In re Marriage of Lenahan

2020 IL App (2d) 190989-U

• Court: Appellate Court of Illinois
• Decided: October 29, 2020
• Docket: 2-19-0989
• Status: Unpublished

Opinion

2020 IL App (2d) 190989-U No. 2-19-0989 Order filed October 28, 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 MARY LENAHAN ) of Kane County. ) Petitioner-Appellee, ) ) and ) No. 12-D-352 ) RICHARD SIMKO, ) Honorable ) Christine A. Downs, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Presiding Justice Birkett and Justice Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court abused its discretion in extending wife’s initial 5-year term of reviewable maintenance to April 2022, when the husband would be 65 years old. Husband had a higher salary than wife, but her assets, including stock, far exceeded his. The extended maintenance would hamper husband’s efforts to prepare for retirement; on the other hand, if wife liquidated her poorly-performing stock and invested it wisely, the interest she earned would replace the award of maintenance.

¶2 Petitioner, Mary Lenahan, and respondent, Richard Simko, were married in October 1992.

In March 2012, Mary filed a petition for dissolution of the marriage. At the time, she was 49 years

old and Richard was 54 years old. The circuit court of Kane County entered a judgment dissolving

the marriage in April 2013. The judgment incorporated the parties’ marital settlement agreement, 2020 IL App (2d) 190989-U

which awarded Mary reviewable maintenance in the amount of $3000 per month for a period of

60 months beginning June 1, 2013. On May 18, 2018, Mary filed a petition to review and extend

maintenance. Following a hearing, the trial court entered an order extending maintenance, at a

reduced amount of $2750, until April 1, 2022. Richard unsuccessfully moved to reconsider the

order, and this appeal followed. We reverse.

¶3 I. BACKGROUND

¶4 There was no court reporter present at the hearing on Mary’s petition to review and extend

maintenance, and the parties have not supplied a bystander’s report. However, the record reflects

that no testimony was offered at the hearing; only documentary evidence was presented. A

financial affidavit executed by Mary established that she held the following assets:

Asset Amount

Charles Schwab Account $11,000

Real Estate $230,000

Stock in the Bloedorn Lumber Company $644,735

(Inherited from Mary’s Mother)

Automobile $4825

401(k) Retirement Account $9000

Savings and Checking Accounts $1630

Mary owed $1800 to Capital One. Her financial affidavit indicated that she worked at Chico’s and

earned wages and commissions of $1566 per month.

¶5 Exhibits admitted into evidence at the hearing established that Richard’s assets were as

follows:

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Vanguard Brokerage Account $43,319

IRAs $43,479

401(k) Retirement Account: $65,924

Richard owed $244,207 in mortgage debt, $92,429 on a home equity line of credit, and student

loan debt totaling $51,392. (We note that the record does not establish the value of Richard’s

home.) In his 2017 tax return, Richard reported $136,180 in income from employment. However,

during the hearing on the motion to reconsider, the trial court indicated that Richard was earning

a salary of $145,000 a year.

¶6 In denying Richard’s motion to reconsider, the court found that Richard’s salary had

increased, that he had health insurance and a health savings account, and that he had “built

retirement.” The court did not acknowledge that upon Richard’s retirement, Mary was entitled to

50% of the marital portion of that retirement. The court further found that Mary was “unable to

make enough money for her needs given all the facts and circumstances.” The court noted that the

extended maintenance term would end “when [Richard] reaches a reasonable retirement age of

65” and that “if he continue[d] to work making at this point $145,000 a year he will not be paying

out what he had then which is $36,000 a year and could certainly save more money.” The court

stressed that the Bloedorn Lumber Company stock that Mary inherited was her “retirement plan”

and that “there’s no case law that indicates that in order to meet one’s needs in their 50’s that they

are required to tap into their retirement.”

¶7 Richard appealed from the denial of his motion to reconsider.

¶8 II. ANALYSIS

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¶9 Review proceedings differ from proceedings to modify maintenance. Where the trial court

has made maintenance reviewable, it is authorized to revisit the initial maintenance determination.

