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                                 Supreme Court                              Date: 2019.09.03
                                                                            16:26:50 -05'00'



                      In re Marriage of Fatkin, 2019 IL 123602




Caption in Supreme   In re MARRIAGE OF DANIELLE FATKIN, Appellee, and TODD
Court:               FATKIN, Appellant.



Docket No.           123602



Filed                January 25, 2019



Decision Under       Appeal from the Appellate Court for the Third District; heard in that
Review               court on appeal from the Circuit Court of Knox County, the Hon. Paul
                     L. Mangieri, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.
                     Cause remanded.



Counsel on           Daniel S. Alcorn, of Alcorn Nelson LLC, of Galesburg, for appellant.
Appeal
                     Daniel M. Cordis, of Cordis & Cordis, of Princeville, for appellee.

                     Michael G. DiDomenico, of Lake Toback DiDomenico, and Paul L.
                     Feinstein, of Paul L. Feinstein, Ltd., both of Chicago, amici curiae.
     Justices                  JUSTICE THOMAS delivered the judgment of the court, with
                               opinion.
                               Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis,
                               and Neville concurred in the judgment and opinion.



                                               OPINION

¶1        There are two issues in this appeal: (1) whether the trial court properly granted respondent
      Todd Fatkin’s petition to relocate out of state with the parties’ minor children and (2) whether
      the trial court’s order granting that petition was appealable immediately under Illinois Supreme
      Court Rule 304(b)(6) (eff. Mar. 8, 2016). After first concluding that immediate appeal was
      proper under Rule 304(b)(6), the appellate court below determined that the trial court’s
      decision granting Todd’s petition was against the manifest weight of the evidence. 2018 IL
      App (3d) 170779. It therefore reversed that decision and remanded the cause for further
      proceedings. For the reasons that follow, we agree with the appellate court’s conclusion that
      this is a proper Rule 304(b)(6) appeal, but we disagree with its conclusion that the trial court’s
      decision was against the manifest weight of the evidence.

¶2                                         BACKGROUND
¶3        Todd Fatkin and Danielle Fatkin were married on August 4, 2004. They subsequently had
      two children together, a son born in 2004 and a daughter born in 2010. In 2008, the parties
      moved to East Galesburg, Illinois, where they continued to live together until their separation
      in June 2014.
¶4        In July 2015, the circuit court of Knox County entered a final order on custody and
      visitation, followed by a dissolution of marriage judgment in July 2016. Danielle and Todd
      were awarded joint custody of the children, with primary physical custody going to Todd. This
      meant that, while school was in session, the children spent 6 out of every 14 nights with
      Danielle, as well as most weekday afternoons until Todd came home from work. When school
      was not in session, the children spent alternate weeks with each parent. The parties were
      ordered to consult with each other on all significant decisions about the children, with Todd
      having final decision-making power if they could not agree.
¶5        In February 2017, Todd filed a notice of intent to relocate with the children to Virginia
      Beach, Virginia, where he and the children would live with Todd’s parents. Danielle objected
      to the relocation, so Todd filed a petition for leave to relocate with minors, as required by
      section 609.2(f) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act)
      (750 ILCS 5/609.2(f) (West 2016)).
¶6        The trial court conducted a three-day hearing on Todd’s petition to relocate, and both
      parties presented evidence and testimony. In addition, the trial court conducted an in camera
      interview with the parties’ son, who was then 12 years old. The trial court did not include the
      parties’ daughter in the proceedings, as she was only six years old at the time.
¶7        The evidence showed that Todd was 48 years old and rented the home in East Galesburg
      where he and Danielle had lived during the marriage. Todd has a bachelor of arts degree in


