No. 2--01--1079

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

In re MARRIAGE OF             ) Appeal from the Circuit Court

SORYIA COLLINGBOURNE,         ) of Kane County. 

        					)

    Petitioner-Appellee,    	)                              	

						)      

                              )          

and                           ) No. 99--D--723 

                              )                  

GEOFF B. COLLINGBOURNE,       ) Honorable

                              ) Stephen Sullivan,

	Respondent-Appellant.    ) Judge, Presiding.

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	Petitioner, Soryia Collingbourne, filed a petition to remove her minor child, Tyler, from the State of Illinois.  The trial

court granted the petition.  Respondent, Geoff B. Collingbourne,

the father, appeals.  We reverse.

	Petitioner and respondent dissolved their marriage on

September 1, 1999.  Two children had been born to the parties

during their marriage,-- Geoff, born January 11, 1986, and Tyler,

born January 10, 1991.  The judgment for dissolution of marriage

incorporated a marital settlement agreement and a joint parenting

agreement.  Pursuant to the terms of the joint parenting agreement,

the parties were awarded joint custody of the children.  However,

the primary residential custody of the children was split. 

Respondent had primary residential custody of Geoff, and petitioner

had primary residential custody of Tyler.  

	On June 15, 2001, petitioner filed a petition to remove Tyler

from the State of Illinois to the State of Massachusetts.  An

evidentiary hearing was conducted.  Petitioner testified that she

was engaged to be married to Mark Rothman, who resides in Sharon,

Massachusetts, a town of approximately 7,000 people located one-half hour from Boston and one-

half hour from Providence, Rhode Island.  She wanted to move to

Sharon, Massachusetts, with Tyler so she could be with Mr. Rothman. 

Mr. Rothman owns a three-bedroom home on 1.5 acres in Sharon and

owns a sales manufacturing business. 

	At the time of the hearing, Tyler was 10 years old.  The

apartment he shared with petitioner had two bedrooms and two baths

and did not have a yard.  Petitioner is employed as a sales manager

for Pet-Ag, Inc., located in Hampshire, earning approximately

$50,000 annually and working 40 hours per week.  If petitioner

moved to Massachusetts, she would work for Mr. Rothman’s company in

sales and would work during Tyler’s school hours only. 

Petitioner’s current position required her to place Tyler in day

care from the end of the school day at 2:30 p.m. until she picks

him up between 5:30 and 6 p.m.  

	Tyler attends Hampshire Elementary School.  Petitioner

testified that she hired a company known as School Match and

purchased information concerning the school system in Sharon,

Massachusetts.  In her personal opinion, the school system in

Sharon would offer Tyler a wonderful education that would be

superior to his present school system.  Tyler would attend Heights

Elementary school, which is located seven minutes from Mr. Rothman’s home and offers a wide range of extracurricular

activities.  

	Petitioner proposed a visitation schedule for Tyler in the

event the court granted her petition for removal.  The proposal

would allow Tyler visitation in Illinois with his father for 8 to

10 weeks during the summer months, during two spring breaks that

occur in February and April, during Thanksgiving break, and for a

portion of the Christmas break.  

	Petitioner testified on cross-examination that respondent's

visitation with Tyler, which was once flexible, had become more

scheduled.  She related a vacation with Mr. Rothman and Tyler

wherein Tyler became unhappy and returned to respondent after three

days.  She is aware that Tyler is very unhappy with the day care

center he presently attends and that respondent’s sister and

present wife have offered to watch him some of the days. 

Petitioner has not followed up to obtain alternate arrangements.  

	Mark Rothman resides in Sharon, Massachusetts, a town of

approximately 16,000 residents.  He described the community as

affluent and upscale with some of the finest schools in the state. 

Mr. Rothman’s business does not allow him to live in the State of

Illinois.  He has offered petitioner a sales position in his

company that would allow her to structure her own work hours.  Mr.

Rothman testified that he has the financial means to assist in

fostering respondent’s relationship with Tyler through out-of-town

visitation, computers, e-mail, phone calls, and visits back and

forth by airplane.  

	Mr. Rothman has made frequent trips between Boston and

Chicago.  The flight time is two hours, and he has experienced

delays and cancellation in flights.  The travel from his home to

the Boston airport is approximately 45 minutes.  

	Amy Joan Conry was Tyler’s fourth-grade teacher.  She

described Tyler as an above-average student who is well-behaved. 

Ms. Conry has been involved with petitioner with respect to Tyler’s

education through telephone calls and various school meetings.  She

saw respondent one time at an open house but has not been involved

with him concerning Tyler’s education.

	Respondent resides in Hampshire, Illinois, with his wife,

Carol Lynn, her 6-year-old son, and his 15-year-old son, Geoff.

