In re Marriage of Prusak , 2020 IL App (3d) 190688 ( 2020 )

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Appellate Court Date: 2020.11.09
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In re Marriage of Prusak, 2020 IL App (3d) 190688Appellate Court In re MARRIAGE OF JILL A. PRUSAK, Petitioner-Appellee, and
Caption LANCE R. PRUSAK, Respondent-Appellant.
District & No. Third District
No. 3-19-0688
Rule 23 order filed May 12, 2020
Motion to
publish allowed June 15, 2020
Opinion filed June 15, 2020
Decision Under Appeal from the Circuit Court of Will County, No. 11-D-195; the Hon.
Review Derek W. Ewanic, Judge, presiding.
Judgment Reversed.
Counsel on Myra A. Foutris, of Berger Schatz, of Chicago, for appellant.
Appeal
Raleigh D. Kalbfleisch, of Wheaton, for appellee.
Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice O’Brien concurred in the judgment and opinion.
Presiding Justice Lytton specially concurred, with opinion.
OPINION
¶1 The petitioner, Jill A. Prusak, filed a petition to relocate the three children she had with the
respondent, Lance R. Prusak, from Illinois to Indiana. The circuit court denied the petition after
a hearing. Jill filed a motion to reconsider, which the court granted after hearing arguments.
Lance appeals, arguing that the court erred when it granted the motion to reconsider. We
reverse.
¶2 I. BACKGROUND 1
¶3 The parties married in August 1995 in Indiana and later moved to Naperville, Illinois. They
had three children together; M.P. (born July 18, 2001), W.P. (born February 7, 2004), and R.P.
(born January 29, 2008). In January 2012, their divorce was finalized. Pursuant to the marital
settlement agreement, the parties agreed to joint custody of the children with Jill being the
primary residential parent. Lance was given visitation, inter alia, every other weekend and one
evening per week. The custody judgment was later modified in 2016 to allow M.P. to live with
Lance and for the parties to have essentially equal time with the children.
¶4 On March 22, 2019, Jill, who had been living in an apartment in Naperville, filed a petition
to relocate the children to Evansville, Indiana. She alleged that five months after the custody
judgment was modified in 2016, Lance sent M.P. back to live with her “and reduced his
parenting time for all three children to one week night for dinner, every other weekend, divided
holidays and two weeks in the summer.” She further alleged that her employer had offered her
a full-time remote position if she moved to Evansville, Indiana, which would in turn allow her
and the children to enjoy a higher standard of living because she could no longer afford to live
in Naperville.
¶5 In June 2019, Jill moved to Evansville without the children.
¶6 In July 2019, the circuit court held a hearing on Jill’s petition at which three witnesses
testified: the guardian ad litem (GAL), Jill, and Lance. The GAL testified that he performed
an investigation after being assigned to the case, interviewing the parties, extended family
members, doctors, and coaches. He also spoke with the children individually. He stated that
the possibility of changing schools did not appear to matter to R.P., who wanted to live with
Jill and not with Lance. W.P. did not appear comfortable discussing a change in schools. W.P.
also indicated that he would be fine with moving to Evansville, although he appeared
somewhat reluctant to change schools. W.P. also preferred to live with Jill over Lance.
¶7 The GAL opined that while there were difficult practical implications for parenting time if
the relocation were allowed, he did not see the distance between Naperville and Evansville as
presenting an insurmountable obstacle to fashioning a satisfactory parenting schedule. He also
gave some recommendations, including Lance having one long weekend per month and
substantial amounts of time at holidays and school breaks. Ultimately, the GAL opined that
the relocation to Evansville should be allowed.
We acknowledge that Jill initially argues that Lance’s statement of facts violated Illinois Supreme
1
Court Rule 341 (eff. May 25, 2018) by including argument. We have considered Jill’s argument and
hereby deny it.
