In re Marriage of Reynard ( 2008 )

NO. 4-06-0897 Filed 1/16/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of MARY ANNE ) Appeal from
REYNARD, n/k/a MARY ANNE SCHIERMAN, ) Circuit Court of
Petitioner-Appellant, ) McLean County
and ) No. 01D113
CHARLES G. REYNARD, )
Respondent-Appellee. ) Honorable
) James R. Glenn,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
This action involves a petition to modify maintenance
payments from Charles Reynard to Mary Anne Reynard, now Mary Anne
Schierman. The trial court denied the motion. Mary Anne ap-
pealed, requesting that this court increase her maintenance from
$1,600 to $2,800 per month. We affirm.
I. BACKGROUND
A. The Original Maintenance Award
Though a more complete account of the facts surrounding
the original award may be found in In re Marriage of Reynard, 344
Ill. App. 3d 785, 786, 801 N.E.2d 591, 592 (2003) (Fourth Dis-
trict), we sum up the original circumstances as follows.
Mary Anne and Charles married in 1969 and divorced in
2002, after 33 years of marriage. They had two children: Rachel,
born in 1977, and Meghan, born in 1982. Mary Anne and Charles
each began their respective careers as teachers, and soon Charles
began going to law school at night. In 1979, the couple moved
from Chicago to Bloomington/Normal where Charles ran unsuccess-
fully for McLean County State's Attorney. Charles subsequently
ran successfully for that position in 1988, 1992, and 1996. Mary
Anne supported him through the elections and worked as a campaign
manager. Through most of the marriage, Mary Anne worked part-
time in the schools. She also enjoyed a successful stint selling
country decorating supplies, grossing $20,000 in one year.
The divorce proceedings began in 2002. By the time of
the divorce proceedings, Mary Anne had developed a medical
condition known as fibromyalgia and had medical expenses in
excess of $500 per month. Charles had just been elected a
circuit judge, with an expected salary in excess of $136,000.
Mary Anne was working full-time as a volunteer coordinator at a
museum, making just over $29,000 per year. Mary Anne was also
receiving $300 per month from a boarder. The couple's youngest
daughter was a sophomore at Wellesley College in Massachusetts.
Charles had paid for most of the college expenses and was willing
to continue to do so.
The trial court divided the marital property, giving
slightly more to Mary Anne. The total value of Mary Anne's share
was $346,495. This included the marital residence, valued at
$166,000 with no mortgage. Mary Anne also had $37,000 in
nonmarital property. The total value of Charles' share was
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$319,487. This included two residential properties, one in
Normal, Illinois, and one in Brentwood, Missouri. The home in
Normal was valued at $108,000, and had just under $22,000 in
equity. The residence in Brentwood was of similar value with a
similar amount in equity. Charles also had $106,771 in
nonmarital property. Lastly, the trial court determined that
each party was entitled to 50% of the other's retirement benefits
to be paid through a QILDRO (qualified Illinois domestic
relations order).
The trial court set maintenance at $1,600 per month.
The trial court ordered Charles to continue paying for Meghan's
college expenses. At that time, Charles was making payments in
the amount of $2,900 to $3,400 per month. The trial court stated
it knew that Charles would have some difficulty meeting his
financial obligations for a finite period of time, but that
Charles was in a better position than Mary Anne to take out loans
to meet those obligations.
The original maintenance award was set to terminate
upon the first to occur of the following contingencies: (1) the
death of either party; (2) Mary Anne's remarriage; (3) Mary
Anne's cohabitation with another person on a resident,
continuing, conjugal basis; or (4) completion of the January 1,
2013, payment. This court affirmed the original award, reasoning
in part that Charles was paying two mortgages and a car payment,
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as well as between $2,900 and $3,400 per month for Meghan's
education, and therefore any higher amount would be unrealistic.
Reynard, 344 Ill. App. 3d at 786, 801 N.E.2d at 592.
B. Changes Since the Original Award
On July 28, 2005, Mary Anne filed a petition to modify
the order pursuant to section 510(a-5) of the Illinois Marriage
and Dissolution of Marriage Act (Dissolution Act), stating that
there had been a substantial change in circumstances since the
original order was filed. 750 ILCS 5/510(a-5) (West 2004).
