In re Marriage of Dorgan

2020 IL App (2d) 190358-U

• Court: Appellate Court of Illinois
• Decided: February 7, 2020
• Docket: 2-19-0358
• Status: Unpublished

Opinion

2020 IL App (2d) 190358-U No. 2-19-0358 Order filed February 7, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court VALERIE E. DORGAN, ) of McHenry County. ) Petitioner-Appellant, ) ) and ) No. 18-DV-409 ) STEPHEN E. DORGAN, ) Honorable ) Mary H. Nader, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court. Justices Schostok and Bridges concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion in awarding petitioner temporary maintenance and denying permanent maintenance; petitioner was awarded a greater share of the marital assets, the marriage lasted only five years, neither party was fully healthy, and to the extent that respondent allegedly promised to “always take care of” petitioner, he did not intend to do so after the marriage.

¶2 When the marriage of petitioner, Valerie E. Dorgan, and respondent, Stephen E. Dorgan,

was dissolved, petitioner was awarded maintenance of $2099 for 11 months. Petitioner timely

appeals that award, arguing that, because of her disability and grave illnesses, she should have

been awarded permanent maintenance. We affirm. 2020 IL App (2d) 190358-U

¶3 I. BACKGROUND

¶4 The parties were married in November 2013. Four and one-half years later, in May 2018,

petitioner petitioned to dissolve the marriage and for temporary or permanent maintenance. She

claimed that she was entitled to permanent maintenance given the parties disparate finances and

her inability to work because she suffered from multiple sclerosis (MS), lupus, and lymphoma.

¶5 Financial affidavits submitted to the court revealed that respondent received monthly

pension payments and social security benefits totaling $8130. After his monthly expenses were

deducted from this amount, he was left with a surplus of $2931. Petitioner’s affidavit revealed

that every month she received $600 in rent and $1100 in monetary gifts. After her living expenses

were deducted, she was left with a deficit of $2068.

¶6 Both parties had little debt and few assets. Respondent owned a vacation home in

Wisconsin that he purchased for $22,000. This home was purchased during the marriage. He also

owned two boats. Petitioner bought one of the boats as a gift for respondent, spending between

$4000 and $5000 for it. Petitioner owned the home in which she and respondent lived during the

marriage. The fair market value of that home was $245,620, with an outstanding mortgage of

$135,000. Given the parties’ circumstances, the court awarded petitioner temporary maintenance

of $2099 per month. These payments began on January 1, 2019.

¶7 At the hearing on the petition to dissolve the marriage, respondent, who was 63 years old

and had difficulty hearing, testified that he is a retired disabled police officer. When the parties

met, petitioner, who had MS and used a wheelchair, was unemployed but in “great health.” Now,

respondent described her health as “[p]retty poor,” and he did not believe that she was able to

work. He “believe[d]” petitioner was “disabled.”

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¶8 After the parties married, petitioner contributed to the household expenses, using money

she received from her ex-husband’s pensions. When petitioner’s ex-husband passed away,

respondent assumed more of the responsibility for paying the parties’ expenses. Although

respondent could not say from where petitioner was receiving money, he speculated that “she must

have a lot of money coming in.” He explained that petitioner was able to pay her bills, her

substantial property taxes, and her car payment.

¶9 Petitioner, who was 58 years old, testified that she has an associate’s degree and last

worked over seven years ago. She was employed as a home healthcare representative, earning

$3000 per month plus a reimbursement of $300 for gas. When the parties married, they talked

about petitioner working. Respondent told her that she did not have to work, as he “[would] always

take care of [her].” Petitioner relied on respondent’s oral promise.

¶ 10 After the parties married, petitioner’s health deteriorated. She indicated that she is unable

to work given her illnesses. 1 Petitioner elaborated that she has secondary progressive MS, lupus,

and lymphoma. Because her MS has gotten worse, she now wears leg braces every day. She is

confined to a wheelchair and will soon be using the services of a home healthcare caregiver to

shower. Her lupus, which attacks the joints, causes her constant pain. She takes strong

medications, including morphine, to help alleviate the pain. She also takes a chemotherapy drug

twice a day to treat her lymphoma. The chemotherapy drugs cause her to vomit often. Although

1 Respondent objected to petitioner’s claim that she could not work because of her illnesses,

as she was not qualified to make such an assessment. The court allowed her to testify as to her

belief, explaining that it would give her statements the appropriate weight.

