In re Marriage of Brunke , 2019 IL App (2d) 190201 ( 2019 )

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Appellate Court Date: 2020.04.01
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In re Marriage of Brunke, 2019 IL App (2d) 190201Appellate Court In re MARRIAGE OF JUDITH E. BRUNKE, Petitioner-Appellee and
Caption Cross-Appellant, and JOHN W. BRUNKE, Respondent-Appellant
and Cross-Appellee.
District & No. Second District
No. 2-19-0201
Filed December 24, 2019
Decision Under Appeal from the Circuit Court of Kane County, No. 12-D-387; the
Review Hon. Joseph M. Grady, Judge, presiding.
Judgment Affirmed.
Counsel on Philip J. Piscopo and Stephen M. Cooper, of Law Offices of Cooper,
Appeal Storm & Piscopo, of Geneva, for appellant.
Matthew G. Shaw and Deidre C. Sanders, of Shaw Family Law, P.C.,
of St. Charles, for appellee.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices McLaren and Hutchinson concurred in the judgment and
opinion.
OPINION
¶1 Respondent, John W. Brunke, appeals an order of the circuit court of Kane County
extending maintenance awarded to petitioner, Judith E. Brunke. Judith cross-appeals that part
of the same order denying her petition to increase maintenance. We affirm.
¶2 I. BACKGROUND
¶3 The following facts are adequate for an understanding of the issues. Where necessary, the
facts will be supplemented in the Analysis section of this opinion. The parties were married on
February 1, 1986. No children were born to or adopted by the parties during the marriage. The
judgment for dissolution of marriage (JDOM) was entered on April 30, 2012. Judith was 62
years of age, and John was 53. During the divorce proceedings, Judith was pro se, while John
was represented by counsel. The parties entered into a marital settlement agreement that
provided that John would pay Judith maintenance of $3000 per month for five years, after
which maintenance was reviewable. That agreement was incorporated into the JDOM.
¶4 On January 5, 2017, Judith filed both a “Petition to Review/Extend Maintenance” and a
“Petition to Modify (Increase) Maintenance.” The petition to review/extend maintenance
alleged that Judith was presently unemployed and that John, who was employed by American
Airlines, received a promotion and earned substantially more income than he did when the
JDOM was entered. The petition further alleged that (1) the original maintenance award was
inequitable, (2) $3000 per month in maintenance was insufficient for Judith to support herself,
(3) she had expended savings to meet her monthly expenses, and (4) she had made efforts to
become self-supporting. Judith requested permanent maintenance. Judith’s allegations in the
petition to increase maintenance were substantially identical. Specifically, Judith alleged that
John’s promotion and increased income since the divorce were a substantial change in
circumstances. John filed responses denying that Judith was entitled to the relief she requested.
¶5 On March 7, 2017, John filed a “Motion to Abate Maintenance Obligation,” in which he
requested that maintenance be abated pending trial. 1 John noticed that motion for hearing on
March 16, 2017. John then filed a second, identical “Motion to Abate Maintenance Obligation”
on March 15, 2017. That motion was also noticed for hearing on March 16 and was denied on
May 17, 2017. On June 23, 2017, John filed a third motion to abate maintenance. The court
continued that motion to the trial on Judith’s petitions.
¶6 At trial, which occurred over four days in August and September 2018, the parties
stipulated to the following facts. Judith was 68 years of age, and John was 59. Judith was
awarded the marital residence, which was worth $395,000 when the JDOM was entered, as
well as monetary assets totaling approximately $842,000 at that time. Judith’s brokerage
accounts were worth $897,030.34 as of December 31, 2017. Judith’s real estate taxes and
homeowner association fees totaled $9864 per year, she would receive $482 per month in
Social Security benefits if she were to take them, she received $1761 per month from a certain
“A” fund, she paid approximately $9000 in income taxes for the years 2016 and 2017, and she
earned $5893.46 working at Target in 2017.
1
John’s concern was that time-consuming discovery squabbles were lengthening his maintenance
obligation beyond the date that it would have terminated under the JDOM.
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¶7 The parties then stipulated that John’s income was $362,000 per year, he had $120,000 in
a combined checking and savings account, his individual retirement account was worth
$1,276,931.37, and his brokerage accounts totaled $188,208.33. In addition, the equity in
John’s home was $108,515, his vehicles were worth $39,000, and his airplane and hangar were
worth approximately $150,000.
