In re Marriage of Nord

• Court: Appellate Court of Illinois
• Decided: June 28, 2010
• Docket: 4-09-0726 Rel
• Status: Published

Opinion

NO. 4-09-0726 Filed 6/28/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from DANIEL A. NORD, ) Circuit Court of Petitioner-Appellant, ) McLean County and ) No. 06D561 KATHLEEN A. NORD, ) Respondent-Appellee. ) ) Honorable ) David W. Butler, ) Judge Presiding. _________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

This appeal concerns an award of maintenance entered

during marriage dissolution proceedings between petitioner,

Daniel A. Nord, and respondent, Kathleen A. Nord. All other

issues have been resolved and are not part of this appeal.

On appeal, Daniel argues the trial court (1) abused its

discretion when it awarded Kathleen permanent maintenance of

$17,000 per month and (2) made significant factual errors which

warrant reversal of the maintenance award. We disagree and

affirm.

I. BACKGROUND

The parties married in December 1972. They had two

children who are now adults. Daniel, age 57 at the time of the

February 2009 hearing, is a physician practicing in the field of

obstetrics and gynecology. Kathleen, age 58, is a high school graduate. Kathleen worked as a teacher’s aide, in a real estate

office filing paperwork, and for a patent attorney while Daniel

was in medical school. However, Kathleen ceased working in 1980

to stay home and care for the parties’ two children. As a

result, Kathleen has not worked outside the home in approximately

30 years.

The parties purchased the marital residence for

approximately $485,000, and during the marriage they made

approximately $1 million worth of improvements to the home.

Their 12,000-square-foot, three-floor home contained nine

bathrooms, four bedrooms, a six-car garage, an indoor half-court

gymnasium, and an in-ground pool. The parties’ other properties

included eight timeshares in Cancun, a timeshare in Missouri, and

a second home in Guadalajara, Mexico, valued at $545,000. The

parties, during their marriage, not only traveled extensively to

Mexico, but also traveled to Australia, New Zealand, and to

Europe on several occasions. Kathleen and her daughter also

traveled to Africa and Japan during the marriage.

According to the trial testimony, the parties separated

sometime between late July and early August 2006. Prior thereto,

they sold their home for approximately $1,600,000 and moved into

a $5,600-per-month rental home. The revenue from the sale of the

home, furnishings, and artwork (the parties received $700,000 for

furnishings and artwork) amounted to approximately $2,300,000.

- 2 - In November 2006, Daniel filed a petition for

dissolution of marriage. Prior to the hearing on Daniel’s

petition, the parties reached agreement on the distribution of

the marital and nonmarital property. While the parties agreed

with respect to who was to receive the various properties, they

did not agree on the values to be assigned to some of the

properties. Nor did the parties agree with respect to the amount

and duration of maintenance for Kathleen. The parties’ "Property

Settlement Agreement" included four exhibits that itemized the

agreed distribution of the marital and nonmarital property and

debt to each party and set forth each party's assigned values to

each item of property. Significant discrepancies existed in the

values assigned to two items of property. The parties agreed

Daniel's 10% interest in Nord Farms, Inc. (Nord Farms), was his

nonmarital property. Daniel valued his interest in Nord Farms at

$152,280, while Kathleen valued it at $705,125. The second

significant discrepancy arose with respect to the value of a

marital asset, a 50% interest in Daniel’s obstetrics practice,

Nord, Wellman Obstetrics & Gynecology, SC. While the parties

agreed this marital asset should be assigned to Daniel, Kathleen

valued it at $700,000 and Daniel valued it at $135,000.

In February 2009, over the course of 2 1/2 days, the

trial court heard evidence concerning these property values and

the parties' arguments regarding maintenance. The parties agreed

- 3 - Kathleen was entitled to maintenance but disagreed as to the

amount and duration. To be able to establish an appropriate

amount of maintenance, the court needed to determine the value of

these properties, in addition to determining the prospective

incomes of the parties. Daniel argued he could not pay more than

$5,000 per month for 60 months. Kathleen, on the other hand,

initially sought permanent maintenance of $31,000 monthly, a

figure her counsel modified to $21,000 during closing argument.