Specifically, Mary Anne asserted that (1) Charles' income had
increased; (2) Charles no longer had to pay for Meghan's college
expenses; (3) Charles was no longer making one of the two
mortgage payments; (4) Charles had remarried a working woman,
presumably reducing his personal living expenses; and (5) Mary
Anne no longer was receiving rent from a lodger, reducing her
nonemployment income by $300 per month.
Since the original award, Charles' salary has increased
to approximately $157,000. His total income from all sources
exceeded $163,000. Charles' investment assets increased to
$422,000. Charles has since remarried Judith Valente. They went
to Greece on their honeymoon and hosted several wedding
receptions, spending several thousand dollars. Charles had a
joint account with Judith and placed about $800 per month in that
account, but the exact value of the account is not in the record.
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Charles owns a modest home, which at the time of the
original award was worth $108,000 and had an 80% mortgage.
Charles continued to make mortgage payments on the home. Charles
testified that major improvements needed to be done on the home
in order to approach the standard of living he had experienced
prior to his divorce from Mary Anne. Charles put off making
those improvements because he was hard-pressed to make his
daughter's hefty tuition payments. Once the tuition payments
tapered off, Charles put a great deal of money into his home,
spending approximately $2,833 per month for capital improvements
and $250 per month for home improvements. Including his mortgage
and property taxes, Charles was spending approximately $4,257 per
month on his house. Charles sold the second property in
Missouri, which netted approximately $20,000. However, according
to Charles, it was a mistake for this court ever to have allotted
the mortgage payment from that property to Charles; he was not
ordered to make said payments and never included said payments on
his original financial affidavit.
Excluding the mortgage on Charles' current home,
Charles has taken on about $68,000 of debt since the original
award. Some of this debt is due to loans that Charles took on to
pay for his daughter's education. The rest is debt from home
repairs and a new Mitsubishi Gallant. Charles pays $1,360 per
month on this debt. Charles' new financial affidavit indicates
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that his monthly expenses, excluding the $1,600 maintenance
payments, total $8,098.02.
Since the original award, Mary Anne's salary has
increased to approximately $34,000, and her income from all
sources has increased to $39,306. However, Mary Anne no longer
has a boarder bringing in $300 per month. Mary Anne, who is now
59 years old, did not go back to school or take on additional
employment.
Mary Anne sold the marital residence for $212,000 and,
after closing costs, netted $206,700, which is $40,700 more than
the marital property had been valued at in 2002. Mary Anne then
bought a smaller home for $142,500. Upon the advice of her
financial advisor, Mary Anne took out a mortgage on her new home
and invested the proceeds from the sale of the marital residence.
Mary Anne is required to make a mortgage payment of $280 per
month but is actually paying off her mortgage at a rate of $500
per month.
Mary Anne's investment portfolio has increased in value
from $194,162 to $375,606. However, this at least in part is due
to the reallocation of assets after the sale of the marital
residence. Mary Anne has taken three nice vacations since the
original award: a trip to Thailand to visit her daughter who was
living abroad, a trip to Finland for a close friend's wedding,
and a trip to Boston for another wedding. Mary Anne has slightly
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increased her monthly expenditures for entertainment, social
clubs and the like, vacations, and gifts, for a total increase of
$250 per month.
Mary Anne hopes to retire in approximately six years,
by age 65. Mary Anne has been directly depositing $1,116 per
month from her paycheck into a 403(b) retirement account. Mary
Anne also contributes $416 per month to a Roth IRA. Mary Anne
stated that her total monthly expenses were $4,132.
C. The Trial Court's Ruling
At the close of evidence, the trial court stated that
it had prepared an oral ruling. The trial court denied Mary
Anne's motion to increase maintenance payments, finding that
there had not been a substantial change in circumstances. The
trial court found that Mary Anne's total income had increased
from $31,141 at the time of the original maintenance order to
$39,306, an increase of 26.22%. Charles' total income had
increased from $143,965 to $163,733, or 13.73%. The trial court
found that Mary Anne's monthly expenses had increased from $3,060
to $3,496, or 14.25%. The court did not include the extra $220
per month in excess of the required payment that Mary Anne made
toward her mortgage, nor did the court include the $416 monthly
contribution to the Roth IRA. The trial court found that
Charles' monthly expenses, excluding the $1,600 maintenance
payment, had increased from $7,027 to $8,473, or 20.58%. In
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terms of assets, the trial court found the value of Mary Anne's
real estate to have decreased by $58,000, or 34.9%. The court
found the value of Charles' real estate to have remained steady.
