## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Coul

ter , 2012 IL App (3d) 100973

Appellate Court Caption In re MARRI AGE OF MEL I SSA L EE COUL TER, Petitioner-Appellee
, and DONAL D R. COUL TER, Respondent-Appe llant.

District & N o. Third District Docke t No. 3-10-0973

Filed J anuar y 13, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court did noterr in gr antingpetitioner’s request t o remove her child from I llinois to acc ommodate her employ ment as a fore ign service

o ff i ce r for the State Depa

rtment, even though remova l would have a signific ant impact on responde nt’s visitation rights, since the p ro posed

move would g reatly enhanc e the g ener al quality of life for petitioner and her child, a rea sonable v i s i t ati on schedule could be achie ved, and petitione r agree d to provide a means for substantial communication betwee n the child and r espondent via w ebca m, e-mail and te lephone.

Dec ision Under
Review Appea l from the Circuit Court of Rock I sland County
, No. 04-D-614; the Hon. Fr ank R. Fuhr , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Do ug las C. Scovil, of Ruud, Scovil & Marsh, of Rock I sland, for appellant.

David G. Morrison, of Rock I sland, for a ppellee.

Panel J USTI CE CARTER delivered the judgment of the c ourt, with opinion.
J ustice L y tton concurr ed in the judg ment and opinion.
J ustice O’B rien dissented, w ith opinion.

OP INION

¶ 1 The petitioner, Melissa L ee Coulter, filed a petition for remova l with respe ct to Gweny th,
t h e ch i ld whom Melissa had with the responde nt, Donald R. Coulter. After a hearing, th e circ uit court g rante d the petition. On appea l, Donald argues that remova l wa s n o t in Gweny th’s best interests bec ause it dra stically impaired his visitation rights. We aff irm.

¶ 2 FACTS ¶ 3 In 2001, the parties marrie d and Melissa g ave birth to Gweny th. The parties divorce d in 2005, and Melissa was g iven sole custody of Gweny th, subject to Donald’s visitation rights. Donald’s visitation consisted of two nights per wee k, ever y other wee kend, and alternating holiday s. ¶ 4 In 2010, Melissa filed a petition to remove Gweny th from I llinois

. The petition stated that Melissa obtained employ

ment as a fore ign service office r for the United States Depa rtment of State (State Depa

rtment). Her car eer would consist of two-thirds overse as posts at United States embassies and one-third posts at the State Depa rtment in Washington, D.C. The posts would last for two to three year s, with transitions ty pically occur

ring in summers. She would be expected to c omplete at least two “ hardship” posts in which family members would not be allowed to acc ompany her due to either a low standard of living or dang erous conditions. In these instances, the State Depa rtment “prov i d es a maintenanc e allowanc e for car e of depende nts by a designated guardia n.” I f Gweny

th would not be allowed to acc ompany Melissa on these posts, Gwe ny th would live with Donald and attend a loc al public school, and Dona ld would rec eive the f ull amount of the maintenanc e allowa nce. ¶ 5 Additionally
, the petition state d that startingin Ma y 2010, Melissa would underg o a 4-
to 12-month training period in Virg inia, during which time she would reside in an apar tment in Falls Church. Gweny

th would stay

with Donald betwe en May and September

2010. ¶ 6 Melissa attache d to the petition some information reg arding overse a s s c h o o ls a n d s chools in Fa lls Church, Virg inia. Among other things, these data sheets repor ted that the Americ an

-2-students in the overseas schools had avera g e SAT scor es hi g her than the national aver ag e,

and the Fa lls Church publi c schools also h ad av er age SAT score s highe r t han the national

aver ag e. ¶ 7 Melissa als o at t ac h ed a p roposed pare nting agree ment to the petition. Donald would

rec eive visitation for the 1 0 we eks of Gweny th’s summer vacation; transportation costs would be cover ed by t h e S t ate Depa rtment. The proposed agree ment also stated that “[Melissa] will arr ang e and assu m e fi nancia l responsibility for the minor child to be chape roned during trave l from [her] residenc e to [Donald’s] residenc e. [Donald] will do the

same during trave l from [hi s] residenc e to [Melis sa’s] residenc e.” In addition, Donald would have an op t i o n t o exercise visi tation for one to two wee ks during Christmas brea k in oddnumbere d year s and during Easter brea k in even- numbere d year s; transportation costs would be Dona ld’s responsibility

