In re Marriage of Nord ( 2010 )

NO. 4-09-0726 Filed 6/28/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
DANIEL A. NORD, ) Circuit Court of
Petitioner-Appellant, ) McLean County
and ) No. 06D561
KATHLEEN A. NORD, )
Respondent-Appellee. )
) Honorable
) David W. Butler,
) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
This appeal concerns an award of maintenance entered
during marriage dissolution proceedings between petitioner,
Daniel A. Nord, and respondent, Kathleen A. Nord. All other
issues have been resolved and are not part of this appeal.
On appeal, Daniel argues the trial court (1) abused its
discretion when it awarded Kathleen permanent maintenance of
$17,000 per month and (2) made significant factual errors which
warrant reversal of the maintenance award. We disagree and
affirm.
I. BACKGROUND
The parties married in December 1972. They had two
children who are now adults. Daniel, age 57 at the time of the
February 2009 hearing, is a physician practicing in the field of
obstetrics and gynecology. Kathleen, age 58, is a high school
graduate. Kathleen worked as a teacher’s aide, in a real estate
office filing paperwork, and for a patent attorney while Daniel
was in medical school. However, Kathleen ceased working in 1980
to stay home and care for the parties’ two children. As a
result, Kathleen has not worked outside the home in approximately
30 years.
The parties purchased the marital residence for
approximately $485,000, and during the marriage they made
approximately $1 million worth of improvements to the home.
Their 12,000-square-foot, three-floor home contained nine
bathrooms, four bedrooms, a six-car garage, an indoor half-court
gymnasium, and an in-ground pool. The parties’ other properties
included eight timeshares in Cancun, a timeshare in Missouri, and
a second home in Guadalajara, Mexico, valued at $545,000. The
parties, during their marriage, not only traveled extensively to
Mexico, but also traveled to Australia, New Zealand, and to
Europe on several occasions. Kathleen and her daughter also
traveled to Africa and Japan during the marriage.
According to the trial testimony, the parties separated
sometime between late July and early August 2006. Prior thereto,
they sold their home for approximately $1,600,000 and moved into
a $5,600-per-month rental home. The revenue from the sale of the
home, furnishings, and artwork (the parties received $700,000 for
furnishings and artwork) amounted to approximately $2,300,000.
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In November 2006, Daniel filed a petition for
dissolution of marriage. Prior to the hearing on Daniel’s
petition, the parties reached agreement on the distribution of
the marital and nonmarital property. While the parties agreed
with respect to who was to receive the various properties, they
did not agree on the values to be assigned to some of the
properties. Nor did the parties agree with respect to the amount
and duration of maintenance for Kathleen. The parties’ "Property
Settlement Agreement" included four exhibits that itemized the
agreed distribution of the marital and nonmarital property and
debt to each party and set forth each party's assigned values to
each item of property. Significant discrepancies existed in the
values assigned to two items of property. The parties agreed
Daniel's 10% interest in Nord Farms, Inc. (Nord Farms), was his
nonmarital property. Daniel valued his interest in Nord Farms at
$152,280, while Kathleen valued it at $705,125. The second
significant discrepancy arose with respect to the value of a
marital asset, a 50% interest in Daniel’s obstetrics practice,
Nord, Wellman Obstetrics & Gynecology, SC. While the parties
agreed this marital asset should be assigned to Daniel, Kathleen
valued it at $700,000 and Daniel valued it at $135,000.
In February 2009, over the course of 2 1/2 days, the
trial court heard evidence concerning these property values and
the parties' arguments regarding maintenance. The parties agreed
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Kathleen was entitled to maintenance but disagreed as to the
amount and duration. To be able to establish an appropriate
amount of maintenance, the court needed to determine the value of
these properties, in addition to determining the prospective
incomes of the parties. Daniel argued he could not pay more than
$5,000 per month for 60 months. Kathleen, on the other hand,
initially sought permanent maintenance of $31,000 monthly, a
figure her counsel modified to $21,000 during closing argument.
At the end of the hearing, the court took the matter under
advisement.
In a June 2009 written order, the trial court found
that "to meet Kathleen’s reasonable needs in light of the
standard of living established during the marriage and in light
of Daniel’s ability to pay, Daniel should pay Kathleen
[permanent] maintenance in the amount of $17,000 per month."
On July 13, 2009, the trial court entered a final
judgment for dissolution of marriage.
On July 21, 2009, and July 23, 2009, Daniel filed
motions to reconsider and to correct factual errors. Following a
September 2009 hearing, the trial court denied both motions.
This appeal followed.
II. ANALYSIS
On appeal, Daniel argues the trial court’s permanent-
maintenance award of $17,000 per month was an abuse of discretion
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where the trial court made significant factual errors.