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¶8 Jill testified that she worked as a program manager for Waste Management in Lombard,
Illinois. Her base salary was approximately $69,000 per year plus a yearly bonus; in 2018, her
bonus was approximately $14,000. She stated that between February 2012 and June 2019, she
had lived paycheck-to-paycheck in a Naperville apartment. She rented her new residence in
Evansville, Indiana, from her mother, to whom she paid $1200 per month in rent, which was
$600 lower than what her rent was in Naperville. During the rest of the summer of 2019, the
children had split time between her residence and Lance’s residence. She testified to a
parenting plan similar to the one suggested by the GAL and stated while there were no direct
flights between Chicago and Evansville, she would be willing to split the over five-hour drive
to facilitate Lance seeing the children.
¶9 When asked if she had researched other places to live in Illinois, as she had claimed that
she could no longer afford to live in Naperville, Jill stated that she had researched living in
Plainfield and Bolingbrook. While she could find cheaper rent, she would have had to keep the
same commute and switch schools for the children. Her new residence in Evansville offered a
yard and more square footage than her Naperville residence. She also researched schools and
extracurricular activities in the Evansville area and found them to have “A” ratings.
¶ 10 Jill worked exclusively out of her residence in Evansville, as her employer gave her the
option of working remotely as long as she lived more than 55 miles from their office. Her
schedule was flexible in that she was able to attend to the children’s daily needs.
¶ 11 Jill had been the primary caregiver for the children, as she was a stay-at-home mother
during the marriage and the primary residential parent after the divorce. She also testified that
when M.P. came back to live with her, Lance reverted to having the children every other
weekend. He also changed his one overnight weeknight with them to dinner only. Her mother
lived in Evansville, as well as her sister, brother-in-law, aunt, and two cousins. The children
had a strong bond with their maternal grandmother.
¶ 12 Lance testified that he exercised his regular and vacation parenting times. He allowed M.P.
to return to living with Jill because he did not like to separate the children for visitation and
because he wanted M.P. to spend as much time as possible with his siblings before he finished
high school. Lance was also concerned about the effect that relocation would have on the
children’s extracurricular activities, homework, and friends. He was also concerned about not
being able to see the children as frequently, support them in their extracurricular activities, or
attend their parent-teacher conferences.
¶ 13 Lance worked at PNC Bank in downtown Chicago as a regional credit officer making
$195,000 per year plus a yearly bonus, which had been over $30,000 each of the past two years.
He was able to work from home anywhere between one and three days per week. He had lived
in Naperville between October 2003 and October 2017, then in Oak Park until October 2019,
when he returned to Naperville to live in an apartment in the same complex where Jill had
lived prior to her move to Evansville. He moved there to keep the children at the same schools.
His parents lived by Midway Airport, and he had aunts, uncles, and cousins in the area. The
children saw Lance’s parents regularly but not the extended family. He also stated that, since
June, his father had come to his apartment 7 to 10 times to be with the children while he was
at work.
¶ 14 On August 2, 2019, the circuit court issued its written decision on Jill’s petition. Initially,
the court noted that M.P. had turned 18 during the pendency of the petition and that its decision
affected only the two younger children. Regarding statutory factors the court was required to
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consider (see 750 ILCS 5/609.2(g) (West 2018)) that it found did not favor relocation, the court
found Jill’s claim that she could no longer afford to live in Illinois to be without merit, as “she
gave little testimony towards her efforts to search for affordable housing in Illinois.” Thus, the
court found that relocation to Indiana was not necessary for her to increase her standard of
living. The court also noted that regarding whether relocation would positively impact the
children, Jill had only testified that the residence in Evansville was larger than her apartment
in Naperville. The court also found that Lance’s objections to relocation were meritorious and
were corroborated by the GAL. Further, the court found that “the Chicago area [was]
undoubtedly more diverse and offer[ed] more accessible cultural opportunities than [did] rural
Indiana.”
¶ 15 The court paid particular attention to whether a reasonable allocation of parental
responsibilities could be established. Regarding this factor, the court stated:
“the court can likely fashion a schedule that works around W.P. and R.P.’s school
schedules, giving much of the school year to the residential parent and much of the
summer to the other. Both [the GAL] and Jill made recommendations of giving Lance
one long weekend per month and significant holiday and summer parenting time.