                                                  -2-
       fine arts and a dental hygienist associate’s degree, and he is a licensed dental hygienist in both
       Illinois and Virginia. He also has a Montessori teaching certificate. From 2011 to 2015, Todd
       worked for a dental practice in Peoria, earning $50,000 per year. Todd quit working for the
       Peoria practice after receiving a job offer from a dentist’s office in Moline, making more
       money. Todd also testified that he had concerns about the Peoria practice’s business ethics.
¶8          In late 2015, after working at the Moline dental practice for four months, Todd’s
       employment was terminated. Todd was subsequently denied unemployment benefits because
       he had been terminated due to misconduct. Todd applied to three local dentist offices near his
       home, but he was not hired. Todd testified that he would not apply for dental jobs in bigger
       cities (e.g., Peoria or the Quad Cities) because the commute would be over an hour and he did
       not want to “spend the rest of my life commuting *** an hour and twenty some odd minutes
       door to door and losing all that time with my children.”
¶9          In April 2016, Todd began working for the City of Galesburg (City) as a community service
       officer, earning $12 per hour. The City allows Todd to work 1000 hours per year, which means
       Todd works only from April through October. When he is not working for the City, Todd
       receives unemployment compensation. Todd also receives $508 in monthly child support from
       Danielle.
¶ 10        Danielle testified that she is 41 years old and lives within two miles of Todd’s residence in
       a home that she had purchased. Danielle is employed as a tenure-track professor of history at
       Knox College. The term of Danielle’s contract with Knox College is through 2020, and if she
       is not granted tenure in 2019, she will no longer be employed there. Danielle testified that she
       has not considered any plans for that contingency, as she anticipates being granted tenure.
¶ 11        Danielle regularly exercises her parenting time. She is primarily responsible for scheduling
       the children’s medical appointments, with Todd also involved. She has been the soccer coach
       for both children, volunteered in their classrooms, served as room mother for the children’s
       classes, and was the group leader for her daughter’s 4-H club. Danielle also regularly attends
       parent-teacher conferences, and she keeps in regular contact with the children’s teachers. She
       also provides enrichment activities at the children’s school relating to archaeology, which is
       her academic field of expertise. Danielle and her children enjoy doing many activities together,
       such as baking, running, biking, hiking, camping, taking road trips, reading, and horseback
       riding.
¶ 12        Danielle further testified that she is currently in a relationship with a man who lives in
       Knoxville, Tennessee, and who teaches history at the University of Tennessee. She has visited
       him in Tennessee a few times, and he has visited her in Illinois several times. Danielle denied
       that she has been searching for employment in Tennessee, and she denied ever having
       discussed with her boyfriend or with her children that she is considering relocating to
       Tennessee.
¶ 13        Both children attend public schools in Knoxville, Illinois, and are involved in a variety of
       extracurricular activities. At the time of the hearing, the parties’ son was involved in soccer,
       jazz band, and the 4-H club, and the parties’ daughter was involved in gymnastics, soccer, and
       the 4-H club. Both children have many close friends in the area. Academically, the parties’
       daughter is doing very well. Their son’s grades, however, are declining, and he has reported
       being bullied at school.



                                                   -3-
¶ 14       As for why he wants to relocate, Todd testified that he grew up in Virginia Beach and that
       his parents still live there. In addition, Todd and Danielle had lived together in Virginia Beach
       with their son for 10 months in 2007-08. Todd produced a letter from Recreation Equipment,
       Inc. (REI), stating that he would have a part-time retail sales job waiting for him in Virginia
       paying an hourly wage of between $9.50 and $16.50. Todd also hoped to work part time as a
       dental hygienist in Virginia, though he admitted that he did not have any offers or interviews
       lined up in that field. Todd testified that his father is in good health and in his mid-sixties but
       Todd’s mother is in stage 5 renal failure and on a waiting list to receive a kidney transplant. If
       she did not receive a kidney, Todd did not know how much longer she would live. Once in
       Virginia, Todd and the children would live with Todd’s mother and father in their five-
       bedroom home without having to pay rent. Todd’s parents are financially secure, and they
       would be available to watch the children for Todd when he was not at home. Though Todd
       testified that the children were “very” familiar with the Virginia Beach area, in fact they had
       not been to Virginia Beach in almost four years. Moreover, the children had not seen Todd’s
       mother in three years and had not seen Todd’s father in over four years.
¶ 15       Todd also explained that he had served in the Coast Guard for four years after high school
       and that he is rated with the United States Department of Veterans Affairs (VA) to have full
       medical care. In the Galesburg area, however, the only available VA facility is a clinic that
       provides only basic services such as blood work and physicals. For anything more extensive,
       Todd has to travel to Iowa City. By contrast, Virginia Beach is a military community, and
       consequently the available VA healthcare options would be much more extensive and
       accessible.
¶ 16       Todd testified that the children’s general quality of life and standard of living will be
       improved with a move to Virginia Beach because there will be better educational and
       extracurricular opportunities for the children there, the medical and hospital facilities in
       Virginia Beach are superior to those in the Galesburg area, and the children will benefit from
       living with and having regular contact with their grandparents. Todd stated that he is familiar
       with the Virginia Beach school system and knows it to be superior to the Galesburg system in
       terms of both academics and extracurricular activities. Todd described the Virginia Beach area
       as being more culturally diverse than the Galesburg area, and he believes that Virginia Beach
       would offer the children a much broader range of cultural opportunities.
¶ 17       During his in camera testimony, the parties’ son stated that he thought moving to Virginia
       was a “great idea” because Virginia Beach would offer better educational, extracurricular, and
       cultural opportunities. He also stated that “this might sound sad, but I think I might be able to
       live without my mom.” When asked why this was the case, he stated, “I kind of like don’t
       understand her lifestyle and don’t really like it.” The parties’ son also stated that he didn’t
       understand why Danielle was trying to keep him and his sister in Illinois because “my mom
       talks about [us] moving with her to move closer to her boyfriend who lives in Knoxville,
       Tennessee. *** I’ve heard her talking to him because he’s been over recently to her house, and
       she’s talked personally to me about it.”
¶ 18       At the conclusion of the hearing, the trial court entered a 13-page, single-spaced order
       granting Todd’s petition to relocate. In the order, the trial court makes a point to acknowledge
       that:



                                                    -4-
                    “[r]emoval cases are difficult. This is especially so when neither parent
                demonstrates bad faith and both have assiduously exercised their parental
                responsibilities and parenting time. No matter the outcome, one party’s life will be
                affected detrimentally.”
       The order begins with 20 paragraphs detailing the trial court’s factual findings, which largely
       track the factual summary set forth above. From there, the order sets forth the 11 statutory
       factors that a court is to consider when deciding whether relocation is in a child’s best interest.
       See 750 ILCS 5/609.2(g) (West 2016). Finally, the order contains an additional 11 paragraphs
       applying the trial court’s factual findings to the 11 statutory factors.
¶ 19       Broadly speaking, the trial court found that both Todd and Danielle are loving parents who
       are intimately involved in the children’s daily lives; that Danielle’s opposition to the relocation
       comes from a good-faith fear that relocation will diminish her relationship with her children;
       that Todd’s desire to relocate comes from a good-faith desire to give the children more and
       better educational, extracurricular, and cultural opportunities and to give them a better quality
       of life; that the children in fact will enjoy greater educational, extracurricular, and cultural
       opportunities if they relocate to Virginia; that the children will benefit from living with their
       paternal grandparents in Virginia; and that a reasonable allocation of parental responsibilities
       can be fashioned to ensure that Danielle continues to spend significant time and enjoy a full
       relationship with the children. The trial court also found that, whereas Todd’s relationship with
       both children is “exceptional,” Danielle’s relationship with their daughter is “good” and with
       their son “strained and somewhat tenuous.” The order also notes that, whereas the relocation
       may be difficult for the parties’ daughter because she “has a stronger bond with her mother
       than [her brother] does,” the parties’ son “clearly stated his preference for the granting of the
       petition for relocation and did so as an extremely articulate, mature 13-year-old who expressed
       reasoned and independent preferences as to relocation.” Finally, the trial court made a specific
       credibility finding as to Danielle’s denial of ever having discussed with either her boyfriend or
       with the children that she is considering moving to Tennessee. Noting that the parties’ son had
       testified to the opposite, the trial court found:
                “This discrepancy between [the son’s] testimony and Danielle’s is troubling to the
                Court and resolution of it turns upon an assessment of the credibility of the witnesses.
                Granted [the son] was not subject to cross examination during his interview. However,
                the Court had the opportunity to directly observe the demeanor of both [the son] and
                Danielle while testifying. The Court finds that [the son] appeared to be inherently
                honest and credible in his report. The Court does not believe that [the son] was simply
                making up hearing his mother have such discussions. Moreover, Danielle’s testimony
                proffered to rebut [the son’s] statement (that he had heard her on more than one
                occasion discuss the possibility of her relocating to Knoxville, Tennessee,) was not an
                absolute denial of any discussions with anyone, but rather perhaps a factual accurate
                statement that she not had any conversation on that topic specifically and directly with
                [the son]. The impact of all of this is that [it] tends to create the existence of a possible
                double standard on the part of Danielle relative to her opposition to relocation.”
¶ 20       In the end, “after taking all of the above into consideration,” the trial court concluded that
       “the quality of life to [the children] will be increased by the allowing of relocation and the
       Court finds that the granting of the removal petition is in the best interest of the children.”


