In re Marriage of Leitzen

2023 IL App (4th) 220770-U

• Court: Appellate Court of Illinois
• Decided: May 9, 2023
• Docket: 4-22-0770
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220770-U FILED This Order was filed under May 9, 2023 Supreme Court Rule 23 and is NO. 4-22-0770 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

In re MARRIAGE OF ) Appeal from the HEIDI LEITZEN, ) Circuit Court of Petitioner-Appellee, ) McLean County and ) No. 20D469 JOHN LEITZEN, ) Respondent-Appellant. ) Honorable ) Amy L. McFarland, ) Judge Presiding.

JUSTICE LANNERD delivered the judgment of the court. Presiding Justice DeArmond and Justice Steigmann concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding the circuit court did not abuse its discretion when it (1) denied maintenance to the respondent, (2) allocated the petitioner her entire pension, (3) ordered the petitioner’s retirement account be divided via a qualified domestic relations order, and (4) admitted certain evidence pertaining to the petitioner’s health.

¶2 Respondent, John Leitzen, appeals from the McLean County circuit court’s

judgment dissolving his marriage to petitioner, Heidi Leitzen. On appeal, John argues the court

erred when it (1) denied his request for maintenance; (2) awarded Heidi her entire pension;

(3) required the equalization payment due and owing from Heidi to be paid to John from a

qualified domestic relations order (QDRO) instead of cash funds; and (4) admitted evidence that

was not relevant, not previously disclosed, or inadmissible hearsay. Heidi responds the court

committed no errors and the judgment should be affirmed. We affirm the court’s judgment. ¶3 I. BACKGROUND

¶4 John and Heidi married in June 1999. Heidi is eight years older than John and has

two children from a previous marriage. During their marriage, John and Heidi had two children

together, who are now adults. In December 2020, John and Heidi separated after Heidi filed a

petition for dissolution of marriage on the basis irreconcilable differences caused the irretrievable

breakdown of the marriage. In April 2021, the parties sold the marital residence. In December

2021, John filed a motion for temporary and permanent maintenance under section 504(a) of the

Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(a) (West 2020)).

¶5 A. Hearing on All Remaining Issues

¶6 Over three dates in February 2022, March 2022, and June 2022, the circuit court

conducted a final hearing on all remaining issues, including (1) the distribution of marital

property and (2) John’s request for maintenance. A summary of the evidence presented at the

hearing follows.

¶7 1. Heidi’s Testimony

¶8 Heidi testified she currently resided in Heyworth, Illinois, where she lived with a

friend. At the time of the hearing, Heidi was 56 years old and had been employed as a senior

compliance analyst at State Farm Mutual Automobile Insurance Company (State Farm) in

Bloomington, Illinois, for 30 years. Before marrying John, Heidi had been working at State Farm

for seven years and earned her bachelor’s degree from Illinois State University.

¶9 Heidi testified she was not planning to continue her employment with State Farm

and had been approved for a retirement date of July 1, 2022. Heidi had her last day of work

shortly before the final hearing because she had planned to use her outstanding paid time off

-2- before her official retirement date. During this vacation time, Heidi would be paid her salary, but

she would begin receiving a pension from State Farm once she retired.

¶ 10 Heidi explained she elected to retire before she was eligible for social security

benefits because she felt “outpaced” by changes State Farm had implemented in recent years. As

technology changed, she found it hard to try to keep up. Additionally, her supervisor had

expressed concern regarding the amount of time it was taking Heidi to perform her assigned

tasks. At this point, John objected to Heidi’s testimony on the basis it was inadmissible hearsay

and Heidi failed to previously disclose any “impairment in regard to employment.” The court

overruled John’s objection, finding that Heidi’s testimony did not go to the truth of whether she

had an impairment to employment, but instead “her basis and reasoning for choosing to retire.”

Heidi then continued as follows:

“So, I am struggling with not being able to keep up with all of the

changes. I can’t do things as fast as I used to. I am not picking up on all of it. I am

falling behind. I am getting comments from my boss. It is like I cannot do

anything right. Nothing.”

¶ 11 John again objected, and the circuit court again overruled the objection. The

following exchanges then ensued:

“MS. WOOD [([HEIDI’S COUNSEL)]: Do you feel that the atmosphere

where you are located within your Department has changed in a positive way or a

negative way in the last few months?

MS. MOSBY-SCOTT [(JOHN’S COUNSEL)]]: Objection, relevance.

THE COURT: I will allow it.

[HEIDI]: It is changed in a very negative way.

-3- ***

MS. WOOD: Can you explain without talking about anything anybody has

said from a third party standpoint how you are feeling the cohesiveness of your

Department has been working for the last several months?

A. It hasn’t. Everyone is out for themselves. No one has anyone’s back.

MS. MOSBY-SCOTT: Objection.

A. If there is a mistake made—

THE COURT: Hold on. So when there is an objection, I am just going to

ask you to stop speaking and let me deal with the objection.