Specifically, Daniel contends (1) his resources are insufficient
to pay the maintenance award, (2) $17,000 per month was not
necessary for Kathleen’s reasonable expenses, (3) his actual
expenses were not considered, (4) Kathleen received the bulk of
the marital assets, and (5) $5,000 per month for 60 months would
adequately support Kathleen.
Kathleen argues the trial court’s award was not an
abuse of discretion. Specifically, she contends (1) Daniel has
the ability to pay the maintenance awarded and his argument to
the contrary is not supported by the evidence presented at trial,
(2) Daniel’s income is able to provide for her reasonable
expenses while also providing a comfortable lifestyle for
himself, and (3) given her age, educational level, and 30-year
absence from the workforce as well as the duration of the
marriage (37 years), permanent maintenance is justified and
necessary.
A. Standard of Review
"As a general rule, ’a trial court’s determination as
to the awarding of maintenance is presumed to be correct.’" In
re Marriage of Heroy, 385 Ill. App. 3d 640, 650, 895 N.E.2d 1025,
1037 (2008), quoting In re Marriage of Donovan, 361 Ill. App. 3d
1059, 1063, 838 N.E.2d 310, 314 (2005). The amount of a
maintenance award lies within the sound discretion of the trial
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court, and this court must not reverse that decision unless it
was an abuse of discretion. In re Marriage of Schneider, 214
Ill. 2d 152, 173, 824 N.E.2d 177, 189 (2005). An abuse of
discretion occurs where no reasonable person would take the view
adopted by the trial court. Schneider, 214 Ill. 2d at 173, 824
N.E.2d at 189. The party seeking reversal of a maintenance award
bears the burden of showing the trial court abused its
discretion. Schneider, 214 Ill. 2d at 173, 824 N.E.2d at 189.
B. The Statutory Factors
Section 504(a) of the Illinois Marriage and Dissolution
of Marriage Act (Dissolution Act) sets forth the following 12
factors for a trial court to consider in deciding whether to
grant a maintenance award:
"(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;
(3) the present and future earning
capacity of each party;
(4) any impairment of the present and
future earning capacity of the party seeking
maintenance due to that party devoting time
to domestic duties or having forgone or
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delayed education, training, employment, or
career opportunities due to the marriage;
(5) the time necessary to enable the
party seeking maintenance to acquire
appropriate education, training, and
employment, and whether that party is able to
support himself or herself through
appropriate employment or is the custodian of
a child making it appropriate that the
custodian not seek employment;
(6) the standard of living established
during the marriage;
(7) the duration of the marriage;
(8) the age and the physical and
emotional condition of both parties;
(9) the tax consequences of the property
division upon the respective economic
circumstances of the parties;
(10) contributions and services by the
party seeking maintenance to the education,
training, career or career potential, or
license of the other spouse;
(11) any valid agreement of the parties;
and
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(12) any other factor that the court
expressly finds to be just and equitable."
750 ILCS 5/504(a) (West 2008).
In considering these factors, the trial court is not
required to give them equal weight "so long as the balance struck
by the court is reasonable under the circumstances." In re
Marriage of Miller, 231 Ill. App. 3d 480, 485, 595 N.E.2d 1349,
1353 (1992). "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 Reynard,
378 Ill. App. 3d 997, 1004, 883 N.E.2d 535, 541 (2008). "The
benchmark for determining the amount of maintenance is the
recipient's reasonable needs in light of the standard of living
established during the marriage." In re Marriage of Culp, 341
Ill. App. 3d 390, 398, 792 N.E.2d 452, 459 (2003)
C. Alleged Factual Errors
Daniel argues Kathleen’s maintenance award was
erroneous in light of the significant factual errors the trial
court made in determining the award.
When a party challenges a trial court’s factual
findings regarding a maintenance determination, this court will
not reverse a trial court's findings unless the findings are
against the manifest weight of the evidence. In re Marriage of
Walker, 386 Ill. App. 3d 1034, 1041, 899 N.E.2d 1097, 1103
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(2008). Findings are "against the manifest weight of the
evidence where the opposite conclusion is clearly evident or
where the court’s findings are unreasonable, arbitrary, and not
based on any of the evidence." In re Marriage of Bhati, 397 Ill.
App. 3d 53, 61, 920 N.E.2d 1147, 1153 (2009).
Daniel contends the trial court erroneously (1) failed
to consider Kathleen’s total income potential; (2) overvalued
Daniel’s income where it failed to consider some of his income
was nonrepetitive capital gains and gambling income; (3) failed
to recognize Daniel’s continuing marital debt burden; and (4)
overvalued Daniel’s estate by $948,286 where it (a) believed he
received $841,000 more property than is reflected in the property
settlement agreement, (b) did not properly consider the amount of
debt Daniel assumed, and (c) erred in valuing Daniel’s 10%
interest in Nord Farms, where the court’s calculation included
too many acres. As a result, Daniel maintains the court’s
findings of fact were against the manifest weight of the evidence
and merit reversal of the maintenance award.
