In re Marriage of Walker ( 2008 )

Filed 11/26/08 NO. 4-07-0730
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
BARBARA G. WALKER, ) Circuit Court of
Petitioner-Appellee, ) Adams County
and ) No. 06D192
DAVID P. WALKER, )
Respondent-Appellant. ) Honorable
) Mark A. Drummond,
) Judge Presiding.
________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
Petitioner, Barbara G. Walker, filed a petition for
dissolution of marriage in August 2006 from respondent, David P.
Walker. In April 2007, the trial court entered the judgment for
dissolution of marriage and its order on the remaining issues.
On appeal, David argues the trial court erred in (1)
its findings of his net income, (2) the division of marital
property, (3) its award of permanent maintenance to Barbara, and
(4) requiring David to maintain a life-insurance policy to secure
the maintenance payments. We affirm.
I. BACKGROUND
Barbara and David were married on January 26, 1981.
The parties had two children during the marriage, Christopher and
Stacey, both of whom are adults. The parties separated in 2002.
In August 2006, Barbara filed a petition for dissolution of
marriage.
In March 2007, the trial court conducted a hearing on
the petition for dissolution and related issues. Barbara testi-
fied she was 52 years old and worked as a teacher in the Quincy
public school system. Her net income amounted to approximately
$2,500 per month. She stated David made in excess of $200,000
per year gross salary. Barbara claimed $3,562.09 in monthly
expenses, which included the mortgage. The marital residence was
appraised at $221,000 with an outstanding mortgage of
$132,892.99. Barbara testified she had lived in the home for 11
years and she had no desire to sell it because she loved the
community and was "very comfortable" in the home. David made the
monthly mortgage payments of $814 plus $325 in taxes.
Barbara testified she had a retirement fund with the
Teacher's Retirement System of the State of Illinois, which would
pay her between $800 and $1,300 if she chose to retire. At
retirement, she would have to choose between the fund or social
security. She requested maintenance based on the 26-year mar-
riage as well as $3,800 in attorney fees.
On cross-examination, Barbara testified she did not
know David's $204,000 gross income included an $81,000 bonus in
2006 for performance in 2005. She testified she had nonmarital
stocks valued at approximately $14,360. Barbara also worked as
an adjunct professor at Quincy University and received $3,200 in
gross income per year.
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David, age 50, testified he lived in Andover, Massachu-
setts, and worked as vice president of engineering for Microwave
Radio Communications. He stated his "salary structure is
$135,000 base plus a performance bonus of 30[%]." His net pay
per month was $7,515.09. He received an $81,000 bonus in March
2006. He did not expect to receive a bonus "to that degree" in
the future. His 2007 bonus amounted to $40,000.
David stated he was agreeable to a 60/40 split in favor
of Barbara. He was also willing to pay maintenance of $1,025 per
month for two years. David had a life-insurance policy through
his employment with Barbara as the beneficiary.
In April 2007, the trial court issued the judgment for
dissolution of marriage. In the division of property, the court
awarded each party his or her personal property. The court
awarded the marital residence to Barbara. She also received her
interest in her retirement plan ($30,691) and the bank accounts
($5,010). David received his VISLINK 401K plan ($26,400), his
Glenayre retirement savings plan ($31,820), his Fidelity individ-
ual retirement account ($29,159), and his interest in the Bank of
America account ($23,700). The distribution amounted to approxi-
mately $104,644 to David and $155,279 to Barbara. The court
ordered David to pay Barbara $10,000 representing the 60/40 split
of marital assets between the parties.
The trial court also ordered David to pay $2,000 per
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month in maintenance for the months of April and May 2007, as he
continued to pay for Stacey's college expenses. In June 2007,
the court ordered David to pay $3,000 per month through May 2014.
Because Barbara will receive between $800 and $1,300 from her
retirement fund beginning in May 2014, the court required David
to pay only $1,640 per month thereafter. Also, the court re-
quired David to maintain life insurance naming Barbara as sole
beneficiary. The award of maintenance was subject to modifica-
tion based on a change in circumstances.
The trial court made specific findings in open court
pertinent to this appeal:
"THE COURT: Okay. The court's consid-
ered the evidence and the arguments and ap-
plies the statutory considerations with re-
gard to maintenance and property division.
The court will do a variation of the
60/40 split. The court awards her all of her
nonmarital property as set forth in her pre-
trial memorandum and notes there is approxi-
mately $14,000 in stock in addition to some
personal items in the--in her list.
Each party is awarded their personal
property currently held in their possession,
and the court is awarding the distribution as
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set forth on the [r]espondent's proposed
distribution with this proviso, and that is I
read down the numbers and taking the value of
the--to the husband of the Chevy at [$]409,
the Fidelity IRA I don't believe is [$]30,69-
1, I believe that is [$]29,159. I have added
[$]5,300 onto the Vislink 401K and rounded
that off at $26,400. Glenayre at [$]31,820.
I am awarding him the household items
he's requested, which amount to, the court
finds, at $140, so I am lowering the house-
hold items from [$]1,150 on his side down to
[$]140 and, accordingly, increasing hers on
the other side by that difference, and the
account of the Bank of America at [$]16,016.
I am adding in the kayak of [$]700. I come
to a total of [$]104,644.
She is awarded those items that are
listed on her side of the ledger. I have
increased the household items to [$]7,420,
and what I am going to order is on the payout
from [r]espondent, instead of [$]7,450, I am
rounding that off to an even $10,000. If I
would go to strictly 60/40 with no fractions,
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it would be [$]1,694, but I am taking into
account the attorney[] fees she's having to
pay. So it's 60/40, some odd percentage.
I'm not exactly sure what it is, but I don't
think it's even a full percent. So we need
to increase payout from [r]espondent by
$2,550.
Each party will pay their own attorney[]
fees, and with the maintenance award the
court finds that she can pay her attorney[]
fees.
Sara graduates in May. Am I correct on
that?
[PETITIONER'S ATTORNEY]: Yes.
