Fatkin v. Fatkin

2019 IL 123602

129 N.E.3d 1230

432 Ill.Dec. 687

IN RE MARRIAGE OF Danielle FATKIN, Appellee, and Todd Fatkin, Appellant.

Docket No. 123602

Supreme Court of Illinois.

Opinion filed January 25, 2019

Daniel S. Alcorn, of Alcorn Nelson LLC, of Galesburg, for appellant.

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.

JUSTICE THOMAS delivered the judgment of the court, with 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 manifest. 2018 IL App (3d) 170779, 426 Ill.Dec. 681, 116 N.E.3d 981. 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 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.

¶ 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,...