Kathleen argues the alleged factual errors made by the
trial court do not warrant reversal. Specifically, Kathleen
contends the court did not (1) fail to consider Kathleen’s total
income potential, (2) overvalue Daniel’s income, (3) err in
considering the marital debt assumed by Daniel, (4) overvalue
Daniel’s estate, or (5) err in valuing Daniel’s 10% interest in
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Nord Farms.
1. Kathleen’s Income Potential
Daniel contends the trial court erred where it failed
to consider Kathleen’s potential annual income of $66,503.
Specifically, he contends the court did not consider (1)
Kathleen’s nonmarital farm’s annual earning potential of $23,503,
(2) the Guadalajara condo’s potential rental income of $30,000,
(3) and her potential salary of $13,000 at a minimum-wage job.
In the trial court’s written decision, it reviewed each
of the section 504(a) factors set forth above and methodically
considered the evidence applicable to each factor. It recognized
Kathleen received income from her nonmarital farmland
(approximately $2,300 per year) and considered the potential
rental income from the Guadalajara condominium Kathleen received
pursuant to the parties’ property settlement agreement. (The
parties’ daughter was living in this condominium until her
expected graduation from medical school in June 2009.) Kathleen
also received a 50% interest in 80 acres of McLean County
farmland. While recognizing the income potential of the
nonmarital farm, the McLean County farmland, the Guadalajara
condominium, and the six one-week timeshares owned by Kathleen,
the court found neither side produced sufficient evidence for it
to make a credible determination of the total income to be
generated from these assets. The court also noted requiring
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Kathleen to use these assets entirely for the generation of
income would impair the value those assets contributed to her
standard of living prior to the dissolution. Last, the court
considered Kathleen’s potential to earn income at a minimum-wage
level approximating $13,000 annually but noted this income would
be taxed at a higher rate when added to the maintenance award.
Thus, contrary to Daniel’s argument, the record shows
the trial court did consider Kathleen’s potential income from (1)
the nonmarital farmland, (2) the Guadalajara condominium, and (3)
minimum-wage employment. However, the trial court was not
required to make specific findings regarding the amount of income
Kathleen’s assets could produce. Heroy, 385 Ill. App. 3d at 656,
895 N.E.2d at 1041-42, citing In re Marriage of Zeman, 198 Ill.
App. 3d 722, 733, 556 N.E.2d 767, 773 (1990) (rejecting the ex-
husband’s argument that the trial court failed to consider the
income potential of the ex-wife’s property even though the trial
court made no calculations). Moreover, while Daniel argues
specific amounts may be generated from these assets, they have no
proven income stream. The fact the court did not determine with
mathematical precision the income from these assets does not mean
it failed to consider this factor when determining the
maintenance award. In re Marriage of Mittra, 114 Ill. App. 3d
627, 632, 450 N.E.2d 1229, 1232 (1983).
2. Daniel’s Income
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Daniel argues the trial court’s assertion his "average
income was approximately $1,100,000 per year for the years 2002
through 2008" shows the court overstated his income by failing to
consider nonrepetitive capital gains and gambling income. We
disagree.
According to the parties’ tax returns, Daniel’s total
gross income was $994,507 in 2002, $1,162,517 in 2003, $1,655,786
in 2004, $1,669,178 in 2005, $1,576,942 in 2006, and $898,827 in
2007. In addition, petitioner’s exhibits show Daniel’s total
gross income for 2008 was $813,031. As a result, Daniel’s
average income for 2002 to 2008 was over $1 million.
During the hearing on the motion to reconsider, the
trial court stated the following:
"I did mention, and it’s true, you can’t
quarrel with the numbers that the average,
the average came out to roughly 1.1 million
between [2002] and [2008]. That’s a fact.
But obviously, I did not reach the
conclusion that we can be sure that in future
years Daniel’s net income or gross income
would be 1.1 million. Be assured if I
thought he was going to gross 1.1 million a
year, maintenance would probably have been
higher."
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Daniel maintains the average should not reflect his
nonrepetitive capital gains of $328,963 in 2006, $336,593 in
2005, $59,486 in 2004, $120 in 2003, and $5,861 in 2002.
However, Daniel concedes no capital gains occurred in 2007 and
2008. The record shows the trial court based the maintenance
award on Daniel’s earnings during those last two years, stating,
"I sort of gave him the benefit of the doubt and concluded that
the last two years are, are a better representation of what his
future income is likely to be--somewhere in the $800,00--
[$]813,[000] one year and I think [$]834,[000] the next."
In this case, the trial court based its maintenance
award on Daniel’s 2007 and 2008 average income of approximately
$800,000. As a result, the court did not overstate Daniel’s
income by failing to consider the nonrepetitive nature of some of
Daniel’s income occurring from 2002 to 2006.
