2022 IL App (1st) 210324-U
FIFTH DIVISION May 13, 2022
No. 1-21-0324
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
In re the Marriage of: ) ) LAURA MOSTOFI, ) Appeal from the ) Circuit Court of Cook County. Petitioner-Appellee, ) ) 16 D 230465 v. ) ) Honorable Robert Johnson, C. JOHN MOSTOFI, ) Judge Presiding. ) Respondent-Appellant. )
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Cunningham concurred in the judgment.
ORDER
Held: The trial court did not abuse its discretion in denying respondent’s motion to modify his maintenance obligation to his former wife; affirmed.
¶1 This appeal stems from the trial court’s order denying respondent C. John Mostofi’s
motion to modify his monthly maintenance obligation to his former wife, petitioner Laura
Mostofi. John contends on appeal the trial court abused its discretion when it denied his motion
where: (1) it misinterpreted the parties’ marital settlement agreement (MSA); (2) it found that No. 1-21-0324
John’s annual income did not fall below $1.2 million; and (3) it found that John did not establish
a substantial change in circumstances. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 Laura and John were married on September 2, 2000. The parties have two children, both
of whom were in high school at the time of the hearing on John’s motion to modify maintenance.
Laura filed her petition for dissolution of marriage on October 19, 2016. On August 24, 2017, the
trial court entered a judgment for dissolution of marriage, dissolving the parties’ 16-year
marriage. The judgment incorporated the parties’ MSA. Article II of the MSA states:
“2.1 Employment Status: JOHN is presently employed by Bank of America. The
parties agree that JOHN will pay maintenance to LAURA as set forth below.
***
2.3 Maintenance to LAURA. JOHN shall pay non-reviewable maintenance to
LAURA for a fixed period of 10 years as follows:
(a) Commencing on September 1, 2017, JOHN shall pay LAURA monthly
maintenance in the amount of $35,750 for a fixed period of 10 years at
which time JOHN’s obligation to pay maintenance to LAURA shall
automatically terminate, unless maintenance is terminated earlier as set
forth below.
(d) Termination. JOHN’s obligation for maintenance shall automatically
terminate upon the first to occur of the following events:
(i) LAURA’s Death;
(ii) JOHN’s Death;
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(iii) LAURA’s remarriage;
(iv) LAURA’s cohabitation with another individual on a conjugal
and regular basis; or
(v) On the tenth (10th) anniversary of the entry of the Judgment for
Dissolution of Marriage.
(e) Modifiability. The amount of JOHN’s non-reviewable maintenance
payments shall be modifiable only upon a substantial change in
circumstances via proper notice, petition and hearing. However, the parties
agree that the following shall not constitute a substantial change in
circumstances for modification purposes: (1) the emancipation of either
child; (2) Any increase in JOHN’s income. JOHN represents that his
current income is $1.2 million. In the event that JOHN’s income drops
below this amount, JOHN may petition the Court for a reduction in the
amount of his maintenance payments.”
¶4 On February 13, 2020, John filed a motion to modify maintenance. In his motion, he
alleged that a “substantial change in circumstances has occurred, specifically that John’s income
will drop below the $1.2 million amount in 2020.” John requested a reduction in maintenance
consistent with the reduction in his income. He also stated that he “tried to resolve this matter
directly with Laura, but with no success thus far.”
¶5 On March 16, 2020, Laura filed her response stating that there had been no reduction in
John’s income as contemplated by the MSA. She further stated that John tried to discuss a
reduction in maintenance payments in February 2019 and November 2019, and that in both
instances, Laura requested documents confirming a reduction in John’s income. She stated that
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the only documents produced did not support John’s assertion that his income had dropped
below $1.2 million.
¶6 On July 23, 2020, while that motion was still pending, Laura filed a motion for John to
seek employment. In John’s response to Laura’s motion to seek employment, John stated that
although his departure from Bank of America was deemed “voluntary,” he had worked at the
company since 1989, and it “was a technicality for John’s benefit.”
¶7 On October 14, 2020, Laura filed a petition for rule to show cause and other relief
relating to John’s maintenance obligation including verification of a life insurance policy. She
stated that John’s motion to modify maintenance was filed on February 13, 2020, which was
before he voluntarily ended his employment. John had not paid maintenance since July 2020.