¶8 Judith testified as follows. After the divorce, she waited 2½ years to seek employment. She
was “gobsmacked” by the divorce, and it took her “a very, very long time to work through”
getting her life in order. Eventually, she applied for retail jobs but was turned down because
she was too old. Then, in 2015, Target hired her.
¶9 Judith was currently employed at Target, making $12 per hour. She usually worked 16 to
20 hours per week. Her pay stubs for a certain period in 2017 reflected that she worked fewer
hours. She did not seek additional employment to supplement her income. Judith paid
Medicare $135 per month. She also paid $157.12 per month for a supplemental insurance
policy and $24.10 per month for a drug prescription policy.
¶ 10 Judith had a bachelor’s degree and a master’s degree in education. She taught for 11 years
in Virginia and Kentucky before moving to Illinois in 1985. Because Illinois did not recognize
her teaching certificate from Kentucky, she would have had to complete another three years of
education to be eligible to teach in Illinois. Rather than do that, she took a job as a college
admissions counselor, making approximately $21,000 per year. She stayed in that job for two
years and then moved to another college, also for two years. She was terminated from that job
and did not work again until she volunteered at a hospital in 2009 or 2010.
¶ 11 According to Judith, she and John traveled “all the time” during the marriage—to all 50
states, Europe, the Caribbean, and the Bahamas. Judith planned all the trips. She had no budget.
She testified: “As long as the bills were paid and there was money in the bank, I had pretty
much free rein.” According to Judith, they also entertained “all the time.” She testified that
“we were known for our parties.” She had no spending limits.
¶ 12 Judith thought that Matthew Williams, John’s divorce attorney, represented them both,
based on conversations that she had with John and Williams. John had sent Judith an e-mail
stating that “we” had paid Williams a retainer. According to Judith, in March 2012, John told
her that he would pay her more maintenance if he received a pay raise. Subsequently, when his
pay was increased, John gave her an extra $120 per month. However, when his pay was
increased again and she asked for more money, John said that Williams told him that he did
not have to increase her maintenance.
¶ 13 Judith testified that her lifestyle after the divorce was “not even close” to what she enjoyed
during the marriage. She could not afford to travel or give parties. She used to have her hair
done every three weeks, and now she had it done every five weeks. She dipped into capital to
pay taxes and for home improvements. When John’s maintenance payments were late, she
used her retirement funds. Judith described her finances as “extremely finite.” According to
Judith, she depleted some of her assets to pay her current expenses, including attorney fees.
¶ 14 On cross-examination, Judith testified that she was “under duress” when she signed the
marital settlement agreement. She disputed that her current assets were worth $1.4 million. She
testified that she had $1.2 million in addition to the house. According to Judith’s financial
affidavit dated July 2018, she had $2075 per month in income and $6700 per month in
expenses. Those claimed expenses included $2000 per month for groceries for herself and
$1200 per month for home repairs. Judith declared income of $79,269 on her 2017 tax return.
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Judith testified that she was not aware that the maintenance award required her to search for a
job immediately after the divorce. Judith also testified that she continued to travel after the
divorce. She testified that she visits Florida and Washington D.C., although her expenses for
travel to Washington are reimbursed by the person whom she visits there. Judith also traveled
to England twice after the divorce. According to her financial affidavit, she spends $700 per
month on vacations, dining out, and entertainment.
¶ 15 Next, John called Williams, who testified that he represented only John in the divorce.
Williams believed that Judith was represented by counsel “early on.” According to Williams,
he never had a telephone conversation with Judith, nor did he ever exchange e-mails with her.
Williams testified that his practice was not to communicate with pro se litigants. He stated that
his contract with John clearly stated that he represented only John, and the marital settlement
agreement also stated that he represented John and not Judith. Williams testified that John was
“very clear” that “it was to be a 50/50 division of the estate.”
¶ 16 Next, Judith called John as an adverse witness. John testified as follows. When the parties
divorced, he was earning $182,000 per year as an American Airlines pilot, and Judith was
unemployed outside the home, although she began an eBay business. After the divorce, John
underwent additional training to fly the Boeing 787, and his pay substantially increased. In
1990, when Judith expressed interest in becoming a nurse, John offered to send her to school,
but Judith did not follow through.
¶ 17 John denied that the parties traveled extensively during the marriage. He testified that they
visited “quite a few” states and that they traveled to England 10 times and to Italy once. John
agreed that they also traveled to Canada and the Bahamas. They visited his mother in New
York and Judith’s son in Colorado. He testified that the costs for those trips were “nominal”
because of his position with the airline. John testified that he did not give Judith a household
budget. The marital residence, where Judith still resided, was 2900 square feet and had four
bedrooms and a three-car garage.