3. Daniel’s Marital Debt
Under the settlement agreement, Daniel assumed the bulk
of the parties’ marital debt in excess of $800,000, including a
consolidation loan agreement with Busey Bank in the amount of
$534,000. Daniel contends the trial court erred where no factual
basis existed for the court’s findings that (1) he would be debt-
free in less than three years and (2) Daniel had negotiated the
payment arrangement and created the situation where most of his
income was currently being applied to debt.
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In its opinion, the trial court noted the following:
"Daniel argues that his needs are
significant because of the amount of money he
spends each month to repay [the marital]
debt. At trial[,] Daniel testified that the
minimum payment on this debt is approximately
$32,500.00 a month. *** Daniel was solely
responsible, as between the parties, for
negotiating the payment arrangements of the
parties’ outstanding debt. If Daniel
continues to pay the debt at the amount
testified to, he will be debt free in less
than 3 years."
Daniel claimed at trial his minimum monthly payments on
the debts totaled $32,500. Consequently, Daniel argues, he has
limited funds available for the payment of maintenance. However,
as the trial court noted in its written decision, Daniel handled
the parties’ finances, including the debt-repayment schedule.
His Busey Bank loan was amortized over 48 months, and by the
February 2009 hearing, the principal had already been reduced by
$100,000. As the court pointed out, if Daniel amortized his
debts over a longer period of time, he could readily afford to
pay significant maintenance. Daniel created this aggressive
debt-repayment schedule, tying up the bulk of his monthly income
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in the repayment of debt. Kathleen should not be penalized as a
result.
Daniel also argues the trial court failed to consider
the federal and state income-tax liabilities resulting from
Daniel’s failure to timely pay his quarterly taxes and his
failure to have sufficient sums withheld from his salary to pay
his tax obligations. Specifically, Daniel argues the 2008
federal and state taxes had accrued and were due and owing but
were not included in the marital debt. We note that according to
Daniel, at the time of the hearing, he had paid off the 2006 and
2007 tax liabilities through a bank loan, which was counted as
part of the $841,466 total debt Daniel assumed.
As Kathleen points out, the record shows the 2008
federal and state taxes were in fact included in the parties’
marital debt of $841,446, which the court considered. Exhibit C
of the parties’ property settlement agreement shows a 2008 tax
liability of $143,680. During the hearing, Daniel also testified
he made two payments totaling $50,000 toward the 2008 tax debt.
The court stated it considered the $841,466 debt, which Daniel
agreed to assume. It also heard Daniel’s testimony regarding his
payments toward the 2008 taxes. As a result, Daniel’s argument
the court did not consider his outstanding tax liabilities fails.
4. The Value of Daniel’s Estate
Daniel first argues the trial court erroneously
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overvalued Daniel’s estate by $948,286 where it (1) believed he
received $841,000 more property than is reflected in the property
settlement agreement and (2) overvalued Daniel’s 10% interest in
Nord Farms by a minimum of $137,747.
On February 23, 2009, the parties filed their property
settlement agreement. Exhibits attached to the agreement showed
the marital and nonmarital property each party is to receive and
the value each party believes should be assigned to that
property. The following is a summary of the total value assigned
by each party to the marital and nonmarital property distributed
to each party (as reflected in the trial court’s opinion):
Daniel’s Kathleen’s
Values Values
Daniel’s Nonmarital $152,280 $705,125
Property
Kathleen’s Nonmarital $501,443 $474,020
Property
Daniel’s Marital $449,263 $748,078*
Property
Kathleen’s Marital $1,961,543 $1,880,274
Property
Daniel’s Total Nonmarital $601,543 $1,453,203
Property and Marital
Property
Kathleen’s Total Nonmarital $2,462,976 $2,354,294
Property and Marital
Property
* $330,000 of goodwill deducted at trial from Kathleen’s original
figure of $1,078,078.
Thus, as can be seen from the chart above, Daniel and
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Kathleen basically agreed on the value of property assigned to
Kathleen, but were over $850,000 apart on the values they each
assigned to Daniel’s property.
In its memorandum, the trial court points out that the
areas in contention are the values of Daniel’s nonmarital
property, consisting of a 10% interest in Nord Farms and Daniel’s
50% interest in his medical practice. Daniel values his interest
in Nord Farms at $152,280, whereas Kathleen values it at
$705,125. Daniel values his interest in the medical practice at
$135,000. Kathleen believes its value to be $370,000, after
conceding personal goodwill in the amount of $330,000 should not
be included in the value because she is seeking an award of
maintenance.
In its memorandum, the trial court found neither
party’s appraisal with regard to the Nord Farm property to be
realistic. The court found Kathleen’s appraisal too high, but
also found Daniel’s appraisal to be too low. Finding neither the
$2,800- (Daniel’s) nor $13,000- (Kathleen’s) per-acre figure to
be credible, the court found a more realistic value for Daniel’s
10% interest in Nord Farms to be between $300,000 and $400,000.