MS. MOSBY-SCOTT: How can she testify that no one else in her

Department has anyone else’s back. She has no foundation to be able to attest to

that.

THE COURT: I am going to allow her to—really, this goes to the heart of

why she is retiring. So they are her beliefs, her feelings, they are her perceptions

related to that. I am not taking that as the truth of the matter asserted. Really, the

question is why are you retiring now. I think we can probably move on a little bit

from much of this without having to go into the same amount of detail.

MS. WOOD: Sure.

THE COURT: But for that purpose, I will overrule.”

John’s counsel continued to object, and the court recognized John’s continuing objection. Heidi’s

counsel then continued direct examination, as follows:

-4- “Q. Okay. How is this impacting you, your continuing work at State Farm,

or now you are not doing it anymore, but how was your continuing work with

State Farm affecting you physically and emotionally if at all?

A. The stress. My blood pressure is off the charts. I am on four different

blood pressure medications now. But it is [sic] still keeps spiking to up to 200 and

something over a hundred and something. We can’t get that resolved. I am a

cancer survivor.

MS. MOSBY-SCOTT: I am going to object. She provided no health

records whatsoever in discovery.

MS. WOOD: You don’t have to present health records to talk about your

cancer diagnosis and treatment.

MS. MOSBY-SCOTT: Well, in regard to your blood pressure, if you are

alleging in trial that it is a basis for your impairment to produce income, you do

have to disclose it.

THE COURT: I don’t think she is presenting it as an impairment. I think

she is addressing the impact of her work environment on her health. I am going to

allow it.”

Thereafter, Heidi testified she was diagnosed with bilateral breast cancer in 2015 and received

chemotherapy treatments over the course of four or five months. She also underwent a double

mastectomy and reconstruction. According to Heidi, her health history impacted her decision to

retire from State Farm because “of the stress and the fear that [the cancer] would return.”

¶ 12 Moreover, Heidi explained that several years before her cancer diagnosis, she and

John had discussed her desire to retire in her mid-fifties. Because John was self-employed with

-5- his construction business, Heidi asked John to consider obtaining different employment to ensure

the family had health insurance, as her retirement benefits would only cover her own health

insurance. Once she was diagnosed with cancer, she again asked John to contemplate finding a

job with benefits, as she was “very concerned that something would happen to [her] and that they

wouldn’t have health insurance coverage.”

¶ 13 Heidi did not believe John had done anything to advance her education or her

career at State Farm. He was not responsible for any domestic duties that allowed her to advance

in her career, and had she not been married to him, she believed she would have been able to

make the same advancements.

¶ 14 Turning to John’s employment, Heidi testified that when they were first married

in 1999, John was employed at West Side Forest Products as a salesman, where he earned a

salary comparable to her own. Sometime between 2006 and 2008, John started his own online

business selling cedar products, and later his own construction business, Leitzen Construction.

According to Heidi, she and John discussed him potentially obtaining a job with benefits

approximately once per month from 2015 until they decided to divorce in 2020. Specifically,

Heidi encouraged John to apply for job opportunities at the local school as a custodian and at the

grocery store, but John was not interested.

¶ 15 During their marriage, she and John maintained separate bank accounts except for

a joint savings account. Heidi was the bookkeeper for the home finances, and John maintained

the books for his businesses. Heidi did not know how much income John earned from his

businesses, but he contributed $550 per week to their shared household expenses according to a

budget they prepared. Neither she nor John ever quit their respective jobs to care for the children,

-6- and she maintained they shared those responsibilities equally. Heidi opined that having two

children did not impact her or John’s employment prospects.

¶ 16 When she and John sold the marital residence in April 2021, the funds realized

from the sale were deposited into the closing attorney’s trust account. Heidi proposed that

instead of equalizing their bank accounts, she and John should each be awarded the separate

accounts they had maintained throughout the marriage. Additionally, Heidi was concerned that

John had not reported all his sources of income because he was often paid in cash. According to

John’s financial affidavit, he earned around $1900 and $1600 in June 2021 and October 2021,

respectively. Heidi explained that it was unlikely John would have been able to pay the $550 he

contributed to the household per week—on top of his other expenses—if he earned only the

amounts on his financial affidavit. Before they separated in 2020, John periodically worked as a

bartender at Prairie Fire Grill at least two nights per week. John did not report any cash tips in his

financial affidavit.

¶ 17 Heidi proposed that she and John each keep their own individual retirement

accounts because they had always kept those accounts separate during their marriage.

Additionally, John had at least eight additional years to work and save for retirement, even if he

retired at the same age as Heidi.

¶ 18 From 2019 to 2021, in addition to her State Farm employment, Heidi worked

part-time at the public library. At this job, Heidi earned approximately $2600 per year and used

the extra money to visit her mother in Florida. Heidi quit in 2021 because she was “tired,”

“stressed,” and determined the extra work was not beneficial for her health.