¶ 18 John testified that Judith requested $3000 per month in maintenance, “based on her needs.”
According to John, he had discussed with Judith increasing her maintenance if his salary
increased, “while we were getting along quite well.” They stopped communicating in 2013 or
2014, and John stopped paying extra maintenance in January 2017.
¶ 19 John testified that they did not spend $2000 per month on groceries while they were
married. He described their parties as “comfortable” but not “lavish.” In 2001, after September
11, his pay decreased. In 2011, American Airlines went bankrupt, and John lost $1 million in
retirement savings. Around 2005, John had heart surgery and now must complete two yearly
physicals to be certified to fly. According to John, American Airlines’ mandatory retirement
age is 65.
¶ 20 On February 20, 2019, the court entered a seven-page handwritten order. It recited that the
matters before it were Judith’s petitions to extend and increase maintenance and John’s
“Petition to Terminate and Abate Maintenance” filed on March 15, 2017. The court found that
(1) the marital settlement agreement was “fair to the parties under their circumstances then and
now”; (2) Judith did “little if anything to gain employment or improve her employability since
the divorce” but, due to her age, “it was foreseeable [to the parties] that [Judith] might not have
been able to obtain employment by which to attain significantly greater income than she earned
during the marriage”; (3) Judith was enjoying the lifestyle that she had during the marriage;
and (4) it “appears equitable” to allow Judith to wait until age 70 to draw her Social Security
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benefits “without depriving her” of maintenance. Thus, the court granted Judith’s petition to
extend maintenance but denied her petition to increase maintenance. The court also denied
John’s “petition to terminate or abate maintenance,” ordering him to continue to pay Judith
$3000 per month until he retires, at which time maintenance will terminate. John filed a timely
notice of appeal, and Judith filed a timely cross-appeal.
¶ 21 II. ANALYSIS
¶ 22 Initially, we must sort out which orders are before us. As we shall demonstrate, the orders
specified in John’s notice of appeal are moot and thus beyond our jurisdiction. Even though
neither party raises the issue, we have an independent duty to consider our jurisdiction. North
Community Bank v. 17011 South Park Ave., LLC, 2015 IL App (1st) 133672, ¶ 24.
¶ 23 John’s notice of appeal specified the following orders: (1) the February 20, 2019, order
“denying [John’s] Petition to Terminate or Abate Maintenance”; (2) the May 17, 2017, order
denying John’s March 15, 2017, motion to abate maintenance; and (3) the August 15, 2017,
order that John alleges “declined to abate [his] maintenance obligation pending hearing of this
cause.” The record shows that John filed three motions to “abate” maintenance. The first was
filed on March 7, 2017, the second was filed on March 15, 2017, and the third was filed on
June 23, 2017. The March 7 and the March 15 motions were identical. However, the allegations
in the June 23 motion differed from those in the other two. The parties and the court referred
to the March 15 and June 23 motions as the first and second motions. Because the March 7
motion was identical to the March 15 motion, we construe the March 15 motion as having
superseded the March 7 motion. The March 15 motion was denied on May 17, 2017. The June
23 motion was continued to trial in a “status order” of August 15, 2017. In none of those
motions did John request that maintenance be terminated. He asked only that it be abated
pending the outcome of the trial.
¶ 24 In its order of February 20, 2019, the court stated that John’s motion to “terminate” or abate
maintenance filed on March 15, 2017, was before it. Thus, the court’s order is erroneous in
two respects: (1) John did not move to terminate maintenance, and (2) because the court denied
the March 15, 2017, motion to abate on May 17, 2017, that motion was not before it. The June
23, 2017, motion to abate was before the court. However, when the court proceeded to trial
without having first ruled on the motion to abate maintenance pending trial, the motion to abate
became moot. An issue is moot where events occur that make it impossible for a court to grant
effectual relief. Wheatley v. Board of Education of Township High School District 205, 99 Ill.
2d 481, 484-85 (1984). The point of John’s request to abate maintenance pending trial was to
halt his interim maintenance payments. By the time of trial, he had already been obligated to
make those payments. Thus, the court’s orders declining to abate maintenance, which John
specifies in his notice of appeal, are moot.
¶ 25 The only parts of the February 20, 2019, order that would properly be before this court are
those granting Judith’s petition to extend maintenance and denying her petition to increase
maintenance. However, John did not specify that he was appealing that part of the order
extending maintenance. This court does not acquire jurisdiction to review judgments or parts
thereof that are not specified in a notice of appeal. In re Marriage of Ruvola, 2017 IL App (2d)
160737, ¶ 50. Nevertheless, we liberally construe John’s notice of appeal to be from that part
of the order extending maintenance. See Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill.
