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In Re Marriage of

January 27, 2012

IN RE MARRIAGE OF ELIZABETH DEMARET
PETITIONER-APPELLANT,
JAMES DEMARET
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. and No. 04 D2 30415 The Honorable Raul Vega, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Presiding Justice R. E. Gordon and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 After a hearing, the circuit court denied the petitioner's request to remove the minor children from Illinois to New Jersey. In its written decision, the trial court addressed each of the factors required by our case law to assess the best interests of the children in a removal matter, finding that none supported the move. The trial court's decision denying the removal petition was not against the manifest weight of the evidence. Accordingly, the denial of the petition was not against the best interests of the children. We affirm.

¶ 2 BACKGROUND

¶ 3 Petitioner Elizabeth Demaret and respondent James Demaret were married on April 8, 1996. Four children were born to the marriage: Madelyn, age 14; Catherine, age 13; Thomas, age 12; and Delaney, age 10. The parties divorced in September 2006. The dissolution judgment incorporated a parenting agreement that awarded Elizabeth sole custody, care, and control of the children. James was awarded parenting time every other weekend and every Wednesday evening from 5 to 9 p.m. On weekdays when Elizabeth was out of town for work, James was granted a "right of first refusal" to care for the children during the same evening hours of 5 to 9 p.m. The parties agreed to alternate holidays with the children. James was entitled to two full weeks with the children during the summer and one full week during their Christmas break. At the time the parties divorced, Elizabeth expressed concern over James's alcohol consumption. The parenting agreement included provisions regarding alcohol use during visitation with the children. Neither party ever filed a petition alleging a lack of compliance with the parenting agreement.

¶ 4 On July 6, 2010, Elizabeth filed a petition to move the children from Roselle, Illinois, to Middleton, New Jersey. Elizabeth also sought to increase James's child support in a petition filed September 14, 2010. One day after the start of the hearing on the removal and child support petitions on February 15, 2011, James filed a petition for contribution toward the attorney fees he would incur in conjunction with Elizabeth's removal petition. On June 20, 2011, the court entered an order denying each of Elizabeth's petitions. On June 21, 2011, Elizabeth filed her notice of appeal. At the time of the filing of this appeal, the court had not ruled on James's petition for attorney fees.

¶ 5 The following evidence was presented at the hearing. From March 2001 until July 2010, Elizabeth worked for Arthur J. Gallagher (Gallagher), servicing clients in Gallagher's international operations. In 2007, her gross income was $266,933; in 2008, she earned $293,176; and in 2009, she earned $263,263. Her job required her to travel periodically, both within the country and internationally.

¶ 6 Elizabeth began exploring career advancement opportunities both within and outside Gallagher. She spoke to her manager at Gallagher about advancing within the company. Elizabeth came to understand that to advance, she would have to either take on profit and loss responsibilities within the company or relocate abroad. Running a self-contained unit would allow Elizabeth to remain in the Chicago area. Relocating would mean a permanent move to Singapore.

¶ 7 In December 2009, Elizabeth began exploring an employment lead with Marsh, a company located in New York. Elizabeth knew that accepting a job with Marsh would require that she relocate to the New York area. In June 2010, Elizabeth executed an employment contract with Marsh. She would begin with a gross salary base of $245,000, which would increase to $275,000 upon relocating to the New York area. She would also receive a minimum of $125,000 in a guaranteed bonus and $75,000 in stock options. According to Elizabeth's testimony, her annual salary would be a minimum of $475,000, with the possibility of additional bonuses. After signing the contract with Marsh, Elizabeth informed James of her new employment and her intent to move to New Jersey with the children. She resigned from her job at Gallagher.

¶ 8 In addition to earning more money at Marsh, Elizabeth would be required to travel less than when she worked at Gallagher. Work-related travel would be on a "need driven" basis. While at Gallagher, Elizabeth traveled 30 to 35 times per year. At Marsh, she would travel less often, but her travel would more frequently take her out of the country. Marsh also provided better medical benefits with lower out-of-pocket expenses. Her commute from her anticipated home in Middleton to New York City would be shorter than her Chicago-area commute to Gallagher by approximately 10 minutes. According to Elizabeth, the shorter commute time and reduced travel would give her more time at home with the children.

¶ 9 Elizabeth sold her house in Roselle about three months after signing her employment contract with Marsh at a loss of just over $37,000. She and the children moved to a rental unit in Schaumburg. She began looking for a house in Middleton, New Jersey, that would cost between $400,000 and $500,000. The house would have one bedroom for each child, which is equivalent to the house in Roselle. Living expenses for Elizabeth and the children would be approximately $4,500 per month.

¶ 10 Elizabeth has extended family living on the East Coast. Her parents live five miles from Middleton. She has a sister that lives in Washington, D.C.; the other lives in Iowa. The children's other grandfather, James's father, lives in Florida. The children visit both sides of the family regularly. In New Jersey, the children would have a nanny or Elizabeth's mother would take care of them when Elizabeth could not be home. In Illinois, the children have a nanny and at times Elizabeth's mother flies in to stay with the children when Elizabeth travels. James also cares for the children in accordance with his right of first refusal. Elizabeth testified that both the children and James are familiar with the Middleton area. It is important to her that the children have a close relationship with their extended family. For that reason, she took the children on a trip to Florida in 2008 during which they visited James's father and Elizabeth's aunt and uncle.