In re Marriage of Kasprzyk, 2019 IL App (4th) 170838, ¶ 36. In contrast, a court’s authority to

modify or terminate nonreviewable maintenance depends on the existence of a substantial change

in circumstances. Id. We will not disturb a maintenance award absent an abuse of discretion, which

occurs “only where no reasonable person would take the view adopted by the trial court.” In re

Marriage of Brunke, 2019 IL App (2d) 190201, ¶ 32.

¶ 10 In Brunke, we described the principles governing proceedings to review maintenance

awards:

“In reviewing a maintenance award, the court considers the factors enumerated in

section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/504(a) (West 2018)): (1) the income and property of each party, (2) the respective needs

of the parties, (3) the present and future earning capacity of the parties, (4) any impairment

to the parties’ present or future earning capacity resulting from domestic duties or delayed

education or employment opportunities due to the marriage, (5) the time necessary for the

party seeking maintenance to acquire the necessary education or training, (6) the standard

of living during the marriage, (7) the duration of the marriage, (8) the age and physical and

emotional condition of the parties, (9) the tax consequences of the property division,

(10) the contributions of the party seeking maintenance to the education and career of the

other spouse, (11) the valid agreement of the parties, and (12) any other factor that the court

expressly finds to be just and equitable.

The court also has to consider the factors enumerated in section 510(a-5) of the Act

(750 ILCS 5/510(a-5) (West 2018)): (1) any change in the employment status of either

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party and whether the change has been made in good faith, (2) the efforts, if any, made by

the maintenance recipient to become self-supporting, (3) any impairment of the present and

future earning capacity of either party, (4) the tax consequences of the maintenance

payments upon the respective circumstances of the parties, (5) the duration of the

maintenance payments relative to the length of the marriage, (6) the property, including

retirement benefits, awarded to each party in the divorce, (7) the parties’ increase or

decrease in income since the divorce, (8) the property acquired and currently owned by

each party after the divorce, and (9) any other factor that the court expressly finds to be

just and equitable.” Id. ¶¶ 30-31.

¶ 11 Based on the record developed in the trial court, the most significant factors here are the

parties’ incomes and their property, each party’s present and future earning capacity, the duration

of the marriage, and the duration of the maintenance payments relative to the length of the

marriage. (We note that the record sheds little or no light on many of the other factors, including,

for example, the standard of living during the marriage, the physical and emotional condition of

the parties, and the extent to which domestic duties affected either party’s earning capacity or

educational or employment opportunities.)

¶ 12 The value of Mary’s property is considerably greater than the value of Richard’s. She holds

financial assets worth roughly $666,000. She also owns a home free and clear of any mortgage.

Richard holds financial assets worth roughly $158,000, which is less than a quarter of the value of

Mary’s financial assets. As noted, the record does not show how much Richard’s home is worth.

However, his home is encumbered by considerable mortgage debt; we cannot presume that

Richard has any significant, if any, equity in his home.

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¶ 13 On the other hand, Richard was earning a salary of $145,000 a year, while, according to

Mary’s financial affidavit, her job at Chico’s paid $12.35 per hour and she earned $1566 per month

including commissions. She also received $700 in dividends per month. Together, those amounts

yield an annual income of roughly $27,000.

¶ 14 Notwithstanding the income disparity, Richard cites In re Marriage of Cantrell, 314 Ill.

App. 3d 623 (2000), for the proposition that, because Mary is employable, has no dependent

children, and “received sufficient assets,” she should no longer receive maintenance. Richard also

relies on In re Marriage of Andrew, 258 Ill App. 3d 924 (1993). Mary, in turn, cites Brunke for the

proposition her substantial assets do not foreclose her from continuing to receive maintenance.

None of these cases is entirely on point.

¶ 15 In Cantrell, we concluded that the trial court improperly transformed the wife’s

rehabilitative maintenance into permanent maintenance. In holding that the trial court should have

terminated maintenance, we placed importance on the factors that Richard mentions, i.e.

employability, assets, and freedom from the costs, time, and energy involved in raising children.

However, we also stressed that the judgment of dissolution required the husband to pay the wife’s

expenses for obtaining a bachelor’s degree and that she had earned that degree but had made little

effort to secure gainful employment or become self-sufficient. As far as the record shows, those

circumstances are not present in this case. On the other hand, the wife’s property in Cantrell was

worth less than Mary’s property and the husband in Cantrell was earning considerably more than

Richard.

