In re Marriage of Fatkin

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Supreme Court Date: 2019.09.03
16:26:50 -05'00'
In re Marriage of Fatkin, 2019 IL 123602Caption in Supreme In re MARRIAGE OF DANIELLE FATKIN, Appellee, and TODD
Court: FATKIN, Appellant.
Docket No. 123602
Filed January 25, 2019
Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Knox County, the Hon. Paul
L. Mangieri, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Cause remanded.
Counsel on Daniel S. Alcorn, of Alcorn Nelson LLC, of Galesburg, for appellant.
Appeal
Daniel M. Cordis, of Cordis & Cordis, of Princeville, for appellee.
Michael G. DiDomenico, of Lake Toback DiDomenico, and Paul L.
Feinstein, of Paul L. Feinstein, Ltd., both of Chicago, amici curiae.
Justices JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis,
and Neville concurred in the judgment and opinion.
OPINION
¶1 There are two issues in this appeal: (1) whether the trial court properly granted respondent
Todd Fatkin’s petition to relocate out of state with the parties’ minor children and (2) whether
the trial court’s order granting that petition was appealable immediately under Illinois Supreme
Court Rule 304(b)(6) (eff. Mar. 8, 2016). After first concluding that immediate appeal was
proper under Rule 304(b)(6), the appellate court below determined that the trial court’s
decision granting Todd’s petition was against the manifest weight of the evidence. 2018 IL
App (3d) 170779. It therefore reversed that decision and remanded the cause for further
proceedings. For the reasons that follow, we agree with the appellate court’s conclusion that
this is a proper Rule 304(b)(6) appeal, but we disagree with its conclusion that the trial court’s
decision was against the manifest weight of the evidence.
¶2 BACKGROUND
¶3 Todd Fatkin and Danielle Fatkin were married on August 4, 2004. They subsequently had
two children together, a son born in 2004 and a daughter born in 2010. In 2008, the parties
moved to East Galesburg, Illinois, where they continued to live together until their separation
in June 2014.
¶4 In July 2015, the circuit court of Knox County entered a final order on custody and
visitation, followed by a dissolution of marriage judgment in July 2016. Danielle and Todd
were awarded joint custody of the children, with primary physical custody going to Todd. This
meant that, while school was in session, the children spent 6 out of every 14 nights with
Danielle, as well as most weekday afternoons until Todd came home from work. When school
was not in session, the children spent alternate weeks with each parent. The parties were
ordered to consult with each other on all significant decisions about the children, with Todd
having final decision-making power if they could not agree.
¶5 In February 2017, Todd filed a notice of intent to relocate with the children to Virginia
Beach, Virginia, where he and the children would live with Todd’s parents. Danielle objected
to the relocation, so Todd filed a petition for leave to relocate with minors, as required by
section 609.2(f) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act)
(750 ILCS 5/609.2(f) (West 2016)).
¶6 The trial court conducted a three-day hearing on Todd’s petition to relocate, and both
parties presented evidence and testimony. In addition, the trial court conducted an in camera
interview with the parties’ son, who was then 12 years old. The trial court did not include the
parties’ daughter in the proceedings, as she was only six years old at the time.
¶7 The evidence showed that Todd was 48 years old and rented the home in East Galesburg
where he and Danielle had lived during the marriage. Todd has a bachelor of arts degree in
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fine arts and a dental hygienist associate’s degree, and he is a licensed dental hygienist in both
Illinois and Virginia. He also has a Montessori teaching certificate. From 2011 to 2015, Todd
worked for a dental practice in Peoria, earning $50,000 per year. Todd quit working for the
Peoria practice after receiving a job offer from a dentist’s office in Moline, making more
money. Todd also testified that he had concerns about the Peoria practice’s business ethics.
¶8 In late 2015, after working at the Moline dental practice 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, but he was not hired. Todd testified that he would not apply for dental jobs in bigger
cities (e.g., Peoria or the Quad Cities) because the commute would be over an hour and he did
not want to “spend the rest of my life commuting *** an hour and twenty some odd minutes
door to door and losing all that time with my children.”
