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In re Marriage of Kavchak

Court of Appeals of Illinois, Second District

May 15, 2018

In re MARRIAGE OF GREG KAVCHAK, Petitioner and Counterrespondent-Appellant, and ALICIA KAVCHAK, Respondent and Counterpetitioner-Appellee.

          Appeal from the Circuit Court of Du Page County. No. 16-D-97 Honorable Timothy J. McJoynt, Judge, Presiding.

          PRESIDING JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.



         ¶ 1 Petitioner, Greg Kavchak, appeals from the judgment of the circuit court of Du Page County granting the motion of respondent, Alicia Kavchak, to relocate the parties' minor daughter, S.K., to North Carolina. On appeal, petitioner raises two principal issues. First, he contends that the trial court's relocation order is against the manifest weight of the evidence. Second, he argues that the trial court erred in sua sponte ordering that S.K. be enrolled in a private school in North Carolina. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Petitioner and respondent married on August 26, 2006. S.K., the only child of the marriage, was born on February 25, 2011. Petitioner filed a petition for dissolution of marriage on January 20, 2016. On February 16, 2016, respondent filed a response to petitioner's petition for dissolution of marriage and a counterpetition for dissolution of marriage. In both documents, respondent sought leave of court to relocate with S.K. to North Carolina. On July 25, 2016, respondent filed a notice of intent to relocate. The trial court declined to address the relocation issue in conjunction with the dissolution proceeding, finding that "relocation is another topic for another day."

         ¶ 4 On February 24, 2017, the trial court entered a judgment of dissolution of marriage and a parental-allocation judgment. The allocation judgment provided in relevant part that it was in S.K.'s best interests "for each party to be equally involved in significant decision-making for the minor child of the parties." As such, the allocation judgment required the parties to "consult with one another on significant issues prior to a decision being made" in the areas of education, health, religion, and extracurricular activities. In addition, the allocation judgment divided the parties' parenting time based on a two-week schedule. During the first week, petitioner's parenting time began on Wednesday at 5 p.m. and continued through Sunday at 5 p.m. During the second week, petitioner's parenting time began on Wednesday at 5 p.m. and continued through Friday at 5 p.m. The allocation judgment further provided that each party have three nonconsecutive weeks of parenting time during S.K.'s summer break, alternate parenting time on major holidays and S.K.'s birthday, and equal time during S.K.'s spring and winter breaks.

         ¶ 5 On March 3, 2017, respondent filed a motion for relocation, pursuant to section 609.2 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/609.2 (West 2016)). In the motion, respondent requested permission to relocate with S.K. to North Carolina. Respondent's motion provided in relevant part as follows. Respondent left her job at the University of Illinois at Chicago (UIC) and began working for High Point University in High Point, North Carolina, on June 1, 2016. Respondent's annual salary at High Point University is $87, 000. Respondent currently works out of her home in Illinois, developing a curriculum, completing research activities, and working on a Ph.D. However, if respondent wants to keep her position at High Point University, she had to relocate to North Carolina by the fall of 2017. Respondent argued that the relocation is in S.K.'s best interests because (1) respondent's position in North Carolina would "enable [respondent] to be present when [S.K.] goes to school in the morning and when she comes home, " (2) respondent's employer would pay for her to get her Ph.D., (3) S.K. would attend a "top-rated" private school, and (4) respondent's mother, Shirley Emerson, would join her and S.K. to assist in caring for S.K. On March 31, 2017, petitioner filed a response to the motion for relocation. On May 26, 2017, petitioner filed a petition to determine S.K.'s school enrollment. A hearing on respondent's motion for relocation and petitioner's petition to determine school enrollment began on June 27, 2017, and concluded on August 7, 2017. At that hearing, the parties agreed to incorporate the evidence from the dissolution proceeding. The evidence from the hearing established as follows.

