NOTICE 2016 IL App (5th) 150224 Decision filed 08/15/16. The text of this decision may be NO. 5-15-0224 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT _______________________________________________________________________
In re MARRIAGE OF ) Appeal from the ) Circuit Court of DONALD D. COLE, ) Montgomery County. ) Petitioner-Appellant, ) ) and ) No. 13-D-30 ) BRENDA J. COLE, ) Honorable ) Douglas L. Jarman, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Moore concurred in the judgment and opinion.
OPINION
¶1 Donald D. Cole (Husband) sought to dissolve his marriage to Brenda J. Cole
(Wife). The circuit court of Montgomery County entered judgment granting the
dissolution of the parties’ marriage and awarded Wife maintenance. Husband appeals the
award of maintenance. We affirm.
¶2 The parties were married in May 1979 and separated in May 2009. No children
were born to or adopted into the marriage, although each party had children from
previous marriages. Husband is a disabled veteran, and his only income is social security 1 retirement benefits and Veterans Affairs disability compensation. His gross monthly
income is $4951 plus $41 a month from a machinist’s union annuity established prior to
his marriage with Wife. Wife’s gross monthly income is $734 social security benefits.
Both parties estimated their monthly living expenses to be about $2800. Husband, age
67, has throat cancer. Wife, age 63, has tumors in her leg, foot-related issues, and a
thyroid condition. She has not worked in more than 10 years and has little present
earning capacity.
¶3 After 30 years of marriage, the parties secured a judgment of legal separation in
December 2009 in Franklin County, Missouri. This judgment incorporated a stipulation
and separation agreement dated October 26, 2009. Under the separation agreement,
Husband paid Wife maintenance of $2200 a month plus health insurance. The
maintenance was labeled in the agreement as being contractual and nonmodifiable.
¶4 After Husband filed a petition for dissolution of marriage, Wife responded by
requesting that the terms of the judgment for legal separation be incorporated into the
judgment for dissolution of marriage. The judgment for legal separation was
subsequently enrolled in Montgomery County and consolidated with the dissolution case.
The court heard the dissolution matter on October 24, 2014, but did not enter its
judgment of dissolution of marriage until February 24, 2015. In the judgment of
dissolution, the court set aside the Missouri separation agreement. The court found that
the nonmodifiability of the agreement created an unconscionable economic situation for
Husband, given that the agreement did not provide for modification of the amount of
maintenance in the event of a decrease in Husband’s income or an increase in Wife’s 2 income. At the time of the dissolution hearing, Wife’s income had increased when she
started collecting social security benefits. The court still awarded Wife maintenance but
reduced the amount to $2088 per month, terminable upon the death of either party or the
remarriage of Wife or her cohabitation with another person on a continuing conjugal
basis. Husband was also ordered to pay one half of Wife’s health insurance premium
until she became eligible for Medicare.
¶5 Husband filed a motion to reconsider contending that the court should have
applied the new maintenance guidelines contained within Public Act 98-961, which
amended section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750
ILCS 5/504), effective January 1, 2015. Based on his calculations under the new law,
Husband believes the award of Wife’s maintenance should have only been $1328.49 per
month. Upon denying Husband’s motion, the court ruled that the new spousal
maintenance formula created by Public Act 98-961 (eff. Jan. 1, 2015) (adding 750 ILCS
5/504(b-1)) did not apply here. The court noted that the new law is silent about any
retroactive application. Therefore, the new law, which is substantive in nature, applies
prospectively only and not retroactively. In this instance, even though the court’s order
was not entered until after January 1, 2015, the hearing was held and the evidence was
closed on October 24, 2014, before the new law took effect.