However, this Court is reluctant to do so for several reasons. While the minor children
are 15 and 11 respectively, this Court believes that eleven hours in a car on a monthly
basis would burden the minor children. There was minimal testimony as to the
availability of air travel with no testimony being offered involving direct flights. Also,
the proposed parenting time would also put undo [sic] strain on R.P., who it was
testified, has a very strong bond with Jill. Extended summer visitation would result in
R.P. being away from Jill for several weeks at a time. This suggested visitation would
also inhibit R.P. from participating in baseball, which was the only extracurricular
activity that he currently expresses interest in. Jill testified that if relocation is denied
she would be unable to move back to Illinois. However, this Court notes that Jill moved
herself to Indiana prior to this hearing and testified that she does not have a lease, nor
is her employment with Waste Management dependent on her remaining in Evansville.
This Court believes that it would be unlikely to fashion a reasonable allocation of
parental responsibilities if relocation occurs.”
¶ 16 Regarding statutory factors that the court found to be neutral, the court found that both
parents had been involved in caring for the children and that Lance had diligently exercised
his parenting time. The court also found that each party had family in their respective
geographical areas to help care for the children. Further, the court found that due to Lance’s
income, travel costs would not be of significance and that travel would be done almost entirely
by car. Additionally, the court found that both parties were willing to facilitate relationships
between the children and the other parent and that the impacts of relocation could further be
minimized through the use of Skype and FaceTime.
¶ 17 Regarding factors that favored relocation, the court found that 15-year-old W.P.’s
preferences were communicated to the court via the GAL. W.P. did not want to live with Lance
but was reluctant to change schools. Eleven-year-old R.P. was very attached to Jill such that
he wanted to live with her, although the court found that it was hesitant to place significant
weight on R.P.’s wishes due to his age.
¶ 18 At the close of its order, the court found that more factors weighed in favor of Lance;
accordingly, Jill’s petition was denied.
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¶ 19 Jill filed a motion to reconsider, claiming that the circuit court “misapplied the majority of
the statutory factors.” In that motion, while discussing each of the statutory factors, Jill noted
that since the hearing, she had learned that direct flights did exist between Chicago and
Evansville. She also noted that since the hearing, the children had told her that Lance rarely
works from home; that he returns home from work after 6 p.m. and even as late as 7 p.m.; that
they often are not fed dinner until late, including once at 8 p.m.; and that according to R.P.,
Lance had left him at home alone with M.P. Further, Jill alleged that Lance had not hired
anyone to take care of the children after they got home from school and before he returned
home from work. Jill also included a list of what times Lance arrived home from work during
the first three weeks of the two younger children’s school year.
¶ 20 In his response to Jill’s motion, Lance admitted (1) he had yet to hire a sitter, (2) he had
his father and M.P. assist in watching the two younger children, and (3) he had returned home
from work late on occasion. He demanded strict proof of the other related allegations Jill made
in her motion.
¶ 21 The court heard arguments on Jill’s motion on October 22, 2019. Counsel for Jill argued
that the court had misapplied the law to the statutory factors and that there was new evidence
not available to the court at the time of its decision. During argument, counsel stated that one
portion of the new evidence was that direct flights did exist between Chicago and Evansville.
The court sustained an objection to that alleged evidence, however, ruling that it was known
or should have been known at the time of the hearing on the petition for relocation. Counsel
later stated that another portion of new evidence was that Lance had failed to follow through
on his plan to have his family or a sitter available for the children before he got home from
work. Counsel alleged that Lance had left the children home alone and that no adult presence
had been in Lance’s residence on a regular basis to watch the children. Counsel for Lance did
not object to this allegedly new evidence.
¶ 22 During his argument, counsel for Lance stated:
“Dad has attempted to obtain a baby-sitter. He is doing everything that he can to
ensure these kids are taken care of. They have not been left alone. They have either
been with the parties’ oldest child or [his] dad has occasionally shown up. And he has
been unable to obtain a long-term care solution while all of this is up in the air because
his interviews with sitters have indicated that nobody wants to commit unless they
know they have got a long-term gig.”
