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In re Marriage of Fatkin

Court of Appeals of Illinois, Third District

April 25, 2018

In re MARRIAGE OF DANIELLE FATKIN, Petitioner-Appellant, and TODD FATKIN, Respondent-Appellee.

          Appeal from the Circuit Court of the 9th Judicial Circuit, Knox County, Illinois Circuit No. 14-D-96 Honorable Paul L. Mangieri, Judge, presiding.

          PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Wright concurred in the judgment and opinion. Justice Schmidt dissented, with opinion.



         ¶ 1 As a result of the dissolution of their marriage, the parties, Danielle Fatkin and Todd Fatkin, were awarded joint custody of their two minor children. Todd subsequently filed a postdissolution petition for leave to relocate with the minors out of the state of Illinois. The trial court granted the postdissolution petition for relocation. Danielle appealed. We reverse and remand for further proceedings.

         ¶ 2 FACTS

         ¶ 3 Danielle and Todd were married on August 4, 2004. They subsequently had two children-a son born in 2004 and a daughter born in 2010.

         ¶ 4 Prior to the birth of their daughter, Danielle and Todd moved to East Galesburg, Illinois, in August 2008, where they resided together until their separation in June 2014. The trial court entered a final order on custody and visitation on July 16, 2015, and subsequently entered a dissolution of marriage judgment on June 10, 2016. Danielle and Todd were awarded joint custody of the minors, with "primary physical placement" with Todd. The parties were ordered to consult with each other in making significant decisions regarding the children related to medical, educational, religious, and extracurricular activities, with Todd designated as the parent to make decisions for the children if the parties were not able to come to a timely agreement. Danielle was given parenting time of overnight visits of 6 out of every 14 days (every Monday and Tuesday night and every other Saturday and Sunday night), plus time after school on Wednesdays, Thursdays, and Fridays until Todd got off of work. The parties were to alternate one-week periods of parenting time during summer break.

         ¶ 5 On February 10, 2017, Todd filed a notice of his intent to relocate with the children to live with his parents in Virginia Beach, Virginia. Danielle filed an objection to the relocation. On June 5, 2017, Todd filed a petition for leave to relocate with the minors to Virginia Beach pursuant to section 609.2 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/609.2 (West 2016)).

         ¶ 6 Over the course of a three-day hearing on Todd's petition to relocate, both parties testified and presented evidence and the trial court conducted an in camera interview with the parties' 12-year-old son. The parties' daughter was six years old at the time of the hearing and did not participate in the proceedings.

         ¶ 7 The evidence showed that Todd was 48 years old and rented the home where the parties formerly lived together during their marriage in East Galesburg, Knox County, Illinois. Todd had a Bachelor of Arts degree in fine arts and a dental hygienist associate's degree. He was licensed as a dental hygienist in both Virginia and Illinois. He also had a Montessori teaching certificate. From 2011 to 2015, Todd worked for a dental practice in Peoria, Illinois, earning $50, 000 per year. Todd quit working for Aspen Dental because he had a job offer from a dentist's office in Moline, Illinois, making more money and he had "some major issues" with the ethics of the Peoria dental practice.

         ¶ 8 In late 2015, after working at the dentist office in Moline 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. He would not apply for dental jobs in bigger cities (i.e., Peoria or the Quad Cities) because the commute would be over an hour and that was "not the quality of life" that he wanted. He did not want his kids "not to be able to see [him]" if he undertook that kind of a commute.

         ¶ 9 In April 2016, Todd began employment with City of Galesburg as a community service officer to enforce city ordinances for up to 1000 hours per year, at the rate of $12.00 per hour, with no benefits, for an annual income of $12, 000 per year. Todd worked from April 2016 until the 1000 hours of work was exhausted in late October or early November. Todd applied for and received unemployment compensation from November until the start of the next employment cycle in April. He also received $508 per month in child support from Danielle ($6096 per year).

