Digitally signed by Reporter of Decisions Reason: I attest Illinois Official Reports to the accuracy and integrity of this document Appellate Court Date: 2022.03.31 10:47:37 -05'00'

In re Marriage of Levites, 2021 IL App (2d) 200552 Appellate Court In re MARRIAGE OF DMITRY LEVITES, Petitioner and Caption Counterrespondent-Appellee, and NURIANA LEVITES, Respondent and Counterpetitioner-Appellant. District & No. Second District No. 2-20-0552 Filed March 3, 2021 Decision Under Appeal from the Circuit Court of Lake County, No. 17-D-747; the Review Hon. Charles William Smith, Judge, presiding. Judgment Affirmed. Counsel on Lena Goretsky Winters, of Winters Family Law Firm, and David Appeal Winters, Andrew Foreman, and Bide Akande, of Porter Wright Morris & Arthur LLP, both of Chicago, for appellant. No brief filed for appellee. Panel 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 OPINION ¶1 After her previous appeal (In re Marriage of Levites, No. 2-20-0254 (2020) (Levites I) (unpublished summary order under Illinois Supreme Court Rule 23(c))) was dismissed for want of jurisdiction, respondent and counterpetitioner, Nuriana Levites, again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 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. 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.

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¶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. ¶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. ¶ 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 that 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

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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. ¶ 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, 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

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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. ¶ 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 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.

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¶ 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 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 to 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 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:

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“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 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 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.”

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¶ 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. ¶ 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. “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.

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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 [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 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

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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: “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 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.

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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. 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 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 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

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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 ¶ 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, 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

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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 lines 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. ¶ 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 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

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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 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. ¶ 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).

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¶ 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. 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 (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”), rev’d on other grounds, 2019 IL 123602; 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 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

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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 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. ¶ 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