In Re Marriage of Lenkner

608 N.E.2d 897, 241 Ill. App. 3d 15, 181 Ill. Dec. 646, 1993 Ill. App. LEXIS 164
CourtAppellate Court of Illinois
DecidedFebruary 11, 1993
Docket4-92-0171
StatusPublished
Cited by32 cases

This text of 608 N.E.2d 897 (In Re Marriage of Lenkner) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Lenkner, 608 N.E.2d 897, 241 Ill. App. 3d 15, 181 Ill. Dec. 646, 1993 Ill. App. LEXIS 164 (Ill. Ct. App. 1993).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

William Lenkner appeals the denial of his petition to modify an award of maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) William alleges the circuit court abused its discretion in denying his petition due to his former spouse’s alleged failure to make a good-faith effort to achieve financial independence, and due to a public policy in favor of encouraging rehabilitation of dependent former spouses. We find the trial court’s denial of William’s petition was well within its exercise of discretion and affirm.

Gail and William Lenkner were married on May 14, 1966. No children were born to this marriage; however, William adopted Gail’s natural child, Darrell, who reached the age of majority prior to the dissolution. On April 24, 1984, William filed for dissolution of marriage. In his petition for dissolution, William alleged the parties had entered into an oral agreement regarding maintenance, property division, debts, and attorney fees. With respect to maintenance, William represented the parties had agreed he would pay $600 monthly to Gail. Of the $600, $459 was to be considered maintenance and $141 was to be applied to the mortgage payments on the marital home. The agreement further provided for increases or decreases in maintenance based upon increases and decreases in William’s salary. Gail would be permitted to continue residence in the marital home. She would be required to pay the real estate taxes and insurance. Gail filed her appearance, waived a bifurcated hearing, and agreed to the entry of the judgment of dissolution. The judgment was entered on May 15, 1984, incorporating the parties’ agreement.

In January 1987, William unilaterally terminated the maintenance and mortgage payments. On June 12, 1987, Gail filed a petition for a rule to show cause and requested William be ordered to pay the arrearage in the maintenance and mortgage payments. William counter-petitioned to terminate maintenance, alleging there had been a material change in circumstances in that Gail had become employed, and alleging Gail had had sufficient time to rehabilitate herself (Ill. Rev. Stat. 1987, ch. 40, par. 510). William additionally requested the marital home be sold and the proceeds divided. The circuit court characterized the Lenkners’ marriage as one involving a modest standard of living on the middle-income salary of William while Gail basically stayed at home. At the time of dissolution William agreed to pay Gail maintenance which varied according to his income, consented to her use of the family residence, and agreed to pay the mortgage. The court found that even though Gail was now employed, she was in need of additional support in order to maintain or reestablish a standard of living similar to that enjoyed at the time of the dissolution and William’s ability to pay maintenance had increased. The court ordered William to pay the arrearage and increased future maintenance payments to $572 per month, commensurate with William’s increase in salary. The court denied William’s petition in most respects, but determined the maintenance would no longer be variable according to increases or decreases in William’s salary.

On August 5, 1991, William filed another petition for modification of maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) William alleged that Gail, as the recipient of an award of permanent maintenance, is under an affirmative obligation to seek appropriate training and skills to become financially independent. William further alleged Gail failed to make good-faith efforts toward the goal of financial independence during the seven years she has been receiving maintenance.

William and Gail were married for 18 years. During the marriage, William attended college and received a degree in electrical engineering. Gail worked as a bookkeeper and dispatcher on occasions during the marriage, but was not employed at the time of the dissolution. William is seven years younger than Gail. At the time of the dissolution, Gail was 48. She is now 56 years old. At the modification hearing, William testified he is a minimum of 10 years from retirement, earns between $55,000 and $60,000 per year, and is not economically burdened by making the maintenance payments. William seeks termination of his maintenance obligation because he feels it is time for Gail to be self-sufficient. She testified that since the dissolution she has taken a typing course as well as a computer course. Gail has worked at a series of full- or part-time jobs, holding down two jobs on at least one occasion. She is currently employed full-time and has a weekly net income of $163. Two witnesses testified on behalf of Gail regarding her attempts to seek employment, and the difficulties which a 56-year-old woman faces in the job market.

The circuit court denied the petition to terminate maintenance, finding Gail had made an effort, though not entirely successful, to find employment of a more economically rewarding nature. The court noted the real estate provisions of the dissolution order geographically limited Gail’s employment search to the east central Illinois area. Although the court endorsed the Illinois public policy in favor of encouraging the dependent spouse to become self-sufficient, it rejected William’s argument his maintenance obligation should be terminated on this basis, finding Gail has continued in self-motivated efforts of rehabilitation. This appeal followed.

The awarding and modification of maintenance rests within the sound discretion of the trial court, and we will not disturb its judgment absent an abuse of discretion. (In re Marriage of Carpel (1992), 232 Ill. App. 3d 806, 828, 597 N.E.2d 847, 829.) The circuit court carefully considered William’s arguments and rejected them as the facts indicated it would be inappropriate to terminate maintenance under existing law.

We reject William’s contention he is not required to demonstrate a change in circumstances in order to succeed in his petition to modify maintenance. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)) specifically states a maintenance award may only be modified upon a showing of a substantial change in circumstances. This provision is applicable when the modification sought is actually termination of the maintenance obligation. (In re Marriage of Whiting (1989), 179 Ill. App. 3d 187, 192, 534 N.E.2d 468, 471.) William alleges case law establishes the proposition that the payor spouse is relieved of demonstrating changed circumstances where he alleges the recipient spouse has failed to make a good-faith effort to achieve financial independence. This is incorrect. The payor spouse is not relieved of demonstrating changed circumstances; rather, the lack of good-faith effort to achieve financial independence may, if proved, constitute the changed circumstances necessary for modification. This distinction is important due to the burden of proof. The burden of establishing changed circumstances is on the party seeking relief. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176; In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 326,

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Cite This Page — Counsel Stack

Bluebook (online)
608 N.E.2d 897, 241 Ill. App. 3d 15, 181 Ill. Dec. 646, 1993 Ill. App. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-lenkner-illappct-1993.