In re Marriage of Levites

2021 IL App (2d) 200552
No. 2-20-0552
Opinion filed March 3, 2021
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court
DMITRY LEVITES, ) of Lake County.
)
Petitioner and Counterrespondent- )
Appellee, )
)
and ) No. 17-D-747
)
NURIANA LEVITES, )
) Honorable
Respondent and Counterpetitioner- ) Charles W. Smith,
Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.

OPINION

¶1 After her previous appeal (In re Marriage of Levites, No. 2-20-0254 (2020) (Levites I)

(unpublished summary order under Illinois Supreme Court Rule 23(c))) was dismissed for want of

jurisdiction, respondent and counterpetitioner, Nuriana Levites, again appeals the order of the

circuit court of Lake County denying her amended petition for relocation, seeking to relocate with

her child from her marriage to petitioner and counterrespondent, Dimitry Levites. In this appeal,

respondent argues that the trial court erred in assigning her the burden of proving by a

preponderance of the evidence that relocation was in S.L.’s best interests and that the trial court’s
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judgment denying her amended petition for relocation was against the manifest weight of the

evidence. We affirm.

¶2 I. BACKGROUND

¶3 We summarize the relevant facts appearing in the record on appeal. Respondent is 34 years

of age and currently resides in Chicago. Petitioner is 49 years old and currently resides in Highland

Park. Respondent was born and educated in Russia, and she previously lived in Moscow with her

family. Petitioner is a United States citizen and, for at least the past 21 years, has owned and

operated a business making dental prosthetics and implants.

¶4 In March 2013, respondent lived in Moscow and vacationed in Jamaica, where she met

petitioner, who lived in Illinois and was also vacationing in Jamaica. Respondent testified that

petitioner aggressively courted her, calling her many times a day and flying her to Illinois. On

August 20, 2014, the parties were married. During the marriage, a child, S.L., was born to the

parties. On April 26, 2017, petitioner filed a petition for dissolution of marriage.

¶5 As respondent later learned, petitioner had three previous marriages. In 1997, petitioner

was first married, and, in 1998, the first marriage was dissolved; no children were born from that

first marriage. In 1998, petitioner married for a second time, and, during the marriage, petitioner

and his second wife had twins. In 2001, petitioner divorced his second wife; he does not appear to

have regular contact with his children from that marriage. In 2003, petitioner married his third

wife, with whom he had a son. In 2011, petitioner and his third wife divorced. Respondent testified

that she remembered seeing his son only three times during her marriage to petitioner, even though

a parenting schedule had been set. Finally, after petitioner’s and respondent’s divorce had been

initiated, petitioner married his fifth wife, Anat, in a purely religious ceremony, which S.L.

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attended. Later, still during the pendency of the dissolution proceedings here, petitioner divorced

Anat in a purely religious ceremony. 1

¶6 The parties’ marriage was marred with allegations of abusive behavior. Respondent

testified that petitioner was very controlling and isolating. Specifically, respondent testified that

petitioner controlled the parties’ finances and repeatedly confiscated respondent’s credit cards.

Respondent also testified that petitioner attempted to interrupt respondent’s relationships with her

parents and her sister and discouraged or prevented their visits and even telephone or video

communications.

¶7 According to respondent, petitioner used illegal drugs, like cocaine, during the marriage.

Petitioner denied that he used illegal drugs. Petitioner was tested once for illegal drug use, and the

test found no illegal drugs. Even though respondent made additional allegations that petitioner was

continuing to use illegal drugs, no further testing was ordered.

¶8 Respondent also testified that petitioner committed abusive acts during the marriage.

Specifically, respondent testified that, sometime in the first half of 2015, when S.L. was about

seven months old, petitioner took S.L. from her, physically pushed respondent from the house, and

locked the doors, resulting in respondent crawling through a window to get back inside the house.

Respondent further related that petitioner threatened to have her deported and would manufacture

claims of abuse to prevent her from having custody of or seeing S.L. again.

1
The marriage to Anat was never legally solemnized. Because there was no legal effect to

the marriage, petitioner was not committing bigamy.

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¶9 Continuing, respondent testified about a November 2015 incident. The incident began with

petitioner speaking ill of respondent’s family. He then dragged her throughout the house, choked

her, and pushed her so that she fell down, apparently all while she held S.L. Respondent testified

that she was in S.L,’s room screaming to the neighbors for help. Respondent testified that

petitioner’s behavior had her so scared that she ran, still holding S.L., out of the child’s room and

downstairs. There, petitioner pushed her, S.L. still in her arms, from the house. Respondent went

to the house of Stella Picchietti, a neighbor, who generally corroborated respondent’s testimony

about a fight between petitioner and respondent. On the next day, respondent filed a report with

the police. Respondent stayed with a friend for the next few days.

¶ 10 According to respondent, on April 17, 2017, shortly before petitioner filed his petition for

dissolution of marriage, petitioner became aggressive after some illicit drug use and forbade

respondent from communicating with anyone, even her parents. Respondent testified that she was

going to record petitioner’s ravings but petitioner grabbed her phone and submerged it in the sink

and then struck respondent. Respondent called the police emergency number. She also obtained

an emergency order of protection against petitioner.

¶ 11 Following this incident and the grant of the emergency order of protection, petitioner

moved out of the marital residence and stayed with his friend, Uladimir Marozau. Under adverse

direct examination, petitioner testified that he had been friends with Marozau for about 13 years

at that point. Marozau helped him to find a divorce attorney, and, on April 26, 2017, petitioner

filed his petition for dissolution of marriage. Petitioner agreed that he informed Marozau about the

progress of the divorce from respondent and instructed his attorney to include Marozau in

receiving all divorce-related correspondence.

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¶ 12 On May 23, 2017, the trial court entered a mutual no-contact order, which precluded both

parties from engaging in harassing conduct, committing physical abuse, interfering with the other’s

personal liberty, or stalking each other. The order also set a parenting schedule, with S.L.’s primary

residence with respondent and petitioner having parenting time on two weekday evenings and one

overnight on the weekend; custody exchange was ordered to occur at a neighbor’s house.

¶ 13 The record shows that, during the latter part of May 2017, petitioner transferred substantial

sums of money and goods to Marozau. He transferred approximately $27,000 in cash and 11 cars

worth approximately $125,000. The cars were transferred to a business in which Marozau had an

interest and was controlled by a friend of Marozau. The record does not indicate the relationship

between petitioner and Marozau’s friend. Petitioner explained that the transfer occurred to allow

Marozau’s business to sell the cars. These transactions appear to have been accomplished before

May 29, 2017.

¶ 14 On May 26 and 27, 2017, petitioner exercised his overnight parenting time. During the

afternoon of May 27, 2017, the parenting exchange occurred at the Highland Park police station.

Petitioner was accompanied by Marozau. Petitioner, on adverse direct examination, testified that

Marozau became aggressive during the exchange and told the police that he would shut down the

police department and that he would kidnap S.L. Petitioner testified that, for his and S.L.’s safety,

the police asked Marozau to leave. The police also told petitioner that he should consider

Marozau’s statement as a threat to be taken seriously, and they informed petitioner that they would

contact the Department of Children and Family Services (Department) because of Marozau’s

statement.

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¶ 15 On Memorial Day, May 29, 2017, at about 5:20 a.m., Marozau entered the marital

residence and beat respondent, ultimately dragging her out of the house and down the driveway.

Neighbors Howard and Barbara Dane had been awakened by their dog, and Howard observed

Marozau make his entrance into the home; Barbara called the police. Howard went outside and

confronted Dimitry Voronin, who was driving a car that had been parked outside the marital

residence and who was apparently assisting in the offense. By the time Marozau had dragged

respondent to the end of the driveway, police arrived and restrained and arrested Marozau and

Voronin. Respondent testified that she had been severely beaten, she had bruises all over her body,

and hair had been ripped from her head. Petitioner testified that, on the next court date, May 30,

2017, he did not observe any bruising on respondent; the court orders memorializing the May 30

hearing did not note that respondent demonstrated observable or obvious marks of violence.

¶ 16 Respondent filed an emergency petition seeking to suspend petitioner’s visitation and to

require supervised visitation once petitioner’s parenting time resumed. Respondent also requested

the appointment of a guardian ad litem. On May 30, 2017, the trial court ordered that both parties

were precluded from having S.L. in Marozau’s presence. In a separate order, Robert Lewinthal

was appointed as S.L.’s guardian ad litem.

¶ 17 Regarding the May 29, 2017, incident, Marozau was charged with a number of offenses

and bail was set at $1 million. On May 30, 2017, Marozau, with his attorney present, called

petitioner from the jail. Petitioner recounted on adverse direct examination that Marozau had

demanded $200,000 and had stated, “otherwise I will get some thoughts in my mind.” Petitioner

agreed to provide the $100,000 bail money and promised that they would talk after Marozau had

been released on bond. Petitioner explained that he decided to post the bond money for Marozau,

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not because he felt threatened by Marozau’s statement, but because Marozau held nearly $125,000

of his property, namely, the cars he had transferred to Marozau’s business to sell on his behalf.

Petitioner testified, however, that he had no further contact with Marozau following the May 30

call from the jail.

¶ 18 In posting Marozau’s bond, petitioner did not pay it directly in his own name. Instead, he

obtained a cashier’s check and gave it to Vladimir Pechenev, a friend, with the instruction to pay

Marozau’s bond. Petitioner explained that he used an intermediary to post the bond, because

Marozau’s attorney had advised him to proceed in that fashion.

¶ 19 Petitioner was interviewed by Lewinthal shortly after Marozau’s attack on respondent.

According to Lewinthal, petitioner minimized his relationship with Marozau, calling him an

“acquaintance, not a friend.” Lewinthal also testified that petitioner claimed that he had not spoken

with Marozau since the attack. However, Lewinthal later learned that, the day after the attack,

petitioner had spoken with Marozau and agreed to post bond. Further, while Lewinthal believed

that Pechenev had posted Marozau’s bond, petitioner eventually admitted to him that he had

provided the money for the bail.

¶ 20 Unsurprisingly, petitioner and respondent had a poor relationship. During the pendency of

this case, respondent reported a number of threats by petitioner. On November 16, 2017, a plenary

order of protection was issued against petitioner, which covered only respondent and not S.L. At

the hearing, respondent testified that petitioner would threaten her during the visitation exchanges

and that, after each of three specific exchanges, she reported the threats to the police. Petitioner,

for his part, denied making threats.