¶ 19 At the beginning of the COVID-19 pandemic in March 2020 when stay-at-home

orders were in place, Heidi worked remotely. While working at home, Heidi observed John’s

-7- work schedule and found that he generally slept in late and was often home most of the day.

Heidi did not know the value of John’s construction business because she had not asked to

receive any portion of it. However, Heidi noticed John’s business bank account statements

reflected that John had drawn from his business account for personal expenses.

¶ 20 On cross-examination, Heidi acknowledged John had surgery to remove an eight-

pound tumor, which negatively affected his ability to work for several months in 2019. He did

not make his usual weekly $550 payments to Heidi during his recovery. In December 2020,

when Heidi and John separated, John remained in the marital home with the two children, while

Heidi moved in with a friend. She did not pay rent to her friend while separated from John but

purchased groceries for her friend’s household and paid to have the pool prepared for the

summer. Upon the conclusion of the divorce proceedings, Heidi planned to find her own place to

live.

¶ 21 During the marriage, Heidi acknowledged she obtained several insurance

designations and certifications related to her work at State Farm. She studied for the required

exams for those certifications at home and at the Heyworth Public Library. When asked when

she made the decision to specifically retire in July 2022, Heidi responded, “That has just came up

over the last few months as things got so incredibly bad at work. I was trying to hold on as long

as I could. I have always worked.” Heidi explained further, “I made the decision to retire when I

became fearful for my job if I didn’t. And I don’t want to leave on bad terms from anywhere.

That is not who I am. I am not someone who wants to get fired.” Heidi admitted she had not

provided any documentation to the court establishing she had received a negative performance

review. To the contrary, Heidi testified she was rated as “meet[ing] expectations” in her

December 2021 review. Admittedly, Heidi had not sought out additional resources at work to

-8- improve her skills and performance. Heidi insisted that when she said she would “quit [her] job

before [she] would give [John] any portion of [her] pension and pay him maintenance,” she was

referring to her job at the library.

¶ 22 On redirect examination, Heidi explained her annual income would be reduced by

around $70,000 upon her retirement. Accordingly, it would not make “economic sense” for her

to forgo her $93,000-per-year salary at State Farm merely to avoid paying John $21,000 in

maintenance out of spite or revenge. Heidi asserted John was skilled in his job and could provide

for his own needs.

¶ 23 2. John’s Testimony

¶ 24 Next, Heidi called John as a witness. On direct examination by Heidi’s counsel,

John testified he was currently residing with his two adult children at a low-income apartment in

Heyworth, where he had lived since he and Heidi sold their marital home. John hoped to

purchase a home upon the conclusion of the divorce proceedings. According to John, the $1951

per month listed in his financial affidavit was all the economic benefit he received from his

construction business. John did not include his wages or tips from Prairie Fire Grill in his

financial affidavit because he had not worked there since September 2021. John admitted he did

not provide any log of the tips he earned there and claimed he did not know how much he

typically earned in tips on a given night.

¶ 25 At the time of his testimony, John was exclusively working for his construction

business, which was experiencing a “very serious economic crunch trying to get materials in.”

Although business was slow, John chose not to continue bartending. John preferred to work for

himself and liked to be his own boss.

-9- ¶ 26 According to John, he “r[a]n a pretty clean ship” with respect to his business

accounting. He did not derive any economic benefits from his company over and above the net

after-business expenses and draws. When asked about the check details from his business

account, John agreed he had written checks from his business account for his divorce attorney

fees, dining out, and his contributions to weekly and monthly household expenses. John

explained, “I am using [my business account] as my personal account, and I also claim it all on

taxes.” When asked about expenditures at Par-A-Dice casino in Peoria, Illinois, John explained

he did not write those expenses off as business expenses but rather reimbursed the business

account from his personal account the next day. John did not typically use his personal account

because it did not contain any money.

¶ 27 John acknowledged Heidi used her income and benefits from State Farm to

provide for the family’s expenses and health insurance. They had attended a retirement seminar

at State Farm “five years ago,” but John indicated he did not know when Heidi was going to

retire. When asked “what, if any, resumes, or applications, or requests for employment” John had

made since Heidi had filed the petition to dissolve the marriage, John responded, “I haven’t had

to—I am not going to go out and fill out an application because I am working for myself.”

¶ 28 On cross-examination by his own counsel, John explained that when he worked at

Prairie Fire Grill, he was not paid $10 per hour plus 100% of tips. Instead, it was “tips minus the

$10 an hour” if his credit card and cash tips exceeded the hourly rate. Accordingly, the amount

shown on John’s pay stubs constituted the entirety of his compensation.

¶ 29 John admitted Heidi suggested he apply at Kroger during the COVID-19

pandemic because he was unable to complete construction jobs during the governor’s stay-at-

home orders. He also acknowledged Heidi had proposed he apply for a custodian position at the

- 10 - local school because it came with benefits. John did not pursue that job because he did not like to

be in the same spot every day and he enjoyed his carpentry work.