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petitioner applied for disability, her claim was denied. She has since retained an attorney to appeal

that decision.

¶ 11 When the court dissolved the parties’ marriage, it noted that respondent’s yearly income

was $97,560 and petitioner’s was $29,268. It awarded petitioner sole exclusive possession of the

marital home and ordered respondent to pay petitioner $500 per month for 22 months as her

equitable share in the Wisconsin home. 2

¶ 12 The court considered all of the proper factors in deciding whether to award petitioner

maintenance. See 750 ILCS 5/504(a) (West 2018). The court found that no evidence corroborated

petitioner’s claim that her illnesses prevented her from working. The court observed that, although

petitioner needed a wheelchair, which she had needed when the parties married, she was neatly

dressed and well groomed. She also testified clearly and concisely and understood the questions

posed to her. The court also noted that petitioner had been denied disability and that her only

impairment to working was her wheelchair. Moreover, the court observed that respondent’s

promise to take care of petitioner forever was not memorialized.

¶ 13 Additionally, the court found petitioner’s “income is shady,” and her “credibility as to her

finances is poor, at best.” The court continued that petitioner’s financial circumstances were

“circumspect,” noting that she “was not being honest and forthcoming with her finances.” For

instance, the court questioned from where petitioner received $1100 per month in monetary gifts

and doubted that she drove over 1600 miles per month as she claimed in her financial affidavit.

The court found that petitioner’s “numbers don’t add up.” Given petitioner’s lack of credibility,

the short duration of the marriage, the fact that petitioner had at least $110,000 in equity in her

2 The parties stipulated that petitioner’s house was her nonmarital property.

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home, and she will receive $11,000 from respondent as her equity in the Wisconsin home, the

court denied petitioner permanent maintenance, noting that the previously ordered award of $2099

in monthly maintenance would continue for 11 months.

¶ 14 II. ANALYSIS

¶ 15 At issue in this appeal is whether petitioner should have been awarded permanent

maintenance. Because the trial court has the discretion to award maintenance, we will not disturb

the trial court’s maintenance award absent an abuse of discretion. In re Marriage of Sturm, 2012

IL App (4th) 110559, ¶ 3. A trial court abuses its discretion only if no reasonable person would

adopt the trial court’s view. Id.

¶ 16 When a party challenges a trial court’s factual findings concerning maintenance, we will

not reverse those findings unless they are against the manifest weight of the evidence. Id. Findings

are against the manifest weight of the evidence where the opposite conclusion is clearly evident or

where the court’s findings are unreasonable, arbitrary, and not based on any of the evidence. In re

Marriage of Nord, 402 Ill. App. 3d 288, 294 (2010).

¶ 17 “Questions of witness credibility and conflicting evidence are matters for the trial [court]

to resolve.” In re Marriage of Sturm, 2012 IL App (4th) 110559, ¶ 6. “Because [the trial court]

sees and hears the witnesses, [it] is in a position superior to a reviewing court for assessing their

demeanor, judging their credibility, and weighing the evidence.” Id.

¶ 18 Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/504(a)

(West 2018)) provides that a court may award maintenance upon consideration of “all relevant

factors,” including:

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“(1) the income and property of each party, including marital property apportioned

and non-marital property assigned to the party seeking maintenance as well as all financial

obligations imposed on the parties as a result of the dissolution of marriage;

(2) the needs of each party;

(3) the realistic present and future earning capacity of each party;

(4) any impairment of the present and future earning capacity of the party seeking

maintenance due to that party devoting time to domestic duties or having forgone or

delayed education, training, employment, or career opportunities due to the marriage;

5) any impairment of the realistic present and future earning capacity of the party

against whom maintenance is sought;

(6) the time necessary to enable the party seeking maintenance to acquire

appropriate education, training, and employment, and whether that party is able to support

himself or herself through appropriate employment;

(6.1) the effect of any parental responsibility arrangements and its effect of a party’s

ability to seek or maintain employment;

(7) the standard of living established during the marriage;

(8) the duration of the marriage;

(9) the age, health, station, occupation, amount and sources of income, vocational

skills, employability, estate, liabilities, and the needs of each of the parties;

(10) all sources of public and private income including, without limitation,

disability and retirement income;

(11) the tax consequences of each party;

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(12) contributions and services by the party seeking maintenance to the education,

training, career or career potential, or license of the other spouse;

(13) any valid agreement between the parties; and

(14) any other factor that the court expressly finds to be just and equitable.”

