In reMarriage of Staszak , 2022 IL App (2d) 210427-U ( 2022 )

2022 IL App (2d) 210427-UNo. 2-21-0427
Order filed February 16, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
DAWN STASZAK, ) of Kane County.
)
Petitioner-Appellant, )
)
and ) No. 16-D-1047
)
CHRISTOPHER STASZAK, ) Honorable
) William J. Parkhurst,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Zenoff and Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in modifying the respondent’s
maintenance obligation, denying the petitioner’s petition to modify the parenting
schedule, or in denying the petitioner’s request for a contempt finding.
¶2 The marriage of the petitioner, Dawn Staszak, and the respondent, Christopher Staszak,
was dissolved in September 2018. After the judgment was entered, various petitions and motions
were filed, including contempt petitions, a motion to modify maintenance and child support, and
a petition to restrict Christopher’s parenting time. On July 2, 2021, the trial court entered a final
order that resolved all of the pending claims. Dawn appeals from this order. We affirm.
2022 IL App (2d) 210427-U¶3 I. BACKGROUND
¶4 The parties’ 17-year marriage was dissolved in 2018. Two children were born of the
parties, namely, William, born October 8, 2008, and Victoria, born November 9, 2010. At the
time of dissolution, both parties were employed full-time, with Dawn earning a salary of $69,000
per year and Christopher earning a salary of $114,000 plus additional income from bonuses. The
parties entered into a marital settlement agreement and an allocation judgment and parenting
agreement (allocation judgment).
¶5 The marital settlement agreement provided that Christopher would pay $683.45 per month
for 109 months to Dawn as maintenance. Christopher would pay $516.65 per month in child
support, including six percent of any additional income earned above his regular salary. These
were guideline amounts based on Christopher’s employment income.
¶6 The allocation judgment provided that the parties would have shared parenting
responsibilities for the children. Dawn was granted parenting time with the children except when
Christopher had parenting time. Christopher had parenting time from Wednesday after school
until Friday before school and on alternating weekends. The allocation judgment also provided
that the parties would “not consume alcoholic beverages beyond the legal limit or any illegal
substances during their parenting time or [eight] hours prior to their parenting time.”
¶7 On January 11, 2019, Christopher filed a motion to modify and abate maintenance and
child support. In his motion, Christopher alleged that he was laid off from his job, had no income,
and was living off a severance package. Christopher also alleged that his loss of employment was
not in bad faith or due to any fault of his own. Christopher argued that this was a substantial
change in circumstances and a basis to abate his support obligations.
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2022 IL App (2d) 210427-U¶8 On January 16, 2019, Dawn filed an emergency motion to suspend parenting time and for
a substance abuse evaluation pursuant to section 603.10 of the Illinois Marriage and Dissolution
of Marriage Act (Dissolution Act) (750 ILCS 5/603.10 (West 2018)). Dawn alleged that on the
evening of January 12, 2019, she received a text message from her daughter that Christopher had
fallen asleep while he and the children were watching a movie and that he could not be woken up.
Dawn called the police department and requested a welfare check. The police report indicated that
upon arrival, Christopher could not stand, had slurred speech, and had a strong odor of alcohol on
his breath. Christopher initially denied drinking alcohol but later admitted that he may have had
one or two drinks and taken some pills. Christopher agreed to take a portable breath test which
revealed a blood alcohol content of 0.259. When the police requested that Christopher be
evaluated by paramedics, he became combative. The police had to handcuff Christopher until he
calmed down. The police called Dawn to pick up the children and notified the Department of
Children and Family Services (DCFS). Dawn alleged that the children were anxious and worried
over the incident. Dawn requested that Christopher’s visitation be immediately suspended because
his alcohol consumption violated the allocation judgment and seriously endangered the children’s
physical and emotional health. She requested that Christopher be ordered to take a substance abuse
evaluation and that visitation remain suspended until Christopher completed an appropriate
treatment program.
¶9 On the same day, Dawn filed a petition for rule to show cause requesting a finding of
indirect civil contempt against Christopher for his violation of the allocation judgment. Dawn also
requested that Christopher be ordered to pay reasonable attorney fees for the fees she incurred in
filing the petition.
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2022 IL App (2d) 210427-U¶ 10 On January 17, 2019, the trial court entered an agreed order which required Christopher to
purchase a Soberlink alcohol monitoring device and submit to testing prior to, during, and after
any of his parenting time with the children. The order indicated that if there was a positive test,
Christopher’s parenting time would be immediately suspended. The order further required
Christopher to complete a substance abuse assessment within 14 days.
¶ 11 Both parties filed motions on February 26, 2019. Christopher filed a motion to
immediately lift any parenting time restriction as he had the Soberlink system and had attended a
substance abuse evaluation. The evaluator determined that there were no findings of alcohol abuse
or dependence and made no recommendations for further substance abuse treatment.
¶ 12 Dawn filed a motion to revoke parenting time and for attorney’s fees. Dawn alleged that
Christopher had failed a Soberlink test on February 13, 2019, when he had parenting time with the
children. Specifically, he failed to test at 7 a.m. as required. His test at 9:28 a.m. showed a positive
BAC of 0.010. A retest at 9:48 a.m. showed a positive BAC of 0.007. Further, Dawn alleged that
Christopher had failed to get a substance abuse assessment within 14 days, failed to go to a facility
that the parties agreed upon, and that the evaluator who determined that Christopher did not need
further substance abuse treatment was unqualified. Dawn argued that Christopher’s history of
alcohol abuse and his positive Soberlink tests demonstrated that further parenting time with
Christopher would seriously endanger their children’s emotional and physical well-being.