¶ 30 Subsequently, on direct examination by his own counsel, John testified, when the

proceedings concluded, he planned to stay in Heyworth and purchase a home in the $90,000 to

$100,000 range. In contrast, John and Heidi sold their marital home for $235,000. John hoped to

use funds held in trust following the sale of the home as a down payment.

¶ 31 When Heidi studied for the exams related to her employment, John made sure the

house was quiet and would cook dinner. When the children were in school, Heidi typically left

for work around 6:30 a.m. Because of her schedule, John ensured the children were dressed and

brought them to the bus stop in the morning and met them at the bus stop or picked them up in

the afternoon. John did most of the laundry and cooking. Heidi scheduled and coordinated the

children’s doctor’s appointments; however, John typically drove the children to those

appointments and stayed home with them if they were sick. John estimated he performed about

75% of the domestic responsibilities and was responsible for lawn maintenance and weeding.

According to John, he also completed several renovations on their most recent marital residence,

such as installing tile flooring, roofing, and re-sheeting the deck.

¶ 32 John did not recall Heidi ever telling him that she intended to retire in 2022.

However, during an argument in January 2021, John claimed Heidi stated she would rather quit

State Farm than pay maintenance to him. John proposed the circuit court divide Heidi’s pension

between them via a QDRO, equally divide the proceeds from the sale of the marital home, and

require any equalization payment from Heidi to John to be paid from Heidi’s one-half share of

those marital home funds. John also acknowledged a portion of his business income had not been

reported correctly on his 2018, 2019, and 2020 tax returns and had no objection to filing

- 11 - amended returns to correct the issue. John admitted this would lead to a greater tax liability and

agreed to split that deficiency with Heidi.

¶ 33 3. Closing Arguments

¶ 34 In closing, Heidi argued John was not entitled to maintenance. Specifically, she

asserted John’s testimony he earned only about $10,000 per year was not credible and his income

was substantially more than what he submitted to the court and to the Internal Revenue Service.

Additionally, based on his financial affidavit, John had not incurred any significant debts since

separating from Heidi despite claiming living expenses of around $40,000 per year. Using John’s

profit and loss statements, Heidi estimated John’s gross annual income averaged around $50,000

per year. According to Heidi, the court should not order her to pay maintenance to John because

based on the statutory factors, each of the parties could meet their modest needs on their own.

Their marriage did not impact John’s educational or vocational opportunities. While John

enjoyed his construction and bartending work, Heidi was unhappy and struggling to keep up her

work performance after 30 years at State Farm. She believed it would not be equitable to divide

her pension with him, especially since Heidi had been working for State Farm for years prior to

meeting John.

¶ 35 John argued the circuit court should order Heidi to pay him maintenance. He

emphasized he had worked flexible hours to accommodate Heidi’s higher-earning job and took

on a greater portion of domestic responsibilities and childcare. Further, John argued maintenance

was appropriate because Heidi chose to retire early in bad faith after telling John she would quit

her job before paying him maintenance. In addition, he asserted Heidi had not presented any

evidence, other than her own testimony, showing her job was at risk due to poor performance.

Moreover, John testified Heidi had never indicated to him she intended to retire in 2022, and

- 12 - Heidi had not provided any documentation to the court to confirm she would be retired on the

date she specified. Consequently, John maintained income should be imputed to Heidi at the time

she quit State Farm.

¶ 36 The circuit court thereafter took the case under advisement.

¶ 37 B. Circuit Court’s Judgment

¶ 38 At the June 2022 hearing, the circuit court announced its judgment. The court

awarded each of the parties their respective bank accounts. Heidi was awarded her pension and

John his individual retirement account. It also determined the proceeds from the sale of the

marital home should be divided equally between the parties. Based on the court’s inventory, it

ordered an equalization payment of $51,000 be paid to John from Heidi’s State Farm 401k via a

QDRO.

¶ 39 After discussing the statutory maintenance factors, the circuit court denied John’s

request for maintenance. Specifically, the court found Heidi’s testimony regarding her decision

to retire was credible and that the decision was reasonable given her history of breast cancer and

the difficulties she experienced keeping up with new technology at State Farm. The court

determined John was “completely employable,” did not require any additional job training, and

had not experienced any impairment in his earning capacity by virtue of taking on domestic or

childcare responsibilities.

¶ 40 The circuit court also ordered the parties to file amended 2021 federal and state

tax returns to properly account for all of John’s income.

¶ 41 This appeal followed.

¶ 42 II. ANALYSIS

- 13 - ¶ 43 On appeal, John argues the circuit court erred when it (1) denied his request for

maintenance, (2) awarded Heidi her entire pension, (3) ordered the equalization payment to be

paid from Heidi’s 401k via a QDRO rather than from cash proceeds from the sale of the marital

home, and (4) admitted certain evidence at the final hearing. Heidi responds that no errors

occurred, and the court’s judgment should be affirmed. We agree the court did not abuse its

discretion and affirm its judgment.