. ¶ 8 W i t h re gar d t o communication, the proposed agree ment stated that Meliss a wo u l d provide Gweny

th with a computer a

nd Interne t acc ess s o Donald could communicate with her via webc am and e -mail. ¶ 9 Wit h reg ard to schooling
, the proposed agree ment state d tha t the State Depa

rtment would

cover the majority of Gweny th’s overse as schooling costs, and Meliss a wo u l d cover any

rema ining c osts. ¶ 10 On September 8, 2010, the circ uit court held a hearing on Melissa’s petition for remova l. Melissa testified that prior to her State Depa rtment job, she worke d for 41⁄2 year s as an editor
at a local newspa

per and made approximately $34,000 per year

. Given economic difficulties in the newspa

per industry
, Melissa beg an looking for other employ ment in the Quad Citi es

are a and in Chicag o. She beg an looking into the fore ign service office r job in late 2008 and, afte r a le ng thy

proce ss, was off

ere d the job in ear ly

2010. ¶ 11 At the time of the hearing, Mel i s s a wa s wo rk ing in Washington, D.C., was e arning approximately $60,000 per year , and had mo re co mp rehensive health insurance cover ag e than she had in Rock I sland. She also stated she would be able t o beg in a colleg e saving s

acc ount for Gweny

th, which she could n o t d o wh i l e working as an editor. Also, her
apar tment in Fa lls Church, Virg inia, was more modern than her Rock I sland duplex and had amenities s h e d i d not have in the duplex. Melissa’s boyfriend lived with Melissa and Gweny th in the Fa lls Church apar tment. They beg an dating in Fe bruar y 2009, and he moved in with her in the Rock I sland duplex in December 2009. They moved to the Virg inia
apar tment i n M ay 2 0 10. Melissa’s boy friend had a g ood relationship with Gweny th and assisted with her car e, including g etting Gweny th from their apar

tment to the school bus stop and bac k ag ain. ¶ 12 When asked why she selec ted the F alls Church, Virg inia, are a, Melissa stated:
“I looked at overa ll test score s, and then I also talked to other For eign Service pare nts about their experience s with the school district, the various school districts, and Fa irfax Co u n ty was highly rec ommended. In fac t, I think on the worldwide school fac t sheet, wher e it compar es the overse as school s t o D. C

. are a schools, Fa irfax County has the highe st test scores.” ¶ 13 Melissa also testified that sh e an d Gw en y th had been involved in Girl Scouts in Rock

-3-I s l and, and she planned to continue that involvement in Virg inia. She had looked i n t o t h e

Girl Scouts program at Gweny th’s new school in Virg inia, Glen For est Elementar y School. She also looked into other extracurr icular activities, including afte r-sc hool programs, socce r leagues, and da

nce a cade mies. ¶ 14 Glen For est Elementar y School, which Melissa chose afte r looking into other schools in the are a, was approximately 10 to 15 minutes by bus from Melissa’s apar tment. The school bus stopped at the apa

rtment complex due to the number of c hildren living in the c omplex who attend the school. The school was l arg er than Gweny th’s Rock I sland school, had smaller class siz es, and, in Melissa’s opinion, had better fac iliti es. They als o h ad an arts program, which her Rock I s l an d s chool did not have. In sum, Melissa opined that the Virg inia school was at least compar able t o , an d i n sever al respe cts better than, the Rock I sland school. ¶ 15 Melissa’s job assig nment in Washington, D.C., was schedule d to end in J une 2011, but she would rema in in the United States until sometime betwee n Marc h and J uly 2012. She had approximately 30 differ ent overse as po s t s fo r which she could apply
, and her pref ere nces depende d on the school s available for Gweny th and the safe ty of the location. The State Depa rtment had a specific office set up to “assist with the s chools and ex trac urricula rs for kids, plan family outings for people at post, et cete ra.” Melissa had visited that office to view information about over seas sc hools. ¶ 16 W i t h re gar d to the overse as schools, Melissa stated that “[t] here are 144 Ameri ca n