¶ 13 On February 27, 2019, the trial court entered an agreed order appointing Dr. Daniel Hynan
to conduct a substance abuse and mental health assessment of Christopher. Dr. Hynan issued a
report on June 14, 2019. Dr. Hynan concluded that, due to Christopher’s “very significant
substance abuse and mental health problems,” Christopher’s parenting time should be supervised
until his condition significantly improved. Dr. Hynan recommended that Christopher should
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2022 IL App (2d) 210427-Uparticipate in a mental health program that addressed both his alcohol abuse and his psychological
problems, including depression and anxiety. Dr. Hynan further concluded that Soberlink should
remain a requirement for Christopher for at least one year.
¶ 14 The record indicates that Christopher attended an outpatient treatment program at Linden
Oaks Hospital in Naperville from July 31 to August 21, 2019. The treatment included individual
and group therapy, medication education, discharge planning, and disease education. On August
21, 2019, Christopher was discharged from the program. A discharge note from the hospital
indicated that Christopher had “made enough consistent and observable progress towards the
completion of treatment goals.”
¶ 15 On May 18, 2020, Dawn filed a petition to enforce the allocation judgment and the January
2019 agreed order. Dawn alleged that the January 2019 incident violated the allocation judgment
because Christopher had consumed alcohol beyond the legal limit during his parenting time.
Further, he violated the agreed order because he tested positive on Soberlink on three occasions.
Further on January 15, 2020, he had been called to pick up Victoria from school because she was
sick and he failed to take a Soberlink test. Dawn requested that Christopher be held in contempt
for failure to abide by the orders, required to post a cash bond to ensure future compliance, ordered
to pay a civil fine, and that Dawn be granted attorney fees.
¶ 16 Dr. Hynan issued a subsequent report on August 23, 2020. He had interviewed the parties
and the children. Both children stated that, during the last year, they had not experienced anything
at their father’s house that made them feel scared, worried, or uncomfortable. Dr. Hynan opined
that Christopher continued to minimize the extent of his problems and continued to consume
alcohol. Dr. Hynan further opined that, even though there had been no recent issues with
Christopher’s behavior, there was substantial reason to be concerned that Christopher’s health
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2022 IL App (2d) 210427-Ucould regress to the point where the children would become endangered. Dr. Hynan acknowledged
that it was not possible to predict future behavior, and thus recommended that Christopher be
required to continue Soberlink monitoring. Finally, while Dr. Hynan opined that Christopher did
not fully commit to his treatment at Linden Oaks, he also acknowledged that there was no
indication that Christopher was discharged from the program against medical advice.
¶ 17 The matter proceeded to a bench trial on January 20, 21, and 22, 2021. Dawn testified
regarding the January 2019 incident when she requested a welfare check at Christopher’s home.
When she went to pick up the children, they were scared and kept asking if their father was going
to die. Christopher came to her house the next day to show the children that he was okay. Dawn
offered to have him stay for dinner but he declined. DCFS investigated and Christopher was
indicated by DCFS for child endangerment.
¶ 18 Dawn further testified that there were times when Christopher was not compliant with
Soberlink. The first time was February 13, 2019, when Christopher tested positive twice in the
morning, but tested negative by 3 p.m. Christopher told her that he had accidentally used
mouthwash. On June 29, 2019, Christopher’s test was noncompliant because of a facial
recognition issue. Christopher was also noncompliant on tests on June 5 and October 23, 2019,
and one day in December 2020, when the kids were on Christmas break and with their father for
the whole week. Dawn believed that Christopher had an alcohol abuse issue and that he did not
accept it and did not take his treatment seriously.
¶ 19 Dawn further testified that William missed one day of school in September 2020 while in
Christopher’s care. Christopher told Dawn that he did not realize William had school that day.
When Dawn talked to William about missing school, William said he wanted to “curl up and die.”
Dawn also testified that William had over a dozen missing school assignments that were due on
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2022 IL App (2d) 210427-UChristopher’s parenting time. Dawn testified that she wanted the children to be with her during
the week in the school year so that she can make sure they get to school and get their assignments
completed and submitted. She preferred that Christopher only have parenting time for a couple of
hours during the week and on alternating weekends.
¶ 20 Dawn testified that since January 2019 Christopher had not voluntarily made any support
payments. Everything she received was garnished from his unemployment and stimulus checks.
As of the date of trial, she had not received any support from Christopher since he started his new
job in November 2020.
¶ 21 On cross-examination, Dawn acknowledged that the children did not miss any school for
the 2018-2019 or 2019-2020 school years. When William missed school in September 2020, while
with Christopher, William was on a fully remote schedule and failed to attend classes on Zoom.
Dawn acknowledged that of Christopher’s 1717 compliant Soberlink tests, there were
noncompliant tests on three days. The first was on February 13, 2019, at 9:28 and 9:48 a.m., which
showed BAC’s of 0.01 and 0.007. At 11:45 a.m. the test was compliant, and tests at 3, 6, and 9
p.m. were also compliant. Christopher picked up the kids after school that day and Dawn
acknowledged all his tests were compliant when he was with the children.
¶ 22 The second noncompliant test was on June 5, 2019. Christopher was noncompliant at 1:52
and 2:09 p.m., but tested compliant at 2:25, 6, and 9 p.m. that day while he was with the children.