         ¶ 6 Petitioner and respondent both grew up in Illinois. Petitioner's mother, Paula Kavchak, resides in Chicago. Petitioner's father and sister live in Florida. Emerson lives in Springfield. Respondent's father is deceased. Respondent has one sister, who resides in Ohio.

         ¶ 7 When the parties first married, they lived in Chicago. In January 2013, after S.K. was born, the parties moved into a 1700-square-foot, three-bedroom home with a yard, in downtown Downers Grove. The parties resided together in the marital home until March 2017, when respondent moved into an apartment in Woodridge. Respondent's apartment in Woodridge has two bedrooms and measures about 1000 square feet. Respondent signed a four-month lease for the apartment. The lease was to expire on July 17, 2017, but has a month-to-month option. Petitioner remained in the marital home until June 2017, when it was sold. He then began renting a house in Downers Grove, six houses south of the marital home. Petitioner's rental house is 1600 square feet and has three bedrooms, two bathrooms, a basement, and a yard.

         ¶ 8 For the past 17 years, petitioner has been employed by Hendrickson International, a company that makes truck components. Petitioner works as a business analyst in the finance department. He earns $119, 000 per year. His position is in Woodridge. Petitioner testified that, since S.K. was born, he has asked his employer at various times to modify his work schedule in light of his parenting obligations and his employer has always accommodated his requests. From when S.K. was 12 weeks old until August 2016, she attended KinderCare in Willowbrook. Petitioner took S.K. to KinderCare and picked her up most days. In August 2016, S.K. started kindergarten at Hillcrest Elementary School in Downers Grove.

         ¶ 9 Respondent is a physical therapist. She has a bachelor's degree in biology from Illinois Wesleyan University. In addition, she earned a master's degree in physical therapy in 2000 from the University of Indianapolis, a second master's degree in rehabilitation science in 2011 from UIC, and a doctorate in physical therapy in 2014 from Governors State University. Respondent is also a board-certified orthopedic specialist and a fellow of the American Academy of Orthopedic Manual Physical Therapists. From 2008 until May 19, 2016, respondent worked at UIC. Respondent classified her job title at UIC as a "specialist in physical therapy." Her primary function involved clinical work, but she also engaged in teaching and conducting research. Between 2013 and 2015, respondent's salary at UIC ranged between $85, 000 and $86, 137. Respondent testified that UIC waived the tuition for her master's degree in rehabilitation science and paid a portion of her tuition for her doctorate in physical therapy. Respondent noted that UIC offers a tuition reimbursement program whereby it pays half of the tuition for an employee's child to attend one of eight state universities in Illinois.

         ¶ 10 Respondent's commute from Downers Grove to UIC was between 60 and 75 minutes, but her schedule was flexible. From the time in 2011 when she returned to work after S.K. was born until the family moved to Downers Grove in January 2013, respondent worked three 12-hour days per week plus one Saturday each month. From January 2013 through February 2015, respondent worked from 7 a.m. to 7 p.m. on Mondays and from 7:30 a.m. to 5 p.m. on Tuesdays, Wednesdays, and Thursdays. She was off on Fridays, but worked one Saturday per month. From February 2015 until May 2016, respondent's schedule was the same except that she worked until only 4 p.m. on Tuesdays, Wednesdays, and Thursdays.

         ¶ 11 In 2010, respondent worked at UIC with another physical therapist named Alexis Wright. During this time, Wright became respondent's "best friend." In 2011, Wright left UIC to take a job at High Point University. In or about July 2015, Wright and Dr. Eric Hegedus, the chair of High Point University's department of physical therapy, offered respondent a position as director of clinical education. Respondent turned down the position. A couple of weeks later, Wright and Hegedus contacted respondent again, offering her a position as an assistant professor. To maintain her employment with High Point University, respondent would have to obtain a Ph.D. High Point University agreed to pay for respondent to obtain a Ph.D. from the University of Otago in New Zealand. Respondent would do the research for her Ph.D. through a physical-therapy clinic run by High Point University.