sponsored schools that g et State Depa rtment funding
, and there are ot h er international schools and British schools available at–at post as well that all have Eng lish as the primary instruction languag e.” Fur ther, Melissa stated that she had preliminarily l o o k ed into these schools and assessed them acc ording to the same criteria by which she assessed the Virg inia schools. ¶ 17 On cross-e x amination, when asked why she wanted to have Gweny th with her duringthe school year as opposed to the summer, Melissa stated that she believed it would be better to have her during s ch o o l b eca use she has been the pare nt more involved in Gweny th’s education and extracurr icular activities, and that the uninterrupted 10-we ek block in the

summer during brea

k from school would allow Gweny th to spend a lot of time with extended family members livingin the are a. ¶ 18 Do nald testified that he was employed as a service technicia n with a cable televis i o n company

. He worke d Wednesday t h ro u gh S aturday from 8 a.m. to 5:30 or 6 p.m. He estimated that the parties’ visitation schedule resulted in him having Gweny th approximately 50% of the time, and his f amily helped watch Gweny th on his work day s. He was involved in Gweny th’s activities at school, althoug h he admitted that Melissa participated in more activities than him. He als o s t ated that he would not be able to aff ord the additional transportation costs contained in Melissa’s propose d pare nting a g ree ment. ¶ 19 Counsel for Donald also cal l ed n u merous witnesses who testified that Gweny th was a happy and well-a djusted child. Gweny th had signific ant wee kly contac t with sever al members of

Donald’s f

amily

. ¶ 20 On September 9, 2010, the circ uit court is s u e d a w ritten order g ranting Melissa’s petition.

-4-In rea chingits decision, the court re counted the f acts a nd found: “[T] he evidenc e clea

rly shows that the proposed move would g reatly enhanc e the g ener al quality of life of both the custodial pare nt and the child both direc tly and indirectly

. The economic, social, educa tional and cultural opportunities aff orded by [Melis sa’s] achie vement of obtaining a position with the United States State Depa rtment as a For eign Service Offic er c annot be unde rstated.”
Fur ther, the court also found that
, wh i l e t h e impact to Donald’s visitation would be signific ant: “[I ]n light of the fac t that the United States State Depa rtment does provide economic assistance in transporta

tion for the child from fore ign countries to assist in visitation with

a n o n-custodial parent, t his Court believes that a reasonable visitation schedule can be fashioned, that, incorpora ted with the use of telephonic and Sky pe aided computer visits, will ensure that [Donald] continues with a close and loving relationship wi t h his daughter.” ¶ 21 Thus, the circuit court found that re moval was in Gwe ny th’s best interests and g rante d Melissa’s petition. Donald appe aled.

¶ 22 ANALYSI S ¶ 23 On appea l, Donald argues that the circ uit court err ed when it g rante d Melissa’s petition for removal. S pecif

ically
, Donald argues t hat removal was not in Gweny th’s best interests beca use it drastica lly

impaired his visitation rights. ¶ 24 Section 609(a) of the I llinois Marr iag e and D issoluti on of Mar riag e Ac t provides: “The court may g rant leave
, befor e or afte r judgme nt, to any party having custody of any minor child or children to remove such child or chi l dre n from I llinois whene ver such
approva l is in the best interests of such child or children. The burden of proving that such

remov al i s i n the best interests of such child or children is on the party seeking the

remova l.” 750 I L CS 5/ 609(a) (West 2010). ¶ 25 We will not disturb the circ uit court’s best interests deter mination “unles s i t i s cl early
ag ainst the manifest weight of t h e evidenc e and it appea rs that a manifest injusti ce has