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¶ 21 Respondent testified that, around the time when petitioner made the threats, S.L. would

repeat what respondent believed to have been phrases petitioner taught her. Respondent testified

that, specifically, S.L. would say, “Dad told me Mom was bad, Mom was bad,” or would sing,

“Mom is bitch, Mom is bitch, Mom is bad,” like a “mantra” that S.L. would repeat “all the time.”

¶ 22 Respondent testified that, in May 2018, S.L. began saying things about petitioner’s private

parts. Respondent filed a police report. The Department investigated the allegations of abuse and

determined them to be unfounded.

¶ 23 Respondent also presented testimony from petitioner’s neighbors from when petitioner was

living in the marital residence without her. The neighbors testified that on several occasions they

directly observed S.L. playing outside with no adults within their observation. On cross-

examination, it was developed that the neighbors could not see into petitioner’s house or garage

when they made their observations. Petitioner denied that he let S.L. play outside unsupervised

and testified that he or another adult was observing her when she was playing outside.

¶ 24 For his part, petitioner testified that, earlier in the pendency of this case, respondent

frequently canceled his parenting time, claiming that S.L. was ill. Makeup time for the missed

visits was generally ordered; petitioner acknowledged that he did not believe that he had missed

any parenting time. Moreover, as the case progressed, it appears that petitioner consistently

exercised his visitation.

¶ 25 On March 5, 2019, respondent filed her petition for relocation, seeking the court’s approval

to relocate with S.L.to either New York or California. On April 15, 2019, respondent filed her

amended petition for relocation, seeking the court’s approval to relocate to California. At the

hearing, respondent testified that she was prompted to seek relocation by concern for her and S.L.’s

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safety, although respondent admitted that she did not believe that petitioner would harm S.L.

Respondent testified that she would live with her sister in Beverly Hills and that she had leads on

three jobs, but she had no written offers or even any details to present. According to respondent,

her primary employment lead was working for a law firm that catered to the Russian expatriate

community in Los Angeles. However, throughout the proceedings, respondent requested an

interpreter, maintaining that her English language skills were not up to the task of testifying and

understanding the proceedings. Finally, respondent testified that the schools in the area in

California had received high marks, according to websites she had visited. Lewinthal disputed that

respondent had investigated the schools and had found them to be of adequate quality, and he

testified and reported that respondent had not looked into them. In his report, Lewinthal noted that

he had researched the elementary school that respondent planned for S.L. to attend and that it was

a good school with above average scores.

¶ 26 On June 13, 2019, Dr. Frances Pacheco, a psychologist, filed her report advising the trial

court on the allocation of parental responsibilities pursuant to the trial court’s order. The court’s

June 27, 2018, order empowered Pacheco to interview the parties and S.L., to provide the court

with input regarding S.L.’s best interests and the allocation of parental responsibilities. Pacheco

recommended, pertinently, that respondent be allowed to relocate to California and that

petitioner’s visitation with S.L. in California be supervised. Pacheco remarked in her report that,

when S.L. was with petitioner, his then-wife, Anat, was S.L.’s primary caretaker and that petitioner

had commented to Pacheco that, if respondent were allocated anything other than supervised

visitation with S.L., he would withdraw his contact with S.L. out of fear that respondent would

continue to make allegations of abuse. Petitioner was questioned about this and denied that he

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made the statement. Pacheco also remarked that she doubted that either parent “had the willingness

and ability *** to encourage and facilitate a positive relationship between [S.L.] and the other

parent.”

¶ 27 On September 6, 2019, respondent filed her counterpetition for dissolution of marriage. In

the counterpetition, respondent adopted Pacheco’s recommendations, including requiring

petitioner have only supervised visitation with S.L. in California. It should be noted, however, that,

throughout the great majority of this case, petitioner enjoyed unsupervised visitation, including

overnight visits, and had about half of the parenting time.

¶ 28 Lewinthal testified regarding his involvement with the case and the best interests of S.L.

He “had no objections” to respondent’s request to relocate, because petitioner had said during a

personal interview that, if respondent received unsupervised parenting time, petitioner might

withdraw his contact with S.L. Petitioner denied making the statement. On direct examination, he

clarified the context of the remark, made to both Lewinthal and Pacheco. Petitioner explained that

he feared that respondent would continue to make unfounded allegations of physical and sexual

abuse and that S.L. would be psychologically torn up by the investigations. Petitioner explained

that, to spare him and S.L. the pain of the allegations and investigations, he might feel compelled

to withdraw from S.L. if respondent received unsupervised parenting time.

¶ 29 The matter proceeded to a hearing on respondent’s counterpetition for dissolution of

marriage and her amended petition for relocation. On March 3, 2020, following the hearing (which

occurred over several days during November 2019 and January 2020), the trial court denied

respondent’s amended petition for relocation “without prejudice.” Respondent appealed the ruling

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on the amended petition for relocation and, in a summary order filed August 5, 2020, we dismissed

the appeal for lack of jurisdiction.

¶ 30 Matters proceeded apace in the trial court. On August 11, 2020, respondent noticed up all

outstanding matters for hearing, including the amended petition for relocation. On August 27,

2020, those matters were heard. During the August 27 hearing, the parties did not present any new

evidence or any new arguments regarding the amended petition for relocation. The trial court orally

denied the petition and explained that, because all pending matters had been resolved, namely the

division of marital assets and the allocation of parental responsibilities, the orders were final, and

it was denying respondent’s request to include Illinois Supreme Court Rule 304(a) (eff. Mar. 8,

2016) language. On August 27, the court entered the orders on parental allocation, a marital

settlement agreement, and a no-contact order. On September 8, 2020, the court filed the written

order denying the amended petition for relocation. The written order provided, pertinently:

“1. On the issue of Relocation of S.L. to the State of California, [respondent] did

not present new or additional evidence and no further testimony was propounded by

[respondent];

2. Based on the reasons stated on the Record on March 3, 2020[,] and based on no

new evidence being brought before the court the Amended Petition for Relocation is hereby

DENIED.

3. The Court’s findings as contained in the March 3, 2020, ruling on the amended

petition for relocation are incorporated herein as if set forth verbatim.

4. By separate orders, the financial matters and allocation of the marital assets/debts

are resolved by agreement per the parties[’] Marital Settlement Agreement and the issues

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of parenting time and parenting responsibility are resolved per the Parental Allocation

Judgment.”

¶ 31 The trial court expressly incorporated its oral remarks from the March 3, 2020, hearing into

the September 8, 2020 order. In those remarks, the court first defined the evidence it had

considered: the evidence from the hearing, Pacheco’s report, and Lewinthal’s reports and

testimony. Next the court defined the relevant legal rules it applied in its analysis: the statutory

factors and the case law discussing the application of the factors. It noted that it was particularly

sensitive to the issue of a custodial parent who is seeking relocation and has been interposing

roadblocks, “however slight,” in the relationship between the child and the noncustodial parent.

¶ 32 Next, the trial court discussed the facts it found to be “extremely disturbing.” The first issue

was Marozau’s May 29, 2017, attack and attempted kidnapping of respondent. The court labeled

as “important to the Court’s ruling and to this case” the fact that petitioner provided the money to

post Marozau’s bond. Regarding petitioner’s in-court testimony and statements to Lewinthal that

“he knew nothing about the attack, that he was fearful of [Marozau], and [that] he virtually had no

or limited knowledge of [Marozau],” the court found them to be “absolutely incredible.” The court

was also troubled that petitioner posted bond for Marozau “so that [Marozau] could be on the street

and [respondent] could be terrorized by the action that this individual was still at large.” While the

court concluded that petitioner had approved of Marozau’s attack on respondent, it expressly

declined to find that petitioner had directed the attack to proceed or that petitioner knew in advance

that the attack would occur. The court reasoned that, because petitioner’s involvement had been

investigated by the police, and the parties neither deposed Voronin, Marozau’s accomplice, nor

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called him to testify about petitioner’s involvement, it could not conclude that petitioner’s

involvement was more than after-the-fact approval as evidenced by the posting of bond.

¶ 33 The trial court did not find just petitioner’s testimony about Marozau’s attack and

attempted kidnapping to be unworthy of belief, it also “had huge credibility issues with a lot of the

testimony of [respondent].” The court first noted its overarching determination that respondent had

attempted to interfere with petitioner’s relationship with S.L. It then honed in on respondent’s

allegations of sexual abuse against petitioner, noting that the Department had “investigated those

complaints, police departments ha[d] investigated those complaints and found no basis for them

whatsoever.” The court highlighted an August 12, 2019, medical report in which S.L. was

diagnosed with vaginal inflammation, but it noted that “there was no follow-up, there was no

[Department] call, [and there was] nothing to support [respondent’s] assertion that [petitioner] had

molested the child.”

¶ 34 Petitioner also did not escape unscathed from the trial court’s review of each parent’s

interference with the other’s relationship with S.L. The court noted that there was testimony that,

when S.L. was returned to respondent after parenting time with petitioner, S.L. would sing or say

that respondent was bad. The court determined petitioner’s denial to be incredible.

¶ 35 The court chastised both parties for “attempt[ing] to use this child and attempt[ing] to use

the court system and attempt[ing] to use the law enforcement authorities to garner an advantage in

their case.” The court then noted that, prompted by Marozau’s attack, respondent filed her petition

(and then amended petition) for relocation nearly two years after petitioner filed this dissolution

action, which raised the heat in the already contentious divorce proceedings.

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¶ 36 The trial court turned to its application of the legal rules to the facts, keeping in mind the

troubling issues it had just explained. In the first half of this part of its comments, the court

mentioned and distinguished the cases that respondent had provided. In the second half, the court

made specific analyses of each of the statutory factors. We excerpt the relevant portions of the

court’s remarks.

¶ 37 In the case-law portion of its remarks, the trial court stated that “[t]he only basis that [it]

could find to support [petitioner’s] request [for relocation] is her physical safety.” After

distinguishing a case, the court stated:

“I do not in any way mean to minimize what happened here, but it is the only

instance, that’s one instance, it’s a very serious instance, and thank goodness the neighbors

were alerted because I don’t know what [Marozau] would have done if he was successful

in getting [respondent] to his car. I know that he had her out of the house, that she sustained

injury, she was treated at the hospital, he just didn’t get her in the car before the police

thankfully arrived. That one instance weighs heavy on this court, but I cannot say that that

alone is a basis for granting this petition. Rather, I’m concerned by the conduct of

[respondent] that once I grant relocation to the state of California, she will seek to have the

California authorities investigate her claims of sexual abuse of the child which I have

already found lack credibility.”