         ¶ 12 Respondent first told petitioner about the job offer in July 2015. Respondent told petitioner that the position was her "dream job" and would allow her to pursue her Ph.D. According to respondent, petitioner was okay with her exploring the job and agreed to support her. However, petitioner testified that he was opposed to respondent's taking the position and did not want to move to North Carolina. Respondent and petitioner had many discussions on the topic during July and August 2015. The couple discussed "creative solutions" to their differences. One of these solutions involved respondent renting an apartment in North Carolina and commuting back and forth to Illinois. Another solution involved respondent quitting her job and petitioner paying for respondent to obtain a Ph.D. in Illinois.

         ¶ 13 Respondent noted that UIC, Northern Illinois University (NIU), and Northwestern University have Ph.D. programs in Illinois. In November 2015, respondent and petitioner discussed respondent's obtaining a Ph.D. at NIU. Petitioner thought that the campus was too far from Downers Grove, so respondent never applied to the program. Respondent also testified that she would not be able to afford the Ph.D. programs at the Illinois universities and that none of them has advisors relative to her area of expertise. Respondent accepted the position at High Point University on November 9, 2015. The job had a start date of June 1, 2016, so respondent continued to work at UIC until May 19, 2016. Respondent acknowledged that she "loved" her job at UIC and quit the position only because of the opportunity at High Point University. Respondent explained that in 2010 and 2012 she had applied for two different assistant professor positions at UIC but was not hired for those jobs. In 2013 and 2014, respondent applied for teaching positions at Midwestern University in Downers Grove. Midwestern University was too far along in the interview process to consider her for the 2013 position and she was not offered the position she applied for in 2014. Respondent testified that the only job she applied for since getting her doctorate in physical therapy was the position at High Point University.

         ¶ 14 Respondent has had two one-year contracts with High Point University. The first contract ran from June 1, 2016, until May 31, 2017, with a salary of $87, 000 per year. The second contract runs from June 1, 2017, until May 31, 2018, with the same salary. Respondent testified that her position requires her to work 40 hours per week. Respondent's duties are "split between scholarship and publishing and doing research, sometimes administrative duties, clinical practice and teaching." Since High Point University's department of physical therapy is in the development stages and has yet to be accredited, no students were expected until May 2017. As a result, respondent had no teaching requirement until the fall 2017 semester. From her June 1, 2016, start date at High Point University until the relocation hearing, respondent worked remotely from Illinois for six to eight hours a day. Respondent was accepted at the University of Otago on May 30, 2017, and thus did not have to study for her Ph.D. up to that point. Respondent stated that High Point University's physical therapy clinic is "working with a very unique patient population, " which will allow her to complete her Ph.D. research.

         ¶ 15 Regarding housing, respondent testified that she had looked at homes in Greensboro, Summerfield, and Stokesdale, North Carolina, which are about 20 minutes from High Point. She was looking for a four-bedroom home with at least 3000 square feet, at prices ranging from $250, 000 to $550, 000. Respondent testified that Emerson planned to move to North Carolina with her and S.K. According to respondent, Emerson would make a "substantial" down payment on the home and respondent would make the monthly mortgage payment. Respondent, Emerson, and S.K. would reside in the house together. Emerson corroborated respondent's testimony. Emerson stated that she would pay the real estate taxes, utilities, and insurance on the house and respondent would pay the mortgage. Emerson testified that she would not move to the Chicago area if relocation were denied. She also acknowledged that, but for respondent's desire to move to North Carolina, she would not move there.

         ¶ 16 At the relocation hearing, petitioner described his relationship with S.K. as "very strong." He stated that he is an "active father" and a "day-to-day dad." Petitioner testified that he cared for S.K. on a daily basis for the first six years of her life. Petitioner likes to do homework with S.K., go to her extracurricular activities, and watch her grow. Petitioner described his week-to-week parenting time with S.K. In addition, since respondent moved out of the marital home in March 2017, he has had telephonic contact with S.K. through FaceTime about once a day. Petitioner testified that S.K. dictates how long the calls are, but they generally last between 20 seconds and 7 minutes.