App. 3d 681, 689 (1994) (notice of appeal is to be liberally construed when determining what
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matters were properly raised in the notice, and a defect will be deemed one of form unless that
construction prejudices the appellee). Here, Judith is not prejudiced because she addresses in
her brief the court’s decision to extend maintenance.
¶ 26 A. John’s Appeal
¶ 27 John contends that the court abused its discretion in extending maintenance because
(1) Judith failed to take any steps to become self-sufficient and (2) her assets and income alone
are more than adequate to sustain the lifestyle that she enjoyed during the marriage.
¶ 28 Important to our disposition, this matter was before the trial court on review of the
maintenance award in the JDOM. A review proceeding results from a court order that
specifically provides for a review of that order. In re Marriage of Heasley, 2014 IL App (2d)
130937, ¶ 25. Here, the JDOM incorporated the parties’ marital settlement agreement, which
provided that John would pay $3000 per month for five years. At the end of five years,
maintenance was reviewable. The only condition for review was that Judith file and properly
serve a petition to review maintenance, “prior to the expiration of 60 months subsequent to
entry of judgment.” The marital settlement agreement did not specify that the maintenance was
rehabilitative.
¶ 29 At the divorce prove-up, John testified that the maintenance was “rehabilitative.”
Generally, “rehabilitative” maintenance requires a continuing effort by the recipient spouse to
become self-sufficient. In re Marriage of Courtright, 229 Ill. App. 3d 1089, 1091 (1992). In
her “petition to review/extend maintenance,” Judith alleged that she made such efforts but that
she needed continued maintenance to support herself. Thus, Judith essentially agreed that the
maintenance awarded was rehabilitative.
¶ 30 In reviewing a maintenance award, the court considers the factors enumerated in section
504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(a)
(West 2018)): (1) the income and property of each party, (2) the respective needs of the parties,
(3) the present and future earning capacity of the parties, (4) any impairment to the parties’
present or future earning capacity resulting from domestic duties or delayed education or
employment opportunities due to the marriage, (5) the time necessary for the party seeking
maintenance to acquire the necessary education or training, (6) the standard of living during
the marriage, (7) the duration of the marriage, (8) the age and physical and emotional condition
of the parties, (9) the tax consequences of the property division, (10) the contributions of the
party seeking maintenance to the education and career of the other spouse, (11) the valid
agreement of the parties, and (12) any other factor that the court expressly finds to be just and
equitable.
¶ 31 The court also has to consider the factors enumerated in section 510(a-5) of the Act (750
ILCS 5/510(a-5) (West 2018)): (1) any change in the employment status of either party and
whether the change has been made in good faith, (2) the efforts, if any, made by the
maintenance recipient to become self-supporting, (3) any impairment of the present and future
earning capacity of either party, (4) the tax consequences of the maintenance payments upon
the respective circumstances of the parties, (5) the duration of the maintenance payments
relative to the length of the marriage, (6) the property, including retirement benefits, awarded
to each party in the divorce, (7) the parties’ increase or decrease in income since the divorce,
(8) the property acquired and currently owned by each party after the divorce, and (9) any other
factor that the court expressly finds to be just and equitable.
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¶ 32 Maintenance awards are within a trial court’s sound discretion, and this court will not
disturb such an award absent an abuse of that discretion. In re Marriage of Heroy, 385 Ill. App.
3d 640, 650 (2008). An abuse of discretion exists only where no reasonable person would take
the view adopted by the trial court. Heroy, 385 Ill. App. 3d at 651. It is the burden of the party
challenging the maintenance award to show an abuse of discretion. Heroy, 385 Ill. App. 3d at
651. John focuses on two factors: (1) Judith’s efforts to become self-sufficient and (2) the
property that she acquired in the divorce.
¶ 33 1. Judith’s Efforts Toward Self-Sufficiency
¶ 34 “When one seeks to extend an award of rehabilitative maintenance, the burden lies on the
party seeking the extension to show he or she has met the affirmative duty of acquiring
sufficient training or education to find employment.” Courtright, 229 Ill. App. 3d at 1091. If
the party seeking maintenance fails to make a good-faith effort to become self-sufficient, the
court may terminate rehabilitative maintenance. Courtright, 229 Ill. App. 3d at 1091.
