In re Prusak

2020 IL App (3d) 190688

156 N.E.3d 529

441 Ill.Dec. 194

IN RE MARRIAGE OF Jill A. PRUSAK, Petitioner-appellee, and Lance R. Prusak, Respondent-appellant.

Appeal No. 3-19-0688

Appellate Court of Illinois, Third District.

Opinion filed June 15, 2020

JUSTICE McDADE delivered the judgment of the court, with 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. BACKGROUND¹

¶ 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 changes 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.

¶ 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 $1,200 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 seven 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 consider (see 750 ILCS 5/609.2(g) (West 2019)) 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...