         ¶ 17 Petitioner explained that, when respondent moved out of the marital home in March 2017, he changed his work schedule to "take advantage of [his] parenting time [and] to keep the quality of care that [he has] been giving [S.K.] since she was born." Specifically, petitioner altered his work schedule to ensure that he is off work on Wednesdays at 4:30 p.m. so he can be home by 5 p.m., when respondent drops off S.K. In addition, on Thursday and Friday mornings, he starts work at 8:30 a.m. so that he can spend those mornings with S.K. before school and walk her to the school bus. Paula Kavchak resides in Chicago and is able to stay with S.K. on Thursday afternoons until petitioner arrives home at 5:30 p.m. On Friday afternoons, petitioner leaves work by 3 p.m. so that he can be available for S.K. when she gets home from school.

         ¶ 18 S.K. takes swimming lessons and violin lessons. Respondent found both programs. S.K.'s swimming lessons began in 2014. The swimming lessons occur once a week, on Fridays at 5 p.m. Petitioner transports S.K. to each lesson and stays for the entire lesson. Respondent also attends S.K.'s swimming lessons. S.K. has been taking violin lessons since October 2016. Violin lessons occur once a week and take place at respondent's apartment. Respondent has not invited petitioner to attend the lessons, because they occur when he is normally at work. Petitioner, however, attended S.K.'s violin recital.

         ¶ 19 Petitioner testified that, since the entry of the judgment of dissolution, he has exercised all of the parenting time allocated to him. Petitioner testified that, other than when his mother watches S.K. after school on Thursday afternoons, he has never left S.K. with a babysitter during his parenting time. Petitioner admitted, however, that on weekdays during S.K.'s summer break, she went to KinderCare. This is the same KinderCare location S.K. attended from when she was 12 weeks old until she started kindergarten in August 2016. According to petitioner, S.K. enjoys KinderCare, even requested it, and sometimes wants to stay longer when he comes to pick her up.

         ¶ 20 Petitioner testified that, since the parties implemented the parenting-time schedule set forth in the allocation judgment, his activities with S.K. during the school week have included doing homework, getting her ready for school, cooking for her, taking her to and picking her up from the bus stop, and watching movies. During petitioner's parenting time, S.K. talks to respondent via FaceTime. Petitioner also testified that he and S.K. have a bedtime routine. At about 7:45 p.m., S.K. takes a shower. They then read books and talk for a few minutes. Petitioner then takes S.K. to her room and sings to her. Petitioner then turns out the lights and checks on her about 10 minutes later. On weekends, petitioner and S.K. enjoy going to parks, children's workshops at Home Depot, movies, and the Museum of Science and Industry. They also like to get donuts, go to the library, arrange play dates, go strawberry and blueberry picking, and eat out. In addition, petitioner taught S.K. how to ride a bike. Petitioner testified that, since he and respondent began implementing the parenting-time schedule, the time he spends with S.K. is "the best quality time [he has] had with [S.K.] in well over a year." Petitioner added that S.K.'s demeanor with him is a lot more "cuddly" and she is more "affectionate." He stated that S.K. "seems happier than [he] remember[s]."

         ¶ 21 Petitioner testified that he objects to respondent's moving to North Carolina with S.K. He explained that he is the only male influence that S.K. has in her life and that S.K. "would miss the day-to-day interactions that [he has] with her." Petitioner also stated that S.K. had just gone through a "tough transition from having both parents around to not having both parents in the same house." Petitioner is also concerned that he is going to miss spending quality time with S.K. such as by getting her ready for school, cooking her meals, taking her places, helping with her homework, and watching her grow. Petitioner stated that he and S.K. have done all of these things together for the first six years of her life but that, if relocation is permitted, it will no longer be possible.