[RESPONDENT]: Stacey, Your Honor. But
yes.
THE COURT: Stacey. I'm sorry. I don't
know where I got Sara.
The husband certainly has not been mi-
serly with regard to maintenance. He was at
$800 per week, which results in a payment of
$3,466 per month. That was then lowered to
[$]385 per week plus paying the mortgage, so
that lowered it to $2,873. However, at
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trial[,] the husband's position is a position
that I cannot accept under the case law.
When you have got a marriage of 26 years with
this disparity in income, I don't know of any
case where we have this value of property
distribution, even in a 60/40 split, that
would limit maintenance to [two] years at
this amount. There is simply too great a
disparity in income. There's not enough
assets to provide her security, and the court
notes that she has submitted what is essen-
tially a bare[-]bones budget. The court
notes that the husband is putting away a
thousand--nearly $1,000 a month in the 401K,
and she certainly ought to have funds suffi-
cient for her to live on, and in addition,
enjoy the life[]style to which the parties
had become accustomed.
The court is going to vary the mainte-
nance, though, based upon several contingen-
cies. First of all, the husband has and did
not put the wife to the time and expense of
filing a post-18 educational support case,
which is to his credit. Therefore, the main-
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tenance amount--
Has March been paid, the mortgage and
all of that?
[PETITIONER'S ATTORNEY]: I don't know.
[RESPONDENT]: That's correct.
THE COURT: So, for the months of April
and May, the maintenance amount is going to
be $2,000 for those [two] months, because
he's paying for the daughter's education. It
will go up to $3,000 per month and that will
be through the month of May of the year 2014.
The reason I pick that date is on her
[e]xhibit G that is her, [']retirement
date.['] That is [seven] years of mainte-
nance at $3,000 per month.
At that date, beginning with the June
payment, I am lowering it by the amount that
she should or could receive of [$]1,360. So
his maintenance payment will lower to $1,640
per month. During the time period that he is
paying maintenance[,] he is to maintain her
as a beneficiary on his insurance policy,
providing proof of that to her every year.
My biggest concern about maintenance is,
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ma'am, if I were to award you the maintenance
and he would, unfortunately, walk out here
and get hit by a car, the maintenance is
gone, because it ends upon his death. So,
the court attempts in maintenance awards,
instead of just setting it flat out, that I
want to set up various contingencies. So we
have the [$]2,000 for [two] months, goes up
to [$]3,000, and then we have a lowering of
it in the year 2014 when she becomes eligible
for her retirement.
In addition, it is secured by the life
insurance. In the event he should lose his
job and that life insurance is gone, then I
think this court or the parties should do the
following: I still want her maintenance pay-
ments secured by life insurance, but if he
has to go out into the market and purchase
life insurance, then the monthly maintenance
amount should be lowered by the amount that
he has to pay for insurance to secure her
maintenance payments, and for example, if
he's paying $36,000 per year and an insurance
policy costs him $2,000, well, let's make it
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easy, $2,400 per year, then the maintenance
should probably, in my opinion, be lowered by
the $200 per month he's paying for that
life[-]insurance policy.
The disparity in income at this point is
simply too large for me to limit maintenance
to [two] years, and I can't right off the top
of my head think of a maintenance case where
we had a marriage of this length where it was
limited for [two] years and limited to this
amount.
It is, of course, modifiable for any
change of circumstance. It is gone if she
remarries. It is gone if she cohabitates.
Likewise, should he lose his job or his in-
come be lowered, it can be varied on that
basis also.
So, what I have tried to build in here
is contingencies that will keep both of you
out of court by lowering the maintenance in
[seven] years, by securing the maintenance
with the life insurance, and giving the hus-
band a break--I know it is, albeit for only
[two] months, but since he is paying the
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daughter's, I think it should be $2,000 for
the next [two] months."
In May 2007, David filed a motion to vacate and recon-
sider, asking the trial court to reconsider its award of perma-
nent maintenance. In July 2007, the court denied the motion.
The court declined to reconsider its decision on maintenance and
division of property in light of the disparity in income, the
length of the marriage, and the fact that the property awarded to
Barbara was, for the most part, nonincome producing.
This appeal followed.
II. ANALYSIS
A. The Trial Court Did Not Err in Its Award of
Permanent Maintenance to Barbara
David first argues the trial court erred in its award
of permanent maintenance to Barbara. We disagree.
Section 504(a) of the Illinois Marriage and Dissolution
of Marriage Act (Dissolution Act) sets forth 12 factors for the
trial court to consider in deciding whether to grant a temporary
or permanent maintenance award, as follows:
"(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 ca-
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pacity 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 de-
layed education, training, employment, or
career opportunities due to the marriage;
(5) the time necessary to enable the
party seeking maintenance to acquire appro-
priate education, training, and employment,
and whether that party is able to support
himself or herself through appropriate em-
ployment or is the custodian of a child mak-
ing 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 emo-
tional condition of both parties;
(9) the tax consequences of the property
division upon the respective economic circum-
stances of the parties;
(10) contributions and services by the
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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
(12) any other factor that the court ex-
pressly finds to be just and equitable." 750
ILCS 5/504(a) (West 2006).
The trial court has the discretion to determine the
amount and duration of an award of maintenance. In re Marriage
of Donovan, 361 Ill. App. 3d 1059, 1062, 838 N.E.2d 310, 314
(2005). When a party challenges the trial court’s factual
findings, a reviewing court will affirm unless the court’s
findings were clearly against the manifest weight of the evi-
dence. In re Marriage of Wojcik, 362 Ill. App. 3d 144, 153, 838
N.E.2d 282, 290 (2005). However, the court's ultimate decision
to award maintenance will not be reversed on appeal absent an
abuse of discretion. Donovan, 361 Ill. App. 3d at 1062, 838
N.E.2d at 314. An abuse of discretion occurs where no reasonable
person would adopt the view taken by the trial court. Wojcik,
362 Ill. App. 3d at 168, 838 N.E.2d at 302. "Where an abuse of
discretion in awarding or denying maintenance is claimed, the
burden of showing such an abuse rests with the claiming party."