¶6 On appeal, Husband contends the award of maintenance is against the manifest
weight of the evidence. He first asserts that all cases pending prior to the amendatory act,
but decided after the amendatory act took effect, should also apply the terms of the
amended statute. He points out that the new maintenance guidelines did not change the 3 substantive nature of the maintenance statute. According to Husband, the substantive
issues apply only to whether or not a person is entitled to maintenance, and the factors
used to make such determinations were not changed pursuant to the amendment. Rather,
the changes contained within the amendment deal solely with how much maintenance is
to be paid and the time frame in which maintenance should be paid. Husband contends
the amended statute was designed to provide courts with guidelines to limit
inconsistencies in maintenance awards across the state, which, in the past, varied widely
in the amounts and durations of maintenance ordered for people with similar incomes and
similar periods of marriage. Husband points out the court’s order did not impose any
retroactive consequences on him as to maintenance payments he had made up until the
time of the order. The court’s order pertained only to maintenance payments that were to
be paid after the effective date of the new enactment. Husband asserts, relying on
Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023,
¶ 25, 25 N.E.3d 570, that the new statute does not operate retrospectively merely because
it is applied in a situation arising from conduct antedating the statute’s enactment.
Rather, according to Husband, the new statute applies to new maintenance orders
rendered after the amendment took effect. Alternatively, Husband contends, even under
the old statute, the court’s award of maintenance and the length of the maintenance
awarded are against the manifest weight of the evidence.
¶7 Under the terms of the new maintenance statute, a court is to calculate 30% of the
payor’s gross income minus 20% of the payee’s gross income as maintenance. This
amount, however, cannot be more than 40% of the combined gross income of the parties. 4 Here, 30% of Husband’s monthly income ($1473.09) minus 20% of Wife’s income
($144.60) leaves a balance of $1328.49, which is the amount Husband contends he
should have been ordered to pay Wife per month as maintenance for 36 years or
permanently, subject to the termination and modification provisions of section 510 of the
Act (750 ILCS 5/510 (West 2014)). We agree with the trial court that application of the
new amendments here would apply a substantive law retroactively.
¶8 If a new statute contains no express provision regarding its temporal reach, the
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NOTICE 2016 IL App (5th) 150224 Decision filed 08/15/16. The text of this decision may be NO. 5-15-0224 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT _______________________________________________________________________
In re MARRIAGE OF ) Appeal from the ) Circuit Court of DONALD D. COLE, ) Montgomery County. ) Petitioner-Appellant, ) ) and ) No. 13-D-30 ) BRENDA J. COLE, ) Honorable ) Douglas L. Jarman, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Moore concurred in the judgment and opinion.
OPINION
¶1 Donald D. Cole (Husband) sought to dissolve his marriage to Brenda J. Cole
(Wife). The circuit court of Montgomery County entered judgment granting the
dissolution of the parties’ marriage and awarded Wife maintenance. Husband appeals the
award of maintenance. We affirm.
¶2 The parties were married in May 1979 and separated in May 2009. No children
were born to or adopted into the marriage, although each party had children from
previous marriages. Husband is a disabled veteran, and his only income is social security 1 retirement benefits and Veterans Affairs disability compensation. His gross monthly
income is $4951 plus $41 a month from a machinist’s union annuity established prior to
his marriage with Wife. Wife’s gross monthly income is $734 social security benefits.
Both parties estimated their monthly living expenses to be about $2800. Husband, age
67, has throat cancer. Wife, age 63, has tumors in her leg, foot-related issues, and a
thyroid condition. She has not worked in more than 10 years and has little present
earning capacity.
¶3 After 30 years of marriage, the parties secured a judgment of legal separation in
December 2009 in Franklin County, Missouri. This judgment incorporated a stipulation
and separation agreement dated October 26, 2009. Under the separation agreement,
Husband paid Wife maintenance of $2200 a month plus health insurance. The
maintenance was labeled in the agreement as being contractual and nonmodifiable.
¶4 After Husband filed a petition for dissolution of marriage, Wife responded by
requesting that the terms of the judgment for legal separation be incorporated into the
judgment for dissolution of marriage. The judgment for legal separation was
subsequently enrolled in Montgomery County and consolidated with the dissolution case.
The court heard the dissolution matter on October 24, 2014, but did not enter its
judgment of dissolution of marriage until February 24, 2015. In the judgment of
dissolution, the court set aside the Missouri separation agreement. The court found that
the nonmodifiability of the agreement created an unconscionable economic situation for
Husband, given that the agreement did not provide for modification of the amount of
maintenance in the event of a decrease in Husband’s income or an increase in Wife’s 2 income. At the time of the dissolution hearing, Wife’s income had increased when she
started collecting social security benefits. The court still awarded Wife maintenance but
reduced the amount to $2088 per month, terminable upon the death of either party or the
remarriage of Wife or her cohabitation with another person on a continuing conjugal
basis. Husband was also ordered to pay one half of Wife’s health insurance premium
until she became eligible for Medicare.