The value of Mary Anne's savings, retirement accounts, and
investments increased from $194,162 to $375,606, or 93.45%. The
value of Charles' savings, retirement accounts, and investments
had increased from $350,392 to $422,772, or 20.66%. However,
the trial court noted that it did not include the value of
Charles' joint account with Judith Valente, because it did not
have a figure for that account.
The trial court noted that Charles had accumulated
$68,000 in debt since the original maintenance order. The trial
court expressly rejected Mary Anne's argument that Charles'
financial situation has improved now that he is no longer paying
for Meghan's college. The trial court stated it had anticipated
that Charles would have to borrow money to pay for Meghan's
college in setting the original maintenance payment. The trial
court stated that Charles was still paying off those loans. The
trial court found the amount that Charles had estimated for the
capital home improvements ($2,833 per month) to be reasonable.
This appeal followed.
II. ANALYSIS
Mary Anne argues that the trial court erred in denying
her petition to modify, and requests that this court increase her
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maintenance award to $2,800 per month. As we stated previously:
"’Maintenance issues are presented in a
great number of factual situations and resist
a simple analysis.’ [Citation.] The trial
court has discretion to determine the
propriety, amount, and duration of a
maintenance award. *** Section 504(a) of the
[Act] sets forth factors the court must
consider when determining the amount and
duration of maintenance awards. These
factors include the income and present and
future earning capacity of the parties; the
needs of each party; any impairment of
earning capacity due to devoting time to
domestic duties or having forgone or delayed
opportunities due to the marriage; the time
necessary to acquire appropriate education,
training, and employment; the ability of the
party to support himself or herself; the
standard of living established during the
marriage; *** the age and physical and
emotional condition of the parties;
contributions and services by the party
seeking maintenance to the education,
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training, or career of the other spouse; and
any other factor the court expressly finds to
be just and equitable. [Citation.] ***
[T]he trial court must strike a balance
that is reasonable under the circumstances in
light of the goals of section 504." Reynard,
344 Ill. App. 3d at 790, 801 N.E.2d at 595,
citing 750 ILCS 5/504(a)(West 2000).
In earlier times, where the only decree possible was one of
judicial separation, where the wife was not allowed to own
property in her own name, or where property was awarded to the
person in whose name it was titled, usually the husband's,
maintenance following a lengthy marriage was generally considered
necessary. In re Marriage of Mayhall, 311 Ill. App. 3d 765, 767,
725 N.E.2d 22, 24 (2000) (Fourth District), citing 2 H. Clark,
Domestic Relations §17.1, at 220 (2d ed. 1987); 1 H. Gitlin,
Gitlin on Divorce §15-12, at 633 (2d ed. 1997). With the
enactment of the Dissolution Act in 1977, the legislature sought
to provide for the financial needs of the spouses through the
disposition of property rather than through maintenance.
Mayhall, 311 Ill. App. 3d at 768, 725 N.E.2d at 24. Under the
Dissolution Act, the goal of maintenance was to enable a formerly
dependant spouse to acquire financial independence for the
future. Mayhall, 311 Ill. App. 3d at 768, 725 N.E.2d at 24. The
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1993 amendments to the Dissolution Act made it easier for
maintenance to be awarded, but maintenance is not the absolute
right of every party to a marriage and should mainly be reserved
for circumstances of necessity. Mayhall, 311 Ill. App. 3d at
768, 725 N.E.2d at 24.
There is no requirement that a maintenance award
equalize the parties' net disposable incomes. Reynard, 344 Ill.