The court then noted that it was to consider any and all relevant evidence in reaching its decision

and that the factors from In re Marriage of Eckert, 119 Ill. 2d 316 (1988), were not exclusive. No

single factor controlled and weight should be given to each of the factors.

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“One single factor that favors [relocation] is the violence. And if there were

enough—if the petition and the evidence had shown that there were other good reasons to

relocate to California, i.e., schools, i.e., economic opportunity, i.e., that [respondent] was

moving because somebody she had entered into a relationship with was relocating, those

are cases where in many of those cases relocation ha[d] still been denied.”

The court discussed In re Marriage of Demaret, 2012 IL App (1st) 111916, and In re Parentage

of P.D., 2017 IL App (2d) 170355, in which relocation was denied even though the mother would

have garnered a huge salary increase if she had been allowed to relocate.

“In this case, I don’t have that she even has a job. There was an allegation that she was

going to be employed as a paralegal in a law firm. Throughout these proceedings now going

on three years[,] [respondent] has at all contested hearings utilized a court interpreter,

which suggests she has very limited use of the English language, so what job she was going

to get—she never produced a job offer sheet, a letter from a potential employer, or anything

that indicated how she was going to support herself and the child. She did testify that she

had the assistance of her sister, but the sister never testified. There was testimony that there

was a two-bedroom apartment that was available, which meant the child necessarily would

be sharing *** a room in the apartment, a bedroom with her mother.

The type of planning and specificity that I see in cases where relocation has been

allowed was totally lacking in this case. I’m not sure how [respondent] was going to be

able to support herself and the child. I had no particulars on the school. The child is now

of school age. And I also have, if you will, the advantage of looking at two years of a

normal parenting schedule. Initially there were orders in this case that prohibited

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[petitioner] from seeing the child. There was an order of protection sought that named the

child as a protected party; that was later amended. But throughout a period of two years,

there were no violations to the order of protection, [petitioner] committed no act of violence

towards [respondent], and he is regularly seeing the child, he regularly has overnights with

the child. Therefore[,] it was my conclusion that if I were to allow relocation, I would be

essentially terminating [petitioner’s] parental rights. The idea that [petitioner and

respondent] could have some sort of cooperative relationship in traveling from one coast

to Chicago is pure folly. Both parties have been guilty of doing everything to undermine

the other that they possibly could. So the Court could not find that [respondent] would

cooperate with seeing that the parent-child relationship would continue. And again, I was

able to at least look at over the last two years the child has been with her father on a regular

basis, has seen her father, and I would be putting the child in a situation where I don’t know

that she would ever see her father again.

I’m reviewing my notes as I speak, but I find that there was an incident where

[respondent] was videotaping [petitioner] and trying to make a case he was violating the

order of protection. She denied that and her own e-mails belied her testimony. In examining

her during trial, I asked her specifically if she believed that [petitioner] would harm the

child and she said no.”

The trial court discussed In re Marriage of Eaton, 269 Ill. App. 3d 507 (1995), explaining that, in

that case, the reviewing court

“noted that the case was made difficult by the good faith of the parties in regard to the

petition for removal. I don’t have anything close to that here. I have bad faith between these

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parties and actions which indicate that they will not cooperate in fostering a good

relationship.

And then another [passage] from that case [says] [a]ny removal will have some

effect on visitation but the real question is whether the visitation schedule is both

reasonable and realistic to create—there’s no way we could do that in this case.

[Respondent] has no economic ability to participate in the cost of travel of the child and

has demonstrated no inclination to want to do that.”

¶ 38 The trial court distinguished several other cases. In so doing, it made the determination that

petitioner had a strong interest in seeing and maintaining his relationship with S.L. The court also

noted that requesting relocation to be with a spouse or to continue a committed relationship is a

weighty factor but that, here, respondent was not seeking to further such a relationship but was

instead seeking to move away from petitioner. The court stated that the desire to move to another

state, without more, was insufficient to show that the move would be in the best interests of S.L.

However, the court acknowledged that respondent’s desire to move in this case “is compelling

only because of the serious physical threat to [respondent] presented by [Marozau].”

¶ 39 While the trial court maintained that its discussion of the case law’s application of the

factors governing relocation sufficiently covered the statutory factors, it nevertheless expressly

analyzed the facts in light of the current statutory factors, presented in section 609.2 of the Illinois

Marriage and Dissolution of Marriage Act (Act) (hereinafter sometimes referred to as the

relocation statute) (750 ILCS 5/609.2 (West 2018)). As this is relevant to respondent’s contentions,

we excerpt the court’s comments in full on this topic:

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“I do want to review the relatively recent amendment to our statute of [section]

609.2 [of the Act] setting forth the factors that the Court must consider when ruling on a

petition for relocation. One, that the circumstances and reasons for the intended relocation,

she has good reason to be fearful of [petitioner], but that does not answer the question of

what the effect is on the child. The fact that the parties for two years, almost three years,

have carried on a normal visitation parenting time schedule is an indication that the burden

has not been met. The reasons, if any, why the parent is objecting to the relocation,

[petitioner] tells me he’s objecting because he wants to be part of his daughter’s life. Does

he have about as much animus towards [respondent] as she does toward him? I would

acknowledge that. At the same token, I do believe that he is sincerely interested in the child.

The third factor is the history and quality of each parent’s relationship with the

child, specifically whether a parent has substantially failed or refused to exercise parental

responsibilities allocated to him or her in the parenting plan. In this case[,] we don’t even

have a parenting plan, which is kind of embarrassing considering the length of the

litigation. But again, the factor of this criminal case [against Marozau] was part of the

reason for the delay. I find that the history has been that he utilizes all of his parenting time.

I have reviewed Exhibit 21 in the case, which was a series of e-mails where on many

occasions [respondent] was not willing to change a pickup time, change a pickup location,

in any way cooperate with [petitioner] in seeing that the child had time with her father.

The fourth factor is the educational opportunities for the child in the existing

location and the proposed new location. I know very little from the report or from the

testimony at trial concerning the schools that the child would be going to. There was a

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generalization that the schools in Beverly Hills are very good and allegedly better than

Chicago. I know that the child, based on [respondent’s] current location, will be going to

schools in the Lincoln Park area of Chicago. Those schools have a good reputation.

The fifth factor is the presence or absence of extended family at the existing

location and the proposed location. The only factor here that weighs in favor of

[respondent’s] petition is the fact that her sister lives in Los Angeles. I have nothing about

family in this area. There was testimony about [respondent’s] mother visiting, but she is

not a citizen. She comes here on a travel visa. And so there is no—it’s very hard on

[respondent], from the testimony I heard, she has no family support system here. But all

she’s going to have out in Los Angeles is one sister. I know that from the testimony that—

from other [of petitioner’s] relationships, marriages, there are [S.L.’s] cousins and siblings,

half-siblings that are in this area.

The sixth factor is the anticipated impact on the relocation of the child. And frankly,

there was no testimony, so nothing was presented in the way of evidence that the child

would be negatively or positively impacted by this relocation.

Seven, whether the Court will be able to fashion a reasonable allocation of parental

responsibility between the parents if relocation occurs. I find that far from meeting the

burden on that, exactly the opposite is true. These parties will not cooperate with each

other. The history of interference with parenting time is prolonged to the future and, again,

I am very fearful that no matter what I might write in an order that this Court would retain

jurisdiction, that [respondent] would seek a different view from the courts out in California.

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Eight is the wishes of the child. Due to her tender years, nothing was put forth in

this, and that’s not unexpected.

Nine, possible arrangements for the exercise of parental responsibilities of the

parental—appropriate for the parents’ resources and circumstances. These parties do not

have a lot of resources. Unfortunately what resources they have have been expended in

three years of litigation with attorneys, [guardian ad litem] fees, and [evaluators pursuant

to section 604.10(b) of the Act (750 ILCS 5/604.10(b) (West 2018))]. So there isn’t a lot

of money. And a child at the age of five cannot just be put on a plane. Somebody is going

to have to take her or parenting time would have to take place in California. It will be

expensive. So it would be very difficult to arrange that.

Ten is minimization of the impairment of the parent-child relationship by parent’s

relocation. As I have already stated, it is this Court’s opinion that allowing the relocation

will effectively terminate [petitioner’s] involvement in the child’s life. I’m not saying he

couldn’t overcome that, but from the evidence presented to me to date, I don’t see any way

that he would be—that [respondent] would foster [petitioner’s] involvement in the child’s

life.

Any other relevant factors bearing on the child’s best interests. I know it’s argued

that if [respondent] is happier, the child will be happier. The relocating part, the parent is

happier. I can’t make that generalization. I don’t—while I received extensive, by volume,

of paper reports from the [guardian ad litem], I don’t have any feel for how this child would

react to relocation, and I know that generally children like stability. And there has been a

stable, long-term pattern of parenting time with both mom and dad overnights. And while

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it’s been rocky for most of the time, over the last year, really, I have not dealt with any

motions concerning the parties’ parenting time.

So I’m going to state for the record that the five Eckert case criteria are pretty

subsumed into the statutory factors and the 2016 amendment to the statute.

So I think I have covered the reasons why I’m going to deny the motion for

relocation. I’m denying it without prejudice. I remain very troubled by what went on here.

I remain very concerned that [petitioner] was involved to some extent in the violence

against his wife. If there is any violence towards her, I will not—I would have to reconsider

my holding today that one act is not sufficient reason to allow the relocation of the child. I

don’t think it’s in the child’s best interests. It’s in [respondent’s] best interests, and it’s in

everybody’s best interests that these parties have limited contact with each other. But at

some point—and they both have taken the parenting class—at some point they are going

to have to work cooperatively on an allocation judgment and division of parenting

responsibilities.

So it is denied for now without prejudice. If something comes up, a better plan, the

plan put forth in this case is simply not acceptable to this Court, did not in a legal sense

meet the requirements of the Eckert case or of the statute to grant relocation.”

¶ 40 On September 23, 2020, respondent filed her notice of appeal, within 30 days of the

September 8, 2020, denial of her amended petition for relocation. On October 21, 2020, this court

issued its mandate in Levites I.