¶9 In April 2016, Todd began working for the City of Galesburg (City) as a community service
officer, earning $12 per hour. The City allows Todd to work 1000 hours per year, which means
Todd works only from April through October. When he is not working for the City, Todd
receives unemployment compensation. Todd also receives $508 in monthly child support from
Danielle.
¶ 10 Danielle testified that she is 41 years old and lives within two miles of Todd’s residence in
a home that she had purchased. Danielle is employed as a tenure-track professor of history at
Knox College. The term of Danielle’s contract with Knox College is through 2020, and if she
is not granted tenure in 2019, she will no longer be employed there. Danielle testified that she
has not considered any plans for that contingency, as she anticipates being granted tenure.
¶ 11 Danielle regularly exercises her parenting time. She is primarily responsible for scheduling
the children’s medical appointments, with Todd also involved. She has been the soccer coach
for both children, volunteered in their classrooms, served as room mother for the children’s
classes, and was the group leader for her daughter’s 4-H club. Danielle also regularly attends
parent-teacher conferences, and she keeps in regular contact with the children’s teachers. She
also provides enrichment activities at the children’s school relating to archaeology, which is
her academic field of expertise. Danielle and her children enjoy doing many activities together,
such as baking, running, biking, hiking, camping, taking road trips, reading, and horseback
riding.
¶ 12 Danielle further testified that she is currently in a relationship with a man who lives in
Knoxville, Tennessee, and who teaches history at the University of Tennessee. She has visited
him in Tennessee a few times, and he has visited her in Illinois several times. Danielle denied
that she has been searching for employment in Tennessee, and she denied ever having
discussed with her boyfriend or with her children that she is considering relocating to
Tennessee.
¶ 13 Both children attend public schools in Knoxville, Illinois, and are involved in a variety of
extracurricular activities. At the time of the hearing, the parties’ son was involved in soccer,
jazz band, and the 4-H club, and the parties’ daughter was involved in gymnastics, soccer, and
the 4-H club. Both children have many close friends in the area. Academically, the parties’
daughter is doing very well. Their son’s grades, however, are declining, and he has reported
being bullied at school.
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¶ 14 As for why he wants to relocate, Todd testified that he grew up in Virginia Beach and that
his parents still live there. In addition, Todd and Danielle had lived together in Virginia Beach
with their son for 10 months in 2007-08. Todd produced a letter from Recreation Equipment,
Inc. (REI), stating that he would have a part-time retail sales job waiting for him in Virginia
paying an hourly wage of between $9.50 and $16.50. Todd also hoped to work part time as a
dental hygienist in Virginia, though he admitted that he did not have any offers or interviews
lined up in that field. Todd testified that his father is in good health and in his mid-sixties but
Todd’s mother is in stage 5 renal failure and on a waiting list to receive a kidney transplant. If
she did not receive a kidney, Todd did not know how much longer she would live. Once in
Virginia, Todd and the children would live with Todd’s mother and father in their five-
bedroom home without having to pay rent. Todd’s parents are financially secure, and they
would be available to watch the children for Todd when he was not at home. Though Todd
testified that the children were “very” familiar with the Virginia Beach area, in fact they had
not been to Virginia Beach in almost four years. Moreover, the children had not seen Todd’s
mother in three years and had not seen Todd’s father in over four years.
¶ 15 Todd also explained that he had served in the Coast Guard for four years after high school
and that he is rated with the United States Department of Veterans Affairs (VA) to have full
medical care. In the Galesburg area, however, the only available VA facility is a clinic that
provides only basic services such as blood work and physicals. For anything more extensive,
Todd has to travel to Iowa City. By contrast, Virginia Beach is a military community, and
consequently the available VA healthcare options would be much more extensive and
accessible.