¶5 Husband filed a motion to reconsider contending that the court should have
applied the new maintenance guidelines contained within Public Act 98-961, which
amended section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750
ILCS 5/504), effective January 1, 2015. Based on his calculations under the new law,
Husband believes the award of Wife’s maintenance should have only been $1328.49 per
month. Upon denying Husband’s motion, the court ruled that the new spousal
maintenance formula created by Public Act 98-961 (eff. Jan. 1, 2015) (adding 750 ILCS
5/504(b-1)) did not apply here. The court noted that the new law is silent about any
retroactive application. Therefore, the new law, which is substantive in nature, applies
prospectively only and not retroactively. In this instance, even though the court’s order
was not entered until after January 1, 2015, the hearing was held and the evidence was
closed on October 24, 2014, before the new law took effect.
¶6 On appeal, Husband contends the award of maintenance is against the manifest
weight of the evidence. He first asserts that all cases pending prior to the amendatory act,
but decided after the amendatory act took effect, should also apply the terms of the
amended statute. He points out that the new maintenance guidelines did not change the 3 substantive nature of the maintenance statute. According to Husband, the substantive
issues apply only to whether or not a person is entitled to maintenance, and the factors
used to make such determinations were not changed pursuant to the amendment. Rather,
the changes contained within the amendment deal solely with how much maintenance is
to be paid and the time frame in which maintenance should be paid. Husband contends
the amended statute was designed to provide courts with guidelines to limit
inconsistencies in maintenance awards across the state, which, in the past, varied widely
in the amounts and durations of maintenance ordered for people with similar incomes and
similar periods of marriage. Husband points out the court’s order did not impose any
retroactive consequences on him as to maintenance payments he had made up until the
time of the order. The court’s order pertained only to maintenance payments that were to
be paid after the effective date of the new enactment. Husband asserts, relying on
Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023,
¶ 25, 25 N.E.3d 570, that the new statute does not operate retrospectively merely because
it is applied in a situation arising from conduct antedating the statute’s enactment.
Rather, according to Husband, the new statute applies to new maintenance orders
rendered after the amendment took effect. Alternatively, Husband contends, even under
the old statute, the court’s award of maintenance and the length of the maintenance
awarded are against the manifest weight of the evidence.
¶7 Under the terms of the new maintenance statute, a court is to calculate 30% of the
payor’s gross income minus 20% of the payee’s gross income as maintenance. This
amount, however, cannot be more than 40% of the combined gross income of the parties. 4 Here, 30% of Husband’s monthly income ($1473.09) minus 20% of Wife’s income
($144.60) leaves a balance of $1328.49, which is the amount Husband contends he
should have been ordered to pay Wife per month as maintenance for 36 years or
permanently, subject to the termination and modification provisions of section 510 of the
Act (750 ILCS 5/510 (West 2014)). We agree with the trial court that application of the
new amendments here would apply a substantive law retroactively.
¶8 If a new statute contains no express provision regarding its temporal reach, the
court must determine whether the new statute would have retroactive effect, “keeping in
mind the general principle that prospectivity is the appropriate default rule.” (Internal
quotation marks omitted.) People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,
¶ 29, 28 N.E.3d 758. Generally speaking, therefore, procedural aspects of a new law may
be applied retroactively while substantive provisions may not. Caveney v. Bower, 207 Ill.
2d 82, 92, 797 N.E.2d 596, 602 (2003). A procedural change in the law prescribes a
method of enforcing rights or involves pleadings, evidence, and practice, whereas a
substantive change in law establishes, creates, or defines rights. Schweickert v. AG
Services of America, Inc., 355 Ill. App. 3d 439, 442-43, 823 N.E.2d 213, 216 (2005).