The court then substituted its value of $350,000 (calculated as
the midway point between $300,000 and $400,000) for the values
used by the parties for Daniel’s 10% interest in Nord Farms.
Following this adjustment, Daniel’s total nonmarital and marital
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property was valued as follows:
Daniel’s Kathleen’s
Values Values
Daniel’s Total Nonmarital $799,263 $1,098,078
Property and Marital
Property
With regard to Daniel’s 50% interest in his
professional practice, the trial court found the following:
"Initially, Kathleen valued this asset
at $700,000.00. At trial[,] Kathleen’s
counsel revised this figure to $370,000.00,
acknowledging that Daniel’s personal goodwill
should not be included in the value of his
professional practice. Daniel has placed a
value of $135,000.00 on his professional
practice. ***
The court has assessed the credibility
of the exhibits and testimony concerning the
value of Daniel’s professional practice and
finds that Daniel’s figure is more credible
and accepts $135,000.00 as being the value of
Daniel’s 50% interest in [his professional
practice.]"
The court then subtracted the difference between the parties’
valuations for his professional practice ($370,000 minus
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$135,000, or $235,000) from the value Kathleen placed on Daniel’s
total marital and nonmarital property and modified that figure to
$863,078 (i.e., $1,098,078 minus $235,000) to arrive at the
following values for their nonmarital and marital property:
Daniel’s Kathleen’s
Values Values
Daniel’s Nonmarital $350,000 $350,000
Property (Nord Farms)
Daniel’s Kathleen’s
Values Values
Kathleen’s Nonmarital $501,443 $474,020
Property
Daniel’s Marital $449,263 $513,078
Property
Kathleen’s Marital $1,961,543 $1,880,274
Property
Daniel’s Total Nonmarital $799,263 $863,078
Property and Marital
Property
Kathleen’s Total Nonmarital $2,462,976 $2,354,294
Property and Marital
Property
In its order, the trial court referenced the above
figures and stated the following:
"The court notes that the actual amount
of property received by Daniel is $841,446.00
more than what appears above because the
property figures are net figures which are
arrived at by taking the total amount of
property received and subtracting the amount
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of debt assumed by that party. Similarly,
the amount of property received by Kathleen
was actually $47,280.00 more than the net
figure reflected above because she assumed
$47,280.00 in debt." (Emphasis added.)
Later in its order, the trial court stated the
following:
"Daniel will receive between $800,000.00
to $860,000.00 in property. Daniel points
out that as part of the agreement he has
agreed to pay $841,000.00 in marital debt.
As the court has previously noted, the
property figures are net figures and the
total amount of property actually received by
Daniel is $841,000.00 more. *** Daniel
argues that he is not able to pay a
significant amount of spousal support because
of [the marital] debt. The court has
considered the reduction in the amount of
property he receives as a result of this
debt. To find that both he has received
considerably less property and has
considerably more debt would be in effect
double counting the debt." (Emphases added.)
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Based on the above-cited passages, Daniel argues the
trial court erred in finding he received $841,000 more property
than is reflected in the property settlement agreement.
During the hearing on Daniel’s motion to reconsider,
however, the trial court clarified its written order and stated
the following:
"It wasn’t the [c]ourt’s suggestion in
this opinion that [Daniel’s] net asset was
[$]841,000 more. The [c]ourt was simply
making an observation of the obvious--that if
you, whether you use the term ’net worth’ or
in the case of a divorce ’net assets,’ you
start out with the total property and you
subtract from that total debt to get the net.
If you have a thousand dollars worth of
property and you have two hundred dollars
worth of debt, you have eight hundred dollars
worth of net property.
The only point I was making there, and I
made this exact same observation with regard
to Kathleen. The only point I’m trying to
make is that the parties were arguing net
figures, but in terms of having property
available which could be used to dispose of
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debt, I’m also looking at the total amount of
property each party received; and that came
right from the parties’ own figures in the
marital settlement agreement.
***
[S]o, don’t misread the observations in
the opinion as thinking the [c]ourt was
mistakenly under the belief that [Daniel] has
$841,000 of more net property."
Thereafter, the following colloquy took place between
Daniel’s counsel and the trial court:
"MR. WEINTRAUB [(Daniel’s Attorney)]:
Well judge, why don’t you state that in your
opinion then? Why don’t you state in your
opinion, ’This is what I intended,’ and, you
know, just correct your opinion and state
that as opposed to what you actually stated
on pages six, nine[,] and ten, which I
believe will be totally misconstrued by an
[a]ppellate [c]ourt.
State in your opinion, ’Here is what I
intended,’ and then I can argue to the
[c]ourt, ’All right, look. My client has
$846,000 in debt. He has got $831,000 of
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property found by the [c]ourt,’ your own
finding, ’which basically leaves him with a
zero estate.’