¶ 16 Todd testified that the children’s general quality of life and standard of living will be
improved with a move to Virginia Beach because there will be better educational and
extracurricular opportunities for the children there, the medical and hospital facilities in
Virginia Beach are superior to those in the Galesburg area, and the children will benefit from
living with and having regular contact with their grandparents. Todd stated that he is familiar
with the Virginia Beach school system and knows it to be superior to the Galesburg system in
terms of both academics and extracurricular activities. Todd described the Virginia Beach area
as being more culturally diverse than the Galesburg area, and he believes that Virginia Beach
would offer the children a much broader range of cultural opportunities.
¶ 17 During his in camera testimony, the parties’ son stated that he thought moving to Virginia
was a “great idea” because Virginia Beach would offer better educational, extracurricular, and
cultural opportunities. He also stated that “this might sound sad, but I think I might be able to
live without my mom.” When asked why this was the case, he stated, “I kind of like don’t
understand her lifestyle and don’t really like it.” The parties’ son also stated that he didn’t
understand why Danielle was trying to keep him and his sister in Illinois because “my mom
talks about [us] moving with her to move closer to her boyfriend who lives in Knoxville,
Tennessee. *** I’ve heard her talking to him because he’s been over recently to her house, and
she’s talked personally to me about it.”
¶ 18 At the conclusion of the hearing, the trial court entered a 13-page, single-spaced order
granting Todd’s petition to relocate. In the order, the trial court makes a point to acknowledge
that:
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“[r]emoval cases are difficult. This is especially so when neither parent
demonstrates bad faith and both have assiduously exercised their parental
responsibilities and parenting time. No matter the outcome, one party’s life will be
affected detrimentally.”
The order begins with 20 paragraphs detailing the trial court’s factual findings, which largely
track the factual summary set forth above. From there, the order sets forth the 11 statutory
factors that a court is to consider when deciding whether relocation is in a child’s best interest.
See 750 ILCS 5/609.2(g) (West 2016). Finally, the order contains an additional 11 paragraphs
applying the trial court’s factual findings to the 11 statutory factors.
¶ 19 Broadly speaking, the trial court found that both Todd and Danielle are loving parents who
are intimately involved in the children’s daily lives; that Danielle’s opposition to the relocation
comes from a good-faith fear that relocation will diminish her relationship with her children;
that Todd’s desire to relocate comes from a good-faith desire to give the children more and
better educational, extracurricular, and cultural opportunities and to give them a better quality
of life; that the children in fact will enjoy greater educational, extracurricular, and cultural
opportunities if they relocate to Virginia; that the children will benefit from living with their
paternal grandparents in Virginia; and that a reasonable allocation of parental responsibilities
can be fashioned to ensure that Danielle continues to spend significant time and enjoy a full
relationship with the children. The trial court also found that, whereas Todd’s relationship with
both children is “exceptional,” Danielle’s relationship with their daughter is “good” and with
their son “strained and somewhat tenuous.” The order also notes that, whereas the relocation
may be difficult for the parties’ daughter because she “has a stronger bond with her mother
than [her brother] does,” the parties’ son “clearly stated his preference for the granting of the
petition for relocation and did so as an extremely articulate, mature 13-year-old who expressed
reasoned and independent preferences as to relocation.” Finally, the trial court made a specific
credibility finding as to Danielle’s denial of ever having discussed with either her boyfriend or
with the children that she is considering moving to Tennessee. Noting that the parties’ son had
testified to the opposite, the trial court found:
“This discrepancy between [the son’s] testimony and Danielle’s is troubling to the
Court and resolution of it turns upon an assessment of the credibility of the witnesses.
Granted [the son] was not subject to cross examination during his interview. However,
the Court had the opportunity to directly observe the demeanor of both [the son] and
Danielle while testifying. The Court finds that [the son] appeared to be inherently
honest and credible in his report. The Court does not believe that [the son] was simply
making up hearing his mother have such discussions. Moreover, Danielle’s testimony
proffered to rebut [the son’s] statement (that he had heard her on more than one
occasion discuss the possibility of her relocating to Knoxville, Tennessee,) was not an
absolute denial of any discussions with anyone, but rather perhaps a factual accurate
statement that she not had any conversation on that topic specifically and directly with
[the son]. The impact of all of this is that [it] tends to create the existence of a possible
double standard on the part of Danielle relative to her opposition to relocation.”