In re Marriage of Homann, 276 Ill. App. 3d 236, 240, 658 N.E.2d
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492, 495 (1995).
1. The Trial Court’s Finding of David’s Net Income Was Not
Against the Manifest Weight of the Evidence
David argues the trial court's award of permanent
maintenance was against the manifest weight of the evidence
because the award was based on an inflated figure for his net
income. In determining the amount of maintenance, a trial court
should consider the parties' income at the time of dissolution as
well as their potential incomes. In re Marriage of Harlow, 251
Ill. App. 3d 152, 161, 621 N.E.2d 929, 937 (1993). A court’s
factual finding as to the parties’ annual incomes will be re-
viewed under the manifest-weight-of-the-evidence standard.
Wojcik, 362 Ill. App. 3d at 153, 838 N.E.2d at 290.
In this case, the judgment order does not indicate
David's annual net income in the calculation of maintenance.
David testified he earned $135,000 per year plus a 30% perfor-
mance bonus. His December 1, 2006, earnings statement shows
gross pay of $204,469.44, including a bonus of $81,200. A letter
from his employer indicated the $81,200 included an executive
bonus of $31,200 and a performance bonus of $50,000. David
testified this executive bonus was "a one-time thing" and charac-
terized it as "unusual." He received a $40,500 bonus in 2007,
raising his total earnings for that year to $175,500. He testi-
fied no other bonuses were forthcoming in 2007 and he had not
deferred any bonuses or income. At the hearing on the motion to
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reconsider, the trial court indicated it made its decision on
maintenance based on David's income of $204,000 versus Barbara’s
income of $37,000.
Here, the trial court’s determination of David’s net
income was not clearly against the manifest weight of the evi-
dence. The only evidence presented to the court regarding
David’s net income was his 2006 income of $204,000 and his 2007
income of $175,000. Although David testified that the $31,200
executive bonus in 2006 was "unusual," he presented no other
evidence to show that he would not receive a similar or even
greater performance bonus in the coming years.
While the trial court did not make an express finding
as to David’s credibility, the court clearly rejected David’s
testimony that the bonus was a one-time occurrence. The trier of
fact is charged with assessing the credibility of a witness’s
testimony at trial. In re Marriage of Manker, 375 Ill. App. 3d
465, 477, 874 N.E.2d 880, 890 (2007). A reviewing court will
defer to a trial court’s determination of credibility because the
trial court is in the best position to observe the conduct and
demeanor of witnesses. Manker, 375 Ill. App. 3d at 477, 874
N.E.2d at 890. Therefore, this court defers to the trial court’s
implied finding of credibility and decision to base its order of
maintenance on David’s 2006 income.
Further, recognizing David’s income may fluctuate from
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year to year, the trial court specifically stated that David may
ask the court for a modification if he experiences a substantial
change in income. Therefore, the court’s determination of
David’s net income was not against the manifest weight of the
evidence.
2. The Trial Court Did Not Abuse Its Discretion in
Its Division of Property
David argues the trial court erred in its allocation of
marital and nonmarital property as its actual division of prop-
erty did not meet the 60/40 split as intended by the parties.
David also contends the error in the division of property re-
sulted in an award of permanent maintenance that was against the
manifest weight of the evidence.
Section 503(d) of the Dissolution Act requires the
trial court divide marital property "in just proportions consid-
ering all relevant factors." 750 ILCS 5/503(d) (West 2006). The
court has broad discretion in the distribution of marital assets.
In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1113, 806
N.E.2d 701, 706 (2004). "The touchstone of proper and just
apportionment is whether it is equitable in nature." In re
Marriage of Dunlap, 294 Ill. App. 3d 768, 778, 690 N.E.2d 1023,
1029 (1998). An award of property in just proportions does not
mean equal proportions, and a trial court does not abuse its
discretion in awarding a larger share of the marital property to
one party. In re Marriage of Murphy, 259 Ill. App. 3d 336, 344,
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631 N.E.2d 893, 898 (1994).
In this case, the trial court did not itemize the
division of marital property in the dissolution judgment.
Further, some of the figures in the court's April 2007 dissolu-
tion judgment do not match those mentioned at the March 2007
hearing. The envelope of exhibits on appeal includes a two-page
document of David's proposed distribution of property and mainte-
nance. This document has no exhibit number but contains the
court’s strikeouts and additional handwritten figures in the
distribution of property. The court referenced David's "proposed
distribution" at the hearing, read through the items listed, and
indicated any changes it had made. The court, however, made no
mention of that document in the dissolution judgment.
David attempted to set forth the trial court's line-by-
line distribution in his statement of facts and listed the amount
awarded him as $104,644. Unfortunately, the numbers listed only
total $85,869. In the distribution to Barbara, David listed
$2,059.10 in her savings account, but he did not list the Bank of
America account ($3,563) or the Mercantile Bank account ($1,447)
mentioned in the court's order. David also stated Barbara
received assets totaling $151,230, but the court apparently
determined the amount to be $155,279. Barbara did not include a
line-by-line itemization in her brief.
The trial court apparently awarded Barbara the follow-
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ing:
Her retirement fund $ 30,691
Bank of America account $ 3,563
Mercantile Bank account $ 1,447
Marital residence (equity) $ 88,463
Jeep $ 10,000
Toyota $ 3,695
Her personal property $ 7,420
David's payment $ 10,000
Total $155,279
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David received the following:
Fidelity IRA $ 29,159 (court's order
states $30,691)
VISLINK account $ 26,400
Glenayre account $ 31,820
Household items $ 140
Bank of America account $ 16,016 (court's order
states $23,700)
Chevy Trail Blazer $ 409
Kayak $ 700
Total $104,644
Taking these figures into consideration, Barbara
received 59.7% of the marital property, while David received
40.3%. David argues his $10,000 payment to Barbara was not
removed from his total, thereby skewing the 60/40 distribution.