They live in a single-family home consisting of three bedrooms with

a backyard.  His home is located eight blocks from Hampshire

Elementary School, where Tyler has attended since kindergarten.   

	Respondent is employed as an electrician.  He works 40 hours

per week from 7 a.m. until 2:30 or 3 p.m.  His annual earnings at

a rate of $33 per hour total $70,000.  Respondent’s wife, Carol

Lynn, is employed part-time as an ultrasound technician.  She works

three days per week from 8 a.m. until 5 p.m.  The current

visitation schedule for Tyler allows respondent to have Tyler at

his home two weekends every month, starting on Friday evening and

ending on Sunday evening.  Respondent testified that he has never

missed his weekend visitation with Tyler.  The allotted visitation

was shortened only if respondent had to work for half a day on a

Saturday, which meant he would miss four hours at the most.  During

this time, Tyler stayed with either his brother or his mother.  In the past respondent's visitation with Tyler was very flexible,

occurring virtually any time that he wanted to see Tyler and was

able to care for him, including both weekdays and weekends. In the

months prior to the hearing, petitioner would not allow respondent

to pick Tyler up from school and take him home until she picked him

up after work.  Instead, petitioner enrolled Tyler in day care.  

	Respondent has family living in the Hampshire area, including

several cousins, aunts, uncles, and grandparents.   Tyler would see

his extended family often but now only sees them approximately one

time per month.  

	Respondent described his relationship with Tyler as very close

and loving.  He opposes petitioner’s move to Massachusetts with

Tyler.  Respondent believes it is in Tyler’s best interests to stay

in Illinois with him and his extended family.  He described his

wife’s relationship with Tyler as good.  There have been some

problems with jealously between Tyler and Carol Lynn’s son, but

respondent indicated the relationship is getting better.   

	The trial court conducted an in camera interview of Tyler.  At the time of the interview, Tyler was 10 years old.  When asked

about his thoughts concerning Boston and a proposed move, he

responded that it was "okay."  He stated that he was "scared" about

the move because he does not want to leave his father.  He further

stated that he has informed his mother he does not want to move to

Boston and was unsure of whether the proposed move was even going

to happen.  

	He stated that his mother travels out of town for work three

times per month and that either his father or his mother’s friend will watch him.  He also indicated that he does not like the day

care center he attends because most of the children are babies. 

Tyler has traveled alone on an airplane in the past.  He is not

afraid to fly alone.  

	Tyler stated that he does not want to move to Boston.  He does

not want to leave his father, brother, friends, and family on his

father’s side, including his grandparents, aunts, and uncles.

	After considering the testimony at the evidentiary hearing, 

arguments of the parties, and the in camera interview with Tyler, the trial court granted the petition for removal. In a written

order, the trial court considered the requirements of section 609

of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS

5/609 (West 2000)) as well as the decision of our supreme court in In re Marriage of Eckert, 119 Ill. 2d 316 (1988).  The trial court found that neither party had an improper motive in requesting or

objecting to the removal.  The trial court also found that there

was no evidence of a substantial direct benefit to Tyler by the

proposed move and that, consequently, any benefit to Tyler had to

be indirect.  

	The trial court considered that the move would allow

petitioner to enroll Tyler in a school system with superior

opportunities, obtain a job with a greater salary, conform her work

to Tyler’s school schedule, and afford air transportation to enable

Tyler to visit Illinois by plane.  Although the move would separate

Tyler from his father, brother, and extended family, and require

him to take 9 or 10 extended trips by airplane, the trial court

found that the evidence favored the proposed move since petitioner will substantially enhance her quality of life and thus indirectly

benefit Tyler.  In the court’s view, the best interests of Tyler

were served by allowing petitioner to remove him to Massachusetts,

subject to the following visitation schedule:

			8 to 10 weeks during summer vacation;

			1 week during February break;

			1 week during spring break;

			eEvery Thanksgiving holiday from Thursday to Sunday;

					1 week during Christmas break; and

	sSuch other times as agreed by the parties.

	This appeal followed.  

	Section 609(a) of the Illinois Marriage and Dissolution of

Marriage Act governs petitions for removal.  750 ILCS 5/609(a)

(West 2000).  The statute provides as follows:

		"The court may grant leave *** 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 2000).

	In a removal case, the paramount question is whether removal

is in the best interests of the child.  In re Marriage of Eckert, 119 Ill. 2d 316, 325 (1988).  When making a determination as to the

best interests of the child, there is no bright-line test.  Rather,

the decision must be made on a case-by-case basis, depending, to a

great extent, on the circumstances of each case.  Eckert, 119 Ill. 2d at 326.  A trial court's determination as to the best interests

of the child will not be reversed on appeal 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.