There was also a noncompliant test at 10:01 p.m. on June 29, 2019. It was rejected based on
identity. But a test at 10:26 p.m. was compliant, as well as tests earlier in the day at 7 and 11 a.m.,
and at 3 and 7 p.m. Dawn testified that she took a vacation for five days in February 2020 and the
children stayed with Christopher during that time. Finally, Dawn acknowledged that both children
were doing satisfactorily in school.
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2022 IL App (2d) 210427-U¶ 23 Christopher testified that he had worked for Prudent Manager Advisors (PMA) for almost
16 years before he was let go on January 4, 2019. Prior to that, at the beginning of October 2018,
he had taken a leave of absence under the Family Medical Leave Act (FMLA). His last position
was associate vice president of the information technology department. He was earning an annual
salary of $114,000, plus bonuses. He was told he was being let go because they were changing to
a new programming system and he would no longer be needed. He acknowledged that PMA’s
written documents showed that he was fired because he failed to learn the new system. Christopher
testified that this was not true, that learning the new system was not critical to his position there,
and that PMA never offered him any training on the new system. Christopher testified that he was
doing much better after his leave of absence and had been looking forward to returning to work.
However, he was fired before he returned.
¶ 24 Christopher testified that the incident with the police being called to his house happened
about a week after he was terminated from PMA. Although DCFS investigated, it did not
recommend any safety measures or that his parenting time be limited in any way. Christopher
acknowledged using the Soberlink system and testified that he always tested when he had the
children in his care. Christopher testified that while he had abused alcohol, he did not have an
alcohol abuse issue. While he still drinks alcohol occasionally, he does not drink during his
parenting time with the children. He wanted his children to trust him and know that he is there for
them. He has a great relationship with his children and they enjoy being together.
¶ 25 Christopher testified that he participated in a treatment program at Linden Oaks in August
2019. He attended sessions Monday through Friday from 8:30 a.m. until 11:45 a.m., which
involved individual and group therapy. He was originally told he would be in treatment for two
to four weeks. He missed three sessions because he was not able to find someone to watch the
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2022 IL App (2d) 210427-Uchildren. He was discharged after four weeks. At some point his case therapist, Katrina Ramirez,
left and he was assigned to a new therapist. The first day with the new therapist he was told he
was being discharged. He asked the therapist to check with the psychiatrist and was told that the
psychiatrist was approving his discharge. Christopher testified that he never asked or suggested
that he should be discharged. After his discharge, he continued to meet with his regular therapist.
He also participated in a program called Smart Recovery during his time at Linden Oaks and for a
short time thereafter. Smart Recovery was similar to Alcoholics Anonymous but it was a remote
online program. He still occasionally attended Smart Recovery.
¶ 26 Christopher further testified that his mental health had improved considerably since
January 2019. He had started a new job as a network administrator on November 30, 2020. His
annual salary was $77,000. While he was unemployed, he kept track of all his job search activities.
He believed that it took him so long to find a job because his title at PMA was associate vice
president and that made many employers think they could not afford him. Christopher testified
that since William was in sixth grade he received letter grades. William had straight A’s on his
last report card. Victoria received grades of satisfactory. Christopher testified that the reason
William missed one day of school in September 2020 was because he was not familiar with the
hybrid schedule. He believed William went to school every other day. When he picked William
up on Wednesday, William said he had school that day. Christopher assumed that Thursday was
an off day. He later learned that Wednesdays were “flexible” which meant sometimes William
had school two days in a row. Christopher acknowledged the importance of school and the
importance of his children attending.
¶ 27 Christopher also testified that it has been difficult keeping things going during his
unemployment. He incurred a lot of credit card debt and had to withdraw money from his
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2022 IL App (2d) 210427-Uretirement accounts and his children’s college savings accounts. He withdrew about $140,000
from those accounts and still had about $20,000 of it.
¶ 28 On cross-examination, Christopher acknowledged that prior to taking leave from PMA, he
had sent some inappropriate text messages to his bosses and coworkers. One of the texts made a
reference to “killing yourself.” Christopher testified that he was not feeling suicidal when he wrote
this. He was experiencing pressure at work and at home due to the divorce, and it felt like he was
under a lot of weight, which was figuratively killing him. Christopher acknowledged the text
messages were written in the evening and he had probably been drinking. Christopher testified
that he had suffered from depression and anxiety for at least 10 years. He had a regular therapist
and, during his leave from PMA, he saw his therapist weekly. When the divorce started, he
resumed taking medication for his depression. Christopher was paid his salary during the time he
was on leave under FMLA. He was not laid off because he failed to learn a new programming
system. He believed that PMA only put that in the file to avoid a legal battle because he was being
let go after returning from FMLA. He testified there was a transition of power while he was on
leave, with half the company being under different ownership. He believed that could have been
one reason for his being let go, because new ownership wanted to have their own people put in
place.
¶ 29 Christopher acknowledged that, in his job search diary, there were a couple of two-week
periods with few entries. This was because it was during the COVID lockdown and there were
not many jobs being posted. But he was still looking for jobs daily and sending out resumes. If
he sent in a resume and did not get a response, he did not put it in the diary. Christopher
acknowledged receiving a severance package from PMA. He received his last paycheck January
15, 2019. He received a severance check for $38,000 on January 31, 2019. He also collected
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2022 IL App (2d) 210427-Uunemployment until July 2019. Child support was garnished from the unemployment checks. He
acknowledged that he retained his $20 per month wine club membership until December 2019.