At the end of the hearing, the court took the matter under

advisement.

In a June 2009 written order, the trial court found

that "to meet Kathleen’s reasonable needs in light of the

standard of living established during the marriage and in light

of Daniel’s ability to pay, Daniel should pay Kathleen

[permanent] maintenance in the amount of $17,000 per month."

On July 13, 2009, the trial court entered a final

judgment for dissolution of marriage.

On July 21, 2009, and July 23, 2009, Daniel filed

motions to reconsider and to correct factual errors. Following a

September 2009 hearing, the trial court denied both motions.

This appeal followed.

II. ANALYSIS

On appeal, Daniel argues the trial court’s permanent-

maintenance award of $17,000 per month was an abuse of discretion

- 4 - where the trial court made significant factual errors.

Specifically, Daniel contends (1) his resources are insufficient

to pay the maintenance award, (2) $17,000 per month was not

necessary for Kathleen’s reasonable expenses, (3) his actual

expenses were not considered, (4) Kathleen received the bulk of

the marital assets, and (5) $5,000 per month for 60 months would

adequately support Kathleen.

Kathleen argues the trial court’s award was not an

abuse of discretion. Specifically, she contends (1) Daniel has

the ability to pay the maintenance awarded and his argument to

the contrary is not supported by the evidence presented at trial,

(2) Daniel’s income is able to provide for her reasonable

expenses while also providing a comfortable lifestyle for

himself, and (3) given her age, educational level, and 30-year

absence from the workforce as well as the duration of the

marriage (37 years), permanent maintenance is justified and

necessary.

A. Standard of Review

"As a general rule, ’a trial court’s determination as

to the awarding of maintenance is presumed to be correct.’" In

re Marriage of Heroy, 385 Ill. App. 3d 640, 650, 895 N.E.2d 1025,

1037 (2008), quoting In re Marriage of Donovan, 361 Ill. App. 3d

1059, 1063, 838 N.E.2d 310, 314 (2005). The amount of a

maintenance award lies within the sound discretion of the trial

- 5 - court, and this court must not reverse that decision unless it

was 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 take the view

adopted by the trial court. Schneider, 214 Ill. 2d at 173, 824

N.E.2d at 189. The party seeking reversal of a maintenance award

bears the burden of showing the trial court abused its

discretion. Schneider, 214 Ill. 2d at 173, 824 N.E.2d at 189.

B. The Statutory Factors

Section 504(a) of the Illinois Marriage and Dissolution

of Marriage Act (Dissolution Act) sets forth the following 12

factors for a trial court to consider in deciding whether to

grant a maintenance award:

"(1) the income and property of each

party, including marital property apportioned

and non[]marital property assigned to the

party seeking maintenance;

(2) the needs of each party;

(3) the 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

- 6 - delayed education, training, employment, or

career opportunities due to the marriage;

(5) 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 or is the custodian of

a child making it appropriate that the

custodian not seek employment;

(6) the standard of living established

during the marriage;

(7) the duration of the marriage;

(8) the age and the physical and

emotional condition of both parties;

(9) the tax consequences of the property

division upon the respective economic

circumstances of the parties;

(10) contributions and services by the

party seeking maintenance to the education,

training, career or career potential, or

license of the other spouse;

(11) any valid agreement of the parties;

and

- 7 - (12) any other factor that the court

expressly finds to be just and equitable."

750 ILCS 5/504(a) (West 2008).

In considering these factors, the trial court is not

required to give them equal weight "so long as the balance struck

by the court is reasonable under the circumstances." In re

Marriage of Miller, 231 Ill. App. 3d 480, 485, 595 N.E.2d 1349,

1353 (1992). "Although the trial court must consider all the

relevant statutory factors, it need not make specific findings as

to the reasons for its decisions." In re Marriage of Reynard,

378 Ill. App. 3d 997, 1004, 883 N.E.2d 535, 541 (2008). "The

benchmark for determining the amount of maintenance is the

recipient's reasonable needs in light of the standard of living

established during the marriage." In re Marriage of Culp, 341

Ill. App. 3d 390, 398, 792 N.E.2d 452, 459 (2003)

C. Alleged Factual Errors

Daniel argues Kathleen’s maintenance award was

erroneous in light of the significant factual errors the trial

court made in determining the award.

