtained employment as a foreign service officer for the United States Department

of State (State Department). Her career would consist of two-thirds overseas posts at United

States embassies and one-third posts at the State Department in Washington, D.C. The posts

would last for two to three years, with transitions typically occurring in summers. She would

be expected to complete at least two “hardship” posts in which family members would not

be allowed to accompany her due to either a low standard of living or dangerous conditions.

In these instances, the State Department “provides a maintenance allowance for care of

dependents by a designated guardian.” If Gwenyth would not be allowed to accompany

Melissa on these posts, Gwenyth would live with Donald and attend a local public school,

and Donald would receive the full amount of the maintenance allowance.

¶ 5 Additionally, the petition stated that starting in May 2010, Melissa would undergo a 4-

to 12-month training period in Virginia, during which time she would reside in an apartment

in Falls Church. Gwenyth would stay with Donald between May and September 2010.

¶ 6 Melissa attached to the petition some information regarding overseasschools and schools

in Falls Church, Virginia. Among other things, these data sheets reported that the American

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students in the overseas schools had average SAT scores higher than the national average,

and the Falls Church public schools also had average SAT scores higher than the national

average.

¶ 7 Melissa also attached a proposed parenting agreement to the petition. Donald would

receive visitation for the 10 weeks of Gwenyth’s summer vacation; transportation costs

would be covered by the State Department. The proposed agreement also stated that

“[Melissa] will arrange and assume financial responsibility for the minor child to be

chaperoned during travel from [her] residence to [Donald’s] residence. [Donald] will do the

same during travel from [his] residence to [Melissa’s] residence.” In addition, Donald would

have an option to exercise visitation for one to two weeks during Christmas break in oddnumbered years and duringEaster break in even-numbered years; transportation costs would

be Donald’s responsibility.

¶ 8 With regard to communication, the proposed agreement stated that Melissa would

provide Gwenyth with a computer and Internet access so Donald could communicate with

her via webcam and e-mail.

¶ 9 With regard to schooling, the proposed agreement stated that the State Department would

cover the majority of Gwenyth’s overseas schooling costs, and Melissa would cover any

remaining costs.

¶ 10 On September 8, 2010, the circuit court held a hearing on Melissa’s petition for removal.

Melissa testified that prior to her State Department job, she worked for 41⁄2 years as an editor

at a local newspaper and made approximately $34,000 per year. Given economic difficulties

in the newspaper industry, Melissa began looking for other employment in the Quad Cities

area and in Chicago. She began looking into the foreign service officer job in late 2008 and,

after a lengthy process, was offered the job in early 2010.

¶ 11 At the time of the hearing, Melissa was working in Washington, D.C., was earning

approximately $60,000 per year, and had more comprehensive health insurance coverage

than she had in Rock Island. She also stated she would be able to begin a college savings

account for Gwenyth, which she could not do while working as an editor. Also, her

apartment in Falls Church, Virginia, was more modern than her Rock Island duplex and had

amenities she did not have in the duplex. Melissa’s boyfriend lived with Melissa and

Gwenyth in the Falls Church apartment. They began dating in February 2009, and he moved

in with her in the Rock Island duplex in December 2009. They moved to the Virginia

apartment in May 2010. Melissa’s boyfriend had a good relationship with Gwenyth and

assisted with her care, including getting Gwenyth from their apartment to the school bus stop

and back again.

¶ 12 When asked why she selected the Falls Church, Virginia, area, Melissa stated:

“Ilooked at overall test scores, and then I also talked to other Foreign Service parents

about their experiences with the school district, the various school districts, and Fairfax

County was highly recommended. In fact, I think on the worldwide school fact sheet,

where it compares the overseas schools to D.C. area schools, Fairfax County has the

highest test scores.”

¶ 13 Melissa also testified that she and Gwenyth had been involved in Girl Scouts in Rock

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Island, and she planned to continue that involvement in Virginia. She had looked into the

Girl Scouts program at Gwenyth’s new school in Virginia, Glen Forest Elementary School.

She also looked into other extracurricular activities, including after-school programs, soccer

leagues, and dance academies.

¶ 14 Glen Forest Elementary School, which Melissa chose after looking into other schools in

the area, was approximately 10 to 15 minutes by bus from Melissa’s apartment. The school

bus stopped at the apartment complex due to the number of children living in the complex

who attend the school. The school was larger than Gwenyth’s Rock Island school, had

smaller class sizes, and, in Melissa’s opinion, had better facilities. They also had an arts

program, which her Rock Island school did not have. In sum, Melissa opined that the

Virginia school was at least comparable to, and in several respects better than, the Rock

Island school.