¶ 30 Dawn submitted the discovery deposition of Katrina Ramirez. Ramirez testified that she
had a doctorate degree in psychology. In 2017, she began an internship at Linden Oaks, essentially
as a clinical therapist conducting group and individual therapy sessions. Ramirez testified that
Christopher began an intensive outpatient therapy program on July 30, 2019. She worked with
him while he was in treatment. He was evaluated and diagnosed with alcohol use disorder and
unspecified depressive disorder. Christopher missed a couple days of therapy due to childcare
issues. Ramirez testified that Christopher minimized his alcohol use throughout his treatment at
Linden Oaks. This is normal at the beginning of treatment. However, usually, as patients progress
in treatment, they become more aware of their drinking and how it negatively impacts their
functioning and interpersonal relationships. Christopher never made this progression.
¶ 31 Ramirez further testified that Christopher refused a recommended family therapy session
because he said his siblings were already aware of his issues. Her treatment notes indicated that
he attended one Smart Recovery meeting outside of his treatment at Linden Oaks. This was short
of the program’s requirement for him to attend two or three sessions per week. Christopher told
Ramirez that he was not attending because his drinking “was not quite there.” Her internship
ended on August 20, 2019. As of that date, she did not believe that Christopher had met all the
program requirements or was ready to be discharged. She opined that, while Christopher attended
the program, he was not really committed to working through the program. Ramirez
acknowledged that Christopher’s treating psychiatrist apparently determined that Christopher was
ready to be discharged.
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2022 IL App (2d) 210427-U¶ 32 Dawn also submitted a discovery deposition of James Davis, Christopher’s supervisor at
PMA. Davis testified that Christopher was offered the opportunity to learn the new programming
system at PMA, but he never took the opportunity to do so. Davis testified that if Christopher had
learned the new system, he would likely still be employed at PMA. Finally, Dawn submitted
Christopher’s termination notice into evidence. The termination notice indicated that PMA had
been transitioning to a new programming system since 2017 and that Christopher had not taken
advantage of opportunities to learn the new system. While Christopher was on leave, PMA
essentially moved over to the new system and Christopher’s position was eliminated.
¶ 33 On March 8, 2021, Dawn filed an emergency motion to reopen the proofs, alleging that
Christopher had a positive Soberlink test on March 6, 2021, at 6:59 a.m. with a BAC of 0.012 and
at 7:16 a.m. with a BAC of 0.009. The emergency motion was set for hearing on March 22, 2021.
There is no report of proceedings, but the parties entered a bystander’s report. At the hearing on
that date, the trial court reopened the proofs. The trial court admitted the Soberlink report dated
March 6, 2021, and allowed testimony. Christopher initially testified that he could not remember
drinking alcohol on March 5, 2021, but finally admitted that he “maybe *** had two glasses of
wine.” The trial court found that Christopher had alcohol and mental health issues which cost him
his job in January 2019. The trial court denied Dawn’s request for modification of parenting time.
The trial court acknowledged that Christopher completed the program at Linden Oaks and had
been approximately 94% compliant with Soberlink.
¶ 34 On March 24, 2021, Dawn filed a petition for clarification of ruling and for other relief.
Dawn noted that the trial court had failed to address her May 2020 petition to enforce the allocation
judgment and the January 2019 agreed order.
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2022 IL App (2d) 210427-U¶ 35 On May 25, 2021, the trial court entered a written ruling addressing the pending petitions.
The trial court found that, after the divorce, Christopher began having emotional difficulties and
took a leave from work under FMLA. In January 2019, he was separated from his employer, but
received $38,000 in severance and unemployment benefits through August 2019. Although the
employer “papered their file” to make it look as if Christopher was fired for cause, the trial court
believed Christopher’s testimony that he lost his job due to his emotional difficulties and not
through an intentional effort to thwart child support payments.
¶ 36 The trial court found that Christopher obtained new employment in November 2020 at a
salary of $75,000, which was a reduction from his previous salary of $114,000. While
unemployed, Christopher withdrew a total of $120,000 from his IRA, 401K, and the children’s
college savings accounts. The trial court noted that these withdrawals were income “for child
support purposes.” The trial court stated that Christopher maintained his usual standard of living
during his unemployment, noting that he “remained current on his monthly expenses, he dined out,
he maintained movie subscriptions and a *** wine club membership.” The trial court also found
that Christopher made no voluntary payments toward child support, maintenance, or children’s
expenses while he was unemployed.
¶ 37 As to child support, the trial court noted that, during his unemployment, Christopher
received $38,000 in severance, had made the noted withdrawals of $120,000, and received
unemployment income through mid-2019. Based on the foregoing, the trial court found that
Christopher’s “income for child support purposes was unchanged during his period of
unemployment.” The trial court denied Christopher’s motion to modify child support and found
that Christopher owed child support during the entire time he was unemployed.
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2022 IL App (2d) 210427-U¶ 38 However, the trial court found that maintenance should be modified as a result of
Christopher’s unemployment. The trial court granted the motion to abate maintenance from
January 15, 2019, to November 2020. The trial court acknowledged Dawn’s argument that
Christopher became voluntarily unemployed and thus had to continue paying maintenance. The
trial court found that Christopher’s unemployment was involuntary and due to the emotional
problems he experienced following the divorce.