¶ 23 At the close of the hearing, the court stated that the most important statutory factor in this
case was whether the court could fashion a reasonable parenting plan. In this regard, the court
stated:
“At the time of the hearing there was some questions by this Court. I certainly had
some concerns as to the evidence presented whether or not there is a relevant—a
parenting plan can be made. Based on the filing of the petition to reconsider, I have
looked at the [sic] and reconsidered the evidence that was presented. And, again, ***
the GAL, did present the opinion that was in favor of relocation and did testify that he
thinks would be able to—he could fashion a reasonable parenting plan. Because again,
[Lance], has shown through not only testimony to the Court that he gave in court but
there was nothing adverse to the fact that he has always exercised his parenting time.
***
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I do find that when I initially stated that I would be unable to [fashion a parenting
plan that would be in the best interest of the children], that was an error. I think I can
fashion a reasonable parenting plan for both—to protect the rights of both the parents
and the children and one that is in the best interest of the children.”
¶ 24 The court also noted that Lance had been having difficulty securing supervision for the
children, which favored relocation. Based on these findings, the court granted Jill’s motion to
reconsider and set relocation to occur at the end of the children’s current school semester. 2
¶ 25 Lance appealed.
¶ 26 II. ANALYSIS
¶ 27 On appeal, Lance argues that the circuit court erred when it granted Jill’s motion to
reconsider.
¶ 28 Initially, we must clarify what is at issue in this appeal. Lance has appealed from the circuit
court’s grant of Jill’s motion to reconsider, which granted the motion on two grounds: (1) the
court believed it erred in the initial relocation decision when it found that a reasonable
parenting plan could not be created and (2) Lance’s post-relocation hearing difficulty in
securing supervision for the children after they returned home from school and before he
returned home from work weighed in favor of allowing relocation. We emphasize that the
circuit court’s original relocation decision is not at issue.
¶ 29 We note that the parties disagree on the appropriate standard of review. Lance contends
that because the circuit court granted Jill’s motion to reconsider on both legal and factual
grounds, both de novo and abuse of discretion standards apply, respectively. Jill contends that
because the general standard of review applicable to custody modification actions is manifest
weight of the evidence (see, e.g., id.), that standard should apply. She also argues that abuse of
discretion review applies, at least regarding the statutory factor requiring consideration of
whether a reasonable parenting plan could be created. Despite arguing in her motion to
reconsider that the court misapplied the law, she now contends on appeal that rather than it
finding that it misapplied the law, the court reconsidered the evidence on this factor.
¶ 30 “The purpose of a motion to reconsider is to bring to the trial court’s attention a change in
the law, an error in the trial court’s previous application of existing law, or newly discovered
evidence that was not available at the time of the prior hearing or decision.” Horlacher v.
Cohen, 2017 IL App (1st) 162712, ¶ 79. When faced with a challenge to the circuit court’s
ruling on a motion to reconsider, if the motion alleged that the court misapplied existing law,
our review is de novo. Id. ¶ 80. When the motion to reconsider is based on new evidence, our
review is abuse of discretion (id.), which occurs when “no reasonable person could agree with
the position taken by the trial court” (In re Estate of Wright, 377 Ill. App. 3d 800, 803-04
(2007)). Accordingly, we apply de novo review to the circuit court’s first basis for granting the
motion to reconsider (the alleged error in the initial relocation decision finding that a
reasonable parenting plan could not be created) 3 and abuse of discretion review to the court’s
2
Lance filed a motion to stay enforcement of the court’s order. The record indicates that Lance’s
motion was still pending at the time the appellate record was compiled and transmitted to this court.
3
We note that the special concurrence asserts that the appropriate standard of review for this issue
is whether the decision is against the manifest weight of the evidence. This assertion would be correct
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second basis (Lance’s post-relocation hearing difficulty in securing supervision for the children
after they returned home from school and before he returned home from work weighing in
favor of allowing relocation). We will address the latter basis first.