But, you know, if you’re going to state
that, Judge, state that. State what you said
this morning in a corrected ruling as opposed
to what you stated on pages six, nine, and
ten.
[THE COURT:] Well, I’m not going to
amend the opinion. I said exactly what I
meant, and I think it’s clear as a bell.
If you have read something into that, I
guess you can make a record of what you
thought I meant, but I think the language is
clear. It’s simply an observation of what is
available to the parties to either reduce
debt or use to support their lifestyle.
I made the exact same observation as to
Kathleen, but we’re talking about much
smaller debt numbers. But I made the same
observation, and that’s all that was
intended, is to identify the total amount of
property available to each side.
I understand his net property is
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[$]841,000 less. I don’t think anybody could
read this opinion and misconstrue the meaning
of that."
We understand the trial court’s statements to mean only
what it said--that the total value of the property distributed to
the parties was a net value, i.e., the debt distributed to each
party was subtracted from the total value of all property
distributed to each party and this "net" figure is reflected in
the parties' exhibits attached to the property settlement
agreement and in the court’s order. The court made it clear
during the hearing on Daniel’s motion to reconsider that it "was
not mistakenly under the belief that [Daniel] has $841,000 of
more net property." Moreover, the court clearly acknowledged
Daniel’s net assets did not amount to $841,000 more than the
amount of property he received. Upon review of the record, we
find no basis for Daniel’s argument on appeal. As a result,
Daniel’s argument the court overvalued his estate by $841,000
fails.
5. Value of Nord Farms
Daniel next contends the trial court erroneously
overvalued Daniel’s 10% interest in his nonmarital farmland.
Specifically, Daniel contends the court erred in stating in its
opinion that the total acreage of the farmland appraised was
541.24 acres. Instead, Daniel maintains the court’s opinion
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included acreage not owned by Nord Farms, and the correct amount
was 328.32 total acres. As a result, Daniel argues the court
overvalued his 10% interest by at least $137,747--based upon the
court’s apparent determination the land was worth $6,467 per acre
($350,000 value divided by 54.24 acres equals $6,467). In
reality, however, the court did not assign a per-acre value to
Nord Farms. Even Daniel’s expert testified different tracts of
the farm carried different values as a result of different uses.
Some of the land was commercial, some was residential, and some
was agricultural.
Kathleen appears to concede the trial court’s
determination of the amount of land at issue was incorrect but
argues this error was harmless. Specifically, Kathleen contends
Daniel has failed to show any prejudice resulting from the
miscalculation.
According to James Riker, Daniel’s land appraiser, the
the total amount of land comprising Nord Farms is 328.32 acres.
The amount of acreage reflected in Donald Cochran’s report
(Kathleen’s land appraiser) was 417.92 total acres. In its
written opinion, the trial court stated the following:
"The total number of acres of which
Daniel owns 10% is 541.24. While the court
is not in the position to substitute its
judgment for that of certified appraisers,
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the court agrees with Daniel that Kathleen’s
appraisal is too high and the court agrees
with Kathleen that Daniel’s appraisal is too
low. Neither $2,800.00 nor $13,000.00 per
acre appear to be credible figures. It is
the court’s judgment that a more realistic
[figure] for the value of Daniel’s 10%
interest in Nord Farms, Inc. is between
$300,000.00 and $400,000.00."
In this case, the trial court erred by stating Nord
Farms consisted of 541.24 total acres, where Riker’s testimony
showed it consisted of 328.32 total acres, a difference of 212.92
total acres, and Cochran’s report showed it was 417.92 acres, a
difference of 123.32 acres. However, we find the court’s
calculation error immaterial.
According to Riker, the value of Daniel’s 10% interest
in Nord Farms was $152,280. According to Cochran, the value of
Daniel’s 10% interest was $705,125. In its opinion, the trial
court valued Daniel’s 10% interest at $350,000. An examination
of Daniel’s 10% interest in the farmland, as opposed to the total
acreage, shows the court erred by either counting just either
21.29 or 12.33 additional acres (10% of 212.92 or 123.32 acres
erroneously included).
This error is especially insignificant (1) when
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compared to the total marital property accumulated during the
marriage and (2) in relation to the issue of maintenance, which
in this case is more a function of Daniel’s annual income than
his nonmarital property. See, e.g., In re Marriage of Toole, 273
Ill. App. 3d 607, 617, 653 N.E.2d 456, 463-64 (1995) (finding
while the trial court made an $11,000 valuation error, the error
was harmless in light of the entire distribution scheme of the
estate valued at $136,503); In re Marriage of Weinstein, 128 Ill.
App. 3d 234, 248, 470 N.E.2d 551, 562 (1984) (finding the trial
court’s possible $4,300 valuation error harmless where the estate
was valued at $115,000); see also 750 ILCS 5/504(a)(1) (West
2008) (a factor to consider when determining maintenance is "the
income and property of each party, including marital property
apportioned and non[]marital property assigned to the party
seeking maintenance").