With receipt of only $94,644, David's total actually amounted to
37.9% ($94,644/$249,923).
Although the percentages differ slightly from the
proposed 60/40 distribution, the difference is minimal. See In
re Marriage of Alexander, 368 Ill. App. 3d 192, 205, 857 N.E.2d
766, 776 (2006) (error in valuation of property was de minimus).
Further, Barbara received few liquid assets, including the
$14,000 in nonmarital stocks, while David had several accounts
totaling over $100,000. The trial court did not abuse its
discretion.
3. The Trial Court Did Not Abuse Its Discretion in Awarding
Barbara Permanent Maintenance
David argues Barbara's good health, employment history,
and lifestyle did not warrant an award of permanent maintenance.
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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. In re Marriage of
Schiltz, 358 Ill. App. 3d 1079, 1084, 833 N.E.2d 412, 415-16
(2005). A spouse should not be required to lower the standard of
living established in the marriage as long as the payor spouse
has sufficient assets to meet his needs and the needs of his
former spouse. In re Marriage of Drury, 317 Ill. App. 3d 201,
207, 740 N.E.2d 365, 369 (2000). A court's maintenance decision
will not be overturned on appeal unless the court abused its
discretion. In re Marriage of Gentry, 188 Ill. App. 3d 372, 376,
544 N.E.2d 435, 438 (1989).
Barbara testified her net income from her teaching
positions amounted to approximately $2,500 per month. Her listed
monthly expenses amounted to $3,500, which included nearly $1,200
for the mortgage and taxes that David had been paying. She
testified her expenses reflected her current lifestyle as well as
that which she enjoyed during the marriage. The trial court
ordered David to pay $2,000 per month in permanent maintenance
for April and May 2007, then $3,000 per month through May 2014.
Beginning in May 2014, Barbara will receive between $800 and
$1,300 from her Teacher’s Retirement Fund. For this reason, the
court required David to pay only $1,640 per month in permanent
maintenance starting in May 2014.
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The trial court’s award of permanent maintenance in the
amount of $3,000 through May 2014, and $1,640 thereafter, does
not constitute an abuse of discretion. The testimony indicated
Barbara's income failed to cover the monthly expenses needed to
maintain the standard of living enjoyed during the 26-year
marriage. She earned approximately $2,500 per month from teach-
ing, and her salary would most likely not increase by a signifi-
cant amount during the years leading up to retirement. David, on
the other hand, had sufficient income to meet both his needs and
Barbara's needs. Therefore, the court did not abuse its discre-
tion in awarding Barbara maintenance on a permanent basis.
B. The Trial Court Did Not Err in Ordering David To Maintain Life
Insurance as Security for Barbara’s Maintenance Payments
David argues the trial court erred in requiring him to
maintain a policy of insurance to secure the maintenance payments
in the event of David’s death. We disagree.
This court has previously held that a trial court does
not have the authority to order a payor of maintenance to keep an
insurance policy on his life as security for maintenance. In re
Marriage of Clarke, 125 Ill. App. 3d 432, 439, 465 N.E.2d 975,
979 (1984). The Clarke court based its holding, in large part,
on section 510(b) of the Dissolution Act, which stated that the
obligation to pay future maintenance terminated upon the death of
either party. Clarke, 125 Ill. App. 3d at 436, 465 N.E.2d at
977; Ill. Rev. Stat. 1983, ch. 40, par. 510(b) ("Unless otherwise
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agreed by the parties in a written agreement set forth in the
judgment or otherwise approved by the court, the obligation to
pay future maintenance is terminated upon the death of either
party" (now found in 750 ILCS 5/510(c) (West 2006))). This court
also relied on the fact that a previous version of the divorce
statute contained a section allowing the trial court to order
security for maintenance, while the current statute did not have
a similar provision. Clarke, 125 Ill. App. 3d at 436-37, 465
N.E.2d at 977-78.
However, nine years later in In re Marriage of Vernon,
253 Ill. App. 3d 783, 625 N.E.2d 823 (1993), this court called
into question the holding of Clarke and whether a court has the
authority to order insurance as security for maintenance. In
Vernon, this court reasoned that while the Dissolution Act does
prohibit maintenance payments after a payor’s death, the Dissolu-
tion Act does not prohibit payments during a payor’s life that
may have an effect after the payor’s death. Vernon, 253 Ill.
App. 3d at 789, 625 N.E.2d at 828. For example, a trial court is
encouraged to award a large amount of property in lieu of mainte-
nance, so that property, like insurance, is available to the
payee after the payor’s death. Vernon, 253 Ill. App. 3d at 789,
625 N.E.2d at 828. From this, the Vernon court concluded that
section 510(b) of the Dissolution Act does not address the
possible use and potential effect of maintenance payments but
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only the time in which payments may be made. Vernon, 253 Ill.
App. 3d at 789, 625 N.E.2d at 828; see also Ill. Rev. Stat. 1983,
ch. 40, par. 510(b) (now 750 ILCS 5/510(c)).
Further, Vernon explained that the current statute,
which no longer contained a provision allowing the trial court to
order security for maintenance, was not simply a revision of
Illinois law but adoption of a standardized, uniform act.
Vernon, 253 Ill. App. 3d at 789, 625 N.E.2d at 828. Consequent-
ly, such an omission should not be construed as evincing a
legislative intent to change the law and withdraw the court’s
authority to order security for maintenance. Vernon, 253 Ill.
App. 3d at 789, 625 N.E.2d at 828.
"The [Dissolution] Act is not simply a revi-
sion of Illinois law, however, but a uniform
act, and it may be inappropriate to give much
weight to the fact that the uniform act does
not contain specific provisions found in the
earlier Illinois statute. It is true that
the Act specifically authorizes a court to
set aside property in a trust for children
(Ill. Rev. Stat. 1983, ch. 40, par.