¶ 31 It is significant in this case that no presentation of evidence occurred at the hearing on the
motion to reconsider. Rather, the circuit court heard arguments only. However, during her
argument, counsel for Jill twice attempted to argue facts that were not admitted into evidence
at the hearing on the petition for relocation. First, she attempted to state that direct flights did
exist between Chicago and Evansville, but the circuit court sustained an objection to that
statement, ruling that it was known or should have been known at the time of the hearing on
the petition for relocation. Thus, to the extent that counsel for Jill tried offering that “evidence,”
it was rejected.
¶ 32 Second, counsel for Jill argued that since the hearing on the petition for relocation, Lance
had failed to hire anyone to watch the children after they got home from school and before he
returned from work, that he had left the children home alone, and that no adult presence had
been in Lance’s residence on a regular basis to watch the children. While it is true that counsel
for Lance did not object to these arguments, we note that in his response to the motion to
reconsider, Lance admitted only that he had not hired a sitter yet, that he had his father and
M.P. watch the two younger children at times, and that he had returned home from work late
on occasion; he demanded strict proof of the other related allegations that Jill made in her
motion. The circuit court clearly accepted some of Jill’s allegations as evidence, as it noted in
its decision that Lance’s “inability or difficulty in securing supervision for these children” was
something the court could consider in its decision.
¶ 33 Of course, the admissibility of evidence is a matter within the circuit court’s discretion.
In re Kenneth D., 364 Ill. App. 3d 797, 803 (2006). While we find no issue with the court
accepting Lance’s admissions into evidence, to the extent the court accepted any of Jill’s
unproven allegations into evidence, the court abused its discretion. See, e.g., Johnson v. Lynch,
66 Ill. 2d 242, 246 (1977) (holding that arguments of counsel are not evidence).
¶ 34 Disregarding Jill’s proffered but unproven allegations, we cannot agree that the admissions
made by Lance were enough to sway the case in favor of allowing relocation. Again, Lance
admitted only that he had not hired a sitter yet, that he had his father and M.P. watch the two
younger children at times, and that he had returned home from work late on occasion. There
was no competent evidence regarding how often either of the children, or both, had been left
home alone—or if they even had been left home alone at all. It is pure speculation to find that
Lance had done so and that such action was harmful. See, e.g., 705 ILCS 405/2-3(1)(d) (West
2018) (defining, in relevant part, an abused minor as including “any minor under the age of 14
years whose parent *** leaves the minor without supervision for an unreasonable period of
time without regard for the mental or physical health, safety, or welfare of that minor”); 720
ILCS 5/12C-10 (West 2018) (criminalizing, in relevant part, an act of a child’s parent who,
“without regard for the mental or physical health, safety, or welfare of that child, knowingly
leaves that child who is under the age of 13 without supervision by a responsible person over
if we were reviewing the circuit court’s original relocation decision. As previously stated, supra ¶ 29,
we are reviewing the court’s decision on the motion to reconsider. Further, In re Estate of Savio, 388
Ill. App. 3d 242 (2014), does not support the special concurrence’s assertion, as Savio did not involve
the review of a decision on a motion for reconsideration.
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the age of 14 for a period of 24 hours or more” and listing numerous factors for a court to
consider when determining if the child was left without regard for his or her mental or physical
health, safety, or welfare). Under these circumstances, we hold that no reasonable person
would agree with the circuit court that reconsideration was warranted on the new evidence.
See Wright, 377 Ill. App. 3d at 803-04. Accordingly, we hold that the court abused its
discretion when it granted reconsideration on this basis.
¶ 35 We now turn to the court’s second basis for granting reconsideration—namely, that the
court believed it erred in the initial relocation decision when it found that a reasonable
parenting plan could not be created. Again, we review this issue de novo. Horlacher, 2017 IL
App (1st) 162712, ¶ 80.
¶ 36 A circuit court must consider a relocation petition in light of the best interests of the child.
