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