¶ 39 Finally, as to parenting time, the trial court found that Christopher had substantially
complied with the use of Soberlink for over two years. Further, despite an initial substance abuse
evaluation recommending no treatment, Christopher cooperated with Dawn’s request to be
evaluated by Dr. Hynan. Per Dr. Hynan’s recommendation, Christopher attended an intensive
outpatient treatment program at Linden Oaks. The trial court found that there was no evidence
that Christopher was discharged from the program against medical advice. The trial court found
that Christopher’s further use of Soberlink was not in the best interest of the children and that any
parenting time restriction based on a positive Soberlink test was no longer appropriate. The trial
court noted, however, that Dawn could petition the trial court to continue the use of Soberlink at
her own expense.
¶ 40 On July 2, 2021, the trial court entered two related orders. The first order reiterated the
trial court’s ruling on Christopher’s motion to abate maintenance, finding that no maintenance was
due from January 15, 2019, to November 2020, during Christopher’s unemployment. The second
order incorporated the May 25, 2021, written decision and made further rulings. Specifically, the
trial court denied Dawn’s motion to restrict parenting time, to order mental health treatment, to
require that Christopher turnover firearms, and to modify the parenting schedule. The trial court
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2022 IL App (2d) 210427-Uordered that Christopher could immediately resume his unsupervised parenting time as provided
in the allocation judgment and cease use of Soberlink.
¶ 41 On July 29, 2021, Dawn filed a petition for attorney’s fees and costs under section 508(b)
of the Dissolution Act (750 ILCS 5/508(b) (West 2020)). On July 30, 2021, she filed a notice of
appeal from the trial court’s July 2, 2021, orders. On October 7, 2021, the trial court entered an
order granting Dawn $24,242.19 in attorney fees. On December 21, 2021, this court entered a
summary order dismissing Dawn’s notice of appeal as premature because, at the time of filing, her
petition for attorney fees was pending and there was nothing in the record indicating that it had
been resolved. On January 3, 2022, Dawn filed a motion to establish jurisdiction and to
supplement the record with the trial court’s October 2021 order resolving her petition for attorney
fees. We subsequently granted the motion and reinstated the appeal.
¶ 42 II. ANALYSIS
¶ 43 Dawn raises three issues on appeal. Dawn first argues that the trial court abused its
discretion in modifying Christopher’s maintenance obligation. Dawn next argues that the trial
court abused its discretion in not modifying the parenting schedule. Finally, Dawn argues that the
trial court erred in not ruling on her May 2020 petition to enforce the allocation judgment and the
January 2019 agreed order. We will address each of these arguments in turn.
¶ 44 A. Modification of Maintenance
¶ 45 Dawn argues that the trial court erred in abating Christopher’s maintenance obligation
retroactive to the date of his unemployment, January 15, 2019. Dawn first argues that
Christopher’s loss of employment was voluntary, in bad faith, and does not qualify as a substantial
change in circumstances sufficient to warrant a modification of maintenance. Alternatively, she
argues that there was no substantial change in circumstances because Christopher maintained the
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2022 IL App (2d) 210427-Usame standard of living during his unemployment by collecting unemployment benefits and
making withdrawals from his IRA and 401(k) accounts. Finally, she asserts that if a modification
of maintenance was appropriate, it should only have been retroactive to May 2019, when
Christopher was no longer receiving severance payments or unemployment benefits.
¶ 46 Section 510(a-5) of the Act provides that “[a]n order for maintenance may be modified ***
upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5) (West 2018). A
substantial change in circumstances typically means that there has been a change in the needs of
the recipient spouse or the ability of the payor spouse to make the payments. In re Marriage of
Verhines and Hickey, 2018 IL App (2d) 171034, ¶ 79. It has also been held that a substantial
change in circumstances warranting modification “may occur upon involuntary change or loss of
employment, and voluntary change of employment made in good faith.” In re Marriage of Brent,
263 Ill. App. 3d 916, 922 (1994) (citing In re Marriage of Kowski, 123 Ill. App. 3d 811, 814
(1984)). “The party seeking modification of a maintenance order has the burden of showing that
a substantial change in circumstances has occurred.” In re Marriage of Anderson, 409 Ill. App.
3d 191, 198 (2011).
¶ 47 We review a trial court’s finding of a substantial change in circumstances under the
manifest weight of the evidence standard. See In re Marriage of Bates, 212 Ill. 2d 489, 523 (2004)
(“The standard of review of a support order is whether it is an abuse of discretion, or whether the
factual predicate for the decision is against the manifest weight of the evidence.”). If the trial
court’s finding of a substantial change in circumstances is against the manifest weight of the
evidence, our inquiry is over: we will reverse the modification of maintenance. See 750 ILCS
5/510(a-5) (West 2014).
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2022 IL App (2d) 210427-U¶ 48 If, alternatively, we conclude that the finding of a substantial change in circumstances is
not against the manifest weight of the evidence, we then review the trial court’s decision as to
whether to modify maintenance, and to what amount, for an abuse of discretion. Blum v. Koster,
235 Ill. 2d 21, 36 (2009). A trial court abuses its discretion when its decision is arbitrary, fanciful,
unreasonable, or where no reasonable person would take the view adopted by the court. Anderson,
409 Ill. App. 3d at 199. Further, we defer to the trial court, as the trier of fact, on issues of witness
credibility and the weight to be given to the testimony. Id.
¶ 49 When a trial court determines that there has been a substantial change in circumstances, it
may modify the maintenance award, but it is not required to do so. Anderson, 409 Ill. App. 3d at
203. Rather, upon determining that there has been a substantial change in circumstances, the court
must next weigh the same factors it considered when it made the initial award of maintenance and
decide whether and under what terms to modify the award. Id. at 203-204. The Dissolution Act
requires consideration of the factors set forth in sections 510(a-5) and 504(a), including the needs
of each party, the duration of the marriage relative to the maintenance payments previously paid,
the property awarded to each party under the judgment of dissolution, each party’s present and
future earning capacity, and the change in each party’s income since the prior judgment or order
from which a modification is being sought. See 750 ILCS 5/504(a), 510(a-5) (West 2018).