App. 3d at 791, 801 N.E.2d at 596. However, equalization of
incomes may be appropriate in some cases, as marriage is a moral
and financial partnership of coequals. Reynard, 344 Ill. App. 3d
at 792, 801 N.E.2d at 596, citing In re Marriage of Hart, 194
Ill. App. 3d 839, 853, 551 N.E.2d 737, 745 (1990) (J. Steigmann,
specially concurring) (error for trial court to deny
rehabilitative maintenance to wife who took care of domestic
responsibilities over the course of a 20-year marriage to
husband, a surgeon). In affirming the original award in the
instant case, this court held that the facts of this case did not
rise to the level necessary to equalize the parties' net
disposable incomes. Reynard, 344 Ill. App. 3d at 792, 801 N.E.2d
at 597.
The trial court's ruling on a request to modify or
terminate maintenance will not be disturbed absent an abuse of
discretion. See In re Marriage of Pedersen, 237 Ill. App. 3d
952, 956, 605 N.E.2d 629, 632 (1992). The burden is on the party
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seeking the modification to show a substantial change in
circumstances since the entry of the original maintenance award.
Pedersen, 237 Ill. App. 3d at 956, 605 N.E.2d at 632; 750 ILCS
5/510(a-5)(West 2004) (requiring a substantial change and listing
various factors to consider). A maintenance award can be
modified either when the needs of the spouse receiving the
payments change or the ability of the spouse making the payments
changes. Pedersen, 237 Ill. App. 3d at 956, 605 N.E.2d at 632-
33, quoting In re Marriage of Garelick, 168 Ill. App. 3d 321,
326, 522 N.E.2d 738, 742 (1988).
Mary Anne first argues that the trial court did not
consider the proper statutory factors in coming to its decision.
In addition to considering the statutory factors under section
510(a-5), concerning modifications, the trial court should also
consider the factors set forth in section 504(a), as listed
above, which it was required to consider in determining the
original maintenance award. In re Marriage of Zeman, 198 Ill.
App. 3d 722, 737, 556 N.E.2d 767, 775-76 (1990); 750 ILCS
5/504(a) (West 2004). Specifically, Mary Anne argues that the
trial court failed to comment on the following findings of fact,
as stated in our prior opinion:
"Mary Anne made a significant
contribution to the family during the
parties' 33 years of marriage by working
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part-time, raising the parties' children, and
managing Charles'[] election campaigns. Mary
Anne gave up her employment in Chicago to
move to Bloomington/Normal for Charles'[] job
as an assistant State's Attorney. She gave
up her successful stint as a hostess for the
sale of country decorating merchandise to be
with her children. She campaigned for
Charles during the 1979, 1988, 1992, and 1996
elections for McLean County State's Attorney.
Although Mary Anne took all the requisite
course work, she never obtained her teaching
license." Reynard, 344 Ill. App. 3d at 792,
801 N.E.2d at 597.
Although the trial court must consider all the relevant statutory
factors, it need not make specific findings as to the reasons for
its decisions. In re Marriage of Kocher, 282 Ill. App. 3d 655,
661, 668 N.E.2d 651, 656 (1996). The same judge presided over
both the 2002 proceedings, which led to the distribution of
property and $1,600 maintenance award, and the 2006 proceedings
concerning the petition to modify. The trial court did not
reiterate the length of the parties' marriage or Mary Anne's
contributions, but nothing indicates that it was not mindful of
these factors. The court expressly stated that it had reviewed
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the case file the day before and was "throughly familiar with the
exhibits and the evidence."
Perhaps Mary Anne's most compelling argument that there
has been a substantial change in circumstances is that Charles'
college-payment obligations should have ended, or greatly
lessened, by this point. At the time of the original order,
Charles was paying between $2,900 and $3,400 per month for
Meghan's college expenses. The record indicates that Meghan was
in her sophomore year at Wellesley College during the November
2002 divorce proceedings and presumably would have been scheduled
to graduate in Spring 2005. If Charles had been paying tuition
at a rate of $2,900 per month since November 2002 and through the
last date of hearing in the instant case, Charles would have made
$134,400 in payments. This does not account for payments Charles
presumably made during Meghan's freshman year in 2001. While we
do not doubt that Charles has some remaining loans for Meghan's
college, we do not believe he is continuing to pay those loans
off at the rate of $2,900 to $3,400 per month. This observation
is relevant because, in part, we affirmed the initial award of
$1,600 per month because we believed that was all Charles was
capable of paying, noting that a payment in excess of $1,600
would adversely affect Charles' ability to meet his own needs.
