In re Marriage of Dea

2020 IL App (1st) 190234FIFTH DIVISION
SEPTEMBER 18, 2020
No. 1-19-0234
In re MARRIAGE of ) Appeal from the
) Circuit Court of
DANA DEA, ) Cook County.
)
Petitioner-Appellee, )
) No. 2008 D 8694
and )
)
PAUL DEA, ) Honorable
) Jeanne Cleveland Bernstein,
Respondent-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Justices Mikva and Harris concurred in the judgment and opinion.
OPINION
¶1 The respondent-appellant, Paul Dea (Paul), appeals from the circuit court of Cook County’s
denial of his motion to modify maintenance regarding the maintenance amount he receives from
petitioner-appellee, Dana Dea (Dana). For the following reasons, we affirm the judgment of the
circuit court of Cook County.
¶2 BACKGROUND
¶3 The parties were married in 1989 and divorced on April 3, 2012. In the judgment for
dissolution, the trial court awarded maintenance to Paul in the amount of $1600 per month (the
2012 dissolution judgment). The trial court determined that Dana’s monthly living expenses were
$4853.09 and Paul’s monthly living expenses were $3800. Paul is disabled due to multiple
sclerosis (MS) and receives social security benefits. Prior to his MS diagnosis in 2005, Paul worked
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as a truck driver. For most of the marriage, Dana took care of the parties’ children and worked as
a waitress. In 2001, however, she began a career in information technology (IT). She was working
in IT at a law firm and earning a salary of $83,642 when the parties divorced. In the 2012
dissolution judgment, the trial court noted that Dana’s financial status had improved through her
recent career change and that her income was steadily growing, while Paul’s income had declined
due to his disability. The 2012 dissolution judgment stated: “Paul Dea has no present or future
ability to earn income and he cannot be rehabilitated so as to support himself through appropriate
employment.”
¶4 Dana appealed the 2012 dissolution judgment. On appeal, this court remanded the case
back to the trial court regarding the maintenance amount. In re Marriage of Dea, 2013 IL App
(1st) 122213. We held that the trial court had failed to consider Paul’s income from his social
security benefits when it determined the maintenance award. Id. ¶ 22. We found that Paul only
needed an additional $395 per month to pay for his expenses. Id. ¶ 29. Our opinion also noted that
Dana would not be able to pay for her own expenses if she was required to pay a maintenance
amount of $1600 per month. Id. ¶ 30.
¶5 On remand, the trial court modified the 2012 dissolution judgment and adjusted Paul’s
maintenance award to $395 per month.
¶6 On February 14, 2017, Paul filed a motion to modify maintenance, which is the subject of
the instant appeal. His motion alleged that there had been a substantial change in circumstances,
necessitating an increase in his maintenance award. Specifically, Paul alleged, inter alia, that his
Social Security benefits had been reduced by $200 per month, that his MS had “worsened,” making
“any type of employment nearly impossible,” and that Dana had a “substantial income” that could
support him.
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¶7 A hearing on Paul’s motion to modify maintenance commenced. Paul testified that his
mortgage payment is $737 per month and his health insurance deductible is $184 per month. Paul
testified that his social security benefits are $2272 per month. Paul’s counsel later clarified to the
trial court that Paul’s social security benefits have increased approximately 5% over the last five
years. Paul also testified that, in the 2012 dissolution judgment, he was awarded $216,000 from
his retirement account, but it was down to $33,000 at the time of his motion to modify. Paul further
testified that he does not have any credit card debt and is able to pay his monthly expenses. He
explained that he puts the monthly maintenance payments that he receives from Dana into a
savings account “in case [he] need[s] things done to the house or something [he] may need.”
¶8 Paul testified that he worked as a security guard at a wind farm for a short time after the
2012 dissolution judgment, where he made $10 per hour, but he no longer worked because of his
health issues. During his testimony, the following exchange ensued:
“[PAUL’S COUNSEL]: Now, could you—are you suffering
from any physical conditions at this time, sir?
[PAUL]: Well, I have multiple sclerosis.
***
[PAUL’S COUNSEL]: Now, sir, have—what do you—how
long have you experienced—strike that. How long have you
suffered from multiple sclerosis?