¶ 20 In the end, “after taking all of the above into consideration,” the trial court concluded that
“the quality of life to [the children] will be increased by the allowing of relocation and the
Court finds that the granting of the removal petition is in the best interest of the children.”
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Accordingly, the court stated that “a proper allocation of parenting time needs to be
established” and that “it is in the best interests of [the children] that upon relocation the
parenting of the parties be modified” so that the children would live with Todd in Virginia
during the school year and with Danielle in Illinois over the summer and during alternating
holiday breaks. The trial court specifically reserved ruling on whether to modify child support
and how to allocate the resulting transportation expenses.
¶ 21 Citing Rule 304(b)(6), Danielle filed an immediate notice of appeal from the trial court’s
order granting Todd’s petition to relocate. After first concluding that the filing of an immediate
appeal under Rule 304(b)(6) was proper (2018 IL App (3d) 170779, ¶ 31), the appellate court
majority concluded that “the trial court’s finding that relocation was in the best interest of the
children was against the manifest weight of the evidence” (id. ¶ 38). Accordingly, it reversed
the trial court’s decision granting that petition and remanded the cause for further proceedings.
Id. Justice Schmidt dissented, arguing both that the order granting Todd’s petition was not
immediately appealable under Rule 304(b)(6) and that the majority was wrong in concluding
that the trial court’s decision granting that petition was against the manifest weight of the
evidence. Id. ¶¶ 43-44 (Schmidt, J., dissenting).
¶ 22 Todd petitioned this court for leave to appeal, and we allowed that petition. Ill. S. Ct. R.
315 (eff. Apr. 1, 2018).
¶ 23 ANALYSIS
¶ 24 I. Jurisdiction
¶ 25 The first question we must decide is whether this is a proper appeal under Rule 304(b)(6).
Like the construction of a statute, the construction of this court’s rules is a question of law that
we review de novo. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).
¶ 26 The Illinois Constitution confers on the appellate court the jurisdiction to hear appeals from
all final judgments entered in the circuit court. See Ill. Const. 1970, art. VI, § 6 (providing that
appeals “from final judgments of a Circuit Court are a matter of right to the Appellate Court”).
The constitution also grants this court the right to “provide by rule for appeals to the Appellate
Court from other than final judgments.” Id. Accordingly, absent a supreme court rule, the
appellate court is without jurisdiction to review judgments, orders, or decrees that are not final.
EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9.
¶ 27 Danielle filed her notice of appeal to the appellate court pursuant to Rule 304(b)(6). Rule
304(b)(6) allows for the immediate appeal from any “custody or allocation of parental
responsibilities judgment or modification of such judgment entered pursuant to the Illinois
Marriage and Dissolution of Marriage Act [citation] or Illinois Parentage Act of 2015
[citation].” Ill. S. Ct. R. 304(b)(6) (eff. Mar. 8, 2016). The question for this court, then, is
whether the trial court’s order granting Todd’s relocation petition constituted a “custody or
allocation of parental responsibilities judgment or modification of such judgment,” such that
Danielle’s immediate appeal of that order was proper. We hold that it was.
¶ 28 As used in Rule 304(b)(6), the phrase “allocation of parental responsibilities” is a term of
art that derives from and is defined in the Marriage Act. As the relevant Committee Comments
explain, a 2016 amendment to the Marriage Act changed the terms “Custody,” “Visitation,”
and “Removal” to “Allocation of Parental Responsibilities,” “Parenting Time,” and
“Relocation.” Ill. S. Ct. R. 304, Committee Comments (adopted Mar. 8, 2016). Shortly
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thereafter, Rule 304(b)(6) was amended “to reflect those changes.” Id. Thus, to ascertain the
meaning of the phrase “allocation of parental responsibilities,” we must look to the Marriage
Act.