Reynard, 344 Ill. App. 3d at 793, 801 N.E.2d at 597.
Nevertheless, we are reluctant to find a "substantial
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change in circumstances" where the trial court contemplated and
expected the financial change at issue. See In re Marriage of
Hughes, 322 Ill. App. 3d 815, 818-19, 751 N.E.2d 23, 26 (2001).
Here, the trial court was aware that Charles' college-payment
obligations would lessen over time, and stated in its order that
Charles' college-payment obligations had played out as the court
had anticipated.
Likewise, the trial court noted that Charles' overall
expenses had not decreased, in large part because of Charles'
capital-improvement expenses. Charles had bought a relatively
modest home and had put off making improvements until the college
payment obligations lessened. For example, according to Charles'
2006 financial affidavit, Charles is paying $1,360 per month for
debts in the amount of $68,000, which includes college payments,
home-improvement payments, and car payments, but excludes the
house mortgage. It is not clear what percentage of the debt
payments go toward college payments as opposed to home-
improvement payments or car payments. It is, however, clear that
Charles' home-repair and capital expenses have in large part
taken over the percentage of his income that used to be allotted
for college expenses. Charles' financial affidavit allots $250
per month for home repairs and $2,833 for capital improvements.
The trial court found these payments to be reasonable, and we
cannot find it abused its discretion in so finding.
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Even if we were to disagree with the trial court and
find that at least some of Charles' extensive home-improvement
costs were optional, and therefore find that Charles' disposable
income has increased since the time of the original award, it
would not necessarily follow that Mary Anne's maintenance should
be increased. A party's increase in income is generally not
sufficient to warrant modification of a maintenance award. See,
for example, In re Marriage of Plotz, 229 Ill. App. 3d 389, 392,
594 N.E.2d 366, 368 (1992) (though made in reference to child
support, the "sliding scale" approach should not replace the
"substantial change in circumstances" approach to modification of
payments). It is with this in mind that we approach the
remainder of Mary Anne's claims that Charles' disposable income
has increased, as have Mary Anne's expenses. The trial court's
initial award carefully considered Mary Anne's contributions to
the marriage, gave Mary Anne a hefty portion of the marital
estate (valued at nearly $700,000), considered that Mary Anne
still maintained a decent earning capacity, considered that Mary
Anne was scheduled to be able to retire in 2013, and provided
Mary Anne an additional $1,600 per month in maintenance so that
she might continue to live a lifestyle that was close to the one
she enjoyed during her marriage. Under these circumstances, to
continually examine Charles' income, absent some showing of real
need on the part of Mary Anne, would not allow for the "clean
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break" that is desirable with the dissolution of a marriage.
This case is distinguishable from those other cases
involving lengthy marriages cited by Mary Anne, where the trial
court's nonexistent or very modest maintenance award was
reversed. See Hart, 194 Ill. App. 3d at 853, 551 N.E.2d at 745
(error for trial court to deny $500 per month, two-year
rehabilitative maintenance to wife who took care of domestic
responsibilities over the course of a 20-year marriage to
husband, a surgeon, and where divided marital assets were
minimal); In re Marriage of Selinger, 351 Ill. App. 3d 611, 814
N.E.2d 152 (2004) (temporary maintenance award of $400 per month
insufficient following a 25-year marriage where wife made $37,000
per year and husband made in excess of $100,000 per year, and
where divided assets were less than $100,000). Nevertheless, we
briefly address the remainder of Mary Anne's arguments.
Mary Anne contends that the trial court erroneously
relied upon percentage gains to compare the parties' relative
change in wealth and, in so doing, distorted the practical, real-
world value of actual dollar amounts. The trial court, however,
while admittedly using percentage amounts for illustrative and
comparative purposes, did not rely solely on percentage
comparisons. When questioned as to its use of percentages, the
trial court stated: "Percentages are often used in Illinois law
such as establishing child support. *** This court set
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maintenance based on the circumstances of the parties that
existed in 2002, and at that time [Charles] had greater financial
means than [Mary Anne]. That is still the case, but I think
percentages are a way of looking at how they both progressed[,]
and both have progressed." Under the facts of this case, the
trial court's approach was not unbalanced.