¶ 15 Melissa’s job assignment in Washington, D.C., was scheduled to end in June 2011, but

she would remain in the United States until sometime between March and July2012. She had

approximately 30 different overseas posts for which she could apply, and her preferences

depended on the schools available for Gwenyth and the safety of the location. The State

Department had a specific office set up to “assist with the schools and extracurriculars for

kids, plan family outings for people at post, et cetera.” Melissa had visited that office to view

information about overseas schools.

¶ 16 With regard to the overseas schools, Melissa stated that “[t]here are 144 Americansponsored schools that get State Department funding, and there are other international

schools and British schools available at–at post as well that all have English as the primary

instruction language.” Further, Melissa stated that she had preliminarily looked into these

schools and assessed them according to the same criteria by which she assessed the Virginia

schools.

¶ 17 On cross-examination, when asked why she wanted to have Gwenyth with her during the

school year as opposed to the summer, Melissa stated that she believed it would be better to

have her during school because she has been the parent more involved in Gwenyth’s

education and extracurricular activities, and that the uninterrupted 10-week block in the

summer during break from school would allow Gwenyth to spend a lot of time with extended

family members living in the area.

¶ 18 Donald testified that he was employed as a service technician with a cable television

company. He worked Wednesday through Saturday from 8 a.m. to 5:30 or 6 p.m. He

estimated that the parties’ visitation schedule resulted in him havingGwenyth approximately

50% of the time, and his family helped watch Gwenyth on his work days. He was involved

in Gwenyth’s activities at school, although he admitted that Melissa participated in more

activities than him. He also stated that he would not be able to afford the additional

transportation costs contained in Melissa’s proposed parenting agreement.

¶ 19 Counsel for Donald also called numerous witnesses who testified that Gwenyth was a

happy and well-adjusted child. Gwenyth had significant weekly contact with several

members of Donald’s family.

¶ 20 On September 9, 2010, the circuit court issued awritten order grantingMelissa’s petition.

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In reaching its decision, the court recounted the facts and found:

“[T]he evidence clearly shows that the proposed move would greatlyenhance the general

quality of life of both the custodial parent and the child both directly and indirectly. The

economic, social, educational and cultural opportunities afforded by [Melissa’s]

achievement of obtaining a position with the United States State Department as a Foreign

Service Officer cannot be understated.”

Further, the court also found that, while the impact to Donald’s visitation would be

significant:

“[I]n light of the fact that the United States State Department does provide economic

assistance in transportation for the child from foreign countries to assist in visitation with

a non-custodial parent, this Court believes that a reasonable visitation schedule can be

fashioned, that, incorporated with the use of telephonic and Skype aided computer visits,

will ensure that [Donald] continues with a close and loving relationship with his

daughter.”

¶ 21 Thus, the circuit court found that removal was in Gwenyth’s best interests and granted

Melissa’s petition. Donald appealed.

¶ 22 ANALYSIS

¶ 23 On appeal, Donald argues that the circuit court erred when it granted Melissa’s petition

for removal. Specifically, Donald argues that removal was not in Gwenyth’s best interests

because it drastically impaired his visitation rights.

¶ 24 Section 609(a) of the Illinois Marriage and Dissolution of Marriage 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 interests of such child or children. The burden of proving that such

removal is in the best interests of such child or children is on the party seeking the

removal.” 750 ILCS 5/609(a) (West 2010).

¶ 25 We will not disturb the circuit court’s best interests 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).

¶ 26 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. Because factors two and three are not at issue in

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this appeal, our analysis focuses on factors one, four, and five, as well as any other relevant

considerations. Collingbourne, 204 Ill. 2d at 522-23.

¶ 27 With regard to the first factor, the circuit court found that “the evidence clearly shows

that the proposed move would greatly enhance the general quality of life of both the custodial

parent and the child both directly and indirectly.” Clearly, the job provided Melissa with

significant benefits over her previous position. Her salary nearly doubled, her health

insurance was more comprehensive, and her Virginia apartment was an upgrade over her

Rock Island duplex. She researched schools in the Washington, D.C., area and found a

school for Gwenyth in Falls Church, Virginia, that was at least comparable in some respects

to her Rock Island school and better in several others, including average SAT scores. The

area also offered a range of extracurricular activities for Gwenyth, including activities in

which Gwenyth had participated in Rock Island. Melissa also researched overseas schools,

assessing them according to the same criteria she used to assess the Virginia schools, and her

job provided assistance to families regarding assessment of overseas locations. The fact that

Melissa did not provide more precise information on overseas locations is understandable,

given the number of countries she had available to her with regard to applying for overseas

posts. In sum, our review of the record in this case reveals nothing to indicate that the court’s

finding on this factor was against the manifest weight of the evidence. See generally In re

Parentage of R.M.F., 275 Ill. App. 3d 43, 47 (1995) (recognizing that relevant considerations

on the first factor include “the possibility of a higher paying job, better schools, and

improved general opportunities”); Collingbourne, 204 Ill. 2d at 528 (citing cases with

approval for the proposition that the custodial parent should be afforded some deference in

his or her determination as to what is in the best interests of his or her child).