                                                     -5-
       Accordingly, the court stated that “a proper allocation of parenting time needs to be
       established” and that “it is in the best interests of [the children] that upon relocation the
       parenting of the parties be modified” so that the children would live with Todd in Virginia
       during the school year and with Danielle in Illinois over the summer and during alternating
       holiday breaks. The trial court specifically reserved ruling on whether to modify child support
       and how to allocate the resulting transportation expenses.
¶ 21       Citing Rule 304(b)(6), Danielle filed an immediate notice of appeal from the trial court’s
       order granting Todd’s petition to relocate. After first concluding that the filing of an immediate
       appeal under Rule 304(b)(6) was proper (2018 IL App (3d) 170779, ¶ 31), the appellate court
       majority concluded that “the trial court’s finding that relocation was in the best interest of the
       children was against the manifest weight of the evidence” (id. ¶ 38). Accordingly, it reversed
       the trial court’s decision granting that petition and remanded the cause for further proceedings.
       Id. Justice Schmidt dissented, arguing both that the order granting Todd’s petition was not
       immediately appealable under Rule 304(b)(6) and that the majority was wrong in concluding
       that the trial court’s decision granting that petition was against the manifest weight of the
       evidence. Id. ¶¶ 43-44 (Schmidt, J., dissenting).
¶ 22       Todd petitioned this court for leave to appeal, and we allowed that petition. Ill. S. Ct. R.
       315 (eff. Apr. 1, 2018).

¶ 23                                             ANALYSIS
¶ 24                                            I. Jurisdiction
¶ 25        The first question we must decide is whether this is a proper appeal under Rule 304(b)(6).
       Like the construction of a statute, the construction of this court’s rules is a question of law that
       we review de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).
¶ 26        The Illinois Constitution confers on the appellate court the jurisdiction to hear appeals from
       all final judgments entered in the circuit court. See Ill. Const. 1970, art. VI, § 6 (providing that
       appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court”).
       The constitution also grants this court the right to “provide by rule for appeals to the Appellate
       Court from other than final judgments.” Id. Accordingly, absent a supreme court rule, the
       appellate court is without jurisdiction to review judgments, orders, or decrees that are not final.
       EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9.
¶ 27        Danielle filed her notice of appeal to the appellate court pursuant to Rule 304(b)(6). Rule
       304(b)(6) allows for the immediate appeal from any “custody or allocation of parental
       responsibilities judgment or modification of such judgment entered pursuant to the Illinois
       Marriage and Dissolution of Marriage Act [citation] or Illinois Parentage Act of 2015
       [citation].” Ill. S. Ct. R. 304(b)(6) (eff. Mar. 8, 2016). The question for this court, then, is
       whether the trial court’s order granting Todd’s relocation petition constituted a “custody or
       allocation of parental responsibilities judgment or modification of such judgment,” such that
       Danielle’s immediate appeal of that order was proper. We hold that it was.
¶ 28        As used in Rule 304(b)(6), the phrase “allocation of parental responsibilities” is a term of
       art that derives from and is defined in the Marriage Act. As the relevant Committee Comments
       explain, a 2016 amendment to the Marriage Act changed the terms “Custody,” “Visitation,”
       and “Removal” to “Allocation of Parental Responsibilities,” “Parenting Time,” and
       “Relocation.” Ill. S. Ct. R. 304, Committee Comments (adopted Mar. 8, 2016). Shortly