Mary Anne's contention that Charles has additional
income due to his marriage to Judith Valente is without merit.
First, we note that Charles' marriage to Judith did not in fact
increase Charles' financial resources. Judith makes
approximately $28,000 per year. However, Judith uses that money
to pay for her own expenses, including a condominium in Chicago.
Similarly, Mary Anne's arguments that Charles is
no longer making mortgage payments on a condominium and that Mary
Anne no longer has a lodger bringing in $300 per month are not
sufficient to constitute a substantial change in circumstances.
Despite the fact that Charles is no longer paying for a second
mortgage, the trial court found his monthly expenses to have
increased. Although Mary Anne is no longer receiving $300 per
month from a lodger, she is accruing interest at a higher rate
after receiving a large profit from the sale of her marital
residence. The bottom line is that neither party is accruing or
expending money in exactly the same manner as they were at the
time of the original award, but the overall income and net worth
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of each party has increased.
Finally, Mary Anne argues that her expenses have
increased. Mary Anne points to her mortgage payments, of which
she is required to pay $280 per month, and instead pays $500 per
month. Additionally, Mary Anne notes that she is hard-pressed to
save for retirement, especially given that the maintenance
payments are to end in 2013, around the time Mary Anne plans to
retire. Mary Anne directly deducts $1,116 from her monthly
salary to go into her 403(b) retirement account and adds an
additional $416 per month to go into her Roth IRA. Mary Anne
also complains that her medical condition (fibromyalgia) has
worsened; however, in comparing Mary Anne's 2002 and 2006
financial affidavits, it does not appear that her medical
expenses have increased.
The trial court did not err in its reasoned evaluation
of Mary Anne's increased expenses. In considering the monthly
expenses of a party in the context of a motion to modify
maintenance payments, the trial court should consider whether the
stated expenses are necessary or incurred by choice. See, for
example, In re Marriage of Fazioli, 202 Ill. App. 3d 245, 250-51,
559 N.E.2d 835, 839 (1990). Here, Mary Anne was given the
marital residence in the original division of property, then
valued at $166,000. Mary Anne later sold the residence for
$212,000, and, after closing costs, netted $206,700. Mary Anne
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then bought a smaller home for $142,500. Though Mary Anne could
have purchased the new home outright, she chose to take out a
mortgage for tax and investment purposes, based on the advice of
her financial advisor. Despite the fact that it was Mary Anne's
choice to incur a mortgage expense, the trial court allowed the
$280 required payment, but not the additional $220, to be counted
toward Mary Anne's necessary monthly expenses. Likewise, the
trial court allowed the $1,116 403(b) contribution as a necessary
expense, but not the $416 Roth IRA contribution.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's judgment.
Affirmed.
APPLETON, P.J., concurs.
MYERSCOUGH, J., dissents.
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JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. I would reverse the trial
court for a clear abuse of discretion. Mary Anne showed a
substantial change in circumstances.
In the dissolution, the parties received roughly an
equal division of marital property. Mary Anne did not receive a
"hefty portion" as the majority states, but rather 52% in an
attempt to equalize the gross disparity in the parties' income
and the reduction in Mary Anne's maintenance because of Charles'
payment of Meghan's college expenses. Charles no longer pays
$2,900 to $3,400 per month to support Meghan in college. Since
the dissolution, Meghan has graduated, Charles no longer has a
mortgage on a condominium in Missouri, and Charles has received
more than a $26,187 raise. At a minimum, considering no college
expenses and the raise, Charles's income has increased $62,000.
While this amount may not be as substantial to Charles with a
salary of $163,733, it certainly is substantial to Mary Anne with
a salary of $34,000 per year and maintenance of $1,600 per month.
The trial court here erroneously utilized a percentage
comparison, analogizing to the child-support guidelines. Such a
percentage comparison is nowhere recognized by statute or case
law in the State of Illinois and is grossly unfair to the spouse
of many years who has newly joined the workforce at an entry-
level position and at a later age with little hope of promotion.