	In making a determination as to the best interests of the

child, the trial court should hear all relevant evidence.  Eckert, 119 Ill. 2d at 326.  In Eckert, our supreme court identified five factors to consider in determining whether removal is in the

child’s best interest:  

		(1) whether the proposed move will enhance the general

quality of life for both the custodial parent and the child; 

	(2) the motives of the custodial parent in pursuing the

removal;  

		(3) the motives of the noncustodial parent in resisting

the removal;  

		(4) the visitation rights of the noncustodial parent; and

		(5) whether a realistic and reasonable visitation

schedule can be reached if the move is allowed. 

See Eckert, 119 Ill. 2d at 326-27.

	Respondent contends that the trial court’s ruling is against

the manifest weight of the evidence.  He asserts that petitioner

failed to sustain the burden of proving that removal is in the best

interest of Tyler under the factors outlined in Eckert.  He further asserts that the evidence did not show any direct benefit to Tyler

by the proposed move, but only indirect benefit due to an improved

lifestyle for petitioner, which is insufficient to sustain the

burden of proving that the move was in the child’s best interest.  	Turning to the factors outlined in Eckert, the trial court made an express finding that neither parent’s motives in seeking or

resisting removal were improper.  We have found nothing in the

record to the contrary.  Therefore, we will consider the remaining

factors set forth in Eckert.

	Under Eckert, the trial court must consider whether the removal would enhance the general quality of life of both the

parent and the minor child.  Evidence that a court may consider in

determining whether the quality of life of the parent and the child

would be enhanced includes the possibility of a higher paying job,

better schools, and improved general opportunities.  See In re Marriage of Pfeiffer, 237 Ill. App. 3d 510, 513-14 (1992). 

	As the trial court concluded in its written opinion, the

evidence did not illustrate that there would be a substantial

direct benefit to Tyler by moving to Massachusetts.  Although

petitioner presented evidence in an effort to establish that Tyler

would receive a superior education in the Sharon school system, in

our view, Tyler’s present school system is comparable to that in

Massachusetts.  Further, both locations are within equal distance

from a large metropolitan area with the accompanying educational

and cultural amenities.  

	The majority of the evidence related to benefits petitioner

would derive by moving to Massachusetts, remarrying, and living

with the man she loves.  As we held in In re Marriage of Berk, 215 Ill. App. 3d 459, 465-67 (1991), it is insufficient to focus only

on the improvement of the custodial parent’s life.  Rather, the

improvement in the custodial parent's quality of life is only important insofar as it increases and furthers the child's quality

of life.  Berk, 215 Ill. App. 3d at 465.  While respondent presented evidence that she would enjoy an increased standard of

living, live in a larger home, and earn a greater income working

for her prospective husband’s company, an increased standard of

living will occur in almost every case of remarriage, as we stated

in Berk,.  As such, the living arrangements proposed by the move to Massachusetts are considered, but cannot alone be determinative.  

	Under Eckert, it is in the best interests of a child to maintain a healthy and close relationship with both parents, as

well as other family members.  Eckert, 119 Ill. 2d at 326-27.  Therefore, the visitation rights of the noncustodial parent and

whether a realistic and reasonable visitation schedule can be

reached if the move is allowed must be considered.  Eckert, 119 Ill. 2d at 326-27.  

	A visitation schedule is reasonable when it will preserve and

foster the child’s relationship with the noncustodial parent.  In re Marriage of Gibbs, 268 Ill. App. 3d 962, 968-69 (1994).  When the noncustodial parent has diligently exercised his rights, the

court should not interfere with those rights for frivolous,

unpersuasive, or inadequate reasons.  Gibbs, 268 Ill. App. 3d at 968-69.  When a parent has diligently exercised visitation rights,

a court should be reluctant to interfere with those rights by

allowing removal for unpersuasive or inadequate reasons.  Eckert, 119 Ill. 2d at 327.

	Respondent has diligently exercised his visitation rights with

Tyler.  He has not missed his biweekly weekend visits with Tyler.  Further, the evidence indicates that, by picking Tyler up from

school and staying with him until petitioner retrieved him after

work, respondent hads visited with Tyler even more often than set forth in the marital settlement agreement.  The time that

respondent has spent with Tyler has been at respondent's home,

which has enabled Tyler to spend time also with his natural brother, Geoff.  

	The visitation schedule set forth in the trial court’s order

grants respondent approximately 96 days per year with Tyler. 

Although the total number of days that respondent will be with

Tyler is comparable to the bimonthly/every-other-holiday visitation

schedule in use, the schedule ordered by the court will require

Tyler to be away from his Massachusetts home during every school

break for substantial periods of time.  As Tyler grows older and

becomes accustomed to his Massachusetts home and school, it is

likely that he will form relationships with friends from school and

his neighborhood.  While it is important for Tyler to visit his

father, brother, and extended family in Illinois, it is also

important that Tyler adjust to his new home in Massachusetts. 