         ¶ 22 Petitioner opined that the "culture" in North Carolina is not as good as it is in the Chicago area. He explained that in the Chicago area he and S.K. have gone to various parks, museums, zoos, amusement parks, restaurants, movie theaters, and miniature golf courses. Petitioner is concerned that there are not as many activities in or around High Point as there are in the Chicago area. He also opined that there are "significantly more and higher quality" cultural institutions in the Chicago area. Petitioner researched the school systems in High Point and Greensboro and the school system in Downers Grove, using the website ", " and his research revealed that the schools in Downers Grove were "well above" those in High Point and Greensboro. He also observed that "half of [S.K.'s] family, her immediate family is [in Illinois]." Moreover, petitioner examined 2016 crime statistics for Downers Grove and Greensboro/High Point on a website called "citydata" and his research revealed that the North Carolina towns had higher crime rates.

         ¶ 23 Petitioner further expressed that the quality of his time with S.K. "will be extremely less than it is now." He explained that he and S.K. will not be able to enjoy the day-to-day activities they do together now. In addition to the quality of time he spends with S.K., petitioner is concerned that the quantity of time will be reduced. Under the parties' current parenting schedule, S.K. spends 6 out of every 14 days nights with petitioner. In addition, S.K. spends three nonconsecutive weeks with petitioner during the summer, one-half of her winter and spring breaks, and alternating holidays.

         ¶ 24 Petitioner's concern is that even a larger block of uninterrupted parenting time during the summer is not a substitute for more time during the week, when he can be a "day-to-day dad" and do all the day-to-day functions with her that he has been doing her whole life. Petitioner pointed out that, if he were awarded a larger block of time during the summer, S.K. would have to attend daycare for most of that time. Petitioner also testified that, if S.K. were living primarily with respondent in North Carolina, the friendships she developed at school "would not be transferable to [Illinois] over the summer" when she would be with him, and she would not be able to participate in any of the extracurricular activities she enrolled in.

         ¶ 25 Petitioner also believes that having a six-year-old child get on a plane every month from North Carolina to Chicago is "a little bit much." Respondent agreed that this would require S.K. to travel to the airport after she leaves school on Friday afternoon, arrive at the airport early enough to make the flight, take a flight lasting 90 to 120 minutes to Chicago, and then ride from the airport to petitioner's residence. This would mean that S.K. would arrive in Downers Grove on Friday night. S.K. would then have to leave petitioner's home sufficiently early on Sunday to go to bed early enough to wake up for school on Monday. Petitioner also expressed concern that much of his parenting time on weekends in North Carolina would be spent traveling. Petitioner testified that he would fly out of Midway Airport, which, depending on traffic, is between 45 and 60 minutes from Downers Grove. He would arrive at the airport 60 to 90 minutes prior to departure. The flight to Greensboro is about two hours. This amounts to between 4 and 4½ hours, not including time to collect his bags, rent a car, and drive to wherever S.K. is staying.

         ¶ 26 Respondent testified that the plane tickets she has purchased to travel between Chicago and North Carolina have been around $500. However, respondent testified that she has purchased tickets only "on the short term" and into Raleigh, North Carolina, which is about 60 or 70 miles from Greensboro. Respondent testified that either she or Emerson would travel with S.K. to Illinois, at respondent's cost. Respondent did not know how much lodging would cost petitioner in Greensboro. Respondent testified, however, that she and Emerson plan to buy a four-bedroom home in North Carolina. Respondent offered to allow petitioner to stay in the extra bedroom during his parenting time with S.K. in North Carolina. Respondent testified that she made the offer because she agreed that it would "feel weird having to be in a hotel" during petitioner's parenting time with S.K. Petitioner testified, however, that he would not be comfortable staying in respondent's home during his parenting time.

