                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            In re MARRIAGE OF MELISSA LEE COULTER, Petitioner-Appellee,
Caption                    and DONALD R. COULTER, Respondent-Appellant.



District & No.             Third District
                           Docket No. 3-10-0973


Filed                      January 13, 2012


Held                       The trial court did not err in granting petitioner’s request to remove her
(Note: This syllabus       child from Illinois to accommodate her employment as a foreign service
constitutes no part of     officer for the State Department, even though removal would have a
the opinion of the court   significant impact on respondent’s visitation rights, since the proposed
but has been prepared      move would greatly enhance the general quality of life for petitioner and
by the Reporter of         her child, a reasonable visitation schedule could be achieved, and
Decisions for the          petitioner agreed to provide a means for substantial communication
convenience of the         between the child and respondent via webcam, e-mail and telephone.
reader.)


Decision Under             Appeal from the Circuit Court of Rock Island County, No. 04-D-614; the
Review                     Hon. Frank R. Fuhr, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Douglas C. Scovil, of Ruud, Scovil & Marsh, of Rock Island, for
Appeal                     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 remove Gwenyth 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 overseas schools 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 odd-
       numbered years and during Easter 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 4½ 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:
                “I looked 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 July 2012. 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 American-
       sponsored 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 having Gwenyth 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 a written order granting Melissa’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 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.”
       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
       communication with Donald 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        I respectfully 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
       any testimony regarding any new social or cultural opportunities that 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
       elementary school 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 testimony demonstrated 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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