¶ 19 Although maintenance is designed to be temporary, providing a dependent spouse with

some support until that spouse is financially independent, permanent maintenance is appropriate

in some circumstances. In re Marriage of Haas, 215 Ill. App. 3d 959, 964 (1991). For example,

“ ‘[p]ermanent maintenance *** is appropriate where it is evident that the recipient spouse is either

unemployable or employable only at an income that is substantially lower than the previous

standard of living.’ ” In re Marriage of Brankin, 2012 IL App (2d) 110203, ¶ 9 (quoting In re

Marriage of Murphy, 359 Ill. App. 3d 289, 303 (2005)).

¶ 20 With these principles in mind, we turn to the issue raised in this appeal. In doing so, we

certainly are sympathetic to petitioner’s poor health and her physical limitations. However, as

noted, our function as a court of review is limited. In that capacity, we conclude that the trial court

did not err.

¶ 21 At the crux of the trial court’s decision was its assessment of petitioner’s credibility. The

court found that petitioner was not credible in that she was neither honest nor forthcoming about

her financial situation. The court’s credibility finding was not against the manifest weight of the

evidence.

¶ 22 Moreover, given the trial court’s findings, we are compelled to conclude that the court’s

decision to deny petitioner permanent maintenance was not an abuse of discretion. Petitioner was

awarded more assets than respondent; nothing indicated that the parties lived a lavish lifestyle; the

marriage lasted less than five years; and neither party was healthy. Although respondent allegedly

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promised to always take care of petitioner, the court concluded that that promise was not valid.

Respondent never testified that he made such a promise, and even if he had, it is difficult to

conclude that respondent truly intended to take care of petitioner well after their relationship had

soured, rather than just during the marriage.

¶ 23 Petitioner argues that she should have been awarded permanent maintenance, because both

parties testified that she was disabled. We disagree. The fact that both parties believed that

petitioner was disabled did not mean that the court had to accept that belief as fact. Moreover,

respondent was disabled too. The court noted during trial that it would afford the proper weight

to testimony that petitioner was disabled, noting that no evidence other than the parties’ testimony

was presented on that issue. See, e.g., Kraft Foods, Inc. v. Illinois Property Tax Appeal Board,

2013 IL App (2d) 121031, ¶ 58 (rejecting proposition that trier of fact must accept unrebutted

testimony); Franciscan Communities, Inc. v. Hamer, 2012 IL App (2d) 110431, ¶ 47 (trier of fact

free to disbelieve any witness).

¶ 24 We also find untenable petitioner’s claim that the trial court failed to give the proper weight

to the fact that she was disabled when the parties married; that the marriage lasted less than five

years; and that the parties’ financial circumstances were vastly different. Putting aside the fact

that the court was not required to give equal weight to the statutory factors (In re Marriage of

Stam, 260 Ill. App. 3d 754, 756 (1994)), nothing indicated that the court failed to consider them.

For instance, although the court mentioned that petitioner already needed a wheelchair when she

married respondent, we view the comment as the acknowledgement that the wheelchair did not

prevent her from working, as petitioner testified that she and respondent discussed whether she

would work after the parties married. Similarly, we conclude that the court did not place too much

weight on the fact that the parties’ marriage lasted less than five years. Although the court

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mentioned the length of the marriage, nothing indicated that the court placed undue emphasis on

that factor. For the same reasons, we conclude that the court did not overlook the parties’ allegedly

disparate financial circumstances. The court noted that respondent’s gross monthly income

exceeded petitioner’s. However, it found that the difference did not warrant awarding petitioner

permanent maintenance, as, among other things, petitioner’s assets far exceeded respondent’s, and

petitioner’s assessment of her finances was suspect given her inflated expenses and the

questionable source of some of her income.

¶ 25 When we consider the entirety of the trial court’s decision, we conclude that the court did

not improperly weigh the evidence in balancing all the relevant factors. The court’s findings are

not against the manifest weight of the evidence (see Nord, 402 Ill. App. 3d at 294), and the court

did not abuse its discretion in denying petitioner permanent maintenance. See Strum, 2012 IL App

(4th) 110559, ¶ 3.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

¶ 28 Affirmed.

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