¶ 35 John emphasizes the trial court’s findings with regard to Judith’s efforts to become self-
sufficient: (1) Judith had “done little if anything” to gain employment or to improve her
employability since the divorce, and (2) Judith had “taken no significant steps and made little
if any effort to become employed at any level” above what she had attained at the time of the
divorce. However, the court also found that the parties foresaw “that [Judith] might not have
been able to obtain employment” to earn significantly greater income, because of her age.
Judith was 62 when the parties divorced, and she was 68 by the time of trial.
¶ 36 John relies on In re Marriage of Cantrell, 314 Ill. App. 3d 623 (2000), for his argument
that Judith’s underemployment should result in termination of maintenance. In Cantrell, this
court held that awarding permanent maintenance upon review was an abuse of discretion where
the former wife was employable, obtained a degree after the divorce, and had no impairments
but did “little toward finding gainful employment or advancing her efforts at becoming self-
sufficient.” Cantrell, 314 Ill. App. 3d at 630. While Cantrell did not note the former wife’s
age, it is evident from the context that she was not of advancing years. John’s arguments that
Judith could have pursued a teaching license in Illinois or gone into nursing are not realistic.
There was no legal requirement that she do so during the marriage. Nor did her economic
circumstances during the marriage dictate that she pursue a career. Then, when the marriage
ended, she was in her sixties. Consequently, Cantrell is inapposite.
¶ 37 The trial court is in a better position than this court to assess whether a maintenance
recipient will realistically be able to fully or partially support him or herself through
employment with the standard of living established during the marriage. In re Marriage of
Gunn, 233 Ill. App. 3d 165, 179 (1992). Judith testified that she had difficulty finding a job
even in retail because of her age, and the trial court was entitled to credit that testimony.
¶ 38 2. Judith’s Assets Acquired in the Divorce
¶ 39 John asserts that Judith’s financial resources preclude any continued need for maintenance.
The purpose of the Act is to make the division of marital property the primary means of
providing for the financial needs of the parties. In re Marriage of Brackett, 309 Ill. App. 3d
329, 338 (1999). Thus, the Act “implicitly provides” for an award of property in lieu of
maintenance. Brackett, 309 Ill. App. 3d at 338. However, the court may also award both
property and maintenance. In re Marriage of Gan, 83 Ill. App. 3d 265, 271 (1980).
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Maintenance may be awarded only if the recipient spouse lacks sufficient property, including
marital property apportioned to him or her in the divorce, to provide for his or her reasonable
needs, is unable to support him or herself through appropriate employment, or is otherwise
without sufficient income. In re Marriage of Schuster, 224 Ill. App. 3d 958, 970 (1992). We
keep in mind that the policy underlying maintenance is that the spouse “be enabled to enjoy a
standard of living commensurate with that during the marriage.” Schuster, 224 Ill. App. 3d at
970.
¶ 40 John argues that Judith left the marriage with assets worth $1.2 million, which appreciated
to $1.4 million by the time of trial. Judith disputed the $1.4 million figure, but she testified that
she had $1.2 million in addition to the house, which was valued at $395,000 in 2012. Judith
testified that she depleted her assets to support herself. John argues that the record belies this
claim.
¶ 41 First, John points out that Judith reported gross income of $79,052 on her 2017 tax return.
Second, John notes that Judith was awarded the marital residence, worth $395,000, lien-free.
Third, John notes that Judith claimed that she withdrew $92,000 per year for over five years
from an investment account but that the account increased in value. Fourth, John argues that
Judith could draw full Social Security benefits of $482 per month but refused to take them until
she turned 70 years of age. Fifth, John argues that Judith has access to funds from two
substantial retirement accounts worth over $600,000 that she refuses to touch until she reaches
age 100. Sixth, John points to Judith’s “inflated” expenses of $2000 per month for groceries
for just herself and over $14,000 per year for household repairs. John thus concludes that Judith
can maintain the lifestyle that the parties established during the marriage without maintenance.
¶ 42 With respect to Social Security benefits, the court stated: “It appears equitable to permit
[Judith] to draw those benefits at the highest amount to which she might be entitled, possibly
age 70, without depriving her of the income provided her by [the maintenance award].” John
argues that Judith’s benefits would not substantially increase, as she was willing to work for
minimum wage and a minimum of hours per week. In In re Marriage of Bernay, 2017 IL App
(2d) 160583, ¶ 22, this court found “troubling” the trial court’s suggestion that the wife should
have drawn her Social Security benefits at a lower amount. John attempts to distinguish Bernay
by asserting that Judith became entitled to full Social Security benefits at age 66. However,
John ignores that we further opined in Bernay that “we know of no authority that requires a
former spouse to draw on retirement benefits at the earliest opportunity, regardless of the
penalties” as a precondition to continue to receive maintenance. Bernay, 2017 IL App (2d)
160583, ¶ 22.
