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In re Marriage of Smith

Court of Appeals of Illinois, Fifth District

December 2, 2013

In re MARRIAGE OF KATHERINE A. SMITH, Petitioner-Appellant,
CHASE W. SMITH, Respondent-Appellee. and

Appeal from the Circuit Court of Madison County. No. 10-D-1340 Honorable Ben L. Beyers II, Judge, presiding.

Attorneys Barbara L. Sherer, Amanda G. Highlander, Appellant

Attorney Frederick M. Steiger, Appellee

JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Spomer and Justice Stewart concurred in the judgment and opinion.



¶ 1 Petitioner, Katherine A. Smith (Mother), appeals the judgment entered by the circuit court of Madison County in connection with a custody and removal dispute arising from the dissolution of her marriage to respondent, Chase W. Smith (Father). We reverse in part and remand in part with directions.

¶ 2 In August of 2011, Mother petitioned the court for temporary removal of the parties' minor child to Ohio in order to accept a career position. The circuit court granted temporary removal on August 15, 2011. On June 27, 2013, after a trial on the issues of removal, custody, child support, maintenance, and debt allocation, the court entered a judgment of dissolution of the parties' marriage. In the judgment, the court denied Mother's request for permanent removal of the minor child and entered two alternate rulings concerning the award of legal and physical custody and visitation. Under the first alternative, Mother had to return to Illinois within 30 days. If she did so, she would retain primary physical custody of the parties' minor child, and Mother and Father would be awarded joint custody. Father, however, would have the ultimate decision-making authority regarding any and all medical, dental, educational, and extracurricular decisions pertaining to their minor son. Under the second alternative, if Mother chose not to return to Illinois within 30 days, Father would be granted sole legal custody of the child with Mother having only visitation rights and no decision-making authority concerning their son. The court also refused Mother's request for maintenance if she were required to relocate.

¶ 3 Mother filed her notice of appeal on July 11, 2013. Concurrently she sought in the circuit court a stay of the judgment pending appeal. Her request for a stay was denied. Mother then filed a motion for stay of the judgment pending appeal with this court on July 15, 2013. We granted her stay on July 22 subject to specific requirements for Father's visitation. We now address the merits of the appeal and reverse, in part, the court's judgment of dissolution of marriage.

¶ 4 The parties met in the fall of 2007 when Mother was visiting friends in Texas where Father then resided. They became friends and began dating in 2009. By December of 2009, Father moved to Chicago to live with Mother. They were married in April 2010. Their marriage produced one child, a son who is now three years old. Mother, who has a degree in business administration with a concentration in marketing, held a full-time position as a project manager at a Chicago advertising agency. She had worked for the same agency for five years. While working full-time for the advertising agency, she also worked part-time at Home Depot in order to save money and pay down debt. Father was unemployed when he moved in with Mother in Chicago and did not obtain employment until May of 2010, when he acquired a position with a mortgage servicing firm.

¶ 5 During the summer of 2010, the parties discussed moving closer to Mother's parents in Maryville, Illinois, after their child was born. Father believed it was important to have their child raised near family. Once they moved, the intent was for Father to obtain more lucrative employment and for Mother to be a stay-at-home mom. The plan included their living with Mother's parents until Father obtained a higher-paying job, thereby allowing them to afford their own housing. Accordingly, within two weeks of the child's birth, the parties relocated from Chicago, moving into the basement of the home of Mother's parents. Mother resigned from her position with the advertising agency in Chicago, while Father was permitted to transfer his employment to another office of the same company in the St. Louis metropolitan area. Unfortunately, the parties separated less than two months later.

¶ 6 After Father left, Mother and the minor son continued to live with Mother's parents. Having no income or any other viable source of funds on which to support herself and the child, Mother found part-time work at a nearby Home Depot in January 2011. She then began searching for full-time employment in marketing. She applied to approximately 30 companies for positions in marketing and advertising, all within the St. Louis metropolitan area. Unfortunately, she received no offers for employment within the metropolitan area. She did receive an offer, however, from an agency in Columbus, Ohio. If Mother accepted the new position, she would be earning more than she had previously earned at the agency in Chicago. The company also agreed to pay Mother's relocation expenses and provide temporary housing for two months. Other incentives included good health benefits, annual bonuses, and room for advancement. The community in which they would live offered high-quality housing at reasonable prices and had one of the best school systems in Ohio. Having been offered no full-time positions in the metropolitan area in her field, and needing a steady source of income, Mother petitioned the court for leave to temporarily remove the parties' son to Ohio to begin this new position. Her petition was granted and, accordingly, Mother and son relocated to Ohio.

¶ 7 Further evidence presented at trial revealed that Mother's parents are retired and have plans to relocate to Ohio to be near their daughter and grandson. Mother and her parents also have extended family in Cincinnati, Ohio. Neither Mother nor Father has any other family in the Maryville area. Mother grew up in the Kansas City area, while Father's family lives in Colorado. At one point, Father expressed interest in moving back to Colorado. After Mother moved to Ohio, Father changed employment in a lateral career move, although with less pay, and now works in St. Louis, Missouri. He continues to reside in Collinsville, Illinois, and believes he can maintain a relationship with Mother's parents should they remain in Maryville, Illinois.

¶ 8 Father presented at trial numerous instances of Mother's alleged controlling personality with respect to the parties' minor son. For example, Mother insisted on knowing the make and model of car seat Father purchased for their son and required him to show her the receipts. Mother, however, explained that Father's family often acquired older, used items for the child, and she wanted to ensure that the car seat used was safe. Mother also refused Father overnight visitation with the child for the first year. Mother explained that she was still breast-feeding him and did not have a reserve supply of milk for that length of time. As the guardian ad litem reported, Mother was a very organized individual with a more rigid personality, whereas Father had a more relaxed personality. According to the guardian ad litem, Mother was more overly protective as a new mother, as opposed to trying to control Father, and was not trying to interfere with Father or Father's relationship with his son. The guardian ad litem also reported that the parties' minor son was bonded and comfortable with each parent in each location. Despite the distance and hectic visitation schedule, the child has developed a good bond with Father. Additionally, despite their differences in parenting styles and personalities, collectively, the parties were doing a great job in fostering their son's development. The court chose not to follow the recommendations of the guardian ad litem and denied Mother's request for permanent removal of the parties' son. We now reverse that decision.

¶ 9 The primary consideration in any custody dispute is the best interest and welfare of the child. In re Marriage of Quindry, 223 Ill.App.3d 735, 737, 585 N.E.2d 1312, 1314 (1992). Likewise, the most important question in removal cases is whether the move is in the best interests of the child. In re Marriage of Pribble, 239 Ill.App.3d 761, 767, 607 N.E.2d 349, 353 (1993). A trial court's determination as to the best interests of the child will not be reversed on appeal unless that determination clearly is 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, 518 N.E.2d 1041, 1046 (1988). In this instance, the trial court denied Mother's request to permanently remove the parties' minor son to Ohio, stating that Mother had not met her burden of proving that removal was in the best interests of the child. More importantly, the court determined that the only way Mother could ...

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