¶ 41 II. ANALYSIS

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¶ 42 As an initial matter, we note that petitioner has not filed a brief in this appeal. We will

nevertheless consider the appeal under the principles of First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 133 (1976) (allowing the consideration of the appeal on only

the appellant’s brief where the record is simple and the errors can be considered without the benefit

of additional briefing).

¶ 43 On appeal, respondent argues that the trial court erred in discerning a burden of proof

within section 609.2 of the Act and in assigning it to her. She also argues that the court’s judgment

was against the manifest weight of the evidence. Before turning to respondent’s issues on appeal,

we must first address a jurisdictional issue.

¶ 44 A. Jurisdiction

¶ 45 Respondent asserts that we have jurisdiction over this appeal, reasoning that the September

8, 2020, denial of her amended petition for relocation was a final order because the other pending

issues had been resolved in the August 27, 2020, orders. This assertion is apparently belied by

Illinois Supreme Court Rule 369(b) (eff. July 1, 1982), which provides that, “[w]hen the reviewing

court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court,

enforcement of the judgment may be had and other proceedings may be conducted as if no appeal

had been taken.” Stated in the negative, “a trial court may not rule on a petition that is filed before

the appellate court issues its mandate if the petition involves issues that were presented to the

appellate court for review”. Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1035

(2001). The proceedings on remand from Levites I would appear to fall squarely within that

prohibition: on March 30, 2020, respondent filed her notice of appeal in Levites I. On August 5,

2020, we issued our summary order dismissing Levites I for lack of jurisdiction. On August 11,

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2020, respondent noticed up all outstanding matters for hearing, including the amended petition

for relocation. On August 27, 2020, the trial court orally indicated that it was denying the amended

petition, and, on September 8, 2020, the trial court entered the written order denying the amended

petition for relocation. On September 23, 2020, respondent filed her notice of appeal in this case

and, on October 21, 2020, we issued the mandate in Levites I.

¶ 46 Longo initially appears to be on all fours with this case. In Longo, the defendants timely

appealed the October 8, 1998, final orders and a November 4, 1998, order denying the defendants’

motion for reconsideration. Longo, 318 Ill. App. 3d at 1034. On March 24, 1999, the appellate

court dismissed the first appeal. Id. at 1035. On May 21, 1999, the trial court vacated the October

8 final orders. Id. at 1032. On August 11, 1999, the appellate court issued its mandate with respect

to the first appeal. Id. at 1035. On August 18, 1999, the trial court denied the plaintiff’s motion to

vacate or to reconsider the May 21 order, and the plaintiff timely appealed. Id. The appellate court

concluded that the trial court lacked jurisdiction over both the defendant’s petition to vacate the

May 21 order as well as the May 21 order itself. The appellate court reasoned that jurisdiction was

lacking because the defendant had reinitiated proceedings in the trial court on the issue that had

been appealed before the appellate mandate had issued and revested the trial court with

jurisdiction. Id.

¶ 47 While the timing of the actions in Longo line up closely with the timing in this case, there

is a significant distinction between the cases. In Longo, the first appeal was taken from final orders.

Here, by contrast, the appeal in Levites I was taken from an unappealable nonfinal order. The

difference in the inherent appealability of the order in the first Longo appeal and the nonfinal order

in Levites I determines the outcome here.

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¶ 48 Generally, the timely filing of a notice of appeal divests the trial court of jurisdiction and

confers jurisdiction upon the appellate court. Huber v. American Accounting Ass’n, 2014 IL

117293, ¶ 8. However, “[t]he filing of a notice of appeal from an order or judgment which the

supreme court rules do not make appealable neither deprives the trial court of jurisdiction to

proceed with the case nor vests the appellate court with jurisdiction to consider it.” North

Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶ 24. Thus, because

the appeal in Levites I from the nonfinal order was not made appealable by the supreme court rules

(such as Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016)), it was essentially a nullity and

did not deprive the trial court of its jurisdiction to proceed, even on the very subject matter of the

Levites I appeal. This also makes sense in the context of this case. If the appeal from an

unappealable order were to divest the trial court of jurisdiction while the appellate court sorted it

out, and only upon the issuance of the appellate mandate would jurisdiction be restored to the trial

court, then a bad-faith litigant could file a notice of appeal on any order, halt the proceedings in

the trial court until the appellate mandate, and repeat the process over and over so as to prolong

the action in the trial court indefinitely and drain the resources of the other litigant or litigants.

¶ 49 This principle is also embodied in Callen v. Akhter, 66 Ill. App. 3d 421 (1978), which

provides guidance here. In Callen, the defendant appealed from a judgment entered on remand

following an interlocutory appeal that was dismissed for lack of jurisdiction. The appellate court

held that the trial court had jurisdiction to enter the judgment on remand, although the mandate

had not yet been issued, because (1) the prior appeal was a premature interlocutory appeal and,

thus, the trial court never lost jurisdiction; and (2) the parties voluntarily participated in the matter

on remand, thereby waiving any jurisdictional objection. Id. at 424. The fact that the appellate

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court in Callen had dismissed the improper appeal for lack of jurisdiction before the trial court

once again took up the issues was an important factor in the decision, as was the waiver of the

problem presented by the lack of the mandate. Similarly here. Levites I was dismissed before

respondent sought to have the ruling on the amended petition for relocation finalized, and both

parties fully participated despite the lack of a mandate. Thus, under the reasoning of Callen,

jumping the gun and resuming litigation on the same issue as presented in the abortive first appeal

does not affect our jurisdiction over this appeal.

¶ 50 Finally, there is a very good reason to apply North Community Bank and the reasoning in

Callen to the facts presented here. This case involves the custody of a child and is accelerated

pursuant to Illinois Supreme Court Rule 311(a) (eff. July 1, 2018). Another dismissal on the

arguable ground of lack of jurisdiction would frustrate the expediency with which we are to address

these kinds of appeals. S.L., whose best interests are paramount, would continue to languish in

uncertainty. While it would be different if respondent appealed again from a nonfinal order, in this

appeal we are not clearly and unequivocally without jurisdiction, and there is sufficient authority

supporting the invocation of our jurisdiction along with considerations of the nature of this matter.

Accordingly, we conclude that we have jurisdiction over this appeal and now turn to respondent’s

substantive contentions.

¶ 51 B. Burden of Proof

¶ 52 Respondent argues that the trial court erred in its application of section 609.2 of the Act.

Respondent notes that, in 2016, the Act was amended and section 609 (750 ILCS 5/609 (West

2014)) (hereinafter sometimes “the removal statute”) was repealed and replaced with section

609.2. Section 609 provided that the party seeking removal bore the burden of proving that removal

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was in the child’s best interests: “The burden of proving that such removal is in the best interests

of such child or children is on the party seeking the removal.” 750 ILCS 5/609(a) (West 2014);

see also Eckert, 119 Ill. 2d at 324 (concluding that the party seeking removal bore the burden of

proof under the removal statute (citing Ill. Rev. Stat. 1985, ch. 40, ¶ 609)). Respondent contends

that section 609.2 does not include a burden of proof to establish whether relocation is in the best

interests of the child. Respondent notes that the trial court relied on In re Marriage of Kavchak,

2018 IL App (2d) 170853, ¶ 65, in determining that “the burden of proof [was] on respondent” to

demonstrate that relocation was in S.L.’s best interests. Respondent contends that Kavchak’s

statement about the burden of proof in relocation cases is rooted in section 609 and that the repeal

of section 609 and its replacement with section 609.2 deliberately omitted a burden of proof

altogether in favor of a focus on the child’s best interests. Respondent concludes that the improper

assignment of the burden of proof is reversible error. See In re Marriage of Riess, 260 Ill. App. 3d

210, 216-17 (1994) (the statute then in effect expressly assigned the burden of proof to the movant;

the trial court erred by assigning to the nonmoving party the burden of proof).

¶ 53 To evaluate respondent’s argument, we must interpret section 609.2. The interpretation of

a statute presents a question of law. In re Marriage of Earlywine, 2012 IL App (2d) 110730, ¶ 18.

We review de novo questions of law. Id.

¶ 54 When embarking on statutory interpretation, we seek to ascertain and give effect to the

legislature’s intent. Metropolitan Life Insurance Co. v. Hamer, 2013 IL 114234, ¶ 18. The best

indication of legislative intent is the language of the statute given its plain and ordinary meaning.

Id. We may not depart from the language of the statute and read into the provision exceptions,

limitations, or conditions. Id.

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¶ 55 Respondent essentially contends that the trial court imported the burden-of-proof

requirement from the removal statute, despite the fact that it does not appear in the relocation

statute. Indeed, the burden-of-proof language is not present in the relocation statute. Instead,

section 609.2 provides that the party wishing to relocate must provide notice to the other party,

who then may or may not object to the proposed relocation. 750 ILCS 5/609.2(c)-(e) (West 2018).

If there is no objection, then the relocation will go forward as proposed. Id. § 609.2(e). If there is

an objection, then “the parent seeking relocation must file a petition seeking permission to

relocate.” Id. § 609.2(f).

¶ 56 Respondent proposes that the omission of the burden-of-proof language from section 609.2

means that the legislature intended to remove the burden-of-proof from the statute so that there

would be no burden of proof in relocation proceedings. Instead, according to respondent, the

relocation statute now focuses solely on the child’s best interests. Id. § 609.2(g) (the trial court

“shall modify the parenting plan or allocation judgment in accordance with the child’s best

interests”). Respondent’s contention is not without foundation. Generally, the omission of any of

an original statute’s language in an amended version of the statute indicates an intention to change

the law. Hamer, 2013 IL 114234, ¶ 25. However, respondent’s contention is unworkable.

¶ 57 In the first place, section 609.2(f) places on the relocating parent the obligation to file a

petition seeking approval to relocate. 750 ILCS 5/609.2(f) (West 2018) (“the parent seeking

relocation must file a petition seeking permission to relocate”). Respondent concedes that this is

at least “a burden of moving forward.” (Emphasis omitted.) However, the burden of proof typically

consists of both the burden of producing evidence that will satisfy a trial court of the existence of

an alleged fact and the burden of persuading a fact finder that the alleged fact is true. Hamer v.