¶ 43 We hold that the court did not abuse its discretion in extending Judith’s maintenance until
John retires. He was 59 years old at the time of trial, and American Airlines’ mandatory
retirement age for pilots is 65. We also note that John’s health was such that it required him to
pass frequent physicals to keep flying. It is true that Judith did not seek employment for 2½
years after the divorce. However, she was never informed, either in the JDOM or by the court
at the prove-up, that she had a duty to seek training or education to continue receiving
maintenance. Further, under circumstances involving former spouses with grossly disparate
earning potentials, the goal of financial independence for the spouse receiving maintenance is
often not realistic or achievable. In re Marriage of Lenkner, 241 Ill. App. 3d 15, 25 (1993). At
age 62 when the marriage ended, Judith would never have been able to support herself in the
lifestyle afforded by John’s airline salary.
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¶ 44 Nevertheless, we cannot say that the court abused its discretion, as Judith suggests, in
refusing to award permanent maintenance. In In re Marriage of Smith, 2012 IL App (2d)
110522, ¶ 50, this court held that permanent maintenance to the former husband was not
warranted where he was awarded substantial assets in the divorce. Here, Judith admitted that
she had $1.2 million in assets in addition to the lien-free marital residence that was worth
$395,000 in 2012.
¶ 45 B. Judith’s Cross-Appeal
¶ 46 Judith asserts that the court abused its discretion in failing to apply the guidelines regarding
maintenance set forth in section 504 of the Act. Applying those guidelines, Judith argues that
she is entitled to $8507 per month indefinitely or for a period equal to the length of the
marriage, based on John’s current income of $390,000 per year. 2
¶ 47 When the JDOM was entered, the 2012 version of section 504 applied. Under that version,
the court considered the factors set forth in section 504(a) to determine the amount and duration
of maintenance (750 ILCS 5/504(a) (West 2012)). Section 510(a-5) of the Act provided that,
in proceedings to review, modify, or terminate maintenance, the court also consider the factors
enumerated in that section. 750 ILCS 5/510(a-5) (West 2012). However, as of January 1, 2015,
the legislature added to section 504 subsections (b-1) and (b-2), which set guidelines to
calculate the amount and duration of maintenance. Pub. Act 98-961, § 5 (eff. Jan. 1, 2015)
(amending 750 ILCS 5/504). Under what we refer to as the “guideline” version, the court
considers the section 504(a) factors only to determine whether to grant maintenance. 750 ILCS
5/504(a) (West 2016).
¶ 48 The legislature again comprehensively amended the Act in Public Act 99-90, which was
effective January 1, 2016. In re Marriage of Benink, 2018 IL App (2d) 170175, ¶ 12. Pertinent
here, the 2016 revision retained the guidelines. Section 801(c) (750 ILCS 5/801(c) (West
2016)) applied the 2016 revision to “proceedings *** that sought ‘the modification of a
judgment or order entered prior to’ that date.” Benink, 2018 IL App (2d) 170175, ¶ 12 (quoting
Pub. Act 99-90 (eff. Jan. 1, 2016)).
¶ 49 Here, the JDOM was entered before the effective date of the guideline version. The
guidelines and amended section 801(c), however, were part of the statute on January 5, 2017,
when Judith filed her petitions to extend/review maintenance and to increase maintenance. In
her written closing argument, Judith argued that the guidelines applied. The court found that
no increase was warranted, because Judith could maintain the lifestyle that she enjoyed during
the marriage. The court did not apply the guidelines, nor did it explain its reasons for not
applying them. The questions before this court are (1) whether the guidelines apply to review
proceedings and (2) whether Judith’s petition for increased maintenance, which alleged a
change in circumstances, triggered a modification proceeding requiring the application of the
guidelines, pursuant to our decision in In re Marriage of Carstens, 2018 IL App (2d) 170183.
¶ 50 1. Application of the Guidelines to Review Proceedings
¶ 51 We again emphasize that the present matter arose on review of the maintenance award. A
review proceeding results from a court order that specifically provides for review of that order.
2
At trial, the parties stipulated that John’s income was $362,000. In her closing argument, Judith
calculated the amount due under the guidelines based on John’s salary of “$358,309.05.”