                                                    -6-
       thereafter, Rule 304(b)(6) was amended “to reflect those changes.” Id. Thus, to ascertain the
       meaning of the phrase “allocation of parental responsibilities,” we must look to the Marriage
       Act.
¶ 29        Section 600(b) of the Marriage Act defines “allocation judgment” as “a judgment
       allocating parental responsibilities.” 750 ILCS 5/600(b) (West 2016). Section 600(d) then
       defines “parental responsibilities” as “both parenting time and significant decision-making
       responsibilities with respect to a child.” Id. § 600(d). Thus, under the Marriage Act, an
       allocation of parental responsibilities judgment is a judgment that allocates “both parenting
       time and significant decision-making responsibilities with respect to a child,” and the
       “modification of such judgment” would be any decision that modifies either of those two
       variables.
¶ 30        Given these definitions, there is no question that the trial court’s order granting Todd’s
       relocation petition was an “allocation of parental responsibilities judgment or modification of
       such judgment” for purposes of Rule 304(b)(6). Paragraph 19 of that order states that “the
       granting of the removal petition is in the best interest of the children.” Paragraph 21 then states
       that, accordingly, “[t]he court finds that it is in the best interest of [the children] that upon
       relocation the parenting time of the parties be modified as follows.” (Emphasis added.) This
       finding is then followed by four distinct subparagraphs modifying the parties’ allocation of
       parenting time from the existing weekly schedule of two parents living two miles apart in the
       same community to a seasonal schedule of two parents living in different parts of the country.
       In both vocabulary and substance, the trial court’s order granting Todd’s relocation petition
       modifies allocation of the parties’ parenting time and thus by definition also modifies
       allocation of the parties’ parenting responsibilities. The order therefore was immediately
       appealable under Rule 304(b)(6), and we are now free to move on to consider the merits of the
       trial court’s decision. 1

¶ 31                                             II. Relocation
¶ 32        The next question we must decide is whether the trial court erred in granting Todd’s
       relocation petition. In adjudicating a relocation petition, a trial court’s paramount consideration
       is the best interests of the children. Id. § 609.2(g). In this context, this court has explained that
       a best interests determination “cannot be reduced to a simple bright-line test” and that a ruling
       on the best interests of a child “must be made on a case-by-case basis, depending, to a great
       extent, upon the circumstances of each case.” In re Marriage of Eckert, 119 Ill. 2d 316, 326
       (1988). We also have stressed that “[a] trial court’s determination of what is in the best interests
       of the child should not be reversed unless it is clearly against the manifest weight of the
       evidence and it appears that a manifest injustice has occurred.” Id. at 328. Such deference is
       appropriate because “ ‘[t]he trier of fact had significant opportunity to observe both parents
       and the child and, thus, is able to assess and evaluate their temperaments, personalities, and
       capabilities.’ ” Id. at 330 (quoting Gallagher v. Gallagher, 60 Ill. App. 3d 26, 31 (1978)).

           1
            Both the parties and the appellate court discuss In re Parentage of Rogan M., 2014 IL App (1st)
       132765, and In re Marriage of Bendar, 146 Ill. App. 3d 704 (1986), two decisions that previously
       considered whether decisions involving relocation constitute “custody” judgments. However, neither
       of these decisions speaks to the present question, as both turn on the construction of language that is no
       longer operative in either Rule 304(b)(6) or the Marriage Act, given the 2016 amendments.