When a party challenges a trial court’s factual

findings regarding a maintenance determination, this court will

not reverse a trial court's findings unless the findings are

against the manifest weight of the evidence. In re Marriage of

Walker, 386 Ill. App. 3d 1034, 1041, 899 N.E.2d 1097, 1103

- 8 - (2008). Findings are "against the manifest weight of the

evidence where the opposite conclusion is clearly evident or

where the court’s findings are unreasonable, arbitrary, and not

based on any of the evidence." In re Marriage of Bhati, 397 Ill.

App. 3d 53, 61, 920 N.E.2d 1147, 1153 (2009).

Daniel contends the trial court erroneously (1) failed

to consider Kathleen’s total income potential; (2) overvalued

Daniel’s income where it failed to consider some of his income

was nonrepetitive capital gains and gambling income; (3) failed

to recognize Daniel’s continuing marital debt burden; and (4)

overvalued Daniel’s estate by $948,286 where it (a) believed he

received $841,000 more property than is reflected in the property

settlement agreement, (b) did not properly consider the amount of

debt Daniel assumed, and (c) erred in valuing Daniel’s 10%

interest in Nord Farms, where the court’s calculation included

too many acres. As a result, Daniel maintains the court’s

findings of fact were against the manifest weight of the evidence

and merit reversal of the maintenance award.

Kathleen argues the alleged factual errors made by the

trial court do not warrant reversal. Specifically, Kathleen

contends the court did not (1) fail to consider Kathleen’s total

income potential, (2) overvalue Daniel’s income, (3) err in

considering the marital debt assumed by Daniel, (4) overvalue

Daniel’s estate, or (5) err in valuing Daniel’s 10% interest in

- 9 - Nord Farms.

1. Kathleen’s Income Potential

Daniel contends the trial court erred where it failed

to consider Kathleen’s potential annual income of $66,503.

Specifically, he contends the court did not consider (1)

Kathleen’s nonmarital farm’s annual earning potential of $23,503,

(2) the Guadalajara condo’s potential rental income of $30,000,

(3) and her potential salary of $13,000 at a minimum-wage job.

In the trial court’s written decision, it reviewed each

of the section 504(a) factors set forth above and methodically

considered the evidence applicable to each factor. It recognized

Kathleen received income from her nonmarital farmland

(approximately $2,300 per year) and considered the potential

rental income from the Guadalajara condominium Kathleen received

pursuant to the parties’ property settlement agreement. (The

parties’ daughter was living in this condominium until her

expected graduation from medical school in June 2009.) Kathleen

also received a 50% interest in 80 acres of McLean County

farmland. While recognizing the income potential of the

nonmarital farm, the McLean County farmland, the Guadalajara

condominium, and the six one-week timeshares owned by Kathleen,

the court found neither side produced sufficient evidence for it

to make a credible determination of the total income to be

generated from these assets. The court also noted requiring

- 10 - Kathleen to use these assets entirely for the generation of

income would impair the value those assets contributed to her

standard of living prior to the dissolution. Last, the court

considered Kathleen’s potential to earn income at a minimum-wage

level approximating $13,000 annually but noted this income would

be taxed at a higher rate when added to the maintenance award.

Thus, contrary to Daniel’s argument, the record shows

the trial court did consider Kathleen’s potential income from (1)

the nonmarital farmland, (2) the Guadalajara condominium, and (3)

minimum-wage employment. However, the trial court was not

required to make specific findings regarding the amount of income

Kathleen’s assets could produce. Heroy, 385 Ill. App. 3d at 656,

895 N.E.2d at 1041-42, citing In re Marriage of Zeman, 198 Ill.

App. 3d 722, 733, 556 N.E.2d 767, 773 (1990) (rejecting the ex-

husband’s argument that the trial court failed to consider the

income potential of the ex-wife’s property even though the trial

court made no calculations). Moreover, while Daniel argues

specific amounts may be generated from these assets, they have no

proven income stream. The fact the court did not determine with

mathematical precision the income from these assets does not mean

it failed to consider this factor when determining the

maintenance award. In re Marriage of Mittra, 114 Ill. App. 3d

627, 632, 450 N.E.2d 1229, 1232 (1983).