¶ 44 A. Denial of John’s Maintenance Request

¶ 45 1. Applicable Law

¶ 46 Section 504(a) of the Act (750 ILCS 5/504(a) (West 2020)) provides that in a

dissolution proceeding, the circuit court “may grant” maintenance in an amount and for a period

of time “as the court deems just.” “[T]he propriety of a maintenance award is within the

discretion of the trial court and the court’s decision will not be disturbed absent an abuse of

discretion.” In re Marriage of Schneider, 214 Ill. 2d 152, 173, 824 N.E.2d 177, 189 (2005). An

abuse of discretion occurs where “no reasonable person would agree with the trial court’s

decision.” In re Marriage of Donovan, 361 Ill. App. 3d 1059, 1064, 838 N.E. 2d 310, 315

(2005). In turn, “[w]hen a party challenges the trial court’s factual findings, a reviewing court

will affirm unless the court’s findings were clearly against the manifest weight of the evidence.”

In re Marriage of Walker, 386 Ill. App. 3d 1034, 1041, 899 N.E.2d 1097, 1103 (2008). A finding

is against the manifest weight of the evidence when the opposite conclusion is clearly apparent.

In re Marriage of Palarz, 2022 IL App (1st) 210618, ¶ 28. When reviewing the circuit court’s

factual findings, this court is not to substitute its judgment for that of the circuit court on matters

of witness credibility, the weight to be given evidence, and the inferences to be drawn from the

- 14 - evidence, even if the reviewing court would have reached a different conclusion if it had been

the trier of fact. See In re A.W., 231 Ill. 2d 92, 102, 896 N.E.2d 316, 322 (2008).

¶ 47 To determine whether a maintenance award is appropriate, section 504(a) sets

forth certain factors for the circuit court to consider, including:

“(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 or 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

on a party’s ability to seek or maintain employment;

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

(8) the duration of the marriage;

- 15 - (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 to each party;

(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 of the parties; and

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

equitable.” 750 ILCS 5/504(a) (West 2020).

¶ 48 Generally, the needs of a party seeking maintenance are measured by the standard

of living established during the marriage. In re Marriage of Selinger, 351 Ill. App. 3d 611, 618-

19, 814 N.E.2d 152, 160 (2004). When considering the first factor—i.e., the income and property

of each party—the court may impute income to the party against whom maintenance is sought

under any of the following three circumstances: “(1) the payor has become voluntarily

unemployed, (2) the payor is attempting to evade a support obligation, or (3) the payor has

unreasonably failed to take advantage of an employment opportunity.” In re Marriage of Blume,

2016 IL App (3d) 140276, ¶ 30, 59 N.E.3d 135. The circuit court’s decision whether to impute

income is reviewable for an abuse of discretion. See In re Marriage of Lichtenauer, 408 Ill. App.

3d 1075, 1091, 945 N.E.2d 119, 132 (2011).

¶ 49 2. This Case

¶ 50 a. Imputation of Income to Heidi

- 16 - ¶ 51 First, we conclude the circuit court’s decision not to impute income to Heidi due

to her early retirement was not an abuse of discretion. Although the court seemingly found Heidi

voluntarily retired, it also found her testimony regarding her motivations to retire to be credible

and reasonable under the circumstances—and therefore her retirement did not warrant the

imputation of income. The record showed Heidi had worked at State Farm continuously for 30

years. Over this period, State Farm’s technology practices changed dramatically, and Heidi

underwent chemotherapy and a double mastectomy following her breast cancer diagnosis.

Although Heidi had not received negative performance reviews, she indicated she was incapable

of keeping up with the new demands of her job. John insisted Heidi could presently obtain

comparable employment to State Farm, but Heidi believed she would face the same difficulties

at another insurance job that she currently faced at State Farm. Given her previous health issues,

the court found credible Heidi’s testimony that the increased stress from this type of job could

negatively impact her health despite the fact she was presently healthy.

¶ 52 The circuit court also accepted John’s testimony that Heidi stated she would quit

her job before paying him maintenance. However, it did not believe Heidi decided to retire in

bad faith, i.e., to avoid any financial obligation to John. See In re Marriage of Kowski, 123 Ill.

App. 3d 811, 814, 463 N.E.2d 840,843 (1984) (“Good faith is not shown where it can be

determined that the change has been prompted by a desire to evade financial responsibilities to

the supported spouse.”). The court found Heidi’s statement to John was not her actual motivation

for retiring but instead a statement made in the heat of an argument during contentious divorce

proceedings. This statement was alleged to have occurred in January 2021, and John did not file

for maintenance until December 2021. Heidi testified she always intended to retire early—which

explained why she had repeatedly asked John to seek additional employment that would provide

- 17 - benefits for him and the children. In his testimony, John acknowledged Heidi had pressured him

to obtain additional employment because he knew that when Heidi retired, he would not be

eligible for health insurance. The parties agreed they both attended a retirement seminar through

State Farm five years before the proceedings in this case, which also supported the court’s

finding that Heidi always intended to retire in her mid-fifties and John was aware of that

intention. In fact, Heidi ultimately retired three years after she initially intended. The record

therefore supported the court’s finding Heidi’s decision to retire was reasonable. Because the

opposite conclusion is not readily apparent here, its finding was not against the manifest weight

of the evidence.