503(g)),but it is difficult to read that
specific authorization as a legislative pro-
hibition of orders requiring a maintenance
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obligor to maintain insurance on his life to
prevent the premature termination of mainte-
nance." Vernon, 253 Ill. App. 3d at 789, 625
N.E.2d at 828.
While the Dissolution Act does not contain language
specifically authorizing a trial court to order security for
maintenance, the legislature did not specifically prohibit such
an order. Therefore, this court will not presume that an order
requiring a payor to keep a life-insurance policy as security for
maintenance violates the Dissolution Act’s requirement that the
obligation to pay maintenance terminate upon the death of either
party. See Vernon, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.
"Only where the legislature may be said to have intended a
particular requirement to serve as a limitation on the authority
of the court to act should such a limitation be imposed."
Vernon, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.
In fact, the Dissolution Act grants the trial court
wide discretion in awarding maintenance and dividing the marital
property. The legislature directs a trial court to consider all
relevant factors in its award of maintenance and authorizes a
trial court to order maintenance for the duration and amount as
it deems just. 750 ILCS 5/504 (West 2006). Similarly, the
Dissolution Act grants a trial court the authority to divide the
marital property in "just proportions." 750 ILCS 5/503(d) (West
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2006). Further, in section 102(5), the legislature directs
courts to liberally construe the Dissolution Act in order to make
reasonable provisions for spouses. 750 ILCS 5/102(5) (West
2006).
"This Act shall be liberally construed
and applied to promote its underlying pur-
poses, which are to:
(1) provide adequate procedures for the
solemnization and registration of marriage;
(2) strengthen and preserve the integ-
rity of marriage and safeguard family rela-
tionships;
(3) promote the amicable settlement of
disputes that have arisen between parties to
a marriage;
(4) mitigate the potential harm to the
spouses and their children caused by the
process of legal dissolution of marriage;
(5) make reasonable provision for spous-
es and minor children during and after liti-
gation, including provision for timely awards
of interim fees to achieve substantial parity
in parties' access to funds for litigation
costs;
- 25 -
(6) eliminate the consideration of mari-
tal misconduct in the adjudication of rights
and duties incident to the legal dissolution
of marriage, legal separation[,] and declara-
tion of invalidity of marriage;
(7) secure the maximum involvement and
cooperation of both parents regarding the
physical, mental, moral[,] and emotional
well-being of the children during and after
the litigation; and
(8) make provision for the preservation
and conservation of assets during the litiga-
tion." 750 ILCS 5/102 (West 2006).
In light of this liberal construction, sections 503 and 504 are
sufficiently broad to allow the trial court to award a form of
security for a maintenance obligation, not necessarily limited to
life insurance.
In the present case, the trial court ordered David to
maintain Barbara as the sole beneficiary on his employer-issued
insurance policy during the time he was obligated to pay mainte-
nance. If life insurance were no longer available to David
through his employer, the court required that David purchase life
insurance and maintain Barbara as the sole beneficiary. The
court also ordered that in such an instance, David could deduct
- 26 -
the cost of the insurance policy from the monthly maintenance
payment to Barbara.
The Act grants a trial court the discretionary author-
ity to order a payor to keep a life-insurance policy to prevent
the premature termination of maintenance, as it did in the
present case. Contrary to David’s argument, ordering a life-
insurance policy as security for maintenance does not equate to
payment after death but rather is a guard against premature
death. Consequently, the court’s order did not violate the
prohibition in 510(c) of payments after death. See 750 ILCS
5/510(c) (West 2006). Therefore, the court did not err by
requiring David to maintain a life-insurance policy with Barbara
as the sole beneficiary so long as he was obligated to pay
maintenance.
In In re Marriage of Ellinger, 378 Ill. App. 3d 497,
882 N.E.2d 692 (2008), the Third District utilizes a faulty
rationale, applying a presumption that the legislature intended
to change prior law by deleting language that gave a court
discretion to designate life insurance as security for mainte-
nance obligations. "Additionally, when the legislature deleted
certain language from previous legislation, it is presumed that
the legislature intended to change the law." Ellinger, 378 Ill.
App. 3d at 499, 882 N.E.2d at 694. As previously stated, the
legislature did not amend legislation; the legislature enacted a
- 27 -
completely new law; therefore, that presumption does not apply.
Ellinger erroneously relied on Forest City Erectors v.
Industrial Comm'n, 264 Ill. App. 3d 436, 636 N.E.2d 969 (1994),
for this presumption. However, Forest City Erectors did not
address the legislature's enactment of a new law but rather dealt
with an amendment to the Workers' Compensation Act (Ill. Rev.
Stat. 1975, ch. 48, par. 138.8(d)(1)). The legislature changed
the language in section 8(d)(1) of the Workers' Compensation Act
providing "for wage differential benefits based on the 'differ-
ence between the average amount which [claimant] earned before
the accident' and the average amount he is earning after the
accident" (emphasis added and in original) (Forest City Erectors,
264 Ill. App. 3d at 440, 636 N.E.2d at 972, citing Ill. Rev.
Stat. 1975, ch. 48, par. 138.8(d)(1) (see also Ill. Rev. Stat.
1973, ch. 138.8(d))), to "'the difference between the average
amount which he would be able to earn in the full performance of
his duties in the occupation in which he was engaged at the time
of the accident and the average amount which he is earning or is
able to earn in some suitable employment or business after the
accident'" (emphasis in original) (Forest City Erectors, 264 Ill.
App. 3d at 439, 636 N.E.2d at 972, quoting Ill. Rev. Stat. 1991,
ch. 48, par. 138.8(d)(1)). The presumption of the legislature's
intent to change the statute, therefore, applied in Forest City
Erectors, 264 Ill. App. 3d 436, 636 N.E.2d 969, permitting the
- 28 -
commission to calculate benefits without regard to claimant's
earnings prior to the accident.
In the case sub judice, however, the legislature's
presumption is rebutted.