2. Daniel’s Income

- 11 - Daniel argues the trial court’s assertion his "average

income was approximately $1,100,000 per year for the years 2002

through 2008" shows the court overstated his income by failing to

consider nonrepetitive capital gains and gambling income. We

disagree.

According to the parties’ tax returns, Daniel’s total

gross income was $994,507 in 2002, $1,162,517 in 2003, $1,655,786

in 2004, $1,669,178 in 2005, $1,576,942 in 2006, and $898,827 in

2007. In addition, petitioner’s exhibits show Daniel’s total

gross income for 2008 was $813,031. As a result, Daniel’s

average income for 2002 to 2008 was over $1 million.

During the hearing on the motion to reconsider, the

trial court stated the following:

"I did mention, and it’s true, you can’t

quarrel with the numbers that the average,

the average came out to roughly 1.1 million

between [2002] and [2008]. That’s a fact.

But obviously, I did not reach the

conclusion that we can be sure that in future

years Daniel’s net income or gross income

would be 1.1 million. Be assured if I

thought he was going to gross 1.1 million a

year, maintenance would probably have been

higher."

- 12 - Daniel maintains the average should not reflect his

nonrepetitive capital gains of $328,963 in 2006, $336,593 in

2005, $59,486 in 2004, $120 in 2003, and $5,861 in 2002.

However, Daniel concedes no capital gains occurred in 2007 and

2008. The record shows the trial court based the maintenance

award on Daniel’s earnings during those last two years, stating,

"I sort of gave him the benefit of the doubt and concluded that

the last two years are, are a better representation of what his

future income is likely to be--somewhere in the $800,00--

[$]813,[000] one year and I think [$]834,[000] the next."

In this case, the trial court based its maintenance

award on Daniel’s 2007 and 2008 average income of approximately

$800,000. As a result, the court did not overstate Daniel’s

income by failing to consider the nonrepetitive nature of some of

Daniel’s income occurring from 2002 to 2006.

3. Daniel’s Marital Debt

Under the settlement agreement, Daniel assumed the bulk

of the parties’ marital debt in excess of $800,000, including a

consolidation loan agreement with Busey Bank in the amount of

$534,000. Daniel contends the trial court erred where no factual

basis existed for the court’s findings that (1) he would be debt-

free in less than three years and (2) Daniel had negotiated the

payment arrangement and created the situation where most of his

income was currently being applied to debt.

- 13 - In its opinion, the trial court noted the following:

"Daniel argues that his needs are

significant because of the amount of money he

spends each month to repay [the marital]

debt. At trial[,] Daniel testified that the

minimum payment on this debt is approximately

$32,500.00 a month. *** Daniel was solely

responsible, as between the parties, for

negotiating the payment arrangements of the

parties’ outstanding debt. If Daniel

continues to pay the debt at the amount

testified to, he will be debt free in less

than 3 years."

Daniel claimed at trial his minimum monthly payments on

the debts totaled $32,500. Consequently, Daniel argues, he has

limited funds available for the payment of maintenance. However,

as the trial court noted in its written decision, Daniel handled

the parties’ finances, including the debt-repayment schedule.

His Busey Bank loan was amortized over 48 months, and by the

February 2009 hearing, the principal had already been reduced by

$100,000. As the court pointed out, if Daniel amortized his

debts over a longer period of time, he could readily afford to

pay significant maintenance. Daniel created this aggressive

debt-repayment schedule, tying up the bulk of his monthly income

- 14 - in the repayment of debt. Kathleen should not be penalized as a

result.

Daniel also argues the trial court failed to consider

the federal and state income-tax liabilities resulting from

Daniel’s failure to timely pay his quarterly taxes and his

failure to have sufficient sums withheld from his salary to pay

his tax obligations. Specifically, Daniel argues the 2008

federal and state taxes had accrued and were due and owing but

were not included in the marital debt. We note that according to

Daniel, at the time of the hearing, he had paid off the 2006 and

2007 tax liabilities through a bank loan, which was counted as

part of the $841,466 total debt Daniel assumed.