¶ 53 As stated above, a reviewing court is not to substitute its judgment for that of the

circuit court on matters of witness credibility, the weight to be given evidence, and the inferences

to be drawn from the evidence, even if the reviewing court would have reached a different

conclusion had it been the trier of fact. See A.W, 231 Ill. 2d at 102. The court here found Heidi’s

retirement was reasonable under the circumstances and not done in bad faith. Accordingly, its

decision not to impute income to her based on those findings was not an abuse of discretion.

¶ 54 b. Remaining Factors

¶ 55 Turning to the remaining maintenance factors, the circuit court’s denial of John’s

request for maintenance was also not an abuse of discretion.

¶ 56 At the hearing, the circuit court considered each of the maintenance factors listed

in section 504(a) of the Act (750 ILCS 5/504(a) (West 2020)). The court initially evaluated the

income and property apportioned to the parties. Specifically, John would receive half the

proceeds from the sale of the marital home and was awarded his individual retirement account.

The court also contemplated Heidi’s contention that John did not report some of his income and

- 18 - could earn more income than he presented to the court. The needs of the parties were modest,

they did not have significant debt, and neither party would have a significant financial burden

upon dissolution.

¶ 57 Regarding the third factor—the realistic future earning potential of each of the

parties—the circuit court found John had “chose[n] not to be a bartender,” had not sought any

employment outside of his construction business, and had left previous employment because he

“didn’t like being told what to do.” The court determined John “has the choice as to what kind of

income he has and has another additional 8 to 10 years in order to continue to add to his

employment.” In contrast, the court found Heidi was retired and struggled to “keep up in the

modern culture of technology.”

¶ 58 As to the factor of impairment in earning potential due to devoting time to

domestic responsibilities, the circuit court did not find John had suffered any such impairment.

Instead, John contributed to domestic responsibilities, such as preparing the children for school

and cooking meals, by virtue of having a flexible schedule with his self-employment—not as an

alternative to paid employment outside the home. Additionally, John never testified he had to

forgo the pursuit of educational or other vocational opportunities because of time spent caring for

the children or the home. The court determined it would not be necessary for John to seek

additional job training, education, or other skills to improve his earning potential. The court

opined John was skilled in construction, and with the end of COVID-19 restrictions, John had

ample opportunity to develop his business.

¶ 59 The circuit court evaluated the standard of living established during the parties’

over 20-year marriage and found it to be modest. It also emphasized the parties always kept

separate bank accounts, contributed to their own retirement, accumulated some savings, and did

- 19 - not have significant debt. Although John watched the children when Heidi studied for her

professional certifications, the cost was covered by her employer and such additional domestic

duties “[did] not rise to the level that maintenance would be appropriate.”

¶ 60 The record does not establish the opposite conclusion was apparent as to any of

these findings, which were supported by testimony the circuit court found credible, as well as

financial affidavits and other exhibits admitted at the hearing. The court determined Heidi was

not in a substantially superior financial position to John given her retirement and John’s relative

youth and earning potential. It was entirely possible that John could earn more by expanding his

construction business, bartending, or considering other additional employment. Although the

record supports a finding John contributed substantially to household responsibilities, the court

found those contributions did not result in any impairment to John. The record fails to

demonstrate John sacrificed opportunities to advance in his career or education because of those

domestic efforts. Finally, although the court did not specifically state whether it determined John

earned more than he reported to the court, it ordered the parties to amend their tax returns

because it noticed errors with John’s bookkeeping practices for his business. The court’s denial

of John’s request for maintenance was not unreasonable given its factual findings and therefore

not an abuse of discretion.

¶ 61 B. Distribution of Assets

¶ 62 John next challenges the circuit court’s distribution of the parties’ marital assets.

¶ 63 1. Applicable Law

¶ 64 “The [trial] court has broad discretion in the distribution of marital assets.”

Walker, 386 Ill. App. 3d at 1042. On review, the court’s division of marital assets will not be

disturbed absent an abuse of that discretion. In re Marriage of Thornley, 361 Ill. App. 3d 1067,

- 20 - 1071, 838 N.E.2d 981, 985 (2005). As stated above, an abuse of discretion occurs where “no

reasonable person would agree with the trial court’s decision.” Donovan, 361 Ill. App. 3d at

1064.