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Cain, 2012 IL App (1st) 112833, ¶ 12. Thus, respondent concedes that the burden of production

rests on the parent seeking relocation when the other parent objects to the proposed relocation. The

burden of persuasion is also a necessary corollary to give section 609.2(f) its full meaning, because

the act of “seeking permission to relocate” implies that the adjudicating tribunal must be persuaded

to give its permission. Otherwise, there would be no purpose for the parent seeking relocation to

file a petition seeking permission to relocate—the relocating parent would need file only a petition

to relocate. Section 609.2(f), in conjunction with section 609.2(g), makes the best interests of the

child the focus of what must be) proved in the petition seeking permission to relocate. 750 ILCS

5/609.2(f)-(g) (West 2018). Therefore, section 609.2(f) implies that the parent seeking relocation

has the burden of proving that the relocation is in the best interests of the child, as measured by

the factors set forth in section 609.2(g). Id.

¶ 58 Indeed, several cases have held that the party seeking permission to relocate bears the

burden of proof. E.g., Kavchak, 2018 IL App (2d) 170853, ¶ 65 (relying on Eckert and In re

Marriage of Collingbourne, 204 Ill. 2d 498, 521 (2003), both preamendment cases, in stating that

“[t]he party seeking judicial approval of the proposed relocation must establish by a preponderance

of the evidence that the relocation is in the child’s best interests”); In re Marriage of Fatkin, 2018

IL App (3d) 170779, ¶ 34, rev’d on other grounds, 2019 IL 123602 (relying on In re Parentage of

P.D., 2017 IL App (2d) 170355, ¶ 15, in stating that “[t]he parent seeking relocation has the burden

of proving, by a preponderance of the evidence, that relocation would be in the child’s best

interest”); P.D., 2017 IL App (2d) 170355, ¶ 15 (relying on both the preamendment section 609

and In re Rogan M., 2014 IL App (1st) 141214, ¶ 6, which itself expressly relied on the now-

repealed section 609(a), in stating “[t]he parent seeking removal has the burden of proving, by a

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preponderance of the evidence, that removal would be in the child’s best interest”). Tracing back

through these cases shows that they, in fact, relied on either the removal statute (750 ILCS 5/609

(West 2014)) or other cases that drew their burden-of-proof principles from the removal statute.

As respondent properly notes, cases cited in support of a point are only as good as the authority on

which they themselves are relying. See Doe 1 v. North Central Behavioral Health Systems, Inc.,

352 Ill. App. 3d 284, 287 (2004) (where the case cited does not address the issue being contested

on appeal, its precedential value is limited). Thus, because the foregoing cases state the burden-

of-proof rule as derived from authority preexisting the 2016 amendment to the Act, we cannot

simply unreflectively rely upon them, especially where respondent has expressly challenged the

trial court’s imposition on her of any burden of proof in deciding her petition for relocation.

¶ 59 That does not mean that section 609.2 is without a burden of proof. 2 As noted, the burden

of proof is composed of a burden of production and a burden of persuasion. These ideas serve to

regulate the administration of a trial. The party bearing the burden of production must bring forth

sufficient evidence to support his or her contention and the party bearing the burden of persuasion

must convince the fact finder that his or her contention is true. An analogy may be helpful here.

The Code of Civil Procedure (Code) defines summary judgment with nowhere stating a burden of

proof. 3 735 ILCS 5/2-1005 (West 2018). Despite this absence, it is beyond argument that the party

2
We note that the general rule in civil cases is that the moving party bears the burden of

proof. Watkins v. American Service Insurance Co., 260 Ill. App. 3d 1054, 1062 (1994).
3
We are mindful that this is not a perfect analogy, because the Code provision on summary

judgment was not amended to remove the language regarding a burden of proof. Our purpose is

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moving for summary judgment shoulders the burden of first producing sufficient evidence to

support its claim and, ultimately, of persuading the trial court that it is entitled to summary

judgment pursuant to the standards set forth in the Code. Country Mutual Insurance Co. v. Hilltop

View, LLC, 2013 IL App (4th) 130124, ¶ 23. So, too, the relocation statute. Section 609.2 sets forth

the procedures to accomplish an uncontested relocation. 750 ILCS 5/609.2(c)-(e) (West 2018).

The procedure in case of a contested relocation is defined in section 609.2(f) (id. § 609.2(f)), and

the standards to be applied by the court in both uncontested and contested relocations are defined

in section 609.2(g) (id. § 609.2(g)).

¶ 60 Respondent’s view, that there is no burden of proof, is simply unworkable. The trial court

is charged with determining the child’s best interests in light of the factors in section 609.2(g). The

question is how the court does that. If there is no burden of proof, then there is neither a burden of

producing evidence on the relevant factors nor a burden of persuading the finder of fact that the

relevant factors are proved. If that is the case, then, under respondent’s view, the court is expected

to somehow formulate a determination of the child’s best interests, much like Athena springing

fully formed from the brow of Zeus. The legislature cannot have left such a weighty issue to be

determined by some undefined deus ex machina. Dynak v. Board of Education of Wood Dale

School District 7, 2020 IL 125062, ¶ 16 (legislature is presumed not to have intended an absurd or

inconvenient result). There must be a burden of proof.

simply to show that, even in a vacuum, courts must adopt concepts necessary for the logical and

orderly disposition of matters in front of them.

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¶ 61 Indeed, the language of section 609.2(f) seems to imply the existence of both a burden of

production, in that the relocating parent must petition to relocate and produce evidence on the

child’s best interests, and a burden of persuasion, in that the parent seeking relocation must obtain

the trial court’s permission to relocate by convincing the court that it is in the child’s best interests

to relocate. 750 ILCS 5/609.2(f) (West 2018). The court must still view the evidence and

arguments through the prism of the child’s best interests, as set forth in section 609.2(g), but

someone must demonstrate that, on balance, the consideration of the child’s best interests favors

relocation. That someone, structurally, simply must be the parent seeking relocation. As aptly

observed by Justice Knecht in an unreported case grappling with precisely this issue, “[w]e do not

know if the burden of proof language was purposely or inadvertently left out of

the relocation statute, but we believe there must be a burden of proof.” Brown v. Groothuis, 2018

IL App (4th) 180346-U, ¶ 86.

¶ 62 Respondent argues that the legislative intent to remove the requirement of a burden of proof

is evident when we consider a rejected version of the relocation statute. According to respondent,

what became section 609.2 represents a compromise between the repealed section 609, which

placed the burden expressly on the relocating parent, and the proposed-but-rejected plan to place

the onus entirely on the nonrelocating parent, who would be required to file an objection or the

relocation would be allowed. 98th Ill. Gen. Assem., House Bill 1452, 2013 Sess. House Bill 1452

also omitted the express burden-of-proof language from the proposed section 609.2 in favor of

requiring the trial court to determine whether the relocation would serve the child’s best interests.

Respondent derives further support for her argument from other provisions that implement the

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scheme to require the objecting parent to take action, but we do not believe that they are

particularly relevant, especially because the House Bill 1452 version ultimately was not passed.

¶ 63 Respondent also discerns that the now-repealed section 609, with its express burden-of-

proof language, provided that the default position was for the status quo, while House Bill 1452,

with its requirement that the parent objecting to relocation affirmatively act or the relocation would

occur, set the default for relocation. While we are inclined to agree with this observation, the fact

that House Bill 1452 was not passed suggests that, ultimately, the decision to change the default

from the status quo or nonremoval to relocation was similarly rejected. Moreover, that the

relocation statute that was actually enacted, section 609.2 of the Act, omitted the express burden-

of-proof language from the repealed section 609 does not suggest a change in the default, although

the relocation statute as enacted certainly makes the process of obtaining judicial approval easier

if the parties agree. Indeed, the fact that, if the nonrelocating parent simply “fails to sign the notice”

of relocation, then the parties must litigate the relocation, suggests that the regime represented by

the repealed removal statute has only been modified, not done away with altogether. 750 ILCS

5/609.2(f) (West 2018). While we appreciate respondent’s argument, the rejection of a 180-degree

change to the statutory framework from that which had prevailed, and the subsequent adoption of

a new framework that maintains the key requirement that relocation be litigated in cases of

disagreement, cannot be interpreted as broadly as respondent suggests. Instead, the change in the

statute suggests the recognition that allowing the parties to agree would minimize the expenditure

of both the trial court’s and the parties’ resources. The fact that the litigation requirement was kept

in cases where the parties disagree or do not communicate suggests that the old framework was

not entirely rejected.

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¶ 64 Two minor points remain for us to make. First, given that a “burden of proof” holds within

it the concepts of a burden of production and a burden of persuasion, as well as the concept of the

quantum of evidence necessary to prove the point, suggests that the phrase itself is not without

ambiguity. If, in fact, the “burden of proof” concept was ambiguous in the now-repealed section

609, then its omission from the relocation statute is of considerably diminished import. Hamer,

2013 IL 114234, ¶ 25 (“[a]n amendment of an unambiguous statute indicates a purpose to change

the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous

provision”). While we do not declare section 609 to have been ambiguous, the inherent uncertainty

of the concept of “burden of proof” undercuts the force of respondent’s analysis.

¶ 65 Second, the cases mentioned above interpreting section 609.2 and attributing to the

relocating parent the burden of proving that the relocation is in the child’s best interests were

released in 2017 and 2018. Since their release, the legislature has not amended section 609.2.

“[W]here the legislature chooses not to amend terms of a statute after judicial construction, it will

be presumed that it has acquiesced in the court’s statement of legislative intent.” Board of

Education of City of Chicago v. Moore, 2021 IL 125785, ¶ 30. Granted, the relocation statute has

been in existence only a brief time and the judicial gloss imparted to it is still relatively trifling.

Cf. id. (the provision at issue had been interpreted in 1987 and there had been “numerous”

amendments not disturbing the original judicial interpretation). Therefore, the principle of

legislative acquiescence is not particularly weighty here, but it is undeniably present. While not

determinative, it supports our interpretation of section 609.2.

¶ 66 For these reasons, then, we reject respondent’s contention that the legislature removed the

burden of proof from section 609.2. Because we hold that section 609.2 places on the parent

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seeking relocation the burden of proving that relocation is in the child’s best interests, the trial

court did not err in assigning that burden to respondent in its March 3, 2020, order.