We note it would have been within the trial court’s
discretion to have accepted as credible Kathleen’s expert’s
opinion that the land was worth $13,000 per acre. See In re
Marriage of Reppen-Sonneson, 299 Ill. App. 3d 691, 693, 701
N.E.2d 1159, 1160 (1998) (conflicts in testimony regarding the
value of assets are matters for the trier of fact, and a
valuation within the range testified to by the parties’ experts
will not be disturbed on review). Thus, the court could have
valued Daniel’s 10% interest at $426,790 ($13,000 multiplied by
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32.83 acres) or even $543,270 ($13,000 multiplied by 41.79 acres)
without having abused its discretion.
Morever, at the conclusion of the hearing on the motion
to reconsider, the trial court stated the following:
"So the [m]otion to [r]econsider will be
denied, and as far as correcting the factual
errors, I think I disagree that some of those
are errors. And the one potential error may
be in the amount of acres involved in [Nord
Farms], but I still think the [c]ourt’s
estimate of the value is, is reasonable.
I don’t know if we can ever put an exact
dollar figure on it, and obviously two
experts didn’t necessarily agree, if they did
agree on the number of acres. But I think
that’s a fair assessment, and if I overvalued
that asset by $137,000 it would not affect
the [c]ourt’s judgment." (Emphases added.)
As a result, we find the trial court’s valuation error
harmless.
D. The Amount of Maintenance Awarded
In this case, the parties lived an extravagant
lifestyle. They enjoyed luxury automobiles such as Mercedes,
Lexus, Jaguar, Porsche, and Rolls-Royce. Kathleen routinely
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shopped at stores such as Saks Fifth Avenue and Neiman Marcus.
The parties had employed multiple servants at both their
Bloomington and Guadalajara homes. The parties regularly
entertained friends and dignitaries in their home. They also
traveled and vacationed in Australia, New Zealand, Europe,
Mexico, Africa, and Japan.
The parties were married for approximately 34 years
before the initiation of these proceedings. While Kathleen
received a larger portion of the marital estate (between
$1,888,274 and $1,961,543) than Daniel (between $449,263 and
$513,078), Daniel has the greater present and future potential to
earn income and acquire assets. Kathleen, who was 58 years old
at the time of the hearing, has a high school education, little
job experience, and has not worked outside the home in 30 years.
The trial court based its maintenance award on Daniel’s 2007 and
2008 average income of approximately $800,000 per year. The
court awarded Kathleen $17,000 per month, or $204,000 per year in
maintenance. Thus, Kathleen’s maintenance represents
approximately 25.5% of Daniel’s income.
Daniel argues, however, that the award is reversible
under In re Marriage of Bratcher, 383 Ill. App. 3d 388, 390, 890
N.E.2d 1232, 1234 (2008). In Bratcher, this court reversed a
$12,500-per-month maintenance award where the wife was awarded an
equalizing lump-sum payment of $876,759 and commercial property
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valued at $725,000. Bratcher, 383 Ill. App. 3d at 388-89, 890
N.E.2d at 1233. However, this case is distinguishable from
Bratcher. The court in Bratcher found the ex-wife’s income
combined with the awarded maintenance would have resulted in
$26,500 monthly for the ex-wife, leaving the ex-husband with
$14,500 monthly. Bratcher, 383 Ill. App. 3d at 389, 890 N.E.2d
at 1234. Morever, in Bratcher, the ex-wife was awarded an asset
with a proven income stream of approximately $8,193 per month, or
almost $100,000 per year. Bratcher, 383 Ill. App. 3d at 389, 890
N.E.2d at 1233-34.
In this case, despite Daniel’s argument to the
contrary, the condominium and the marital farmland have only
speculative income-producing potential. As previously stated,
the fact the trial court did not determine with mathematical
certainty the income-generating potential of Kathleen’s assets
does not mean it failed to consider this factor in awarding
maintenance. Mittra, 114 Ill. App. 3d at 632, 450 N.E.2d at
1232. Moreover, "’where the spouse from whom maintenance is
sought has sufficient income to meet his own needs while meeting
those of his spouse, the spouse seeking maintenance is not
required to sell her assets or impair her capital in order to
maintain herself in the manner established during the marriage.’"
(Emphasis omitted.) In re Marriage of Mayhall, 311 Ill. App. 3d
765, 768, 725 N.E.2d 22, 25 (2000), quoting In re Marriage of
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Thornton, 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336, 1344
(1980). The court’s order reflects its careful consideration of
each applicable factor to be considered under sections 504(a)(1)
through (a)(12) (750 ILCS 5/504(a) (West 2008)). While Kathleen
originally sought $31,000 per month and Daniel sought to pay only
$5,000 per month, the court found both of these figures
unrealistic in light of the facts of this case. The court did
not abuse its discretion in awarding Kathleen $17,000 per month
in maintenance.