¶ 29 Section 600(b) of the Marriage Act defines “allocation judgment” as “a judgment
allocating parental responsibilities.” 750 ILCS 5/600(b) (West 2016). Section 600(d) then
defines “parental responsibilities” as “both parenting time and significant decision-making
responsibilities with respect to a child.” Id. § 600(d). Thus, under the Marriage Act, an
allocation of parental responsibilities judgment is a judgment that allocates “both parenting
time and significant decision-making responsibilities with respect to a child,” and the
“modification of such judgment” would be any decision that modifies either of those two
variables.
¶ 30 Given these definitions, there is no question that the trial court’s order granting Todd’s
relocation petition was an “allocation of parental responsibilities judgment or modification of
such judgment” for purposes of Rule 304(b)(6). Paragraph 19 of that order states that “the
granting of the removal petition is in the best interest of the children.” Paragraph 21 then states
that, accordingly, “[t]he court finds that it is in the best interest of [the children] that upon
relocation the parenting time of the parties be modified as follows.” (Emphasis added.) This
finding is then followed by four distinct subparagraphs modifying the parties’ allocation of
parenting time from the existing weekly schedule of two parents living two miles apart in the
same community to a seasonal schedule of two parents living in different parts of the country.
In both vocabulary and substance, the trial court’s order granting Todd’s relocation petition
modifies allocation of the parties’ parenting time and thus by definition also modifies
allocation of the parties’ parenting responsibilities. The order therefore was immediately
appealable under Rule 304(b)(6), and we are now free to move on to consider the merits of the
trial court’s decision. 1
¶ 31 II. Relocation
¶ 32 The next question we must decide is whether the trial court erred in granting Todd’s
relocation petition. In adjudicating a relocation petition, a trial court’s paramount consideration
is the best interests of the children. Id. § 609.2(g). In this context, this court has explained that
a best interests determination “cannot be reduced to a simple bright-line test” and that a ruling
on the best interests of a child “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). We also have stressed that “[a] trial court’s determination of what is in the best interests
of the child should not be reversed unless it is clearly against the manifest weight of the
evidence and it appears that a manifest injustice has occurred.” Id. at 328. Such deference is
appropriate because “ ‘[t]he trier of fact had significant opportunity to observe both parents
and the child and, thus, is able to assess and evaluate their temperaments, personalities, and
capabilities.’ ” Id. at 330 (quoting Gallagher v. Gallagher, 60 Ill. App. 3d 26, 31 (1978)).
1
Both the parties and the appellate court discuss In re Parentage of Rogan M., 2014 IL App (1st)
132765, and In re Marriage of Bendar, 146 Ill. App. 3d 704 (1986), two decisions that previously
considered whether decisions involving relocation constitute “custody” judgments. However, neither
of these decisions speaks to the present question, as both turn on the construction of language that is no
longer operative in either Rule 304(b)(6) or the Marriage Act, given the 2016 amendments.
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Accordingly, “ ‘[t]he presumption in favor of the result reached by the trial court is always
strong and compelling in this type of case.’ ” Id. (quoting Gallagher, 60 Ill. App. 3d at 31-32).