¶ 67 C. Denial of the Amended Petition for Relocation

¶ 68 Respondent contends that the trial court’s denial of her amended petition for relocation was

against the manifest weight of the evidence. As discussed above, in 2016, the Act was amended,

and the former removal statute was repealed and replaced with the relocation statute. The

relocation statute changed somewhat the procedures a party must follow to take his or her child

out of the state, allowing the parties to agree to a relocation without the necessity of filing a petition

and undergoing a hearing. 750 ILCS 5/609.2(c)-(e) (West 2018). Section 609.2(f) applies where

the parties cannot agree to a relocation. Id. § 609.2(f). Section 609.2(g) sets forth the standards the

trial court is to use in determining the child’s best interests in a relocation request:

“The court shall modify the parenting plan or allocation judgment in accordance

with the child’s best interests. The court shall consider the following factors:

(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;

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(5) the presence or absence of extended family at the existing location and

at the proposed new location;

(6) the anticipated impact of the 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.” Id.

§ 609.2(g).

¶ 69 Our supreme court recently issued Fatkin, 2019 IL 123602, an emphatic decision regarding

the standard of review in relocation cases and how to employ that standard. The court explained

that a trial court’s determination of the child’s best interests should not be disturbed unless it is

“ ‘clearly against the manifest weight of the evidence and it appears that a manifest injustice has

occurred.’ ” Id. ¶ 32 (quoting Eckert, 119 Ill. 2d at 328). The supreme court further explained that

the deferential standard of review was appropriate due to the trial court’s opportunity to observe

the parents and children, giving it the ability to assess and evaluate their temperaments,

personalities, and capabilities. Id. The supreme court concluded that the presumption in favor of

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the trial court’s determination was always strong and compelling in a best-interests-determination

type of case. Id.

¶ 70 The supreme court then provided an illustration of the principles of review, in two brutally

concise paragraphs. In the first paragraph, the supreme court briefly discussed the trial court’s

order on the father’s relocation petition, discussing the bases the trial court provided for its

decision. Id. ¶ 33. The supreme court then held that “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.’ ” Id. (quoting

Fatkin, 2018 IL App (3d) 170779, ¶ 34). In particular, the supreme court castigated the appellate

court’s lip service to the manifest-weight standard while its decision actually subverted the

standard:

“[T]he 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.” Id. ¶ 34 n.2.

¶ 71 With these principles in mind, we make one further observation regarding our review of

the trial court’s determination. In relocation cases, courts have consistently cautioned that a best-

interests determination cannot be reduced to a simple bright-line test and instead must be made on

a case-by-case basis. Id. ¶ 32; Eckert, 119 Ill. 2d at 326; Kavchak, 2018 IL App (2d) 170853, ¶ 65.

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This suggests that other relocation cases are of limited value for purposes of comparison because

the result in each case depends on the unique facts and circumstances of the case. In re Marriage

of Berk, 215 Ill. App. 3d 459, 465-66 (1991). Because of the case-by-case nature of our review,

the result cannot be reduced to a simple tally of which party “won” a majority of the enumerated

factors; instead, because some factors in a particular case may weigh more heavily than others, the

trial court must consider all factors and evidence touching on the issue and must arrive at a

reasonable result. P.D., 2017 IL App (2d) 170355, ¶ 49. With all aspects of the preceding

discussion in mind, we turn to the trial court’s decision here.

¶ 72 The trial court presided over an extremely bitter and contested divorce, spanning nearly

three-and-a-half years. Regarding the relocation issue, the court held a multiday hearing during

which the parties were given a full and fair opportunity to present their evidence. Notably absent

from the hearing were respondent’s sister and mother, both of whom respondent testified that she

would rely upon if she were allowed to relocate: the sister, by providing a dwelling and links to

possible employment opportunities in California, and the mother, by assisting respondent with

taking care of S.L.

¶ 73 Initially in its remarks, the trial court focused on the best-interests factors developed

through the case law and, specifically, the factors set forth in Eckert. The court first noted that both

parties had credibility issues. The court deemed incredible petitioner’s account of his lack of

involvement in the May 29, 2017, attack on respondent. Likewise, the court deemed incredible

respondent’s multiple complaints of petitioner’s violence and danger to S.L. The court concluded

that neither party could work cooperatively with the other, both had used S.L. to further their aims

in the divorce proceedings, and it would be better for all concerned if the parties did not have to

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deal with each other insofar as was possible. This conclusion was drawn from ample evidence in

the record as well as from the trial court’s superior position in observing the parties testify.

¶ 74 While the trial court deemed petitioner’s account of his lack of involvement in the 2017

attack on plaintiff incredible, it could not conclude that petitioner participated in the planning or

execution of the attack, or that petitioner knew in advance when the attack would occur. The court

stated that, from its review of the evidence, and particularly in view of the parties’ failure to call

Voronin to testify to whether and how petitioner was involved, it was impossible to determine

whether petitioner went beyond a vague approval of the attack, shown in his posting bond for

Marozau and thus allowing him to continue to pose a threat to respondent. Again, this conclusion,

that petitioner was tangentially involved but not directly involved, is supported by ample evidence

in the record.

¶ 75 The court then considered the Eckert factors specifically, and it stated that Marozau’s

violent attack was the primary factor supporting respondent’s petition for relocation. While the

attack was extremely concerning, the court noted that no other instances of physical violence had

occurred during the pendency of the case, and this is borne out in the record. The court also

observed that respondent had no job lined up in California. Further, it doubted that her job

prospects would be very good and especially doubted respondent’s claim that she had a lead on a

paralegal job, because respondent had consistently used a language interpreter in all important

hearings, which suggested that her English language skills were marginal and might hamper her

ability to find English-language-intensive positions, like that of a paralegal at a law firm. This

conclusion appears to be based on the court’s observations and to be a rational inference for which

the court had a reasonable explanation. The court then expressed concern that the level of planning

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present in other relocation cases was lacking here. It noted that respondent had not investigated

the schools in California (and this was confirmed by Lewinthal), respondent and S.L. would have

to share a bedroom in the proposed living arrangements, and respondent had demonstrated no

means by which she could support herself.

¶ 76 The court balanced the foregoing against the likelihood, given the parties’ limited means,

that relocation would effectively sever petitioner’s parental bond with S.L. altogether. The court

noted that it was extremely unlikely that the parties could cooperate, especially regarding the strain

of frequent travel between California and Chicago. The court discussed that petitioner had fully

and consistently exercised his parental time throughout the case, and it noted that respondent had

frequently attempted to limit and interfere with petitioner’s parenting time. In that regard, the court

again highlighted respondent’s baseless reports of abuse and her videotaping of visitation

exchanges, and it juxtaposed this against respondent’s admission during her testimony that she did

not believe that petitioner posed a danger to S.L. or would harm the child.

¶ 77 The trial court considered whether each party could foster a good relationship between S.L.

and the other parent. The court concluded that, based on the manifest rancor between the parties,

there was simply no way the parties could be expected to do this. Indeed, the court found that each

party was responsible for undercutting the other, from the derogatory songs that S.L. would sing

after spending time with petitioner, to respondent’s unfounded reports of petitioner abusing S.L.

Again, there is ample evidence in the record supporting the trial court’s conclusion.

¶ 78 The trial court also considered the effect the proposed relocation would have on parenting

time. It noted that respondent had no means of support lined up in California and that the parties’

economic resources, in general, were not abundant. Specifically, the court noted that respondent

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would lack the economic ability to participate in the cost of the travel that would be required and

would lack inclination to do so even if she had the resources. Again, there was evidence in the

record to support the trial court’s conclusion.

¶ 79 Other factors the trial court considered in this phase of its remarks included petitioner’s

strong interest in S.L., and this was supported by his consistent record of exercising all of his

parenting time. The court also considered whether respondent wanted to relocate to preserve a

committed relationship, and it concluded that the proposed relocation was solely to physically

distance herself from petitioner. While the court termed this factor “compelling,” the court noted

that it was due to the previous physical harm caused by a third party and that it did not change the

court’s calculus overall, regarding the factors under consideration. Finally, the court considered

whether respondent had established by a preponderance of evidence that the proposed relocation

would be in S.L.’s best interests, and it found that the evidence did not satisfy that threshold.

¶ 80 We have carefully reviewed the record and, as noted, have found evidence supporting the

trial court’s factual determinations. We cannot say, therefore, that the trial court’s conclusions

discussed in the first phase of its remarks, where it was considering S.L.’s best interests in light of

Eckert and its progeny, were against the manifest weight of the evidence. We will comment that,

considering the repeated recognition that these sorts of best-interests determinations must be

considered on a case-by-case basis, the trial court’s analysis distinguishing various cases presented

by respondent was mildly misplaced. See Berk, 215 Ill. App. 3d at 465-66 (recognizing that the

case-by-case nature of the consideration of a child’s best interests renders the comparison of cases

a fruitless endeavor due to the unique circumstances presented in each case).

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¶ 81 The trial court then turned to its review of the statutory factors set forth in section 609.2.

Many of the court’s comments echo or repeat those given in the first, Eckert-factor phase of the

court’s remarks. Starting with the first factor, the court concluded that respondent had “good

reason to be fearful” of petitioner. This conclusion is obviously based on the Marozau attack and

the trial court’s belief that, while it could not say that petitioner commissioned, planned, or

participated before the fact in the attack, petitioner’s actions after the attack suggested that he at

least approved of the attack. Moreover, the fact that petitioner posted bail for Marozau allowed

Marozau to remain unincarcerated and represented an implicit threat by petitioner (acting through

others) to respondent’s safety. However, in the court’s eyes, the circumstances and reasonableness

of respondent’s motives for relocating were not decisive on the central question of whether the

move would be in S.L.’s best interests. Under the second factor, the court considered petitioner’s

motives for resisting the proposed relocation and determined that, because of petitioner’s interest

in S.L. and the likelihood that the rancorous relationship between the parties would mean that such

a move would sever petitioner’s parental bonds with S.L., his opposition was sincerely motivated

toward maintaining his role in S.L.’s life. Our review of the record shows that there was evidence

supporting these conclusions.

¶ 82 The third factor concerns the history and quality each parent’s relationship with S.L. and

whether a parent takes advantage of his or her parenting time. The trial court noted that petitioner

consistently exercised his parenting time. The court also noted that, in multiple text messages or

e-mails, respondent resisted accommodating minor changes to pick-up times and locations or

otherwise cooperating with petitioner “in seeking that the child had time with her father.” We have

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reviewed the record, and it contains text messages supporting the trial court’s observations and

conclusions.