¶ 16 Andrew held that the trial court did not abuse its discretion in denying maintenance to a

spouse who had been awarded marital property worth well over a million dollars. Leaving aside

the value of a dollar in 1993, when Andrew was decided, as opposed to its value now, the court’s

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holding that the trial court acted within its discretion by denying maintenance does not imply that

it would have been an abuse of discretion to award maintenance.

¶ 17 In Brunke, we affirmed the trial court’s decision to extend reviewable maintenance

awarded pursuant to a marital settlement agreement for an initial period of five years. The wife

was 62 years old, and the husband 53 years old, when the marriage was dissolved. Near the end of

the five-year period, the wife filed a petition to review and extend maintenance. The parties

stipulated that the combined value of the husband’s bank accounts, IRA, brokerage accounts, and

home equity was approximately $1.6 million and that he owned vehicles and an airplane worth a

total of $147,515. He earned $362,000 per year. The wife testified that she had $1.2 million in

assets in addition to her house, which was awarded to her in the dissolution judgment. The wife’s

income was minimal. The trial court ordered the husband to continue paying maintenance to the

wife until he retired. In affirming, we stressed the parties’ “grossly disparate earning potentials.”

Brunke, 2019 IL App (2d) 190201, ¶ 43. The obvious distinction between Brunke and this case is

that in Brunke both parties held substantial assets. Here, as noted, Mary’s assets are several times

greater than Richard’s.

¶ 18 We conclude that consideration of the parties’ incomes and their property militates against

extending maintenance. The trial court extended maintenance, in the reduced amount of $2750 per

month, for a period of 31 months from August 1, 2019, until April 1, 2022, when Richard would

be 65 years old. The total of those payments would be $85,250. The trial court concluded that 65

was a reasonable retirement age. However, this continued obligation would likely impact

Richard’s own effort to continue saving for retirement. Mary has financial assets of roughly

$666,000 and should use those assets to assist her in meeting her living expenses. We appreciate

Mary’s reasonable desire to preserve her nest egg, but Richard is also entitled to continue building

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his retirement savings. Accord In re Marriage of Drury, 317 Ill. App. 3d 201, 207 (2000) (“A

spouse seeking maintenance should not be required to sell assets or impair capital to maintain

herself in a manner commensurate with the standard of living established in the marriage as long

as the payor spouse has sufficient assets to meet both his needs and the needs of his former spouse”

(emphasis added)).

¶ 19 Furthermore, when determining whether to award maintenance and in what amount, a court

should consider not only the value of spouse’s assets, but their potential to produce income. In re

Marriage of Tietz, 238 Ill. App. 3d 965, 972 (1992). It is therefore incumbent upon a party to use

his or her income-producing property wisely before asking the other to pay maintenance. It appears

that Mary is not doing that. Her most valuable asset—the Bloedorn Lumber stock—has largely

been sitting idle. Mary reports dividend income of only $8400 per year. That amounts to a 1.3

percent rate of return. We have noted that “a court may take judicial notice of the fair earning

powers of money or invested capital over a certain time period.” In re Marriage of Ryman, 172 Ill.

App. 3d 599, 612 (1988). There is nothing in the record suggesting that the Bloedorn Lumber stock

cannot be used to meet certain needs that Mary presently has. In fact, Mary noted on her financial

affidavit that she has already liquidated some of this stock for living expenses. Some manner of

investment of this asset, or the proceeds of the investment, could be used to meet her expenses as

well as supplement the retirement funds Mary will receive from Richard’s retirement accounts.

¶ 20 The remaining factors to be considered are each party’s present and future earning capacity,

the duration of the marriage, and the duration of the maintenance payments relative to the length

of the marriage. There is nothing in the record to indicate that the parties are or will be able to earn

more than they are earning now. The marriage was relatively long—almost 20 years when the

dissolution petition was filed—compared to the initial 5-year maintenance term. Although that

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factor favors extending maintenance, it does not, under all of the circumstances, justify impairing

Richard’s ability to provide for his own needs in retirement. We therefore conclude that the trial

court abused its discretion by extending maintenance.

¶ 21 III. CONCLUSION

¶ 22 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed.

¶ 23 Reversed.

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