Laura alleged that on September 11, 2020, the court had addressed John’s failure to pay, and had
ordered John to recommence payments, but no payments had been forthcoming. Laura alleged
that John had recently purchased a $600,000 boat, which was made after the motion to modify
maintenance was filed.
¶8 In response to Laura’s petition for rule to show cause, John stated in part that he was only
a partner in the yacht and was only responsible for a fraction of the purchase cost. He stated that
he gave copies of his life insurance policy to Laura on October 19, 2020, and that he was now
current on his payments to Laura.
¶9 On January 26, 2021, a hearing was held via video conference on John’s motion to
modify maintenance that had been filed on February 13, 2020. John’s counsel stated in opening
remarks that John had learned that his bonus, which was part of his annual compensation
structure, was going to be reduced dramatically. Subsequently, in March 2020, John received a
call which forced him to resign, which would leave him with some benefits. Since then, he has
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been unsuccessful in securing a new job. Laura’s counsel argued that John left his employment
voluntarily and not in good faith.
¶ 10 John testified that he was 55 years old and had worked at Bank of America since July 3,
1989. At the time of his divorce from Laura, he was the head of commercial regional credit for
North America. The MSA indicated that if his income dropped below $1.2 million, he would
have the ability to seek modification to the monthly maintenance amount he owed to Laura.
According to the MSA, John owed Laura $35,750 per month for 10 years. John testified that he
pays for all private school expenses for his son, and that his daughter goes to public school.
¶ 11 John was shown his 2017 Individual U.S. Income Tax Return, which showed an adjusted
gross annual income of $2,200,912. John testified that at the end of 2017, toward Thanksgiving,
Bank of America “replaced me with a gentleman from New York.” John stated that he was given
a new position, on the coverage side of the business instead of the credit side. John was “titled as
an executive vice-chairman.” Compensation was not discussed at that time, but his base salary
remained the same in 2018 and 2019, which was $350,000 a year. He also continued to receive
additional compensation in the form of bonuses and stock. John’s net income in 2019 was over
$1.2 million.
¶ 12 John testified that in 2020, he still had the same base income, but he learned his bonus
was going to be $100,000, which was lower than in the past, and which would bring his net
income under $1.2 million. On February 13, 2020, John filed his petition to modify his
maintenance obligation.
¶ 13 John testified that in March 2020, he received a call from Alastair Borthwick, the head of
banking. The week after that conversation, John left the bank.
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¶ 14 John further testified that he lived at 9 West Walton in Chicago. According to his
financial affidavit, John paid $8,996 a month on his mortgage for that property, and $15,875 a
month for household expenses. John testified that he thought property taxes were around $3,500
a month, and assessments were also around $3,500 a month.
¶ 15 John’s W-2 statement from 2020 reflected that his income was $709,999.37. His base
salary was still $350,000 per year going into 2020, but he only worked the first quarter of 2020.
Had he continued working for the bank throughout 2020, he would have had a gross income of
$972,000, which would still have been under $1.2 million.
¶ 16 John testified that he did not get anything in writing that he was fired because he chose
the option to resign and keep his reputation intact. He would also still be entitled to the accrued
benefits, including deferred compensation, pension, and “various different insurance benefits for
the children.”
¶ 17 John stated that since March 2020, he has had three conversations with headhunters, but
remains unemployed. He accepted a role on the board of directors for a company headquartered
in Las Vegas with operations in Chicago that comes with a stipend of “either 60,000 or 100,000
a year.” He was currently “getting checks for 5,000 a month.” He was able to keep restricted
stock that vests out over three years, so in 2021, he was expecting to receive “about 200,000 and
some change.” John testified that he would make about $300,000 in 2021 without being
employed by Bank of America.
¶ 18 John further testified that after he left Bank of America, he paid for 50 percent of a boat
that cost $600,000. John stated it was “basically a brand new boat that had never been used,” and
he thought that the price was worth significantly more than the purchase price.
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¶ 19 On cross-examination, John testified that his last formal day of work for Bank of
America was March 31, 2020. The cost associated with keeping the new boat in Burnham
Harbor was “somewhere between $6,000 or $7,000 would be my guess, and we split all the
costs.” He had paid for a captain before and there were storage fees in the winter, which
amounted to $6,000 or $7,000.