¶ 50 Dawn first argues that Christopher’s loss of employment was voluntary and in bad faith
and thus did not establish a substantial change in circumstances. In support of her argument, Dawn
cites to Christopher’s termination notice, which indicated he was being let go because he failed to
learn the new programming system, and Davis’s testimony that, had Christopher learned the new
system, he would likely still be employed at PMA. Nonetheless, as we defer to the trial court on
issues of fact and the credibility of the witnesses (Anderson, 409 Ill. App. 3d at 199), we find this
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2022 IL App (2d) 210427-Uargument unpersuasive as there was evidence to support the trial court’s determination. The trial
court found Christopher’s testimony, that he lost his job because of his emotional difficulties
following the divorce, to be more credible than Davis’s explanation for the termination. The trial
court also found that PMA “papered their files as a case of termination for cause” to avert litigation
because Christopher was let go after he returned from leave under FMLA. The record shows that
the trial court considered all the evidence before it. As these were reasonable interpretations of
the evidence, we cannot say the trial court’s finding, that Christopher’s loss of employment was
involuntary and not in bad faith, was against the manifest weight of the evidence.
¶ 51 Dawn argues that, even if Christopher lost his job in good faith, the trial court should have
imputed income to him because his subsequent failure to become reemployed was an attempt to
evade his support obligations. If a trial court finds that a party is not making a good faith effort to
earn sufficient income, the trial court may impute income to the party. In re M.M., 2015 IL App
(2d)140772, ¶ 44. “In order to impute income to a party, the [trial] court must find that the party
is voluntarily unemployed, is attempting to evade a support obligation, or has unreasonably failed
to take advantage of an employment opportunity.” Id.¶ 52 In the present case, we cannot say the trial court erred in not imputing income to
Christopher. As noted, the trial court found that Christopher was not voluntarily unemployed. As
explained, this determination was not against the manifest weight of the evidence. Further, there
was no evidence that Christopher failed to take advantage of an employment opportunity. The
trial court found that Christopher used reasonable efforts to find new employment. There was
evidence to support this determination. Christopher kept a job diary of his employment seeking
activities while he was unemployed for about 22 months. Dawn argues that a couple of two-week
periods with no entries shows that Christopher was not actively seeking employment opportunities.
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2022 IL App (2d) 210427-UHowever, Christopher testified that even though he did not have entries during those times, he was
looking for job opportunities daily. He also testified that one of the two-week time periods was
during the Covid lockdown and there were not as many job postings during that time. Based on
the record before us, we cannot say the trial court’s determination, that Christopher’s job search
efforts were reasonable, was not supported by the evidence.
¶ 53 Dawn next argues that there was no substantial change in circumstances because
Christopher’s income did not change while he was unemployed. The trial court specifically found
that Christopher’s income for child support purposes was unchanged during his unemployment,
noting that Christopher received a severance, unemployment benefits, and made withdrawals from
his IRA and 401(k) accounts, and from the children’s college savings accounts.
¶ 54 Dawn is correct that the trial court found no change in income for child support purposes.
Further, “income” has the same meaning with regard to maintenance and child support. In re
Marriage of Dahm-Schell and Schell, 2021 IL 126802, ¶ 39. However, income is not the only
consideration when determining whether there was a substantial change in circumstances. See 750
ILCS 5/510(a-5) (West 2018) (setting forth multiple factors for the trial court to consider); In re
Marriage of Verhines and Hickey, 2018 IL App (2d) 171034, ¶ 81 (in a substantial change analysis,
income is not the only measure of a parent’s continued ability to pay); see also In re Marriage of
Pylawka, 277 Ill. App. 3d 728, 732 (1996) (noting that the calculation of net income and the issue
of whether a substantial change in circumstances has occurred are two distinct questions). One of
the factors the trial court can consider is a change in employment status. Id. §(a-5)(1). As such,
we cannot say the trial court’s determination that Christopher’s loss of employment income was a
substantial change in circumstances was against the manifest weight of the evidence.
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2022 IL App (2d) 210427-U¶ 55 To the extent that Dawn is arguing that the modification of maintenance to zero during his
unemployment was an abuse of discretion, we note that the trial court must again consider multiple
factors in determining whether to modify maintenance. 750 ILCS 5/510(a-5); 5/504(a) (West
2018). The trial court’s determination that Christopher’s income did not change during his
unemployment does not necessarily render the trial court’s decision to abate maintenance to be an
abuse of discretion. Here, the trial court could consider that the sources of Christopher’s income
had changed. See Verhines, 2018 IL App (2d) 171034, ¶ 82 (trial court must take “a holistic view
of the obligor’s financial position to determine whether he has the resources to meet his existing
obligation without unduly compromising his ability to meet his own needs”). Christopher was
receiving unemployment benefits and made withdrawals from his 401(k) and IRA accounts and
from the children’s college accounts to maintain his standard of living. See Verhines, 2018 IL
App (2d) 171034, ¶ 85 (case law generally presumes that drawing upon retirement assets creates
a hardship). The record indicates that each party received about $300,000 in retirement accounts
upon dissolution. Accordingly, during his unemployment, Christopher depleted about a third of
his retirement savings. The fact that the trial court did not modify the child support award during
Christopher’s unemployment does not mean the trial court did not have the discretion to modify
the maintenance award. See Verhines, 2018 IL App (2d) 171034 ¶ 86 (the duty to support one’s
minor child is more absolute than the obligation to continue maintenance). Based on the record
before us, we cannot say that no reasonable person would take the view adopted by the trial court.