         ¶ 10 Danielle was 41 years old and lived within two miles of Todd's residence in a home that she had purchased. Danielle was employed as a tenure track professor of history and worked during the academic year from 8:30 a.m. until 2:30 p.m. She was under contract until 2020 with her current employer, and she did not intend to leave the area. Danielle regularly exercised her parenting time. Danielle had been the soccer coach for both children (for the parties' son for one season and the parties' daughter for one season), volunteered in their classrooms, had been the room mother for the children's classes, and was the group leader for the parties' daughter's 4-H club group. Danielle was primarily responsible for scheduling the children's medical appointments, with Todd also involved. Danielle volunteered weekly in the classroom of the parties' daughter, attended parent-teacher conferences, and kept in regular contact with the children's teachers. She also provided enrichment activities related to archeology to share her expertise in her field of work at the children's school. Danielle and her children enjoyed doing many activities together, such as baking, running, biking, hiking, camping, taking road trips, reading, and horseback riding.

         ¶ 11 For the 2016-17 school year, Danielle had seen the children every day after school until spring 2017 when Todd told the parties' 12-year-old son that he was allowed to go directly home after school on Wednesdays, Thursdays, and Fridays because his son wanted to go home instead of going with Danielle. Todd told Danielle not to pick up their son on those days. Todd testified that he also placed their daughter in an after-school day care program on those days because she did not want to go Danielle's home after school. Danielle testified that for the 2017-18 school year, Danielle's teaching schedule changed so she could no longer get her daughter from school on Wednesdays or Fridays, but she still picked her daughter up on Thursdays until Todd got home from work. Danielle felt that her son would be better off spending the time with her after school on Todd's overnight weekdays because she wanted to spend time with him, he seemed too young to be by himself after school, and his grades were beginning to decline. In the 2016-17 academic year, the parties' son was getting Bs, Cs, and Ds, and in the current year of 2017-18 he received a B, a D, and two Fs on his midterm report card. The parties' son had expressed concerns to Danielle about being bullied in school where he had been called names ("girl" and "Jew") and was shamed for not playing football.

         ¶ 12 The children were both involved in extracurricular activities. The parties' son was currently in soccer, jazz band, and the 4-H club. The parties' daughter was in gymnastics, soccer, and the 4-H club. Both children had many close friends in the area.

         ¶ 13 Todd wanted to relocate with the children to live in his parents' home in Virginia Beach.Todd had been raised in Virginia Beach until he and his parents had moved during his last year of high school. Todd's parents, who were in their mid-sixties, had returned to live in Virginia Beach some years prior. Todd's father was in good health, but his mother had stage 5 renal failure and was on a waitlist to receive a kidney transplant. If she did not receive a kidney, Todd did not know how much longer she would live. Todd testified that he and the children would live with his parents in their four or five bedroom home, which was "meticulously kept" by his mother. Todd's parents would not require Todd to pay rent and his day care arrangement for the children would be his parents, although his mother was not in good health and his father had to recently returned to work to pay for his mother's medication. Todd also testified that he had childhood friends in Virginia Beach that he could call if he needed someone to watch the children. One of the reasons Todd wanted to relocate to Virginia was because his mother was not in good health and they did not know how much longer she had to live.

         ¶ 14 Todd testified that he was familiar with the schools in Virginia Beach. Todd explained the school system in Virginia Beach was "a way better school system" with extracurricular activities that are "enormous" compared to those in Knox County, Illinois. Todd explained the teen sports activities offered in Virginia Beach were "far, far greater" and the children would have "much, much better opportunities within the education." Todd testified to the names of the schools in Virginia Beach the children would attend. Todd testified that the school system in Virginia Beach was "enormously diverse" and the lack of diversity was one of the things that "saddened" him about the children's school system in Illinois. Todd testified that the band program in Virginia Beach was "top notch" and better than the band program at the children's school in Illinois. He indicated the East Coast Surfing Championships held in Virginia Beach was one of his own childhood "go-tos, " which he had surfed in as a child, from the third grade through high school. He explained that, if there was a multi-day festival, there were ...

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