¶ 28 With regard to the fourth and fifth factors, the circuit court acknowledged that the move

would have a substantial impact on Donald’s visitation. However, the court believed that a

reasonable visitation schedule could still be achieved, and the record supports the court’s

findings on these factors. While Donald would not see Gwenyth as much as he did under the

original visitation agreement, he would potentially have her for an uninterrupted 10-week

period while she was on summer vacation from school, with significant financial assistance

from the State Department for transportation costs and the remaining costs to be split evenly

between the parties. During this time, Gwenyth would have the opportunity to have

significant contact with extended family members in the Quad Cities area. In addition, even

though Donald alleged that he would not be able to afford to pay for optional visitation,

Melissa also proposed giving Donald the option of one of two holiday breaks during the

school year.

¶ 29 Further, the testimony indicated that Melissa would continue to foster a relationship

between Donald and Gwenyth. Melissa would provide Gwenyth with means for substantial

communicationwithDonald via webcam, e-mail, and telephone. While we acknowledge that

a court may not rely on electronic communication as a factor supporting removal (750 ILCS

5/609(c) (West 2010)), there is nothing prohibiting a court from considering it if it is relevant

to the particular case (see In re Marriage of Dorfman, 2011 IL App (3d) 110099, ¶ 62

(acknowledging that communication via telephone and webcam can be properly considered

in a removal decision)). This is precisely what the court did in this case, as evidenced by the

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court’s written order.

¶ 30 This is undoubtedly a difficult case, as the removal significantly decreases Donald’s

visitation time. Nevertheless, under the circumstances of this particular case, we cannot say

that the circuit court’s findings on the relevant factors were against the manifest weight of

the evidence. See, e.g., R.M.F., 275 Ill. App. 3d at 48 (“[t]he presumption in favor of the trial

court’s decision is compelling in such cases and should not be disturbed merely because we

might arrive at a different conclusion”). Accordingly, we hold that the court did not err when

it granted Melissa’s petition.

¶ 31 CONCLUSION

¶ 32 The judgment of the circuit court of Rock Island County is affirmed.

¶ 33 Affirmed.

¶ 34 JUSTICE O’BRIEN, dissenting:

¶ 35 Irespectfully dissent from the majority opinion. In making its ruling, the trial court found

that the evidence “clearly shows that the proposed move would greatly enhance the general

quality of life of both the custodial parent and the child both directly and indirectly. The

economic,social, educational and cultural opportunities afforded by[Melissa’s] achievement

of obtaining a position with the United States State Department as a Foreign Service Officer

cannot be understated.” However, the evidence presented did not support that finding. Thus

the court’s ruling was against the manifest weight of the evidence.

¶ 36 The petitioner testified she would earn more money and have better health insurance but

did not offer testimony that her living expenses would be lower. The petitioner did not offer

anytestimony regarding anynew social or cultural opportunitiesthat would become available

to the child as a result of the removal. The petitioner could not tell the court where she would

be stationed or for how long she would be stationed anywhere once her training was

completed. The evidence was that until the completion of petitioner’s training they would

live in Virginia and then petitioner would be assigned to various posts across the world

during her service obligation. If the petitioner’s assignment was in a foreign country that was

deemed “safe,” the child would move with the petitioner, and if the assignment country was

“unsafe,” then the child would return either to Virginia or to Rock Island, Illinois. To that

end, the only school the petitioner knew that the child would attend was the Glen Forest

elementaryschool in Falls Church, Virginia. She could only opine that the child would attend

that school until sometime in the spring of 2012. The petitioner did not testify where the

child would attend school following the spring of 2012 because she did not know where she

would be stationed. So while there was testimony that the Virginia school was comparable

to, and in several respects better than, the Rock Island school, there was nothing more than

speculation about where the child would live or go to school after the spring of 2012. That

is simply insufficient evidence upon which to determine whether the move would enhance

the quality of the life of the child.

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¶ 37 At most the testimonydemonstrated that the petitioner was not filing her removal petition

to thwart the child’s relationship with her father, that the petitioner would receive a

significant increase in pay with better health insurance benefits, that the child would be able

to maintain a relationship with her father via summer vacations and electronic

communication, and that until mid 2012 the child would reside with her mother in an

environment nearly identical to the Rock Island community. That evidence does not meet the

standard for removal set forth by our supreme court in the Eckert case. In re Marriage of

Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988).

¶ 38 I would reverse the decision of the trial court.

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