                                                       -7-
       Accordingly, “ ‘[t]he presumption in favor of the result reached by the trial court is always
       strong and compelling in this type of case.’ ” Id. (quoting Gallagher, 60 Ill. App. 3d at 31-32).
¶ 33       The trial court here was faced with a contested relocation petition, and it conducted a three-
       day hearing at which both parties were given a full and fair opportunity to present evidence
       and testimony. In addition, the trial court conducted a thorough in camera interview with the
       parties’ son to ascertain his thoughts and feelings about both the relocation and his relationship
       with his parents. At the conclusion of the hearing, the trial court entered a 13-page single-
       spaced order detailing both its factual findings and its application of those findings to each of
       the relevant statutory factors. Specifically, the trial court determined that (1) Todd’s desire to
       relocate stems from a good-faith desire to give his children a better quality of life and that his
       belief that Virginia will provide that is reasonable and rationally based, (2) Danielle’s objection
       to relocation stems from a good-faith concern that relocation could diminish her relationship
       with her children and that this concern is likewise reasonable and rationally based, (3) although
       the children enjoy a “good” relationship with Danielle, their relationship with Todd is
       “exceptional,” (4) although there is little evidence with which to evaluate the academic quality
       of the relevant Virginia Beach schools relative to the schools in Galesburg, the children will
       undoubtedly benefit from Virginia Beach’s greater ethnic and cultural diversity, (5) whereas
       the children have no extended family in Illinois, they will be living with their paternal
       grandparents in Virginia, (6) relocation’s impact on the parties’ son is likely to be insignificant,
       as he “specifically stated a preference for residing with his father who he views as the more
       stable, nurturing parent and clearly stated that he could adapt to not seeing his mother at the
       current level,” (7) relocation’s impact on the parties’ daughter is likely to be greater, as she
       “has a stronger bond with her mother than [her brother] does,” (8) upon relocation, a reasonable
       allocation of parental responsibilities can be fashioned so that both parties continue to enjoy a
       significant presence in and responsibility for the children’s lives, and (9) the parties’ son
       “clearly stated his preference for the granting of the petition for relocation and did so as an
       extremely articulate, mature 13-year-old who expressed reasoned and independent preferences
       as to relocation.” Finally, on the question of whether Danielle herself had been discussing the
       possibility of relocating to Tennessee, the trial court specifically found that the parties’ son’s
       testimony on this point was “inherently honest and credible,” that the discrepancy between this
       testimony and Danielle’s testimony on this point was “troubling,” and that Danielle’s objection
       to Todd’s relocation petition therefore “create[s] the existence of a possible double standard
       on the part of Danielle.” Only “after taking all of the above into consideration,” the trial court
       ultimately concluded that “the quality of life to [the children] will be increased by the allowing
       of relocation and the Court finds that the granting of the removal petition is in the best interest
       of the children.”
¶ 34       After carefully reviewing both the record and the trial court’s order, we find that there is
       absolutely no basis for concluding that the trial court’s decision to grant Todd’s relocation
       petition is so “clearly against the manifest weight of the evidence” that “it appears that a
       manifest injustice has occurred.” 2018 IL App (3d) 170779, ¶ 34. On the contrary, the trial
       court’s handling of this difficult case was in many ways exemplary. Each of the trial court’s
       numerous findings is supported by evidence from the record, and we are in no position to
       second-guess its credibility determinations relative to Danielle’s plans to relocate. See People
       v. Pittman, 211 Ill. 2d 502, 527 (2004). Moreover, the trial court did not paint a naïve and rosy
       portrait of relocation, nor did it simply ignore the evidence militating against it. The trial court

                                                    -8-
       conceded that there were certain evidentiary gaps in the record, and it expressly acknowledged
       that relocation has the potential to significantly reshape Danielle’s existing relationship with
       her children and most especially with her daughter. In the end, however, and only after stating
       that “[r]emoval cases are difficult” because “[n]o matter the outcome, one party’s life will be
       affected detrimentally,” the trial court ultimately concluded that relocation would be in the
       children’s best interest. This was a perfectly reasonable conclusion based on the record before
       us, and we see no reason to dispense with what we have consistently characterized as a “strong
       and compelling” presumption in favor of the result reached by the trial court in such cases. 2

¶ 35                                           CONCLUSION
¶ 36       For the foregoing reasons, the judgment of the appellate court is reversed, the judgment of
       the circuit court is affirmed, and the cause is remanded for further proceedings consistent with
       this opinion.

¶ 37       Appellate court judgment reversed.
¶ 38       Circuit court judgment affirmed.
¶ 39       Cause remanded.




           2
             In reaching this result, we note that, in concluding that the trial court’s decision granting Todd’s
       petition was against the manifest weight of the evidence, the appellate court below made no attempt to
       apply the applicable standard of review. On the contrary, after setting out the applicable language from
       Eckert, the appellate court proceeded simply to reweigh the evidence for itself and decide that the scales
       favored denial of the petition. At no point did the appellate court identify what evidence the trial court’s
       decision was “clearly” and “manifestly” against, what “manifest injustice” it was seeking to avert, or
       why suspension of the “strong and compelling” presumption in favor of the trial court’s decision was
       warranted.

                                                        -9-