¶ 11 All four children are gifted academically. They all participate in gifted programs at school and the three eldest children attend magnet schools. They all participate in social and extracurricular activities. Elizabeth testified that she recently took Thomas to a Webelos lock-in that James did not attend. The schools hold parent-teacher conferences for the children, which Elizabeth schedules. James has attended some conferences and missed others.

¶ 12 Madelyn is on the verge of starting high school. Elizabeth feels strongly that Madelyn attend an academically strong high school. She would like Madelyn to attend a high school academy in New Jersey. If they remain in Illinois, Madelyn's only option for a similar school would be the Illinois Math and Science Academy (IMSA). IMSA is a boarding school, requiring Madelyn to live away from home. According to Elizabeth, the high school academy in New Jersey is ranked eleventh in the country academically; IMSA is not ranked. Elizabeth admitted that she did not know whether similar academic schools in New Jersey would be available for the three younger children prior to high school.

¶ 13 Madelyn and Thomas have health conditions. Both children see doctors at Children's Memorial Hospital in Chicago. Thomas has a condition called "tethered spine." To date, he has had three spinal surgeries. Both parents were present at all three surgeries; however, Elizabeth testified that James does not take an active role in attending to Thomas's medical needs. James does not attend Thomas's doctor's appointments. He conveys any questions to Elizabeth, which she relays to the doctor and reports the answers back to James. Madelyn has a heart condition, which requires monitoring. Elizabeth testified that her benefits at Marsh would reduce the family's insurance costs. However, her testimony did not address how the proposed move to New Jersey would impact the medical treatment Madelyn and Thomas currently receive.

¶ 14 Elizabeth investigated costs for James's travel should the children relocate to New Jersey. There is a flight from Newark to Chicago every hour between 6 a.m. and 9 p.m. At the time of her inquiry, the cost of a round-trip ticket was approximately $225. Elizabeth testified that Amtrak and Greyhound have schedules "similar" to those of the airlines, but she did not elaborate. Elizabeth has no objection to the children flying unaccompanied to Illinois for James's parenting time. She offered to pay up to $5,000 for travel expenses each year. Elizabeth envisions a visitation schedule similar to the one that is currently in place, but with longer periods of visitation. The children could travel to Illinois during the school year so long as their school and activities schedules permit. Elizabeth also envisions James traveling to New Jersey on weekends for his parenting time. James could stay at an apartment at Elizabeth's parents' home during his visits. The apartment is separate from the parents' residence, but is contained within the building structure of the house.

¶ 15 On cross-examination, Elizabeth testified that she had "not specifically" spoken to the children about the amount of time they would spend with their father if they moved. Nevertheless, she said that Catherine is opposed to the move because of "social aspects." Thomas is willing to move, but he "wants this done." Elizabeth believes that Madelyn does want to move. Delaney expressed an opinion about the move but Elizabeth did not inform the court of Delaney's opinion.

¶ 16 James lives in Elk Grove Village, Illinois. He moved from Chicago to Elk Grove in 2005 to be closer to the children. James pays a percentage of his salary for child support in accordance with the Illinois guidelines, plus $100 per month for medical expenses. At the time of the divorce, James was unemployed. Shortly thereafter, he secured employment at Online Trading Academy, where he remained until November 2010. In January 2011, James began working at Quantum Capital Investments. At the time the removal petition was filed, James was earning only commission. His gross income has fluctuated dramatically, earning $102,467 in 2008 and $32,819 in 2010. In the year prior to the hearing, his father loaned or gave him approximately $42,000 for living expenses and attorney fees. James's girlfriend also loaned him money. In 2008, when Elizabeth took the children to Florida for spring break, James wanted to exercise his visitation rights but could not afford to and was not able to take time off of work.

¶ 17 According to James, he participates in the children's activities as much as he can; he attends all of the children's activities unless work or travel keep him away. He did not go to the recent Webelos lock-in with Thomas because a back injury prevented him from sleeping on the floor. The lock-in took place during James's weekend for visitation. He agreed that Elizabeth could take Thomas to the lock-in while the three girls stayed with him. According to James, Elizabeth plans all of the children's school activities, and she has failed to inform him of many of the children's activities during the past two years.

¶ 18 James attended all three of Thomas's surgeries. He wants to be more involved with Thomas's appointments, but Elizabeth "did not welcome him at any of the procedures or testing of Thomas." Elizabeth is in charge of planning Thomas's medical procedures, which she schedules without consulting James. She sometimes notifies James about a scheduled medical procedure, but other times she does not. When James is present, Elizabeth expects James to remain in the waiting room to avoid the tension that arises when they are both in the room.

¶ 19 James has often sought additional visitation time, which Elizabeth has refused.

During visitation, he takes the children to sports games and other outings. The children see their friends "almost daily." James has several family members in Chicago, and the children see them during his visitation time. He ...


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