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Heasley, 2014 IL App (2d) 130937, ¶ 25. Where there is no provision for review, a motion to
reconsider maintenance initiates a modification proceeding rather than a review proceeding.
Heasley, 2014 IL App (2d) 130937, ¶ 26. In a modification proceeding, maintenance will not
be altered absent proof of a substantial change in circumstances. Heasley, 2014 IL App (2d)
130937, ¶ 26. Proof of a change in circumstances is not required in a review proceeding.
Heasley, 2014 IL App (2d) 130937, ¶ 26.
¶ 52 In Carstens, which was a modification proceeding, this court considered whether the
guidelines applied to a 2011 judgment. Carstens, 2018 IL App (2d) 170183, ¶¶ 9, 20. We held
that section 801(c) of the Act, as amended in 2016, applied the guidelines to modification
proceedings filed after January 1, 2016. Carstens, 2018 IL App (2d) 170183, ¶ 29. Our decision
was based on the language of amended section 801(c): “This Act applies to all proceedings
commenced after its effective date for the modification of a judgment or order entered prior to
the effective date of this Act.” (Emphasis added and internal quotation marks omitted.)
Carstens, 2018 IL App (2d) 170183, ¶ 29. We followed our earlier decision in Benink, 2018
IL App (2d) 170175, ¶ 29, which was also a modification proceeding. In Benink, we held that
amended section 801(c) applied only to “modification proceedings commenced after January
1, 2016.” (Emphasis added.) Benink, 2018 IL App (2d) 170175, ¶ 29. The question is whether
the holdings in Benink and Carstens extend to review proceedings.
¶ 53 We do not read the word “modification” as used in amended section 801(c) to include
review proceedings, because, in section 510(a-5) of the Act, the legislature distinguished
between the two types of proceedings. See Heasley, 2014 IL App (2d) 130937, ¶ 25. The first
sentence of subsection (a-5) states that an order for maintenance may be “modified or
terminated” only upon a showing of a substantial change in circumstances (750 ILCS 5/510(a-
5) (West 2018)), while the last sentence of that subsection specifically refers to “review”
proceedings.
¶ 54 This court explored that dichotomy in In re Marriage of Golden, 358 Ill. App. 3d 464(2005). In Golden, the former wife was awarded $1300 per month in maintenance for three
years, after which it was to be reviewed. Golden, 358 Ill. App. 3d at 466. Upon review, the
trial court reduced the amount to $800 per month but made the maintenance permanent.
Golden, 358 Ill. App. 3d at 466. In so ruling, the court found that the former husband did not
have to prove a substantial change in circumstances. Golden, 358 Ill. App. 3d at 466. The
former wife appealed, contending that section 510(a-5) required a showing of a substantial
change in circumstances in a review proceeding. Golden, 358 Ill. App. 3d at 466. To resolve
the question, this court first had to determine “whether review is different from modification.”
Golden, 358 Ill. App. 3d at 468.
¶ 55 We noted that the first sentence of section 510(a-5) speaks to modification or termination
of maintenance where there was no provision allowing for review. Golden, 358 Ill. App. 3d at
468. We then observed that trial courts also conduct review hearings and that they differ from
modification hearings in that they “[circumvent] the substantial-change-in-circumstances
requirement” of section 510(a-5). Golden, 358 Ill. App. 3d at 469. Acknowledging that prior
decisions of the appellate court had drawn such a distinction, this court held that section 510(a-
5) does not require a showing of a substantial change in circumstances in a review hearing.
Golden, 358 Ill. App. 3d at 472. Thus, we concluded that “review proceedings and modification
proceedings are separate and distinct mechanisms by which reconsideration of maintenance
can occur.” Golden, 358 Ill. App. 3d at 469.
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¶ 56 In Blum v. Koster, 235 Ill. 2d 21, 36 (2009), our supreme court applied this distinction,
citing Golden. We believe that the distinction is significant. The two types of proceedings are
not interchangeable, because a review reconsiders a prior court order, whereas a modification
proceeds from a substantial change in circumstances. Thus, we also attach significance to the
fact that the legislature spoke only of “modification” proceedings when it made the guidelines
applicable through amended section 801(c). The absence of the word “review” in amended
section 801(c) implies the legislative intent to exclude review proceedings. See Bridgestone/
Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 152 (1997) (where a statute lists the things to which
it refers, omissions should be understood as exclusions).