¶ 33 The trial court here was faced with a contested relocation petition, and it conducted a three-
day hearing at which both parties were given a full and fair opportunity to present evidence
and testimony. In addition, the trial court conducted a thorough in camera interview with the
parties’ son to ascertain his thoughts and feelings about both the relocation and his relationship
with his parents. At the conclusion of the hearing, the trial court entered a 13-page single-
spaced order detailing both its factual findings and its application of those findings to each of
the relevant statutory factors. Specifically, the trial court determined that (1) Todd’s desire to
relocate stems from a good-faith desire to give his children a better quality of life and that his
belief that Virginia will provide that is reasonable and rationally based, (2) Danielle’s objection
to relocation stems from a good-faith concern that relocation could diminish her relationship
with her children and that this concern is likewise reasonable and rationally based, (3) although
the children enjoy a “good” relationship with Danielle, their relationship with Todd is
“exceptional,” (4) although there is little evidence with which to evaluate the academic quality
of the relevant Virginia Beach schools relative to the schools in Galesburg, the children will
undoubtedly benefit from Virginia Beach’s greater ethnic and cultural diversity, (5) whereas
the children have no extended family in Illinois, they will be living with their paternal
grandparents in Virginia, (6) relocation’s impact on the parties’ son is likely to be insignificant,
as he “specifically stated a preference for residing with his father who he views as the more
stable, nurturing parent and clearly stated that he could adapt to not seeing his mother at the
current level,” (7) relocation’s impact on the parties’ daughter is likely to be greater, as she
“has a stronger bond with her mother than [her brother] does,” (8) upon relocation, a reasonable
allocation of parental responsibilities can be fashioned so that both parties continue to enjoy a
significant presence in and responsibility for the children’s lives, and (9) the parties’ son
“clearly stated his preference for the granting of the petition for relocation and did so as an
extremely articulate, mature 13-year-old who expressed reasoned and independent preferences
as to relocation.” Finally, on the question of whether Danielle herself had been discussing the
possibility of relocating to Tennessee, the trial court specifically found that the parties’ son’s
testimony on this point was “inherently honest and credible,” that the discrepancy between this
testimony and Danielle’s testimony on this point was “troubling,” and that Danielle’s objection
to Todd’s relocation petition therefore “create[s] the existence of a possible double standard
on the part of Danielle.” Only “after taking all of the above into consideration,” the trial court
ultimately concluded that “the quality of life to [the children] will be increased by the allowing
of relocation and the Court finds that the granting of the removal petition is in the best interest
of the children.”
¶ 34 After carefully reviewing both the record and the trial court’s order, we find that there is
absolutely no basis for concluding that the trial court’s decision to grant Todd’s relocation
petition is so “clearly against the manifest weight of the evidence” that “it appears that a
manifest injustice has occurred.” 2018 IL App (3d) 170779, ¶ 34. On the contrary, the trial
court’s handling of this difficult case was in many ways exemplary. Each of the trial court’s
numerous findings is supported by evidence from the record, and we are in no position to
second-guess its credibility determinations relative to Danielle’s plans to relocate. See People
v. Pittman, 211 Ill. 2d 502, 527 (2004). Moreover, the trial court did not paint a naïve and rosy
portrait of relocation, nor did it simply ignore the evidence militating against it. The trial court
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conceded that there were certain evidentiary gaps in the record, and it expressly acknowledged
that relocation has the potential to significantly reshape Danielle’s existing relationship with
her children and most especially with her daughter. In the end, however, and only after stating
that “[r]emoval cases are difficult” because “[n]o matter the outcome, one party’s life will be
affected detrimentally,” the trial court ultimately concluded that relocation would be in the
children’s best interest. This was a perfectly reasonable conclusion based on the record before
us, and we see no reason to dispense with what we have consistently characterized as a “strong
and compelling” presumption in favor of the result reached by the trial court in such cases. 2
¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, the judgment of the appellate court is reversed, the judgment of
the circuit court is affirmed, and the cause is remanded for further proceedings consistent with
this opinion.
¶ 37 Appellate court judgment reversed.
¶ 38 Circuit court judgment affirmed.
¶ 39 Cause remanded.
2
In reaching this result, we note that, in concluding that the trial court’s decision granting Todd’s
petition was against the manifest weight of the evidence, the appellate court below made no attempt to
apply the applicable standard of review. On the contrary, after setting out the applicable language from
Eckert, the appellate court proceeded simply to reweigh the evidence for itself and decide that the scales
favored denial of the petition. At no point did the appellate court identify what evidence the trial court’s
decision was “clearly” and “manifestly” against, what “manifest injustice” it was seeking to avert, or
why suspension of the “strong and compelling” presumption in favor of the trial court’s decision was
warranted.
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