"Where the legislature repeals an existing
act and replaces it with an entirely new act,
however, that presumption is rebutted. [Peo-
ple v.] Nunn, 77 Ill. 2d [243,] 248[, 396
N.E.2d 27, 29 (1979)]. In Nunn, the change
in the relevant law came about because the
legislature repealed the original statute in
toto and replaced it and others with the
Uniform Act Regulating Traffic on Highways
(now the Illinois Vehicle Code). Nunn, 77
Ill. 2d at 247[, 396 N.E.2d at 29]. Thus,
this court concluded, 'the presumption is not
invocable because the action of the legisla-
ture in 1935 was to adopt a new act *** and
not to amend the previous statute.' (Empha-
sis added.) Nunn, 77 Ill. 2d at 248[, 396
N.E.2d at 29]." In re K.C., 186 Ill. 2d 542,
549, 714 N.E.2d 491, 495 (1999).
Ellinger further errs in adopting Clarke's interpretation of the
statutory language prohibiting an award of insurance as security
- 29 -
for maintenance. There is no doubt the language in the statute
is unclear and ambiguous. Maintenance payments after death may
be insured both by agreement and if "otherwise approved by the
court." Clarke argues "otherwise approved by the court" means:
"The word 'approve' is defined by Black's Law
Dictionary as follows: 'To be satisfied with;
to confirm, ratify, sanction, or consent to
some act or thing done by another.' (Empha-
sis added.) (Black's Law Dictionary 94 (5th
ed. 1979).) The word is said to be distin-
guished from the word 'authorize.' Within
the context of section 510(b) there must be a
preexisting 'act' or 'thing' for the court to
approve. That 'act' or 'thing' is the agree-
ment of the parties. The court's authority
in this case is not inherent. It arises only
when there is a written agreement of the
parties which either has been incorporated in
the judgment and approved in that manner or
'otherwise approved by the court.'" Clarke,
125 Ill. App. 3d at 436, 465 N.E.2d at 977.
However, the Clarke court never explains how the court could
"otherwise approve" such post-death maintenance payments. In
fact, the Clarke court found there was no such agreement and the
- 30 -
trial court had no authority to order unallocated maintenance
beyond the husband's death. "Here, there was no such agreement.
The court had no authority under section 510(b) to order
unallocated maintenance beyond petitioner's death." Clarke, 125
Ill. App. 3d at 436, 465 N.E.2d 977.
However, the Clarke court is wrong on both counts.
There was an agreement: a detailed property settlement agreement
and an agreement to submit matters to the court for determination
including inter alia security for unallocated maintenance and who
should pay the premiums. What the Clarke court ignores until the
last paragraph of the opinion is the reality that unallocated
maintenance includes child support which the Clarke court at
length explains can be secured by insurance. The Clarke court
then finds it sufficient as security for child support that the
parties allocated $100,000 in life insurance to the children as
beneficiaries. However, the written agreement to provide the
$100,000 in insurance and approved by the trial court was specif-
ically for college expenses to "assume [the daughters'] support
and payment of their educational expenses through four years of
college or vocational school." That $100,000 insurance was not
to secure child support but was for college expenses and those
children were nowhere near college age. Regardless, Clarke
should not be relied upon as authority for the proposition a
trial court lacks the inherent authority to order insurance on
- 31 -
maintenance payments.
Unfortunately, Ellinger did not address the concerns
raised in Vernon but simply dismissed Vernon as dicta. We hereby
abandon Clarke and adopt the reasoning of Vernon.
The trial court's order to take out a life-insurance
policy simply does not violate the Dissolution Act's requirement
that the death of either party terminates the obligation to pay
future maintenance. An insured makes no payments on a life-
insurance policy after his death. Life insurance is designed to
guard against the risk of premature death, not to leave large
amounts of money after the death of the parties. Moreover, the
insurance company, not the insured's estate, pays the proceeds to
the ex-wife upon the insured's death, negating any concept of
postmortem alimony. A. Rutkin, Family Law and Practice,
§§45.02[2], 45-10 (1985). Further, many life-insurance policies,
like other insurance policies, never pay out. Consider the
operation of a term life-insurance policy. A spouse usually
would not keep renewing such a policy until the date of his
death, only until the period of risk expired. For example, a
spouse might stop renewing such a policy after family debts have
been paid off or his pension has kicked in. The policy here
would be terminated upon death of either spouse or remarriage of
Barbara.
The legislature did not intend that a trial court never
- 32 -
order that a maintenance payor name his ex-spouse as beneficiary
on his life insurance. We cannot simply make the assumption that
the legislature intended the court never be able to order life
insurance as security. If there can be no life insurance, a
judge trying to make a fair division cannot give much weight to
the fact that the ex-spouse is ordered to pay maintenance. That
order may result in the ex-spouse paying hundreds of thousands of
dollars or it may result in him paying almost nothing if he died
quickly. The legislature does not require such uncertainty. An
order for life insurance is not like ordering a 50-year-old man
to pay maintenance for 60 years even after death, the type of
action the legislature intended to prohibit. Equating an order
to maintain life insurance for the benefit of securing mainte-
nance to maintenance is simply erroneous.
Further, to carry the dissent's argument to its logical
conclusion, neither can child support be secured by life insur-
ance because the legislature has not specifically authorized life
insurance as security for child support. The legislature only
authorized child support after death and setting aside a portion
of an estate to pay that child support. Obviously, the legisla-
ture intended the trial court to broadly interpret the Dissolu-
tion Act to do justice by the parties. This trial court did a
yeoman's job at doing justice to the parties. We cannot now say
the court abused its discretion.
- 33 -
In a particular case, the trial court may appropriately
limit how long the policy must be kept in force. A court may
appropriately order the use of a term policy, not a whole-life
policy, although another solution may be to recognize the asset
value of the whole-life policy in the division of assets. In
fact, the court here recognized the gross disparity of income,
Barbara's bare-bones budget, David's putting away $1,000 a month
in a 401K, and the parties' lifestyle. The court balanced the
equities, accounted for contingencies, and adjusted maintenance
down for college expenses and retirement. The court recognized
that maintenance ends upon death and chose to secure that mainte-
nance with life insurance, stating, "My biggest concern about
maintenance is, ma'am, if I were to award you the maintenance and
he would, unfortunately, walk out here and get hit by a car, the
maintenance is gone, because it ends upon his death."