Requiring Tyler to be away from his friends and home for every

school break is not likely to solidify Tyler’s roots within his new

community, foster close relationships with his peers, or further

develop his relationship with his mother and Mr. Rothman. 

Additionally, the visitation schedule set forth by the trial court

will require Tyler to travel by air 9 to 10 times per year for

visitation, which is not only time consuming, but hectic and

burdensome for adults and children alike.

	In our view, the evidence presented at the hearing, in conjunction with the factors set forth in Eckert, indicates that removing Tyler to Massachusetts is not in his best interest. 

Although the move may provide an indirect benefit to Tyler by

virtue of the benefits that petitioner will experience by marrying

Mr. Rothman, we cannot conclude that this evidence outweighs

Tyler’s interest in maintaining a close relationship with his

father, natural brother, and extended family in Illinois.  While

the proposed visitation schedule would allow substantial visitation

with respondent for lengthy periods of time, the fact remains that

respondent has work responsibilities that would preclude him from

spending each day with Tyler and would require care and supervision

by another adult during his visitation hours.  Under the facts of

this case, we determine that the trial court’s decision to grant

the petition for removal was against the manifest weight of the

evidence. 

	The judgment of the circuit court of Kane County is reversed.

	Reversed.

	BYRNE, J. concurs.

	JUSTICE BOWMAN, dissenting:

	I respectfully dissent.

	In my view, the majority's reasons for reversing the ruling of

the trial court amount to nothing more than a substitution of its

factual findings for those of the trial court.  It is well

established that a trial court's determination of whether removal

is in a child's best interests should not be reversed unless it is

clearly against the manifest weight of evidence and it has resulted in manifest injustice.  In re Marriage of Eckert, 119 Ill. 2d 316, 328 (1988).  Precisely because removal actions are so fact

specific, and because of the trial court's far superior ability to

observe and evaluate the parents and children, the Eckert court enunciated a policy of deference to the trial court ruling as the

appropriate standard of review.  Eckert, 119 Ill. 2d at 330.

	In rendering its decision, the trial court evaluated the

Eckert factors.  It found no improper motive on either parent's part in seeking or opposing removal.  The court further found that

(1) petitioner would substantially enhance her quality of life by

moving to Massachusetts and thus the move would indirectly benefit

Tyler; (2) petitioner could not find employment in Illinois similar

to her employment opportunity in Massachusetts; (3) petitioner's

fiancé could assist petitioner financially but could not relocate

his business to Illinois; (4) the school systems in Illinois and

Massachusetts are comparable and reasonably close to a large

metropolitan area; (5) the "enhanced quality of life" factor shows

that the existing joint custody arrangement has already resulted in

the separation of Tyler and his brother because they live in

separate households, attend separate schools, and have a five-year

age difference, which reasonably has or will shortly create a

diversity of interest between them; (6) under the proposed

visitation schedule, the actual time Tyler would spend with his

father would be comparable to that under the existing schedule; and

(7) the traveling time involved would not be more than if

petitioner were to move to southern Illinois.

	In its analysis, the majority fails to demonstrate that the

trial court's findings were contrary to the manifest weight of the

evidence.  The majority notes that moving to Massachusetts would

benefit Tyler only indirectly through the direct benefit his mother

would derive from marrying her fiancé.  The majority goes on to say

that such an indirect benefit is not determinative.  The trial

court made note of this proposition as well in its written

decision, and there is no indication that it placed too much

emphasis on the "indirect benefit" factor.  Thus, I fail to see how

the court's treatment of this issue renders its decision contrary

to the manifest weight of the evidence.

	The majority also finds fault with the trial court's

determinations regarding the proposed visitation schedule, stating

that it would require Tyler to spend too much time away from his

new home in Massachusetts.  The majority seems to forget that it is

not our job to second-guess the trial court's decisions on such

matters, but only to determine whether they are against the

manifest weight of the evidence.  The trial court in this case

fashioned a schedule that would give Tyler approximately the same

amount of time with his father that he has now.  In order to do so,

however, Tyler must travel to Illinois during most of his school

vacations.  While this proposed schedule is more inconvenient than

the current arrangement, it is a reasonable and realistic method of

handling an obviously disruptive event in Tyler's life.  It also

would allow Tyler C. to maintain a close relationship with his

father despite the physical distance between them.

	In sum, I would affirm the trial court because the trial court

was in the best position to observe Tyler, his parents, and the

other witnesses and to evaluate their temperaments, predilections

and capabilities in determining Tyler's best interest.  The

majority's reasons for reversing the trial court do nothing more

than substitute its viewpoints for those of the trial court and,

therefore, violate the requirement that the reviewing court give

deference to the trial court's findings.