¶ 65 Under section 503(d) of the Act, a circuit court is to divide marital property by

considering the following factors:

“(1) each party’s contribution to the acquisition, preservation, or increase

or decrease in value of the marital or non-marital property ***;

***

(3) the value of the property assigned to each spouse;

(4) the duration of the marriage;

(5) the relevant economic circumstances of each spouse when the division

of property is to become effective, including the desirability of awarding the

family home, or the right to live therein for reasonable periods, to the spouse

having the primary residence of the children;

(6) any obligations and rights arising from a prior marriage of either party;

(7) any prenuptial or postnuptial agreement of the parties;

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

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

(9) the custodial provisions for any children;

(10) whether the apportionment is in lieu of or in addition to maintenance;

(11) the reasonable opportunity of each spouse for future acquisition of

capital assets and income; and

- 21 - (12) the tax consequences of the property division upon the respective

economic circumstances of the parties.” 750 ILCS 5/503(d) (West 2020).

¶ 66 Ultimately, “[t]he touchstone of proper apportionment is whether it is equitable,

and each case rests on its own facts.” In re Marriage of Romano, 2012 IL App (2d) 091339,

¶ 121, 968 N.E.2d 115. “An equitable division does not necessarily mean an equal division, and

one spouse may be awarded a larger share of the assets if the relevant factors warrant such a

result.” Id. Additionally, the Act, “whenever possible, seeks to cut off all entanglements between

the parties so that they may each go their separate ways in life.” In re Marriage of Simmons, 187

Ill. App. 3d 651, 659, 409 N.E.2d 321, 327 (1980).

¶ 67 2. This Case

¶ 68 John asserts the circuit court abused its discretion when it (1) awarded Heidi her

entire pension and (2) required the equalization payment due and owing from Heidi be paid to

John from her 401k pursuant to a QDRO instead of cash funds from the sale of their home.

¶ 69 a. Pension Award

¶ 70 First, John argues the circuit court abused its discretion when it awarded Heidi her

entire pension despite the fact it was marital property and subject to division under section

503(d) of the Act.

¶ 71 “ ‘[M]arital property’ means all property, including debts and other obligations,

acquired by either spouse subsequent to the marriage.” 750 ILCS 5/503(a) (West 2020).

Additionally, “all pension benefits (including *** defined benefit plans ***) acquired by or

participated in by either spouse after the marriage and before a judgment of dissolution of

marriage or legal separation or declaration of invalidity of the marriage are presumed to be

marital property.” Id. § 503(b)(2).

- 22 - ¶ 72 The record shows, under section 503(b)(2) of the Act, the portion of Heidi’s

pension that accrued during her marriage to John was marital property. See id. Heidi testified she

was entitled to her benefit plan through State Farm, where she worked for the entirety of the

marriage. Because she “participated in” her defined benefit plan “after the marriage and before a

judgment of dissolution of marriage,” it was presumably marital property under section 503(b).

Id.

¶ 73 Although a portion of Heidi’s pension was presumed marital property under the

Act, the circuit court was not required to divide it for its distribution of the parties’ marital

property to be equitable. The record showed under her pension, Heidi was to receive about

$2000 per month. The court found this would be her sole source of income during her upcoming

retirement. In contrast, John was eight years younger than Heidi, was awarded his construction

business, and had many more working years ahead of him if he wished to retire at the same age

as Heidi. The court ruled John had the earning potential to meet his needs, which were modest.

The court also awarded him half of the proceeds from the sale of their home and a portion of

Heidi’s 401k, which resulted in each of the parties having relatively equal retirement funds.

Although John claimed Heidi’s current housing was much closer to their previous standard of

living compared to his situation, the record showed Heidi only resided there temporarily, and she

intended to provide for her own housing upon conclusion of the dissolution proceedings.

Although the court could have chosen to divide the marital portion of Heidi’s pension plan, its

decision to award it to Heidi was equitable under the circumstances given her pension income

was comparable to John’s claimed income from his construction business (approximately $1900

per month according to John). Moreover, the court’s decision was aligned with the Act’s goal of

ending further entanglements between the parties, if possible. The court’s findings were not

- 23 - against the manifest weight of the evidence, and its decision to award the pension to Heidi was

¶ 74 b. Equalization Payment

¶ 75 John also argues the circuit court abused its discretion when it ordered his

$51,000 equalization payment be paid from Heidi’s 401k subject to a QDRO because such a

disposition was not authorized under Illinois and federal law.