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Gitlin has suggested a statistically average maintenance award
29% of the ex-husband's income or one-half. H. Joseph Gitlin,
Specifics of a Fair Divorce Settlement, Chi. Daily L. Bull.,
August 27, 2007, at 5. This would entitle Mary Anne to roughly
$53,000 or $62,000 a year in maintenance, a far cry from $19,200.
The majority's missive on maintenance relies on its own
majority in Reynard, 344 Ill. App. 3d at 791-92, 801 N.E.2d at
596-97, to which I also dissented because of the gross disparity
in the parties' incomes. That disparity has merely increased
exponentially four years later and will continue to increase with
the cost-of-living adjustment (COLA) Charles received in July--
though he could not remember the figure (3.2% in 2006; 3.5% in
2007). A similar COLA will be received each upcoming year by
Charles.
The majority further unfairly criticizes Mary Anne
because she mortgaged her new smaller, less-expensive home, and
she contributes to a 403(b) and a Roth IRA. The majority does
not similarly criticize Charles's extensive home repairs and
repayment of his loan to himself, instead recognizing these
expenses as a replacement of college expenses.
The majority blithely ignores these substantial changes
in income and expenses by stating:
"A party's increase in income is generally
not sufficient to warrant modification of a
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maintenance award. See, for example, In re
Marriage of Plotz, 229 Ill. App. 3d 389, 392,
594 N.E.2d 366, 368 (1992) ***." Slip op. at
14-15.
This is a misstatement of law unsupported by Plotz or any other
case law or statute. Plotz addressed child support and
maintenance and an absence of a change in circumstances where
only moderate increases in income were shown. Such is not the
case here where substantial changes in Charles' income and
expenses have been shown.
Moreover, substantial increases in income as well as
substantial decreases in income may constitute substantial
changes to warrant a modification of maintenance. In re Marriage
of Stone, 191 Ill. App. 3d 172, 174, 547 N.E.2d 714, 715 (1989)
(32% salary-increase factor favoring increase in child support);
Thurston v. Thurston, 260 Ill. App. 3d 731, 733, 633 N.E.2d 118,
120 (1994) ("The reduction in the wife's income is substantial.
That the wife reduced her expenses and standard of living to fit
her compelled reduction in income does not render such reduction
immaterial").
Finally, the trial court for the second time has again
refused to consider appropriate statutory factors for the award
of maintenance under section 504 of the Dissolution Act.
"In deciding whether a maintenance award
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should be modified, a court should consider
the same factors used in making an initial
maintenance award. (In re Marriage of Plotz
(1992), 229 Ill. App. 3d 389, 391, 594 N.E.2d
366, 368.) Under section 504 of the Act such
factors include: '(1) the income and property
of each party, including marital property
apportioned and non-marital property assigned
to the party seeking maintenance; (2) the
needs of each party; [and] (3) the present
and future earning capacity of each party.'
750 ILCS 5/504(a) (1992); see also In re
Marriage of Krupp (1990), 207 Ill. App. 3d
779, 793, 566 N.E.2d 429, 437." Thurston,
260 Ill. App. 3d at 733, 633 N.E.2d at 120.
As previously stated in my prior dissent, the trial
court has failed to recognize the disparity in earning potential
and concomitant income inequality.
"Although Illinois law does not require
an equalization of net disposable income in
large-income cases (Claydon, 306 Ill. App. 3d
at 902, 715 N.E.2d 1205-06), the needs of the
parties must still be met where possible.
While this couple did not live an extravagant
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lifestyle so they could afford to send their
children to college, they enjoyed substantial
income, which should not be retained in large
part by Charles, especially where, here, it
was because of Mary Anne's sacrifices and
significant contributions to the family
during the parties' long marriage that
Charles is able to have a greater earning
capacity than does Mary Anne. As the
majority points out[,] '[i]t is inequitable
upon dissolution to saddle a party with the
burden of her reduced earning potential and
to allow the other party to continue in the
advantageous position he reached through
their joint efforts' (344 Ill. App. 3d at
792[, 801 N.E.2d at 596]), and that is what
the trial court did in this case." Reynard,
344 Ill. App. 3d at 795, 801 N.E.2d at 599
(Myerscough, J., dissenting).
For these reasons, the trial court should be reversed.
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