¶ 20 John testified that he also has investment income, and he received dividends and interest
income in regards to his brokerage accounts. He also has interest in real estate property.
¶ 21 Laura testified next. She testified that she was self-employed as a travel agent. In 2020,
she had made $8,000 by mid-March, and was set to make another $25,000 to $30,000 when the
pandemic hit. There were no additional bookings for 2020. She had been facilitating e-learning
with her children, one of whom was diagnosed with ADHD. The money that John paid her each
month met her expenses and allowed her to save some money.
¶ 22 Laura was working full time up until their first child was born in 2003, at which point she
went to part-time work. She stopped working part-time in 2010 because she and John had agreed
they did not want a nanny raising their children. Laura started her business in May 2016, and the
divorce occurred in 2017. She decided to be a travel agent because she enjoyed the work and it
allowed her to be home in the morning to get her children to school and be back at the end of the
day when they got home. She could help them with homework and make dinner. She could work
at 10 p.m. after the children had gone to bed.
¶ 23 Laura testified that the children were with her most of the time but would go into Chicago
and spend a night with John “maybe once a month.” In the earlier years it was a bit more often,
“maybe twice a month,” but it was “never the full weekend.” She received the Wilmette
residence as part of the settlement, and she planned to live there with the children indefinitely.
7 No. 1-21-0324
¶ 24 Laura stated that John first came to her in November 2018 regarding modification of his
maintenance payments. He called her and said he thought his salary was going down, so he
wanted to have an agreement with her where he would just pay her a percentage of his income.
Laura told him to contact her attorney. There was no agreement reached at that time. John
reached out again in November 2019 and said his salary was going to “fall below this level, you
need to agree to this.” She again told him to talk to the attorneys. Laura testified that John “made
a comment that he would quit his job and I’d get nothing if that’s what he had to do.”
¶ 25 Laura stated that there was a letter from Bank of America, dated September 14, 2018, in
the packet of pension plan information that John had turned over to her in discovery. The letter
was admitted into evidence and stated in part: “As you requested, we have estimated your
benefits payable from the pension plan. This estimate is based on certain assumptions and
information we have in our records.” It stated that the earliest commencement date of his pension
plan was February 1, 2021. That letter was dated shortly before John first reached out to Laura
about modification of the maintenance in November 2018.
¶ 26 Laura stated that John paid his maintenance through July 2020, and then stopped paying.
Laura sent him a text asking about it and his response was, “no, payment is not likely; I’m not
making any money so you’re not getting any either.” She then filed a petition for rule to show
cause for his failure to pay. The petition was set for hearing in November 2020, but John paid her
on November 2, 2020.
¶ 27 In closing, John’s counsel asked that the statutory formula be used to figure out the new
maintenance amount Laura would receive “until at such time as he becomes re-employed earning
more income in which case [Laura] can petition the Court at that time.”
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¶ 28 Laura’s counsel argued that the evidence showed that John left Bank of America
voluntarily. She stated that the one piece of evidence presented that supported John’s contention
that he was forced out is John’s testimony and the “hearsay evidence of a phone call from
someone who we never heard from.” She argued that it was John’s burden to show that he left
his employment in good faith and that it was not voluntary, and he failed to do that except
through his own self-serving testimony.
¶ 29 On February 25, 2021, the court issued a written order denying John’s petition to modify
maintenance. It found that John failed to provide evidence that his total income for 2020 from all
sources fell below $1.2 million. His income during 2020 met or exceeded an average rate of $1.2
million per year through August 2020, in that his March 31, 2020, paystub showed income of
$732,061. John’s additional income from 2020 had not been presented. The court found that
John failed to present any corroborative evidence that his resignation was involuntary, and since
his resignation, John had continued to enjoy the same standard of living and discretionary
spending as preceding his resignation. The court further found that John failed to demonstrate a
good-faith effort to seek new employment commensurate with his education, qualifications, and
earning potential. The court did not find John’s testimony regarding the facts and circumstances
of his resignation from Bank of America to be credible. Finally, the court found that John failed
to meet his burden to show that a substantial change in circumstances occurred in that he failed
to provide credible evidence that his resignation of employment was involuntary or in good faith.
John now appeals.