¶ 56 Finally, Dawn argues that, even if a modification of maintenance was appropriate, it should
have been made retroactive only to May 2019, when Christopher was no longer receiving
severance and unemployment benefits. As noted, whether to modify maintenance following a
substantial change in circumstances is a matter within the trial court’s discretion. Blum, 235 Ill.
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2022 IL App (2d) 210427-U2d at 36. Here, the trial court could have considered that, although Christopher received severance,
he was still unemployed and not receiving a regular paycheck. Further, Christopher was
unemployed for almost two years and needed to withdraw money from his retirement accounts
and the children’s college savings accounts to maintain his standard of living. Even though the
opposite conclusion could have been reached under the circumstances, a decision is not an abuse
of discretion merely because we may not have reached the same result as the trial court in the first
instance. Our task on appeal is limited to the question of whether the trial court abused its
discretion. See Simmons v. Garces, 198 Ill. 2d 541, 568 (2002) (“[i]n determining whether there
has been an abuse of discretion, [a reviewing court] may not substitute [its] judgment for that of
the trial court, or even determine whether the trial court exercised its discretion wisely”). Under
the circumstances here, we cannot say that the trial court abused its discretion in abating
maintenance as of the date of Christopher’s final paycheck.
¶ 57 B. Parenting Schedule
¶ 58 Dawn’s second contention on appeal is that the trial court erred in failing to modify the
parenting schedule. Specifically, Dawn asserts that Christopher’s repeated failure to comply with
Soberlink, failure to treat his substance abuse and mental health issues, and his continued use of
alcohol supported modifying the parenting schedule because (1) parenting time with Christopher
posed a serious endangerment to the children or (2) modification was in the best interest of the
children.
¶ 59 Section 603.10(a) of the Dissolution Act provides for the restriction of parental
responsibilities, decision making, and/or parenting time, due to a parent’s conduct. Specifically,
section 603.10(a) states:
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2022 IL App (2d) 210427-U“After a hearing, if the court finds by a preponderance of the evidence that a parent engaged
in any conduct that seriously endangered the child’s mental, moral, or physical health or
that significantly impaired the child’s emotional development, the court shall enter orders
necessary to protect the child.” 750 ILCS 5/603.10 (West 2018).
¶ 60 The statute lists restrictions that the trial court may impose upon parental decision-making
and parental time, which include, among other things: reducing, eliminating, or adjusting decision-
making or parental time, and requiring supervision. Id. The serious-endangerment standard has
been described as an “onerous, stringent, and rigorous” burden to meet. In re Marriage of Diehl,
221 Ill. App. 3d 410, 429 (1991). Liberal visitation is the general rule and restricted visitation is
the exception because parents have a natural or inherent right of access to their children, and
because sound public policy encourages that strong family relationships be maintained. Id. The
custodial parent has the burden of proving by a preponderance of the evidence that visitation with
the noncustodial parent would seriously endanger the child. Id. We will not reverse a trial court’s
finding as to serious endangerment unless it is against the manifest weight of the evidence. In re
Marriage of Mayes, 2018 IL App (4th) 180149, ¶ 59. A finding is against the manifest weight of
the evidence only if the opposite conclusion is clearly apparent or the determination is
unreasonable, arbitrary, or not based on the evidence. In re J.C., 2020 IL App (2d) 200063, ¶ 27.
¶ 61 In the present case, the trial court did not make an explicit finding as to serious
endangerment. However, by failing to modify the parenting schedule the trial court implicitly
found that parenting time with Christopher did not seriously endanger the children. This finding
was not against the manifest weight of the evidence. The record showed that Christopher had
complied with using Soberlink for over two years and had only a handful of noncompliant results.
The trial court found that Christopher had been 94% compliant with Soberlink. Further, Dr.
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2022 IL App (2d) 210427-UHynan’s 2020 report noted that the parties’ children indicated that they had not experienced
anything at Christopher’s home in the past year that made them feel scared, worried, or
uncomfortable. Further, Dr. Hynan noted there was no evidence that Christopher had recently
behaved in a potentially dangerous way.
¶ 62 Dawn argues that Christopher did not genuinely participate in treatment at Linden Oaks
and cites to Ramirez’s testimony that Christopher did not really progress in the program because
he denied and minimized his alcohol abuse issues. In addition to this evidence, however, there
was also a discharge note that stated Christopher had “made enough consistent and observable
progress towards the completion of treatment goals that the patient had been cleared for discharge.”
Further, Christopher testified that he had not asked to be discharged and was told that his treating
psychiatrist had determined that he was ready for discharge. Because there was evidence to
support the trial court’s determination of no serious endangerment, we cannot say it was against
the manifest weight of the evidence. J.C., 2020 IL App (2d) 200063, ¶ 27.
¶ 63 Alternatively, Dawn argues that the trial court erred in failing to modify the parenting
schedule on the basis that it was in the best interests of the children. A trial court has the authority
to modify a parenting plan pursuant to section 610.5(c) of the Dissolution Act if the modification
is necessary to serve the children’s best interests. See 750 ILCS 5/610.5(c) (West 2018). Section
602.7(b) of the Dissolution Act sets forth a list of factors that a trial court can consider in
determining an allocation of parenting time that it is the best interest of the child. Id. § 602.7(b).