The new maintenance guidelines are substantive in nature because they alter the method
for determining a maintenance award and address the rights underlying a dissolution
proceeding. Prior to January 1, 2015, courts calculated maintenance awards relying on a
list of factors within section 504 of the Act (750 ILCS 5/504 (West 2012)). The new
version creates a formula for calculating maintenance based on the gross income of the
parties and the length of the marriage, after considering the factors of the old statute to 5 determine whether maintenance is appropriate. The new statute requires that the same
factors of the old statute are used for a different purpose, that is, to determine whether
maintenance should be awarded in the first place. Awards are no longer based on the
weight of the various factors. The new statute redefines an individual’s right to
maintenance and, therefore, is substantive. The mere fact that payments will be made in
the future does not mean that a spouse’s rights are not being retroactively affected.
¶9 Here, the marriage, separation, and dissolution hearing all occurred in 2014,
before the statute took effect. All of the events that shaped the trial court’s opinion in
formulating its ruling occurred in 2014. The evidence was closed, and the matter had
been submitted to the court for the rendering of its decision, all in 2014. The mere fact
that the matter was taken under advisement but not ruled on until 2015, after the effective
date of the new statute, does not warrant retroactive application of the law. The order not
being handed down until after January 2015 has nothing to do with the facts of the case,
yet under Husband’s reasoning, this delay changes the entire maintenance determination.
Applying the new formula to maintenance awards entered before the effective date would
attach new legal consequences to events completed before the effective date. See Brian
A. Schroeder, The New Illinois Spousal Maintenance Law: Retroactive or Prospective?,
103 Ill. B.J. 32 (2015). We see no difference here given that the case was essentially
closed before the effective date of the new maintenance statute. The rights of the parties
should be determined by the facts of the case, not by the timing of the final order.
¶ 10 Turning our attention to the actual award of maintenance ordered in this instance,
we first note that the trial court has wide latitude in determining what needs are 6 reasonable. We also recognize that the court is to take into consideration the
circumstances of the parties, the standard of living established during the marriage, and
the duration of the marriage. In re Marriage of Krane, 288 Ill. App. 3d 608, 618, 681
N.E.2d 609, 616 (1997). Determining the propriety, amount, and duration of a
maintenance award ultimately is within the trial court’s discretion, and the court’s
decision will not be disturbed on appeal absent an abuse of that discretion. In re
Marriage of Shen, 2015 IL App (1st) 130733, ¶ 80, 35 N.E.3d 1178. Considering the
length of the marriage here, the gross monthly incomes of the parties, the various health
conditions of both parties, and the standard of living established during the marriage, we
cannot say the award of maintenance to Wife in the amount of $2088 per month
constitutes an abuse of the court’s discretion in this instance.
¶ 11 Husband also argues on appeal that there is no statutory authority for the court to
order one spouse to provide health insurance for another spouse. The trial court’s order
requiring Husband to obtain health insurance for Wife, however, was within the
legitimate exercise of the court’s power. See In re Marriage of Flory, 171 Ill. App. 3d
822, 830, 525 N.E.2d 1008, 1013 (1988). We, therefore, again find no abuse of the
court’s discretion in this instance.
¶ 12 For the aforementioned reasons, we affirm the judgment of the circuit court of
Montgomery County.
¶ 13 Affirmed.
7 2016 IL App (5th) 150224
NO. 5-15-0224
IN THE
FIFTH DISTRICT ________________________________________________________________________
In re MARRIAGE OF ) Appeal from the ) Circuit Court of DONALD D. COLE, ) Montgomery County. ) Petitioner-Appellant, ) ) and ) No. 13-D-30 ) BRENDA J. COLE, ) Honorable ) Douglas L. Jarman, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
Opinion Filed: August 15, 2016 ________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable S. Gene Schwarm, P.J., and Honorable James R. Moore, J., Concur ________________________________________________________________________
Attorney Alan Pretnar, 510 Hillsboro Street, P.O. Box 310, Taylor Springs, for IL 62089 Appellant ________________________________________________________________________
Attorney Michelle L. Blackburn, Sorling Northrup, 1 N. Old State Capitol for Plaza, Suite 200, P.O. Box 5131, Springfield, IL 62705 Appellee _______________________________________________________________________