¶ 57 We recognize that the Fourth District of the appellate court in In re Marriage of Kasprzyk,
2019 IL App (4th) 170838, ¶ 37, held that review proceedings fall within amended section
801(c)’s application. The Fourth District concluded that the “only” difference between the
types of proceedings is the “basis for the trial court’s authority to modify the original
agreement.” Kasprzyk, 2019 IL App (4th) 170838, ¶ 36. According to Kasprzyk, in review
proceedings, the court itself provides authority to revisit its order, whereas, in modification
proceedings, the legislature provides the authority. Kasprzyk, 2019 IL App (4th) 170838, ¶ 36.
¶ 58 We respectfully disagree with that reasoning. Ultimately, of course, it is the legislature, not
the court, that provides the authority for both review and modification proceedings and sets
the parameters of the relief that may be awarded. “[D]issolution of marriage is entirely
statutory in origin and nature.” Strukoff v. Strukoff, 76 Ill. 2d 53, 60 (1979). We adhere to our
belief that the legislature would not have distinguished between modification and review
proceedings in section 510(a-5) if that distinction were without a difference. “[E]ach word,
clause, or sentence of a statute must not be rendered superfluous, but must if possible be given
some reasonable meaning.” Peoria Roofing & Sheet Metal Co. v. Industrial Comm’n, 181 Ill.
App. 3d 616, 620 (1989). Nor do we believe that the legislature’s 2015 imposition of the
guidelines renders Golden obsolete, because (1) amended section 801(c) applied only to
proceedings to modify a judgment and (2) the legislature retained the distinction between
review proceedings and modification proceedings in section 510(a-5). Accordingly, we hold
that the trial court did not abuse its discretion in failing to apply the guidelines in its review of
the maintenance award.
¶ 59 2. Judith’s Petition to Increase Maintenance
¶ 60 Judith filed a separate petition to increase maintenance and alleged therein a substantial
change in circumstances, in the belief that it was necessary to trigger a modification proceeding
and thus avail herself of the guidelines pursuant to Carstens. Her attempt is unsuccessful
because the JDOM provided for review of the maintenance award. Simply alleging a change
in circumstances does not convert that review into a modification proceeding, because the
allegation of a change in circumstances is superfluous in a review proceeding. Nevertheless, a
review proceeding can result in a change in the nature and extent of maintenance. Golden, 358
Ill. App. 3d at 468. At oral argument, Judith agreed with this latter proposition.
¶ 61 Further, we agree with John that in substance Judith sought review of the maintenance
award because the award was “inequitable.” At trial, Judith testified that John and Williams
misled her into believing that Williams represented her interests. She argued that $3000 per
month was never sufficient to meet her needs. John testified that Judith herself suggested that
amount, which she denied. At oral argument, Judith reinforced that she was seeking review of
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the award, asserting that increased maintenance should be based on John’s current elevated
salary as compensation for the injustice of the award.
¶ 62 Even if Judith had sought a modification, a proceeding to modify maintenance is not a
review of the equities of the original judgment. Shive v. Shive, 57 Ill. App. 3d 754, 762 (1978).
In a modification proceeding, evidence of what occurred prior to the filing of the petition for a
modification is irrelevant. In re Marriage of S.D., 2012 IL App (1st) 101876, ¶ 41.
¶ 63 Nor is the fact that John now earns a much greater salary determinative of Judith’s petition
to increase maintenance. Maintenance is appropriate to ensure that a former spouse maintains
the standard of living established during the marriage. In re Marriage of Dunseth, 260 Ill. App.
3d 816, 833 (1994). John was not earning $362,000 during the marriage. The parties stipulated
that his salary was $182,000. Judith’s lifestyle was thus established by what $182,000
provided. The court specifically declined to increase maintenance where Judith was “still
enjoying the lifestyle she enjoyed during her marriage.” She lived in the $395,000 marital
residence, which was unencumbered. In addition, she possessed $1.2 million in assets, and she
continued to travel, although some of her travel expenses were paid by third parties. She spent
$700 per month on travel, dining out, and entertaining. The law does not require a party to pay
more maintenance merely because he or she can do so. S.D., 2012 IL App (1st) 101876, ¶ 44.
Accordingly, we hold that the court did not abuse its discretion in denying Judith’s petition to
increase maintenance.
¶ 64 Next, Judith argues in four sentences that the court erred in failing to hold John in indirect
civil contempt for his failure to pay several months of maintenance after the court declined to
rule on his June 23 motion to abate maintenance pending trial. At oral argument, Judith
withdrew this argument. Accordingly, we do not consider it.
¶ 65 III. CONCLUSION
¶ 66 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 67 Affirmed.
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