         ¶ 27 Respondent testified that, if relocation to North Carolina were permitted, she would not use daycare, because Emerson can pick up S.K. from school if respondent is unavailable. Respondent added that, although she is expected to work a 40-hour workweek at High Point University, she has to be on campus for only five hours a day. Hegedus noted that, while "the wording in [the] contract says, five hours a day on campus, " "[w]ithin that five hours is considered your office hours. And most people stay much longer than that, of course." Hegedus added that respondent will be required to participate in other activities on and off campus, possibly on the weekends. Respondent testified that if she remained in Illinois she "would assume" that S.K. would have to go to daycare. She explained that, because there are no academic positions available in the Chicago area, she would be "forced to go back to being a clinician, " with hours in the early morning, late at night, and on weekends to accommodate patients who work. As a result, respondent would have to work one or two evenings or early mornings each week and on weekends.

         ¶ 28 Respondent testified that she has researched public elementary schools in North Carolina online, spoken with faculty at High Point University about where they enrolled their children, talked to one individual in the education department at High Point University, and looked at several private schools. Ultimately, respondent settled on Westchester Country Day School (Westchester). The tuition at Westchester is $12, 000 per academic year. Respondent described Westchester as a "good fit" for S.K. Respondent liked Westchester because its average class size is only 18 to 20 students. She also stated that the school has "a really nice sense of community, " its academic standards are high, and it provides individualized teaching. In addition, Westchester offers the opportunity to learn Mandarin in the second grade and Spanish in the fourth or fifth grade. Respondent testified that the class size at Hillcrest Elementary is about 24 students. She also noted that "basic" Spanish is taught at Hillcrest Elementary, but Mandarin is not. Respondent further testified that 100% of Westchester's students go to college and their SAT scores are similar to those at Downers Grove North High School.

         ¶ 29 Respondent testified that she told petitioner about Westchester, informed him when admission testing would occur, and encouraged him to talk to representatives of the school. According to respondent, however, petitioner did not contact anyone at the school. In March 2017, respondent took S.K. for testing at Westchester. Respondent eventually registered S.K. to attend Westchester. Respondent testified that she "had to enroll her, or [S.K.] was going to lose the spot [she] had reserved." Respondent testified that she would not ask petitioner to contribute to the tuition at Westchester if she were permitted to relocate. Petitioner acknowledged that respondent told him about Westchester. Petitioner testified that he objected to respondent's taking S.K. to North Carolina to be tested at Westchester and never agreed to enroll S.K. at Westchester but that he did not "object" to Westchester. Petitioner testified that he is concerned because of the size of the school. Specifically, he stated that the class sizes at Westchester are "very small" and he would prefer that S.K. go to a bigger school.

         ¶ 30 At the relocation hearing, both parties presented the testimony of their respective expert witnesses. Respondent's witness was Dr. Robert Shapiro. Petitioner's witness was Dr. Mark Goldstein.

         ¶ 31 Shapiro is a licensed clinical psychologist specializing in forensic psychology and clinical psychology. In preparation for the evaluation, Shapiro met with both petitioner and respondent individually for six hours each and with S.K. individually for four hours. Shapiro also observed S.K. with each parent. In addition, Shapiro reviewed various documents and met with a number of "outside people, " including S.K.'s former guardian ad litem, S.K.'s kindergarten teacher, the parties' mothers, Hegedus, and Wright. Shapiro wrote a 16-page report of his evaluation, which was admitted into evidence.

         ¶ 32 Shapiro found that both parties were "pretty straight" with him and that both parties were good parents. Shapiro described petitioner's interactions with S.K. as loving, gentle, invested, and involved. In turn, S.K. was responsive, happy to be with petitioner, playful, and interactive. Shapiro testified that it was clear that petitioner and S.K. have a "nice attachment and a positive bond." With respect to respondent's interactions with S.K., Shapiro testified that all of the things he said about petitioner "would equally apply" to respondent, although he characterized respondent's interactions as "a little bit more intimate, " with "a lot more physical contact." Shapiro found that respondent's relationship with S.K. demonstrated "a very positive attachment between daughter and mother." Based on his observations, Shapiro described petitioner's parenting style as "a ...

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