[DANA’S COUNSEL]: You know, Judge, I’m going to
object again for relevance.
THE COURT: I don’t know what the relevance is.
[Counsel]?
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[PAUL’S COUNSEL]: He’s had multiple sclerosis—
THE COURT: He had it before.
[PAUL’S COUNSEL]: And he still has it. Judge.
THE COURT: Okay. And he was on Social Security
disability then. He’s still on Social Security.
[PAUL’S COUNSEL]: That’s correct.
THE COURT: So, if you’re looking for something different,
he’s not going to get more money from Social Security or anybody
else, because his condition is what it was. So where are we going
with this?
[PAUL’S COUNSEL]: Well, because his condition
worsened and he can’t—he was able to earn money under Social
Security. And it shortly—well, two or three years after the judgment
was entered he got a job driving security for wind farms in
construction. At that time, he was able to work—
[DANA’S COUNSEL]: I’m going to object.
THE COURT: This is an offer—I’m going to treat this as an
offer of proof. So you can go ahead.
[PAUL’S COUNSEL]: And he worked on a wind farm that
required him—he could drive and check all day. He worked there
and he earned money. Since that time, his physical condition has
deteriorated. He’s not able to walk without the use of the walker. He
has a hard time making it the length of his house.
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[DANA’S COUNSEL]: Judge, again, objection. Relevance.
THE COURT: It’s an offer of proof. You can object at the
end of the offer of proof and I’ll determine or not whether to go
ahead with it.
[DANA’S COUNSEL]: Okay.
[PAUL’S COUNSEL]: He’s also fallen twice but
hospitalized for serious urinary infections and has lost his mobility
to a point where he can’t walk. He can’t even earn side money. But
as—in addition to that, our testimony will show that when you’re
disabled, you have to spend more money. And he has to go into a—
he’s going to testify that he has to go into an assisted living [facility]
which runs in his area between $4,500 and [$]8,000 a year. He is
only able to maintain his house because his neighbor is a real nice
guy. And that is the change of circumstances.
THE COURT: Okay. Is that the end of your offer of proof?
[PAUL’S COUNSEL]: On that portion, yes.
THE COURT: Okay.
[DANA’S COUNSEL]: Objection. Relevance, Judge. In the
initial ruling, Judgment for Dissolution of Marriage, it was found
that [Paul] did not work, wasn’t employed at all. So, in fact, he’s—
the fact that he was working at all since that happened is a change
in the opposite direction. The award was based on his inability to
work and on his being disabled and having multiple sclerosis. Judge.
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And there’s no—and I’m objecting to counsel testifying as to
what—
THE COURT: He’s not testifying. He made an offer of
proof.
***
THE COURT: I don’t think that I have heard anything in
your offer of proof that would sway me to think there was [a] change
in circumstances. It sounds like the same things that were going on
in 2012.
***
THE COURT: But the basis of all of this was he wasn’t able
to work. He’s now not able to work. One would anticipate that
multiple sclerosis is a downward spiral. That may have been taken
into consideration. But nothing in your offer of proof would be
persuasive in allowing for a modification of maintenance at this
point.”
¶9 Dana testified that she earned $93,316 in 2016 and $105,000 in 2017. She further testified
that she had accumulated $165,000 in assets since the 2012 dissolution judgment.
¶ 10 Following the hearing, Paul filed a memorandum in support of his motion to modify
maintenance. His memorandum argued that his income and retirement account had both decreased
since the 2012 dissolution judgment while Dana’s income and assets had increased. He claimed
that, coupled with his deteriorating health, the changes in both parties’ incomes established a
substantial change in circumstances warranting a maintenance modification.
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¶ 11 Dana filed a memorandum in opposition to Paul’s motion. Her memorandum argued: that
the evidence showed that Paul’s expenses had decreased since the 2012 dissolution judgment; that
Paul’s social security benefits had increased by approximately 5% in the last five years; and that
Paul had other sources of income that he had not disclosed. She also highlighted Paul’s testimony
that he is able to pay for all his expenses on his own and puts his maintenance payments from Dana
into a savings account. Dana conceded that her income has increased by approximately 20% since
the 2012 dissolution judgment, but argued that, standing alone, that was insufficient to constitute
a substantial change in circumstances justifying a maintenance modification.