It is one thing to hold that a trial court's failure to
comply with a statute is error. It is much more drastic to hold
that a court's action is not authorized by statute. If the
legislature wants to declare that an action is prohibited, the
legislature should be specific. Here, Clarke was decided in 1984
and Vernon in 1993, and the legislature has apparently chosen not
to amend the statute to correct an interpretation that life
insurance may be ordered to secure maintenance payments.
III. CONCLUSION
- 34 -
For the reasons stated, we affirm the trial court’s
judgment.
Affirmed.
COOK, J., specially concurs.
TURNER, J., specially concurs in part and dissents in
part.
- 35 -
JUSTICE COOK, specially concurring:
Justice Turner's special concurrence/dissent character-
izes our holding in Vernon as dicta, a casual discussion we had
no reason to make, because the parties had not raised the issue.
However, the issue of subject-matter jurisdiction cannot be
waived and a court has the duty to assess its subject-matter
jurisdiction, regardless of whether the parties question it.
Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199
Ill. 2d 325, 333-34, 770 N.E.2d 177, 184 (2002) (argument "impli-
cates the subject matter jurisdiction of the circuit court");
Jackson v. Alverez, 358 Ill. App. 3d 555, 558, 831 N.E.2d 1159,
1162 (2005). Belleville Toyota cited Mitchell and Vernon with
approval, in fact quoting the above language from Vernon.
Belleville, 199 Ill. 2d at 341, 770 N.E.2d at 188. The Vernon
holding was not dicta. It was our duty to consider our subject-
matter jurisdiction even though the issue was not raised by the
parties.
Did the legislature intend that courts have no power to
order payors of maintenance to obtain life insurance? The
dissent discusses language in the child support portion of the
Dissolution Act, the presumption that deletion of language from
previous legislation manifests an intent to change the law, and
the laws of other states. The best evidence of legislative
intent, however, is the language used in the statute itself,
- 36 -
which must be given its plain and ordinary meaning. What did the
legislature mean when it said that "the obligation to pay future
maintenance is terminated upon the death of either party"? 750
ILCS 5/510(c) (West 2006). The language says nothing about life
insurance. Payments on a life-insurance policy are not made
after death. There is nothing inherently wrong with requiring
life insurance in maintenance cases, as is shown by the fact that
many other states allow it. Illinois clearly allowed requiring
life insurance under the prior statute. Dissolution of marriage
cases are complicated and may involve very diverse asset and
income situations. The legislature did not attempt to spell out
exactly how these cases should be handled. The legislature gave
the courts broad powers to deal with these situations, and did
not intend courts to act only to the extent the legislature made
specific provision therefor.
- 37 -
JUSTICE TURNER, specially concurring in part and
dissenting in part:
Because I believe the trial court erred in calculating
David's net income in its award of permanent maintenance to
Barbara and in requiring David to maintain a policy of life
insurance to secure the maintenance payments, I dissent. I
concur in the majority's affirmance of the award of permanent
maintenance and the property distribution.
A. Net Income
I would find the trial court's determination of David's
income to be against the manifest weight of the evidence. The
court's determination of maintenance appears to have been made
using David's gross income from 2006, which included a large one-
time bonus. David indicated the bonus was unusual and unlikely
to recur. It appears the court's consideration of David's income
of $204,000, with no exception for any fluctuations in the
bonuses David might receive, directly impacted the amount of the
permanent maintenance award. Although I would find the court did
not abuse its discretion in awarding maintenance on a permanent
basis, I would remand for a new maintenance determination based
on David's income without considering the one-time bonus.
B. Insurance Policy
I would also find the trial court erred in requiring
David to maintain a policy of life insurance to secure the
- 38 -
maintenance payments. Section 504 of the Dissolution Act autho-
rizes a trial court to order one spouse to pay maintenance. 750
ILCS 5/504 (West 2006). "Unless otherwise agreed by the parties
in a written agreement set forth in the judgment or otherwise
approved by the court, the obligation to pay future maintenance
is terminated upon the death of either party, or the remarriage
of the party receiving maintenance, or if the party receiving
maintenance cohabits with another person on a resident, continu-
ing conjugal basis." 750 ILCS 5/510(c) (West 2006).
The majority here holds a trial court may require a
spouse to maintain life insurance as security for maintenance
payments, while the Third District recently came to the opposite
conclusion on this issue. In Ellinger, 378 Ill. App. 3d at 498,
882 N.E.2d at 693, the trial court ordered the ex-husband to pay
his ex-wife maintenance on a monthly basis. The court also
required him to maintain his ex-wife as the sole beneficiary of
an insurance policy for as long as the maintenance obligation
lasted. Ellinger, 378 Ill. App. 3d at 498-99, 882 N.E.2d at 693.
On appeal, the ex-husband argued the trial court erred
in requiring him to designate his ex-wife as the beneficiary of
the life-insurance policy as security for his maintenance obli-
gation. Ellinger, 378 Ill. App. 3d at 499, 882 N.E.2d at 694.
The Third District noted neither section 504 nor any other
section of the Dissolution Act granted the trial court the
- 39 -
authority to require the maintenance-paying spouse to designate
the receiving spouse as a beneficiary of a life-insurance policy
as security for the maintenance payments. Ellinger, 378 Ill.
App. 3d at 500, 882 N.E.2d at 694. The appellate court also
found the language of the Dissolution Act allowing for the
designation of assets as security for child-support payments did
not have a corresponding provision authorizing the same for
maintenance obligations. Ellinger, 378 Ill. App. 3d at 500, 882
N.E.2d at 694-95. Thus, the court "presume[d] that the legisla-
ture intended different results by the different language in the
[Dissolution] Act concerning child support compared with its
language regarding maintenance." Ellinger, 378 Ill. App. 3d at
500, 882 N.E.2d at 695.