¶ 83 The trial court noted that respondent had not carefully developed evidence on the fourth

factor, dealing with S.L.’s educational opportunities in both locations. The court was made aware

that the California schools had a generally good reputation but that the schools near respondent’s

residence in Chicago also were well regarded. We note that Lewinthal had indicated that

respondent had not done any research into the educational opportunities in California. The court

appears to have viewed this factor as neutral, both because of the paucity of respondent’s

investigation and because the information that was presented indicated that the existing and

proposed educational opportunities were reasonably equivalent.

¶ 84 The trial court commented that the record showed that the fifth factor, dealing with the

presence of extended family in both the current and proposed locations, was not very well

developed. The trial court observed that respondent’s sister, who did not testify, lived in the

California location, which would be an improvement for respondent, who did not appear to have

any family in the Chicago area. The court also noted that, on the other hand, there were half-

siblings from petitioner’s previous marriages present in the Chicago area. We note that there was

no testimony about the frequency of S.L.’s visits with petitioner’s other children or the quality of

S.L.’s relationships with them and other members of his family.

¶ 85 On the sixth factor, the anticipated impact the relocation would have on S.L., the court

observed that neither party presented any testimony or information regarding this. According to

the court, there was no “evidence that the child would be negatively or positively impacted by this

[proposed] relocation.”

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¶ 86 The trial court considered the seventh factor, whether it could reasonably allocate the

parental responsibilities if the relocation were allowed. It concluded that, given the hostility

between the parties, there would be no way that it could expect them to cooperate and it worried

that respondent would initiate further actions in California, despite anything the court might write

in an order about retaining jurisdiction. While not express, the court was referring not just to the

relocation but also to other complaints respondent raised, such as the sexual abuse accusations that

repeatedly were determined to be unfounded in this jurisdiction. Again, our review shows that the

court based its conclusion on evidence present in the record.

¶ 87 Regarding the eighth factor, S.L.’s wishes, the court determined that, because S.L. was too

young at this point, it was to be expected that there was no evidence adduced on this topic.

¶ 88 Looking at the ninth factor, whether it could fashion an appropriate allocation of the

exercise of parental responsibilities given the constraints of the parties’ resources and

circumstances, the court doubted that it could. It recognized that the parties had expended

tremendous economic resources in litigating their extremely rancorous divorce and that, as a result,

their means had become limited. The court also determined that S.L. likely could not travel

independently to and from California and that the travel required to reproduce the current

allocation of parental responsibility would be prohibitively expensive. There is evidence in the

record to support the trial court’s determination.

¶ 89 The trial court considered the tenth factor, the impairment of the parent-child relationship

that would occur if relocation were allowed. The court concluded that relocation would likely

effectively terminate petitioner’s involvement with S.L. The court based the conclusion on the

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parties’ lack of cooperation and the likelihood that respondent would not be inclined to foster that

involvement.

¶ 90 As to the catch-all consideration of any other factors, the trial court discussed that the

parties had not presented much evidence about S.L. and that it had no feel for how S.L. would

react to the relocation. The court generalized that children like stability and that the current

arrangements had been in place for several years and had continued with little to no judicial

involvement for at least a year.

¶ 91 Based on its consideration of the factors, the trial court concluded that relocation would

not be in S.L.’s best interests. Looking at that decision through the lens of Fatkin, we cannot say

that the court’s factual determinations were against the manifest weight of the evidence. We have

commented throughout that they were based on evidence appearing in the record. Moreover, many

determinations involved weighing the evidence and the conclusions appear reasonable in light of

the court’s stated bases for each determination. Likewise, we do not believe that a manifest

injustice would occur as a result of the trial court’s decision. The court emphasized the speculative

nature of respondent’s request to relocate. There was no particularly detailed level of planning.

Respondent did not have a job offer in hand, although she attempted to explain that by noting the

uncertainty of the timing of the move. Nevertheless, she did not present a job offer or objective

evidence from any potential employers. Likewise, respondent did not research the educational

opportunities for S.L., leaving that to Lewinthal to do on her behalf. While both Lewinthal and

Pacheco opined that relocation should be allowed, their opinions were based on statements

petitioner made that he explained to the court’s satisfaction as misunderstandings. Specifically,

petitioner explained that he felt that, if relocation occurred, he would have to withdraw his contact

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with S.L. because of respondent’s history of making accusations of abuse. The court accepted this

explanation, and it noted that, during the hearing, respondent expressly conceded that she did not

believe that petitioner would harm S.L. We credit the court’s determination because the court was

in a far superior position to determine petitioner’s credibility and sincerity than are we in reviewing

a cold record. The court provided a thorough, supported, and well-reasoned explanation of its

decision. Accordingly, we affirm the trial court’s judgment.

¶ 92 We now turn to respondent’s specific critiques of the trial court’s decision. Respondent,

understandably, gives paramount importance to the Marozau attack and argues that this entirely

justifies her decision to move. Respondent points to several acts of violence about which she

testified at the trial. She also highlights threats that petitioner made to her and the 2017 order of

protection to demonstrate that the trial court’s conclusion that there had been only a single act of

violence was against the manifest weight of the evidence. The trial court was entirely aware of the

parties’ conduct throughout the case. Indeed, the trial court maintained that it would include

provisions minimizing the parties’ interactions in the final orders to relieve some of the friction

and tension. The trial court indicated that it had issues with respondent’s testimony during the

hearing, including her testimony about the threats.

¶ 93 On the other hand, the trial court did not simply accept petitioner’s testimony as gospel. It

discounted petitioner’s claims that he was totally uninvolved in the Marozau attack, although it

could not conclude whether petitioner was involved in the attack before the fact or anything more

than approval of it after it had occurred. Likewise, the court rejected petitioner’s denials that he

taught S.L. to make derogatory comments and sing songs about respondent.

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¶ 94 In other words, the record shows that the trial court carefully and critically considered the

parties’ testimony. We cannot reject the trial court’s superior position and consideration of the live

evidence in favor of our own evaluation of the cold record. Fatkin, 2019 IL 123602, ¶ 34 n.2 (it is

improper for the appellate court to reweigh the evidence and substitute its judgment for that of the

trial court). We cannot say that the trial court’s judgment was against the manifest weight of the

evidence.

¶ 95 Respondent specifically argues that the trial court’s conclusion that only a single act of

violence occurred, from the case’s inception until the court’s judgment, was against the manifest

weight of the evidence. In support, respondent highlights her testimony about several incidents in

2015 and 2017. In addition, respondent contends that she was often threatened by petitioner, and

she counts this as part of the violence against her. As noted, the trial court considered all of the

testimony and determined that respondent’s testimony about the violence and abuse was not

entirely credible. Our review of the record demonstrates that many of the exchanges occurred in a

police department, and respondent testified that petitioner would often threaten her during

exchanges. The record, however, is barren of any witnesses to these threats occurring within feet

of on-duty police officers. Thus, we conclude that the trial court’s conclusion regarding the single

act of violence is not unfounded and is based on reasonable interpretations of the evidence in the

record. With that said, the trial court was clearly extremely concerned because of the Marozau

attack and petitioner’s involvement in it, and it emphasized that any additional violence against

respondent would not be tolerated and would immediately result in a reconsideration of its

decision. Again, based on our review of the record, we cannot say that the trial court’s remarks

were unfounded or not based on the evidence and the reasonable inferences arising from it.

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¶ 96 Respondent also asks us to jettison the trial court’s conclusion that petitioner was not

forewarned about the Marozau attack and did not participate in it before-the-fact. Respondent

emphasizes the evidence that there were substantial financial payments from petitioner to Marozau

shortly before the attack, petitioner’s prevarications with Lewinthal, and the evolution of

petitioner’s explanations to Lewinthal and Pacheco and even in his testimony during the trial.

However, the trial court received this evidence and clearly considered it. The trial court was in a

superior position to observe the witnesses and to determine their credibility. Respondent is asking

us to substitute our judgment for that of the trial court without acknowledging any of the

weaknesses in her position. For example, respondent does not mention that the issue was not

developed with testimony from Voronin or that the police investigation failed to turn up sufficient

evidence to demonstrate petitioner’s involvement (and we do not detect that respondent is arguing

that the trial court applied an erroneous standard to its consideration of the effect of the police

investigation or the inferences it drew from the lack of Voronin’s testimony). In effect, respondent

is requesting that we reconsider the evidence in the light most favorable to her, rather than under

the appropriate manifest-weight standard. Id. ¶ 32. That we cannot do. We reject respondent’s

contention.

¶ 97 Next, respondent challenges the trial court’s conclusion that respondent interfered in

petitioner’s parenting time and with the parent-child relationship between petitioner and S.L. She

challenges the trial court’s evaluation of the evidence regarding her allegations of sexual abuse.

This is another request to substitute our judgment for that of the trial court, and we reject the

contention. Id.

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¶ 98 Respondent contends the court erred as a matter of law in considering that she had placed

even slight roadblocks in the way of the parent-child relationship between petitioner and S.L. In

order to make this argument, respondent presumes that we accept her previous argument regarding

petitioner’s violence toward her during both the marriage and the pendency of the case. As we

have rejected that earlier contention, it cannot be used to form the basis of this contention.

Accordingly, we must reject it.

¶ 99 Next, respondent challenges the trial court’s determination that petitioner was sincerely

trying to protect his relationship with S.L. by opposing relocation. We have carefully reviewed the

record and conclude that the trial court’s determination was not against the manifest weight of the

evidence. Respondent argues that petitioner’s statements to Pacheco and Lewinthal about

withdrawing from contact with S.L. illustrate his lack of commitment to the relationship and reveal

an improper motivation for opposing relocation. Respondent also points to the minimal

relationships petitioner has with his other children, suggesting that, as with them, so with S.L. We

disagree.

¶ 100 Respondent presents petitioner’s statements to Pacheco and Lewinthal isolated from his

trial explanation. As petitioner explained, given the history of respondent’s allegations that he

sexually abused S.L., he was fearful that the allegations would continue and that he would be jailed

even though the allegations were unfounded. Respondent does not mention this testimony, relating

only that petitioner denied that he made the statements (and respondent does not support this

reference with a citation to the record). Further, while it is lamentable that petitioner has little to

no relationship with his other children, throughout the course of this case, petitioner has

consistently and fully availed himself of his parenting time and has forged a relationship with S.L.