¶ 30 II. ANALYSIS
¶ 31 On appeal, John contends that the trial court abused its discretion in denying his motion
where: (1) it misinterpreted the parties’ MSA; (2) it found that John’s annual income did not fall
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below $1.2 million; and (3) it found that John did not establish a substantial change in
circumstances. Laura maintains that the trial court correctly denied John’s petition to modify
maintenance.
¶ 32 Maintenance may be modified by a court pursuant to section 510(a-5) of the Illinois
Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510(a-5) (West 2020)). A
“substantial change in circumstances” as required under section 510(a-5) means that either the
needs of the spouse receiving maintenance or the ability of the other spouse to pay that
maintenance has changed. In re Marriage of Anderson, 409 Ill. App. 3d 191, 198 (2011). The
party seeking modification bears the burden of establishing a substantial change of
circumstances. Id.
¶ 33 Section 510(a-5) sets forth the specific factors to consider in determining a motion to
modify maintenance:
“(1) any change in the employment status of either party and whether the change
has been made in good faith;
(2) the efforts, if any, made by the party receiving maintenance to become self-
supporting, and the reasonableness of the efforts where they are appropriate;
(3) any impairment of the present and future earning capacity of either party;
(4) the tax consequences of the maintenance payments upon the respective
economic circumstances of the parties;
(5) the duration of the maintenance payments previously paid (and remaining to
be paid) relative to the length of the marriage;
(6) the property, including retirement benefits, awarded to each party under the
judgment of dissolution of marriage ***;
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(7) the increase or decrease in each party’s income since the prior judgment or
order from which a review, modification, or termination is being sought;
(8) the property acquired and currently owned by each party after the entry of the
judgment of dissolution of marriage, judgment of legal separation, or judgment of
declaration of invalidity of marriage; and
(9) any other factor that the court expressly finds to be just and equitable.” 750
ILCS 5/510 (a-5) (West 2020).
¶ 34 In addition, in determining whether and to what degree a maintenance award shall be
modified, the court should also consider the same factors assessed in determining the initial
award found in section 504(a) of the Act. Blum v. Koster, 235 Ill. 2d 21, 30-31 (2009); 750 ILCS
5/504(a) (West 2020). Those factors are:
“(1) the income and property of each party, including marital property
apportioned and nonmarital 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;
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(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;
(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).
¶ 35 A trial court’s ruling on a petition for modification of maintenance will not be reversed
absent an abuse of discretion. In re Marriage of Virdi, 2014 IL App (3d) 130561 ¶ 26. “Under
the abuse of discretion standard, the question is not whether this court might have decided the
issue differently, but whether any reasonable person could have taken the position adopted by the
trial court.” In re Marriage of Samardzija, 365 Ill. App. 3d 702, 708 (2006). “[W]hen the basis
12 No. 1-21-0324
for an award of maintenance is established in the record, it is not mandatory that the trial court
make explicit findings for each of the statutory factors.” Blum, 235 Ill. 2d at 38.
¶ 36 Here, section 2.3(e) of the MSA states that the amount of John’s “non-reviewable
payments shall be modifiable only upon a substantial change in circumstances via proper notice,
petition and hearing.” It further states that the parties agreed that the following “shall not”
constitute a substantial change in circumstances for modification purposes: (1) the emancipation
of either child; (2) Any increase in John’s income. It also states that in the event that John’s
income drops below $1.2 million, John “may petition the Court for a reduction in the amount of
his maintenance payments.”
¶ 37 John petitioned the court in February 2020 to modify maintenance because he believed he
would be getting a smaller bonus than usual, bringing his income under $1.2 million. Shortly
thereafter, he stopped working for Bank of America altogether. Under the MSA, John was
permitted to petition the court to reduce his maintenance when he believed his income was going
to fall under $1.2 million. The MSA did not provide, however, that if John’s income fell below
$1.2 million, he would automatically be entitled to a reduction of maintenance. Rather, it merely
provided John “may” petition the court for a reduction of maintenance at that time, and that his
maintenance was “modifiable” upon a showing of a substantial change in circumstances. The
question now becomes whether the trial court, after considering the relevant statutory factors,
abused its discretion in denying John’s petition to modify his maintenance to Laura. We find that
it did not.