E. The Duration of Maintenance
Daniel last argues the trial court erred by awarding
Kathleen permanent maintenance of $17,000 per month. Instead,
Daniel contends Kathleen should be awarded $5,000 per month for
five years. Daniel thus argues the court erred by awarding
Kathleen permanent maintenance as opposed to rehabilitative
maintenance.
"Permanent maintenance should be awarded where a spouse
is not employable or is only employable at a lower income as
compared to the spouse's previous standard of living." Walker,
386 Ill. App. 3d at 1044, 899 N.E.2d at 1105. Rehabilitative
maintenance is appropriate where the spouse is employable at an
income that would provide the spouse the approximate standard of
living enjoyed during the marriage. In re Marriage of Selinger,
351 Ill. App. 3d 611, 615, 814 N.E.2d 152, 158 (2004). It is
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within the trial court's discretion to set the duration of the
maintenance award. Selinger, 351 Ill. App. 3d at 614, 814 N.E.2d
at 157. The trial court is in a better position to determine
whether permanent or rehabilitative maintenance was more
appropriate. In re Marriage of Golden, 358 Ill. App. 3d 464,
469, 831 N.E.2d 1177, 1181 (2005), citing In re Marriage of Gunn,
233 Ill. App. 3d 165, 179, 598 N.E.2d 1013, 1022 (1992). The
court's decision to award permanent or rehabilitative maintenance
will not be overturned unless the court abused its discretion.
Walker, 386 Ill. App. 3d at 1044, 899 N.E.2d at 1105.
We note permanent maintenance is not limited to spouses
who are unemployable. See Heroy, 385 Ill. App. 3d at 652-53, 895
N.E.2d at 1038-39 (affirming a maintenance award to the ex-wife
who had a law degree and earning potential of more than $100,000
per year). Permanent maintenance is also appropriate where a
spouse is "only employable at a lower income as compared to the
spouse’s previous standard of living." Walker, 386 Ill. App. 3d
at 1044, 899 N.E.2d at 1105. "In lengthy marriages in which the
recipient of maintenance served as caregiver for the children,
’"[t]here is no question but that Illinois courts give
consideration to a more permanent award of maintenance to wives
who have undertaken to *** raise and support the family."’"
Culp, 341 Ill. App. 3d at 398, 792 N.E.2d at 458, quoting In re
Marriage of Drury, 317 Ill. App. 3d 201, 206, 740 N.E.2d 365, 368
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(2000), quoting In re Marriage of Rubinstein, 145 Ill. App. 3d
31, 40, 495 N.E.2d 659, 665 (1986).
In this case, Kathleen and Daniel married in 1972, when
Kathleen was 21 years old. During the early years of the
marriage, while Daniel was in medical school, Kathleen held
various jobs. However, since 1980, and with Daniel’s agreement,
Kathleen stayed home to raise the parties’ two children.
Kathleen is a high school graduate who has not been employed
outside the home since 1980--almost 30 years at the time of the
February 2009 maintenance hearing.
During closing arguments, Daniel questioned Kathleen’s
inability to obtain a job, asking "is it so unreasonable that
[Kathleen] work half the hours that her husband works? I mean,
I’m not even asking her to work the amount of hours he works.
*** Is it so unreasonable to ask that she work at least part of
the time when she’s in good health and she’s the exact same age
as [Daniel]?" However, the goal that the spouse obtain
employment is balanced against the likelihood that the "spouse
will be able to support herself in some reasonable approximation
of the standard of living established during the marriage." In
re Marriage of Stam, 260 Ill. App. 3d 754, 757, 632 N.E.2d 1078,
1080 (1994). "[W]hen the facts make it clear that one spouse is
unable to support herself in the manner in which they lived
during the marriage, then it is an abuse of discretion to award
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only rehabilitative maintenance." (Emphases omitted.) In re
Marriage of Carpel, 232 Ill. App. 3d 806, 828, 597 N.E.2d 847,
863 (1992). The record contains no evidence that Kathleen is
employable at an income that would provide anything near the
approximate standard of living enjoyed during the marriage.
Accordingly, we find no abuse of discretion in the court’s
decision to award permanent maintenance.
In this case, Daniel has not established the trial
court's findings of fact were against the manifest weight of the
evidence or its maintenance award was an abuse of discretion.
The court's written findings and orders show it considered all of
the section 504 factors and the evidence before it. Having
reviewed (1) the record; (2) the court's detailed, written order;
and (3) the parties’ property settlement agreement, under the
applicable standard of review, we conclude the court did not
abuse its discretion by awarding Kathleen permanent maintenance
of $17,000 per month.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
KNECHT and APPLETON, JJ., concur.
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