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The trial court also observed the testimony and was aware of these facts in rendering its

determination on this point. We cannot say that the court’s determination was against the manifest

weight of the evidence. Id.

¶ 101 Respondent argues that the trial court erred by considering only whether petitioner fully

exercised his parenting time and that it should have also considered the history and quality of his

relationship with S.L. Section 609.2(g)(3) states that the court is to consider “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.” 750 ILCS 5/609.2(g)(3) (West 2018). The court’s focus

was in line with the factor as stated in the Act. Moreover, as we have observed above, the hearing

was unusual because the parties presented S.L. not on her own terms but only as a vehicle to

demonstrate one or the other party’s failures. The trial court commented that neither party had

presented it with the opportunity to get a feel for S.L.’s personality and how she might react to

changes in the parenting allocation. Indeed, the trial court criticized both parents for using S.L. to

further their own goals in this case. Finally, we observe that respondent’s argument is actually a

request that we reject how the trial court evaluated this factor. She would have us emphasize the

“history and quality” of petitioner’s relationship with S.L. and rebalance the calculus in her favor,

rather than apply the manifest-weight review to the issue. Because the trial court’s determination

regarding this factor is amply supported in the record, we cannot conclude that it was against the

manifest weight of the evidence. Fatkin, 2019 IL 123602, ¶ 32. To the extent that respondent

alleges that the trial court misapplied the law, we note that she would simply prefer the court to

have concentrated on a different aspect of the factor than the court did, which pinpoints not an

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error applying the law, but a disagreement with how the law was (in our view, correctly) applied.

For these reasons, we reject respondent’s contention.

¶ 102 Next, respondent contends that the educational opportunities in California are superior to

those in Illinois. This contention is not so much a claim that the trial court misapprehended the

evidence or considered improper evidence or aspects pertaining to the factor; it is rather a plea that

we reweigh the evidence and substitute our judgment for that of the trial court. We decline the

invitation. Id. ¶ 34 n.2.

¶ 103 Respondent next contends that the factor dealing with extended family at the proposed

location and the current location favors relocation. Respondent reiterated that she has a good and

close relationship with her sister, with whom she and S.L. would live. In its comments, the trial

court made this point. Respondent then complains that the court mentioned cousins and siblings in

the Chicago area, and she purports to understand the comment to be directed at her. This is a clear

misapprehension of the trial court’s comments. In making the statement about siblings and cousins,

the trial court was clearly addressing S.L.’s cousins and siblings, not respondent’s. With that said,

the court’s analysis said little regarding S.L.’s siblings and cousins on her father’s side, which

might be because the evidence demonstrated that petitioner had poor relationships with his children

and his own family. The court simply noted that it appeared that petitioner had family in the area.

This is because the evidence demonstrated that petitioner had poor relationships with his children

and his own family, but it appeared that petitioner had family in the area. We believe that this

factor does favor relocation, although the trial court’s comments are not clear on the point.

However, as noted, this is not simply an exercise of totting up who “won” each factor, with the

greater number of “wins” determining the outcome. P.D., 2017 IL App (2d) 170355, ¶ 49. While

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the extended-family factor favors relocation, the trial court appears to have placed appropriate

weight on it and, under any measure, it would not likely be outcome- determinative on its own.

¶ 104 Respondent next argues that the trial court’s determination that there was no evidence about

the relocation’s impact on S.L. was against the manifest weight of the evidence. Respondent

illustrates her argument with her own testimony about petitioner’s violent and threatening

behavior. While it is true that respondent testified about petitioner’s violent actions, controlling

behavior, and threats, the trial court, who observed the testimony and presided over the entirety of

this case, discounted the credibility of the testimony. Given the trial court’s superior position, we

are not in a position to gainsay its credibility determination or the weight that it placed on the

testimony. Fatkin, 2019 IL 123602, ¶ 34 n.2. Moreover, there was no testimony directly on the

impact on S.L. The parties did not significantly explore S.L.’s bonds with friends or family or

whether she had friends in each parent’s neighborhood. The closest thing to impact evidence was

petitioner’s testimony that S.L. was taken to worship with his family and that the temple had

special classes for children. Even that testimony, however, did not really touch on whether S.L.

had forged bonds with the congregants and their children. Respondent’s reliance on her testimony

about petitioner’s violence to substitute for any direct testimony regarding S.L.’s attachments and

socialization fully indicates respondent’s awareness that such testimony was not produced during

the hearing. We add that we do not dispute respondent’s point: that removing S.L. from a violence-

filled environment would have a beneficial impact on S.L. However, the trial court explained why

it discounted the testimony regarding petitioner’s violence, and we have determined that it was a

reasoned decision supported by evidence in the record and reasonable inferences from that

evidence. Accordingly, we reject respondent’s contention.

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¶ 105 Next, respondent challenges the trial court’s determination that it could not fashion a

reasonable allocation of parental responsibilities if relocation were allowed. Respondent

deconstructs the court’s comments to attempt to rebut each individual comment while ignoring the

thrust of the court’s analysis. The court noted that the parties would not cooperate, considered the

arduous and expensive travel requirements for a child of tender years, and opined that, if relocation

occurred, it would, de facto, result in the severance of the parent-child bonds between petitioner

and S.L. We have carefully reviewed the record and believe that the trial court’s decision was

reasoned, reasonable, and based on the evidence before it. We cannot say that this determination

was against the manifest weight of the evidence.

¶ 106 Respondent focuses on the travel, noting that travel alone cannot be a barrier to relocation,

or relocation would never be allowed. See In re Marriage of Tedrick, 2015 IL App (4th) 140773,

¶¶ 59-60. The focus, however, is misplaced, because the trial court was balancing the requirement

of lengthy, and perhaps unaccompanied, travel with the parties’ resources and their track record of

failing to foster S.L.’s relationship with the other parent. We cannot say that the focus on the

parties’ undermining of each other was improper. As such, the other comments are relatively

tangential and respondent’s dispute of each in minute detail does not disturb the fact that, in the

trial court’s reckoning, the parties amply demonstrated their inability to cooperate and to foster

each other’s relationship with S.L. and that this renders the fashioning of a parental allocation a

futile exercise. We reject respondent’s contention.

¶ 107 Respondent next contends that the trial court’s determination of the infeasibility of

allocating parental responsibilities appropriate to the parties’ resources was against the manifest

weight of the evidence. Respondent argues that there was evidence that petitioner did not lack

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resources, because there was “ample evidence of [petitioner’s] financial resources.” While true,

the court also noted that the three years of highly contentious divorce proceedings had diminished

those resources, and respondent’s argument does not take that into account. Further, respondent

points to nothing concrete beyond the facts that, at the beginning of these proceedings, petitioner

was able to post a $100,000 bond and had transferred around $150,000 in cash and assets to

Marozau shortly before. For example, respondent does not indicate petitioner’s annual earnings,

his assets on hand at the time of the proposed relocation, or his investments. Indeed, the contention

is made in a factual vacuum with no assistance to this court concerning where in the record the

information can be found, if it exists. See Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993) (it is

not the appellate court’s obligation to comb the record for contentions of error). We cannot say

that the trial court’s determination was against the manifest weight of the evidence.

¶ 108 Respondent last argues that the trial court’s determination that it could not minimize the

disruption to the parent-child relationship between petitioner and S.L. was against the manifest

weight of the evidence. This contention combines a request to reweigh the evidence with a

substantial amount of “but what about petitioner’s conduct.” Respondent’s contention is topped

off by highlighting the parties’ agreements to settle outstanding issues in the ongoing litigation as

examples of their ability to cooperate. We have discussed the trial court’s conclusion that each

party continually undermined the other and attempted to interfere with his or her parent-child

relationship, and we see no reason to repeat that discussion or to disturb our determination that the

trial court’s conclusion was not against the manifest weight of the evidence. We further cannot say

that settlement in litigation matters exemplifies an ability to cooperate. Given the apparent animus

between the parties, we, like the trial court, do not believe that the parties had a sudden change of

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heart as they wrapped up the remaining outstanding issues. To our mind, it is just as likely that the

resources consumed in this litigation were beginning to run dry, requiring some measure of give

and take to attain a final judgment. Thus, because the contention boils down to a request to reweigh

the evidence, we reject respondent’s contention. Fatkin, 2019 IL 123602, ¶ 34 n.2.

¶ 109 Finally, we note that the consideration of which way each factor of a best-interests

determination leans is a good analytical tool. However, parties must not lose sight of the necessity

that the trial court, and consequently the court on review, consider, case by case, all circumstances

touching on the child’s best interests. Kavchak, 2018 IL App (2d) 170853, ¶ 65. Further, reliance

on only a factor-by-factor analysis may lead the party to a simple evaluation of how many factors

he or she should have “won,” and this reduces the best-interests determination to the bright-line

rule cautioned against in the case law. P.D., 2017 IL App (2d) 170355, ¶ 49. The paramount

consideration is the child’s best interests, and our review of a trial court’s best-interests

determination attempts to understand not only how the factors fell or should have fallen, but the

weight accorded each and the reasons why.

¶ 110 Accordingly, we will not add up which party “won” the greater number of factors. It is

sufficient that our comments above clearly indicated that we cannot say that the trial court’s

judgment denying respondent’s amended petition for relocation was clearly against the manifest

weight of the evidence or that its decision worked a manifest injustice.

¶ 111 Finally, pursuant to Illinois Supreme Court Rule 311(a)(5) (July 1, 2018), our decision in

this case was to be filed on or before February 22, 2021. There were no filing delays in the record

or the brief in this case, although some time was lost due to petitioner’s silence about his decision

not to file a brief. The issues of jurisdiction and the interpretation and analysis of the relocation

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statute required additional time. We propose that good cause exists for issuing our decision after

February 22, 2021.

¶ 112 III. CONCLUSION

¶ 113 For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 114 Affirmed.

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No. 2-20-0552

Cite as: In re Marriage of Levites, 2021 IL App (2d) 200552

Decision Under Review: Appeal from the Circuit Court of Lake County, No. 17-D-747;
the Hon. Charles William Smith, Judge, presiding.

Attorneys Lena Goretsky Winters, of Winters Family Law Firm, and David
for Winters, Andrew Foreman, and Bide Akande, of Porter Wright
Appellant: Morris & Arthur LLP, both of Chicago, for appellant.

Attorneys No brief filed for appellee.
for
Appellee:

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