occur red.” In re M

arriage of Ecke rt , 119 I ll. 2d 316, 328 (1988). ¶ 26 Our supreme court has identified sever al fac tors that the circ uit court should consider in assessing the child’s best interests: (1) whether the move will enhanc e the quality of life for the custodial pare nt and for the child; (2) whether the custodial pare nt is motivated by a desire to hinder or defe at the noncustodial pare nt’s visitation rights; (3) the noncustodial
pare nt’s motives for challeng ing remova l; (4) the eff ect the move would have on the noncustodial pare nt’ s visitation rights; and (5) whether the move would still allow for a

rea s o n ab l e and rea listi c visitation schedule for the noncustodial pare nt. In re Marriage of Colli ngbourne
, 204 I ll. 2d 498, 522-23 (2003). These fac t o rs are not exclusive. Colli ngbourne
, 204 I ll. 2d at 523. In re ac h i n g i ts decision, the court should consider all rele vant evidenc e and any other fac tors that are war rante d by the context of the parti cular

case

. Colli ngbourne
, 204 I ll. 2d at 522-23. Be cause fac tors two and three are not at issue in

-5-this appea l, our analy sis focuse s on fac tors one, four, and five, as well as any other rele vant

considerations. Colli ngbourne , 204 I ll. 2d at 522-23. ¶ 27 Wit h reg ard to the firs t fa ct o r, t he circuit court found that “the evidence clea rly shows that the proposed move would g reatly enhanc e the g ener al quality of life of both the custodial
pare nt and the child b o t h d i re ctl y and indirectly .” Clearly
, the job provided Melissa with signific ant benef

its over her previous position. Her salary nearly doubled, her health insurance was more compre hensive, and her Virg inia apar tme n t wa s an upg rade over her Rock I sl an d dup l ex

. She rese arc hed schools in the Washington, D.C., are a and found a school for Gweny

th in Fa lls Church, Virg inia, that was at least compar able in some respe cts to her Rock I sland school and better in sever al others, including aver ag e SAT score s. The

are a also offe red a rang e of extracurr icular activities for Gweny th, including activities in which Gweny

th had participated in Rock I sland. Melissa also rese arc hed overse as schools, assessing them acc ording to the same criteria she used to assess the Virg inia schools, and her job provided assistance to families reg arding assessment of overse as locations. The fac t that Melissa did not pr ovide more prec ise information on overse as locations is understandable,
g iven the number of countries she had available to her with r eg ard to applying for overse as posts. In sum, our revie w of the rec ord in this case reve als nothing to indicate that the court’s finding on this fac tor was ag ainst the m anife st weight of t he evidence. See gen er al l y In re Parentage of

R.M.F.
, 275 I ll. App. 3d 43, 47 (1995) (re cognizi ng that rele vant considerations

on the first fac tor include “the possibili ty of a highe r paying job, better s ch o o l s , and improved g ener al opportunities”); Colli ngbourne
, 204 I ll. 2d at 528 (citing case s with
approva l for the proposition that the custodial pare nt should be aff orded some defe renc e in his or her de termination as to what is in the best intere sts of his or her c hild). ¶ 28 Wit h reg ard to the fourth and fifth fac tors, the circ uit court acknow ledg ed that the move would have a substantial impact on Donald’s visitation. Howeve r, the court believed that a

rea sonable visitation schedule could still be achie ved, and the rec ord supports the court’s finding s on these fac tors. Whil e Donald would not see Gweny th as much as he did under the orig inal visitation agre em ent, he would potentially have her for an uninterrupted 10-we ek period while she was on summer vacation from school, with signific ant financ ial assistance from the State Depa

rtment for transportation costs and the rema ining costs to be split evenly b et we en the parties. During this time, Gweny th would have the opportunity to hav e signific ant contac t with extended family members in the Quad Citi es are a. In addition, even t h oug h Donald alleg ed that he would not be able to aff ord to pay for optional v i s i t at i o n , Melissa also proposed g iving Dona l d the option of one of two holiday brea ks during the school year

. ¶ 29 Further, the testimony indicated that Melissa would continue to foster a re l at i o n s h i p betwee n Donald and Gweny th. Melissa would provide Gweny th with means for substantial communicati o n w it

h D o n a ld via webc am, e-ma il, and telephone. Whil e we acknow ledg e that

a court may not rely on elec tronic communication as a fac tor supporting remova l (750 I L CS 5/609(c) (West 2010)), there is nothing prohibiting a court from considering it if it is rele vant to the particula

r case (see In re Marriage of Dorfman
, 2011 I L App (3d) 110099, ¶ 62 (ac knowledg ing that communication via telephone and webc am can be proper ly considere d in a remova l decision))

. This is prec isely what the court did in this case , as evidenc ed by the

-6-court’s written order

.