750 ILCS 5/609.2(g) (West 2018); In re Marriage of Fatkin, 2019 IL 123602, ¶ 32.
¶ 37 Section 609.2(g) provides the following list of factors that a court must consider when
deciding whether to allow relocation:
“(1) the circumstances and reasons for the intended relocation;
(2) the reasons, if any, why a parent is objecting to the intended relocation;
(3) the history and quality of each parent’s relationship with the child and
specifically whether a parent has substantially failed or refused to exercise the parental
responsibilities allocated to him or her under the parenting plan or allocation judgment;
(4) the educational opportunities for the child at the existing location and at the
proposed new location;
(5) the presence or absence of extended family at the existing location and at the
proposed new location;
(6) the anticipated impact of relocation on the child;
(7) whether the court will be able to fashion a reasonable allocation of parental
responsibilities between all parents if the relocation occurs;
(8) the wishes of the child, taking into account the child’s maturity and ability to
express reasoned and independent preferences as to relocation;
(9) possible arrangements for the exercise of parental responsibilities appropriate
to the parents’ resources and circumstances and the developmental level of the child;
(10) minimization of the impairment to a parent-child relationship caused by a
parent’s relocation; and
(11) any other relevant factors bearing on the child’s best interests.” 750 ILCS
5/609.2(g) (West 2018).
“A determination of the best interests of the child cannot be reduced to a simple bright-line
test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the
circumstances of each case.” In re Marriage of Eckert, 119 Ill. 2d 316, 326 (1988); In re
Marriage of Kavchak, 2018 IL App (2d) 170853, ¶ 65.
¶ 38 Our review of the record in this regard reveals no error in the circuit court’s application of
the law to the facts of this case. The court initially found that it was reluctant to fashion a
parenting plan along the lines proposed by the GAL and Jill, noting that the children would be
burdened by the significant travel time generally and R.P. specifically, due to his close
relationship with Jill. The court also noted that fashioning such a schedule would likely cause
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difficulties with extracurricular activities. We find no misapplication of the law in this regard,
especially in light of the other statutory factors. In its detailed nine-page written decision, the
court found it of particular significance that Jill failed to present sufficient evidence to support
her claim that relocation was in the children’s best interests. The law is clear that the burden
of proof in relocation cases is on the party seeking to relocate. Eckert, 119 Ill. 2d at 325. As
the court noted, Jill presented little to no testimony regarding her search for affordable housing
in Illinois. While she presented some evidence that her new residence in Evansville was larger
and had a yard, she did not have a lease in Evansville and her employment with Waste
Management was not dependent on her living there. Thus, there was no showing that a move
5½ hours away by car out-of-state to Evansville, Indiana, was necessary to improve her and
the children’s standard of living.
¶ 39 Regarding other statutory factors, we note that Lance’s reasons for objecting to the
relocation were indeed legitimate and not motivated by a desire to frustrate the children’s best
interests. The parties had both been involved with caring for the children, and Lance also had
been regularly exercising his visitation rights. Even if Evansville schools were comparable to
the schools in Naperville, the Chicago area certainly provides greater diversity and cultural
opportunities for the children. It is true that Jill had family support in the Evansville area, but
that type of support already existed in the Naperville area. Also, while it is true that the two
younger children wanted to live with Jill, this was not a factor that weighed in favor of
relocation. Jill decided herself to move to Evansville prior to a ruling on her petition for
relocation. A parent should not be allowed to benefit from such a preemptive decision when
they fail to establish that relocating the children to that area is in that parent’s and the children’s
best interests. In sum, under these circumstances, we find nothing in Jill’s motion to reconsider
to sustain her claim that the circuit court misapplied the law when it denied her petition for
relocation.
¶ 40 For the foregoing reasons, we reverse the circuit court’s decision that granted Jill’s motion
for reconsideration. The original order denying relocation remains in effect.
¶ 41 III. CONCLUSION
¶ 42 The judgment of the circuit court of Will County is reversed. Reversed.