¶ 76 Generally, under 12-1006 of the Code of Civil Procedure (735 ILCS 5/12-1006(a)

(West 2020)), “[a] debtor’s interest in or right *** to *** payments under a retirement plan is

exempt from judgment.” However, section 1056(d) of the Employment Retirement Income

Security Act of 1974 (ERISA) (29 U.S.C.A. § 1056(d) (2020)) provides that a valid QDRO

creates or recognizes a former spouse’s right to receive “all or a portion” of benefits payable to a

participant under a qualifying retirement plan. The parties do not dispute Heidi’s 401(k) was a

qualifying plan under ERISA. Additionally, “our supreme court has held that it is ‘beyond

dispute’ that retirement benefits are marital property to the extent that the beneficial interest was

acquired during the marriage.” In re Marriage of Thomas, 339 Ill App. 3d 214, 227, 789 N.E.2d

821, 830 (2003) (quoting Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 303,

735 N.E.2d 560, 567 (2000)).

¶ 77 John correctly notes a QDRO cannot be used “for any purpose other than an

equitable division of the retirement asset or collection of child support and maintenance arrears”

and cites several cases pertaining to the erroneous use of a QDRO to satisfy certain debts to

third-party creditors. See In re Marriage of Shen, 2015 IL App (1st) 130733, ¶ 92, 35 N.E.3d

1178 (erroneous liquidation of 401(k) to pay attorney fees); see also In re Marriage of Radzik,

- 24 - 2011 IL App (2d) 100374, ¶ 64, 955 N.E. 2d 591 (erroneous liquidation of individual retirement

to pay attorney fees).

¶ 78 The circuit court’s issuance of the QDRO was not improper here because it was

used to equitably divide a marital asset. The court had broad discretion to allocate a portion of

Heidi’s 401(k) because it was considered marital property. See Thomas, 339 Ill App. 3d at 227;

see also 750 ILCS 5/503(b)(2) (West 2020). A QDRO provides the mechanism to accomplish

such an allocation. See 29 U.S.C.A. § 1056(d). The record shows the $51,000 paid to John from

Heidi’s 401(k) would leave each party with relatively equal retirement funds of that type. John

does not cite any law prohibiting the court from dividing a marital retirement account via a

QDRO, and we find none exists. As stated above, the court’s allocation of the parties’ property

was equitable under the facts, and we conclude no abuse of discretion occurred as a result.

¶ 79 C. Admission of Evidence

¶ 80 Finally, John asserts the circuit court abused its discretion when it admitted

evidence pertaining to Heidi’s health. See supra ¶¶ 10-11. Specifically, John argues the court

erred when it allowed Heidi to testify her job was so stressful that her blood pressure was “off

the charts” because she presented no health records in discovery. John contends allowing this

testimony prejudiced him because it prevented him from effectively cross-examining Heidi.

¶ 81 1. Applicable Law

¶ 82 “A trial court’s determination of the admissibility of evidence will be reversed if

it is an abuse of discretion.” In re Marriage of Gurda, 304 Ill. App. 3d 1019, 1028, 711 N.E.2d

339, 345 (1999). To be admissible, evidence must be relevant, meaning it “has logical probative

weight tending to prove or disprove a fact in the case.” Id. Additionally, “any out-of-court

statement offered to prove the truth of the matter asserted therein is hearsay and inadmissible.”

- 25 - In re Marriage of Hodges, 2018 IL App (5th) 170164, ¶ 23, 103 N.E.3d 958. If the out-of-court

statement is not offered for the truth of the matter asserted but for some other purpose, it is not

hearsay. Cundiff v. Patel, 2012 IL App (4th) 120031, ¶ 30, 982 N.E.2d 175. Additionally,

exceptions to the rule against hearsay include (1) statements of memory or belief to prove the

fact remembered or believed and (2) statements of the declarant’s then-existing state of mind to

prove that state of mind at the relevant time. See Ill. R. Evid. 803(3)(A), (B) (eff. Sept. 28,

2018).

¶ 83 2. This Case

¶ 84 Here, the circuit court’s admission of Heidi’s statements regarding her blood

pressure and the effect of stress from her job on her health was not an abuse of discretion. The

court specifically found Heidi’s statements were not being used to prove the truth of the matter

asserted—i.e., that her blood pressure had spiked to 200, requiring medication. Neither was it

offered as proof of an impairment to earning future income. Instead, the testimony was offered to

show Heidi’s motivations for retiring, and therefore, it was not hearsay. The context of the

testimony complained of was a broader line of questioning about Heidi’s feelings of stress and

her perception of State Farm’s negative atmosphere. Even assuming the statements were hearsay,

Heidi’s emotions and physical sensations were relevant to her decision to retire from State Farm,

and her testimony was therefore admissible under the hearsay exceptions outlined in Rule 803(3)

(id.). Further, Heidi’s decision to retire factored into the court’s determination of whether

maintenance was appropriate, whether income should be imputed to her, and the disposition of

marital assets. Her reasoning underlying that decision therefore had “logical probative weight

tending to prove or disprove” facts material to the issues presented in the proceedings. Gurda,

- 26 - 304 Ill. App. 3d at 1028. Because Heidi’s testimony was both relevant and not inadmissible

hearsay, the court did not abuse its discretion in admitting the evidence.

¶ 85 Finally, we commend the circuit court for its thorough and comprehensive

analysis of the issues presented in this case, which we found especially helpful.

¶ 86 III. CONCLUSION

¶ 87 For the reasons stated, we affirm the circuit court’s judgment.

¶ 88 Affirmed.

- 27 -