¶ 12 On January 8, 2019, the trial court entered an order denying Paul’s motion to modify
maintenance. The trial court found that Paul had failed to meet his burden and prove that there was
a substantial change in circumstances. The order stated: “[Paul] does not use the maintenance
payments for his day-to-day expenses and *** he puts his maintenance payments into a savings
account to save for his future.” The order further explained that Paul does some side work for his
neighbors in exchange for food and supplies, which he did not disclose in his financial statements.
Additionally, the order noted that Paul “continues to be a heavy smoker, smoking two packs a day,
at the cost of upwards of $100 per 2 cartons of cigarettes.” Paul subsequently appealed the trial
court’s order.
¶ 13 ANALYSIS
¶ 14 We note that we have jurisdiction to consider this matter, as Paul filed a timely notice of
appeal following the denial of his motion to modify maintenance. See Ill. S. Ct. R. 301 (eff. Feb.
1, 1994).
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¶ 15 Paul presents the following issues on appeal: (1) whether the trial court erred in denying
his motion to modify maintenance; and (2) whether the trial court erred in preventing him from
testifying about his health problems.
¶ 16 As an initial matter, we address Dana’s argument that Paul has failed to provide this court
with a sufficient record. Specifically, she claims that only one of the 30 exhibits that Paul
introduced at trial are included in the record on appeal. In response, Paul points out that evidence
of the parties’ incomes is included in the record, which is sufficient for this court to review this
matter. Indeed, the parties’ testimony regarding the specifics of their financial situations are
included in the record on appeal, while the associated exhibits, such as the parties’ tax returns, are
not. Our supreme court has long held that in order to support a claim of error on appeal, the
appellant has the burden of presenting a sufficiently complete record. Foutch v. O’Bryant, 99 Ill.
2d 389, 391-92 (1984). “Any doubts arising from an incomplete record must be resolved against
the appellant.” In re Marriage of Sharp, 369 Ill. App. 3d 271, 278 (2006). We are able to review
this matter based on the record before us, but to the extent that our review is hindered by an
incomplete record, any deficiencies resulting from an incomplete record will be resolved against
Paul.
¶ 17 Paul first argues that the trial court erred in denying his motion. He claims that there was a
substantial change in circumstances, warranting a maintenance modification. The thrust of his
argument is that his income and retirement account have decreased since the 2012 dissolution
judgment while Dana’s income has increased. Paul avers that these income changes, coupled with
his deteriorating health, constitute a substantial change in circumstances. Paul additionally argues
that the trial court erred by considering his smoking habit in its ruling.
¶ 18 An order for maintenance may be modified only upon a showing of a substantial change in
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circumstances. 750 ILCS 5/510(a-5) (West 2016). Courts in Illinois have held that a “ ‘substantial
change in circumstances’ ” means that either the needs of the party receiving maintenance or the
ability of the other party to pay that maintenance has changed. In re Marriage of Anderson, 409
Ill. App. 3d 191, 198 (2011). The party seeking modification of a maintenance order has the burden
of showing that a substantial change in circumstances has occurred. Id. A trial court’s decision to
modify maintenance will not be disturbed absent a clear abuse of discretion. Id. at 199. An abuse
of discretion occurs when the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court. Id.
¶ 19 Although Paul claims that his income has decreased since the 2012 dissolution judgment,
the record reflects that his social security benefits have actually increased over the last five years.
He also stresses that his retirement account has decreased, but since Paul is retired, it naturally
follows that he has been withdrawing money from his retirement account. More importantly, aside
from vaguely claiming that his medical bills are increasing, Paul does not specifically argue that
he needs more maintenance. In fact, the record reflects that his living expenses have decreased
since the 2012 dissolution judgment. Most significantly, he even testified that he puts his
maintenance payments from Dana into a savings account because he is able to pay for all his
expenses on his own. Thus, Paul cannot prove a substantial change in circumstances warranting
additional maintenance under these facts and circumstances.
¶ 20 Further, Paul’s worsening health and inability to work cannot constitute a substantial
change in circumstances when: (1) he had MS and was not working at the time of the 2012
dissolution judgment; and (2) the progression of his MS and its impact on his employment was
considered in the 2012 dissolution judgment. It is well known that MS is a progressive disease.