¶ 43 PRESIDING JUSTICE LYTTON, specially concurring:
¶ 44 I agree with the majority’s decision to reverse the trial court’s order. I write separately
because I do not believe that the majority applied the proper standard of review to part of the
trial court’s reconsideration of its relocation decision.
¶ 45 The majority determined that de novo review applied to the trial court’s determination that
it erred in analyzing one of the best interest factors relevant to relocation. I disagree. The trial
court stated that it committed an “error” in its original decision when it found that it could not
“fashion a reasonable parenting plan *** to protect the rights of both the parents and the
children.” This alleged “error” was not an error in law, which is reviewed de novo. See In re
Estate of Savio, 388 Ill. App. 3d 242, 246-47 (2009). Rather, it was an “error” in applying facts
to law, which is reviewed under the manifest weight of the evidence. See id. at 247; Shulte v.
Flowers, 2013 IL App (4th) 120132, ¶ 19. A court’s decision is against the manifest weight of
the evidence where the opposite conclusion is clearly apparent or where its findings are
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unreasonable, arbitrary, or not based on the evidence presented. In re Marriage of Kavchak,
2018 IL App (2d) 170853, ¶ 65.
¶ 46 In Shulte, 2013 IL App (4th) 120132, ¶ 19, the appellate court reviewed the trial court’s
order granting a motion to reconsider under the manifest weight standard where the trial court
made findings of fact and applied the law to the facts. The appellate court said that to apply
the law, the trial court had to make factual findings, or there would be “nothing to which to
apply the law.” Id. ¶ 17. The court stated:
“If a motion for reconsideration requests the court to change its mind about its factual
findings, we will find no abuse of discretion in the granting or denial of the motion
unless the court’s revised factual findings, or the factual findings to which it decided to
adhere, are against the manifest weight of the evidence.” Id. ¶ 22 (citing People ex rel.
City of Chicago v. Hollins, 368 Ill. App. 3d 934, 942 (2006)).
¶ 47 Here, although Jill’s motion urged the trial court to apply the law, “the whole point of the
motion was that the court had erred in its evaluation of the evidence.” Id. ¶ 18. Because Jill’s
motion required the trial court to make factual findings and apply law to the facts, the majority
should have analyzed this issue under the manifest weight of the evidence standard. See id.
¶ 19.
¶ 48 Nevertheless, I conclude that if the majority had applied the proper standard of review, its
decision would have been the same. In changing its mind on relocation at the reconsideration
hearing, the court stated that the “most important” factor was its ability to create a visitation
plan that would reasonably allocate parental responsibilities. In its original decision, the court
determined that it could not “fashion a reasonable allocation of parental responsibilities” that
would also be in the best interests of the children because relocation would cause the children
to be burdened by lengthy travel, prevent them from participating in extracurricular activities,
and place undue stress on the youngest child, who has a very close relationship with his mother.
At the hearing on the motion to reconsider, no new evidence was presented on this factor.
Nevertheless, the trial court determined that it could “fashion a parenting plan that would be
in the best interest of the children” without any explanation as to how the negative impacts it
previously cited would be diminished or eliminated.
¶ 49 The trial court’s determination at the reconsideration hearing was not supported by the
evidence because the trial court had previously found, under the same evidence, that a
parenting plan could not be fashioned to reasonably allocate parental responsibilities between
the parties. Based on the facts of this case, the trial court’s decision, on reconsideration, to
grant the relocation petition was against the manifest weight of the evidence and must be
reversed.
¶ 50 In reaching this conclusion, I am mindful that a trial court’s decision regarding relocation
is entitled to great deference. See In re Marriage of Eckert, 119 Ill. 2d 316, 330 (1988).
Nevertheless, I find that reversal is necessary here, where the trial court initially thoroughly
analyzed the relevant relocation factors and determined that relocation should be denied and
then on reconsideration and with no new evidence presented on the factor the court deemed
“most important” determined that relocation should be granted. Based on the unique facts of
this case, the trial court’s decision on reconsideration is not based on the evidence presented
and, therefore, against the manifest weight of the evidence.
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