“Although a trial court must consider all relevant factors when determining the best interests of a
child, it is not required to make an explicit finding or reference to each factor.” In re Custody of
G.L., 2017 IL App (1st) 163171, ¶ 43.
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2022 IL App (2d) 210427-U¶ 64 A trial court’s decision regarding whether to modify parenting responsibilities will be
upheld unless it is against the manifest weight of the evidence. Bates, 212 Ill. 2d at 515. “In
determining whether a judgment is contrary to the manifest weight of the evidence, the reviewing
court views the evidence in the light most favorable to the appellee.” Id. at 516. A reviewing
court must afford great deference to the trial court as the trial court is in a superior position to judge
the credibility of the witnesses and determine the best interests of the child. Id.¶ 65 In support of her argument, Dawn notes that William had missed over a dozen homework
assignments while in Christopher’s care; when the children were with Christopher they ate dinner
while playing electronics or watching television; the children were traumatized by the January
2019 incident; Christopher denied and minimized his substance abuse and mental health issues;
Dr. Hynan’s 2019 report indicated that Christopher’s intoxication presented an increased risk to
the children; and Christopher spoke negatively about her in front of the children. Further, Dawn
asserts that Christopher’s drinking and mental health issues demonstrated that it was not in the
children’s best interest for Christopher to have equal parenting time and that he should not have
parenting time on weekdays during the school year.
¶ 66 Upon our review of the record, we cannot say that that the trial court’s determination was
against the manifest weight of the evidence. As noted by Dawn, the record does indicate that the
children were traumatized by the January 2019 incident and that Christopher has had issues with
alcohol use. However, since the January 2019 incident, the record also indicates that there has
been improvement. The trial court found that Christopher substantially complied with the use of
Soberlink. The record indicates that while there were a handful of noncompliant tests, only the
most recent, on March 6, 2021, occurred when Christopher was actually in physical possession of
the children. On that day, although he tested noncompliant that day at 6:59 and 7:16 a.m., he tested
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2022 IL App (2d) 210427-Ucompliant by 7:31 a.m. Further, none of the noncompliant tests indicated that Christopher’s BAC
was beyond the legal limit. Additionally, Christopher underwent multiple psychological
evaluations and participated in an outpatient treatment program at Linden Oaks. The record
indicates that since the January 2019 incident, there have been no other similar incidents and the
parties’ children indicated that they did not feel scared or worried while in Christopher’s care.
While Dr. Hynan opined in his 2020 report that there was substantial reason to be concerned that
Christopher’s health could regress to the point where the children would become endangered, he
also acknowledged that it was not possible to predict future behavior. Consequently, it was just
as possible that there would be no regression. Further, despite William missing a day of school
and not turning in some homework assignments, both parties testified that, at the time of trial, the
children were doing well in school. Accordingly, as the record does not make the opposite
conclusion clearly apparent, we affirm the trial court’s denial of Dawn’s petition to modify the
parenting schedule.
¶ 67 C. May 2020 Petition
¶ 68 Dawn’s final contention on appeal is that the trial court erred when it failed to address her
May 2020 petition to enforce the allocation judgment and January 2019 agreed order. Dawn
argued that Christopher violated the allocation judgment when the police were called to his home
in January 2019 and his BAC was above the legal limit. Further, he violated the January 2019
agreed order when he had noncompliant Soberlink tests. Dawn requested that Christopher be held
in contempt for violating the orders and be ordered to pay fines and attorney fees.
¶ 69 At the outset, we note that Dawn abandoned the petition. We acknowledge that, following
the March 2021 hearing on Dawn’s motion to reopen the proofs, but prior to the trial court’s May
2021 written ruling, Dawn filed a petition for clarification of ruling, noting that the trial court had
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2022 IL App (2d) 210427-Ufailed to address her May 2020 petition. However, she did not specifically request a ruling on her
May 2020 petition in her written closing argument and she did not file a subsequent petition for
clarification following the trial court’s May or July 2021 written rulings. Under these
circumstances, the petition was abandoned. See Morse v. Donati, 2019 IL App (2d) 180328, ¶ 33
(filing a notice of appeal without first obtaining a ruling on a motion constitutes abandonment of
that motion).
¶ 70 Moreover, the trial court’s ruling could be interpreted as an implicit denial of Dawn’s May
2020 petition. Whether a party is guilty of contempt is a question for the trial court, and its decision
will not be disturbed on appeal unless it is against the manifest weight of the evidence or the record
reflects an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984). Based
on the circumstances in the present case, the trial court did not abuse its discretion in failing to
hold Christopher in contempt for violating the allocation judgment or the 2019 agreed order. By
the time of trial, it had been two and a half years since the January 2019 incident when Christopher
violated the allocation judgment. After the incident, the parties entered an agreed order requiring
Christopher to submit to Soberlink testing prior to and during his parenting time. The trial court
found that Christopher had substantially complied with that requirement and the evidence in the
record supports that determination. While there were a handful of noncompliant tests over a two-
year period, none of those tests showed a BAC above the legal limit. Further, the record indicates
that there have been no other dangerous incidents since January 2019 and that the children do not
feel scared or worried when they are with Christopher. We therefore affirm the trial court’s
implicit denial of Dawn’s petition.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
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2022 IL App (2d) 210427-U¶ 73 Affirmed.
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