The trial court clearly considered the effect of Paul’s progressing MS on his future ability to work
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and factored that into the maintenance award. Indeed, the 2012 dissolution judgment explicitly
noted: “Paul Dea has no present or future ability to earn income and he cannot be rehabilitated so
as to support himself through appropriate employment.” See In re Marriage of Virdi, 2014 IL App
(3d) 130561, ¶ 30 (this court is reluctant to find a substantial change in circumstances where the
trial court contemplated and expected the financial change at issue). It should also be noted that,
although the 2012 dissolution judgment was based on the trial court’s belief that Paul was no
longer employable, Paul in fact went back to work for a period of time after that judgment was
entered. Further, Paul continues to do work in exchange for food and supplies.
¶ 21 Paul makes much of the fact that Dana’s income has increased since the 2012 dissolution
judgment. However, an increase in the paying party’s income is generally not sufficient, on its
own, to warrant modification of a maintenance award. In re Marriage of Reynard, 378 Ill. App.
3d 997, 1005 (2008). This is especially true in this case, where the trial court considered Dana’s
steadily growing income in the 2012 dissolution judgment. See In re Marriage of Salvatore, 2019
IL App (2d) 180425, ¶ 24 (“We note that a party’s increased income does not constitute a
substantial change in circumstances when the increase was based on events that were contemplated
and expected by the trial court when the judgment of dissolution was entered.”). As it did when
considering Paul’s MS, the trial court recognized that Dana’s earning potential was likely to
increase. Therefore, the trial court factored that into its maintenance award, as well.
¶ 22 Paul additionally argues that the trial court erred in considering his smoking habit in its
ruling. He claims that the trial court specifically noted his smoking in its order and penalized him
for it. However, trial courts have a responsibility to consider all of the parties’ expenses. It is clear
that the trial court was merely determining Paul’s living expenses, including the amount of money
he spends on cigarettes. Since Paul is a smoker, the trial court was entitled to consider cigarettes
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as a calculable, recurring, and discretionary expense. We note that, in all dissolution cases where
there is a finite amount of money, each party has a responsibility to recognize that fact and act
prudently in incurring discretionary expenses and spending. That aside, nothing in the record
indicates that the trial court penalized Paul for smoking and that the court denied his motion on
that basis. Instead, the trial court was clearly accounting for all of Paul’s expenses, including the
expense for his smoking habit. Thus, we reject Paul’s argument.
¶ 23 Next, Paul argues that the trial court erred in preventing him from testifying regarding the
specifics of his worsening health. Paul claims that if he had been able to detail his progressing MS
and its associated costs, his testimony would have established a substantial change in
circumstances justifying a maintenance modification.
¶ 24 The admission of evidence is within the sound discretion of the trial court. People v.
Abrego, 371 Ill. App. 3d 987, 992 (2007). Its ruling will not be reversed absent an abuse of
discretion. Id.¶ 25 During the hearing on his motion to modify maintenance, Paul did not offer any evidence,
such as expert witness testimony, showing that his MS had progressed in a way that was not
anticipated in the 2012 dissolution judgment. The record is clear that, in the 2012 dissolution
judgment, the trial court recognized that MS is a progressive disease and carefully considered that
fact in its maintenance award. Paul’s self-serving testimony about his MS at the time of his motion
would have been irrelevant and inconsequential in determining if there had been a substantial
change in circumstances. The trial court accordingly did not abuse its discretion in excluding that
evidence.
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¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, we find that the trial court did not abuse its discretion in denying
Paul’s motion to modify maintenance. Accordingly, we affirm the judgment of the circuit court of
Cook County.
¶ 28 Affirmed.
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No. 1-19-0234
Cite as: In re Marriage of Dea, 2020 IL App (1st) 190234Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2008-D-
8694; the Hon. Jeanne Cleveland Bernstein, Judge, presiding.
Attorneys Michael T. Tristano and Marly R. Tristano,
for of Tristano & Tristano, Ltd., of Hickory Hills, for appellant.
Appellant:
Attorneys Matthew D. Elster, of Beermann LLP, of Chicago, for appellee.
for
Appellee:
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