In the case sub judice, the parties did not enter into
an agreement providing David would maintain life insurance to
secure the maintenance payments. Instead, the trial court
ordered David to designate Barbara as the sole beneficiary on his
employer-issued insurance policy during the time he was obligated
to pay maintenance. If David lost his job, the court would
require him to purchase life insurance and maintain Barbara as
the sole beneficiary. Based on Ellinger and this court's deci-
sion in Clarke, I would find the court erred by requiring David
to maintain a life-insurance policy with Barbara as the sole
beneficiary so long as he was obligated to pay maintenance. See
- 40 -
In re Marriage of Feldman, 199 Ill. App. 3d 1002, 1007, 557
N.E.2d 1004, 1008 (1990) (finding the trial court lacked author-
ity to enter a maintenance award secured by life insurance). The
Dissolution Act provides no authority to the court to do so in
the context of maintenance.
The majority, however, disagrees with Ellinger and
disregards Clarke in favor of Vernon. Not only was the Vernon
court's discussion of Clarke dicta (see Ellinger, 378 Ill. App.
3d at 501, 882 N.E.2d at 695), but the reasoning failed to give
proper deference to the legislature in this area of the law.
Clearly, the General Assembly has the legislative authority to
grant trial courts the discretion to designate assets as security
for maintenance obligations as it has similarly done in the
child-support area. See Ellinger, 378 Ill. App. 3d at 500, 882
N.E.2d at 694, citing 750 ILCS 5/510(d) (West 2006) (providing
child support may be enforced after the payor parent's death) and
750 ILCS 5/503(g) (West 2006) (allowing a court to set aside a
portion of the estate in a separate fund or trust for child
support).
I would also note that in the almost 15 years since
Vernon's publication, it has not once been cited for the proposi-
tion that a trial court has statutory authority to order the
procurement of life insurance as security for maintenance.
Nonetheless, the two-judge majority in this case audaciously
- 41 -
proclaims "we hereby abandon Clarke and adopt the reasoning of
Vernon." Slip op. at 29. In the end, I disagree with the
majority, which syllogistically justifies its holding as follows:
because the Dissolution Act does not prohibit an order requiring
insurance as security for maintenance payments, because the trial
court should have wide discretion in this area, and because
courts are to liberally construe the Dissolution Act to make
reasonable provisions for spouses, the courts should have the
discretion to secure maintenance payments through life insurance.
QED.
The majority's holding leaves an open question of what
factors the trial court should consider when deciding whether to
order an ex-spouse to maintain an insurance policy to secure
maintenance payments. In my view, these factors should be
decided through the legislative process. Under South Carolina
law, for example, a trial court must undertake a comprehensive
review of multiple factors when ordering a payor spouse to carry
life insurance, including "the cost of premiums, insurance plans
carried by the parties during marriage, insurability of the payor
spouse, the probable economic condition of the supported spouse
upon the death of the payor spouse, and any other factors the
court may deem relevant." S.C. Code Ann. §20-3-130(D) (Supp.
2007); see also Wooten v. Wooten, 364 S.C. 532, 551, 615 S.E.2d
98, 107 (2005). As one can readily determine, these factors are
- 42 -
explicitly set forth in the state statute.
Other states have also enacted legislation allowing a
trial court to order security for maintenance obligations. See
Fla. Stat. Ann. §61.08(3) (West 2004) ("the court may order any
party who is ordered to pay alimony to purchase or maintain a
life[-]insurance policy or a bond, or to otherwise secure such
alimony award with any other assets which may be suitable for
that purpose"); N.Y. Dom. Rel. Law §243 (McKinney 1999) (the
court "may direct the spouse from whom maintenance or support is
sought to give reasonable security, in such a manner and within
such a time as it thinks proper, for the payment, from time to
time, of the sums of money required for that purpose"); 19 Me.
Rev. Stat. Ann. tit. 19-A, §951-A(7) (Supp. 2007) ("The court may
also order the obligated party to maintain life insurance or to
otherwise provide security for the payment of spousal support in
the event the obligation may survive the obligated party's
death"); Conn. Gen. Stat. §46b-82(a) (2004) (in entering an
alimony decree, "the court may order that a party obtain life
insurance as such security unless such party proves, by a prepon-
derance of the evidence, that such insurance is not available to
such party, such party is unable to pay the cost of such insur-
ance[,] or such party is uninsurable"); N.D. Cent. Code §14-05-25(1983) ("The court may require either party to give reasonable
security for providing maintenance or making any payments"); Vt.
- 43 -
Stat. Ann. tit. 15, §757 (1981) (in granting maintenance, "the
court may require sufficient security to be given for payment
thereof"); see also Brockman v. Brockman, 264 Neb. 106, 112, 646
N.W.2d 594, 599 (2002) (noting the Nebraska legislature "has long
given specific statutory authorization for a court, in an appro-
priate case, to require sufficient security to be given for the
payment of alimony and child support awards"); Jacobitti v.
Jacobitti, 135 N.J. 571, 578, 641 A.2d 535, 539 (1994) (stating
the New Jersey legislature explicitly allowed "a court to order
the supporting spouse to maintain life insurance for the benefit
of the dependent spouse to protect the dependent spouse if the
dependent spouse outlives the supporting spouse").
The preceding statutes and case law offer confirmation
that whether courts should be authorized to order procurement of
insurance as security for maintenance is a matter for the legis-
lature to debate and decide after careful deliberation. The
majority articulates reasons why courts should have the power to
order payors of maintenance to obtain life insurance. However,
the question here is not whether requiring life insurance in
maintenance cases is right or wrong. The issue is simply whether
this court or the legislature should make the law, and I decid-
edly believe it should be the latter. Accordingly, I would
reverse that portion of the trial court's judgment order requir-
ing David to maintain a life-insurance policy with Barbara as the
- 44 -
beneficiary.
- 45 -