¶ 38 The first statutory factor the court is directed to consider is “any change in the
employment status of either party and whether the change has been made in good faith.” 750
ICLS 5/510(a-5)(1) (West 2020)). Laura testified at the hearing that John received a letter from
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Bank of America dated September 14, 2018, which stated: “As you requested, we have estimated
your benefits payable from the pension plan,” and noted that the earliest commencement date of
his pension plan was February 1, 2021. A month later, John reached out to her about reducing his
maintenance payments. He reached out again in 2019, and then again in 2020. He eventually
stopped paying maintenance until Laura filed a petition for rule to show cause, at which point he
resumed paying maintenance.
¶ 39 John’s final day of work for Bank of America was March 31, 2020. John testified that he
had a conversation with Bank of America, which led him to believe he was forced to resign.
However, there were no documents presented indicating that Bank of America had forced John
to resign, and there was no testimony presented to corroborate John’s testimony regarding the
alleged conversation with Bank of America. The trial court found that John’s testimony
regarding the circumstances of his resignation was not credible, and that he failed to meet his
burden where he failed to provide credible evidence that his resignation of employment was
involuntary or in good faith. We highlight that the trier of fact is charged with assessing the
credibility of the testimony at trial. In re Marriage of Stuhr, 2016 IL App (1st) 152370, ¶ 69. “A
reviewing court will defer to the trial court’s findings because the trial court, ‘by virtue of its
ability to actually observe the conduct and demeanor of witnesses, is in the best position to
assess their credibility.’ ” In re Marriage of Manker, 375 Ill. App. 3d 465, 477 (2007) (quoting
In re Commitment of Sandry, 367 Ill. App. 3d 949, 980 (2006)). Accordingly, we will not disturb
the trial court’s finding that John’s testimony regarding the voluntariness of his resignation was
not credible.
¶ 40 Another factor the court was to consider was any property acquired after the entry of
judgment of dissolution of marriage. 750 ILCS 5/510(a-5)(8) (West 2020). Evidence was
14 No. 1-21-0324
presented that after John petitioned the court to modify his maintenance payments, he purchased
half of a $600,000 boat. John testified that the costs for keeping a boat in the harbor were around
$7,000, and the costs for storing the boat also amounted to about $7,000.
¶ 41 Finally, we note that it was John’s burden to show that a substantial change in
circumstances occurred. In re Marriage of Logston, 103 Ill. 2d 266, 287 (1984) (the party
seeking modification of a maintenance order has the burden of showing that a substantial change
in circumstances has occurred). Courts in Illinois have held that “substantial change in
circumstances” as required under section 510 of the Act means that either the needs of the spouse
receiving maintenance or the ability of the other spouse to pay that maintenance has changed. In
re Marriage of Anderson, 409 Ill. App. 3d 191, 198 (2011).
¶ 42 Here, the evidence showed that John’s final paystub indicated that he had made $732,061
by March 31, 2020. John’s 2020 W-2 statement showed that John earned wages of $709,999.37.
While John acknowledged he had additional sources of income, evidence of that income was not
presented at trial. He testified that he: (1) had investment income, where he received dividends
and interest income in regards to his brokerage accounts; (2) had interest in several investment
properties; (3) accepted a role on the board of directors for a company that came with a stipend
of “either $60,000 or $100,000”; and (4) was able to keep restricted stock and was expected to
receive “about $200,000 and some change.” The trial court’s finding that John failed to present
all of his income from 2020 to the court, and therefore failed to show that his income was below
$1.2 million was therefore not against the manifest weight of the evidence. In re Marriage of
Eberhardt, 387 Ill. App. 3d 226, 233 (2008) (a trial court’s factual conclusions will be affirmed
by a reviewing court unless against the manifest weight of the evidence).
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¶ 43 Additionally, after John supposedly was forced to resign, he purchased a boat that came
with costs to keep in a harbor and store during the winter, did not make any significant changes
to his lifestyle, and only had three conversations with headhunters since his final day of work for
Bank of America. We find that a reasonable person could have found that John failed to meet his
burden of showing that his ability to pay that maintenance to Laura had changed. Accordingly,
we find that the trial court did not abuse its discretion in denying John’s petition to modify
maintenance. In re Marriage of Samardzija, 365 Ill. App. 3d at 708.
¶ 44 III. CONCLUSION
¶ 45 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 46 Affirmed.