¶ 30 This is undoubtedly a difficult case , as the remova l signifi ca n t l y d ec re as es Dona ld’s visitation time. Neve rtheless, under the circ umstances of this particula r case , we cannot say that the circuit court’s findings on the relevant fa ctors we re a g ainst the manifest weight of the evidenc e. See, e.g. , R.M.F.
, 275 I ll. App. 3d at 48 (“[t] he presumption in favor of the trial court’s decision is compelling in such case s and should not be disturbed mere ly beca use we might arrive at a differ ent conclusion”)

. Acc ording ly
, we hold that the court did not err when it gr anted Me lissa’s petition.

¶ 31 CONCLUSI ON ¶ 32 The judgment of the c ircuit court of Rock I sland County

is affirme d.

¶ 33 Affir

med.

¶ 34 J USTI CE O’B RI EN, dissenting : ¶ 35 I respe ctfully dissent from the majority opinion. In making its ruling
, the trial court found that the evidenc e “cle arly shows that the proposed move would g reatly enhanc e the g ener al quality of life of both the custodial parent and the child both direc tly and indirectly

. The

e c o n o mi c , social, educational and cultural opportunities aff orded b y [M e li s s a ’ s ] a c h ie v e ment of obtaining a position with the United States State Depa rtment as a For eign Service Offic er cannot be understate d.” Howeve r, the evidenc e prese nted did not support that finding

. Thus the cour t’s rulingwas a g ainst the manifest we ight of the evidenc e. ¶ 36 The petitioner testified she would ear n more money and have better health insurance but did not offe r testimony that her living expenses would be lower. The petitioner did not offe r any testimony reg arding any new social or cultural opportunitie s th a t w o u ld b e c o me a

vailable
to the child as a result of the remova l. The petitioner could not tell the court wher e she would be stationed or for how long she would be stationed any wher e o n ce her training was completed. The evidenc e was that u n t i l t h e completion of petit ioner’s training they would live in Virg inia and then peti t i o n er wo uld be assigned to various posts across the world during her service obligation. I f the petitioner’s assig nment was in a fore ign country that was deeme d “saf

e,” the child would move with the petitioner, and if the assignment country was “u n s af e, ” t hen the child would return either to Virg inia or t o Rock I sland, I llinois

. To that end, the only school the petitioner knew that the child would attend was the Glen For est elementa ry school in Fa lls Church, Virg inia. She could only opine that the child would attend that school until sometime in the spring of 2012. The petitioner did not testify wh ere the child would attend school following the spring of 2012 beca use she did not know wher e she would be stationed. So while there was testimony that the Virg inia school was compar able to, and in sever al respe cts better than, the Rock I sland school, there was nothing more than speculation about where the child would live or g o to sc hool a fter the spring of 2012. That is simply insufficient evidenc e upon which to de termine whe ther the move would enhanc e the quality

of the life of

the child.

-7-¶ 37 At most the testimony d e mo nstrated that the petitioner was not filing her remova l petition

to thwart the child’s relationship with her fathe r, that the p et itioner would rec eive a signific ant incre ase in pay with better health insurance benef its, that the child would be able
t o maintain a relationship with her fathe r via summer vacations and elec troni c communication, and that until mid 2012 the child would reside with her moth er in an environment nearly identical to the Rock I sland community

. That evidenc e does not meet the standard for remova l set forth by our supreme court in the Eck ert case

. In re Ma r r i a g e of Eck ert, 119 I ll. 2d 316, 518 N.E.2d 1041 (1988). ¶ 38 Iwould reve rse the de cision of the trial c ourt.

-8-