As Kathleen points out, the record shows the 2008

federal and state taxes were in fact included in the parties’

marital debt of $841,446, which the court considered. Exhibit C

of the parties’ property settlement agreement shows a 2008 tax

liability of $143,680. During the hearing, Daniel also testified

he made two payments totaling $50,000 toward the 2008 tax debt.

The court stated it considered the $841,466 debt, which Daniel

agreed to assume. It also heard Daniel’s testimony regarding his

payments toward the 2008 taxes. As a result, Daniel’s argument

the court did not consider his outstanding tax liabilities fails.

4. The Value of Daniel’s Estate

Daniel first argues the trial court erroneously

- 15 - overvalued Daniel’s estate by $948,286 where it (1) believed he

received $841,000 more property than is reflected in the property

settlement agreement and (2) overvalued Daniel’s 10% interest in

Nord Farms by a minimum of $137,747.

On February 23, 2009, the parties filed their property

settlement agreement. Exhibits attached to the agreement showed

the marital and nonmarital property each party is to receive and

the value each party believes should be assigned to that

property. The following is a summary of the total value assigned

by each party to the marital and nonmarital property distributed

to each party (as reflected in the trial court’s opinion):

Daniel’s Kathleen’s Values Values Daniel’s Nonmarital $152,280 $705,125 Property Kathleen’s Nonmarital $501,443 $474,020 Property Daniel’s Marital $449,263 $748,078* Property Kathleen’s Marital $1,961,543 $1,880,274 Property Daniel’s Total Nonmarital $601,543 $1,453,203 Property and Marital Property Kathleen’s Total Nonmarital $2,462,976 $2,354,294 Property and Marital Property

* $330,000 of goodwill deducted at trial from Kathleen’s original figure of $1,078,078.

Thus, as can be seen from the chart above, Daniel and

- 16 - Kathleen basically agreed on the value of property assigned to

Kathleen, but were over $850,000 apart on the values they each

assigned to Daniel’s property.

In its memorandum, the trial court points out that the

areas in contention are the values of Daniel’s nonmarital

property, consisting of a 10% interest in Nord Farms and Daniel’s

50% interest in his medical practice. Daniel values his interest

in Nord Farms at $152,280, whereas Kathleen values it at

$705,125. Daniel values his interest in the medical practice at

$135,000. Kathleen believes its value to be $370,000, after

conceding personal goodwill in the amount of $330,000 should not

be included in the value because she is seeking an award of

maintenance.

In its memorandum, the trial court found neither

party’s appraisal with regard to the Nord Farm property to be

realistic. The court found Kathleen’s appraisal too high, but

also found Daniel’s appraisal to be too low. Finding neither the

$2,800- (Daniel’s) nor $13,000- (Kathleen’s) per-acre figure to

be credible, the court found a more realistic value for Daniel’s

10% interest in Nord Farms to be between $300,000 and $400,000.

The court then substituted its value of $350,000 (calculated as

the midway point between $300,000 and $400,000) for the values

used by the parties for Daniel’s 10% interest in Nord Farms.

Following this adjustment, Daniel’s total nonmarital and marital

- 17 - property was valued as follows:

Daniel’s Kathleen’s Values Values

Daniel’s Total Nonmarital $799,263 $1,098,078 Property and Marital Property

With regard to Daniel’s 50% interest in his

professional practice, the trial court found the following:

"Initially, Kathleen valued this asset

at $700,000.00. At trial[,] Kathleen’s

counsel revised this figure to $370,000.00,

acknowledging that Daniel’s personal goodwill

should not be included in the value of his

professional practice. Daniel has placed a

value of $135,000.00 on his professional

practice. ***

The court has assessed the credibility

of the exhibits and testimony concerning the

value of Daniel’s professional practice and

finds that Daniel’s figure is more credible

and accepts $135,000.00 as being the value of

Daniel’s 50% interest in [his professional

practice.]"

The court then subtracted the difference between the parties’

valuations for his professional practice ($370,000 minus

- 18 - $135,000, or $235,000) from the value Kathleen placed on Daniel’s

total marital and nonmarital property and modified that figure to

$863,078 (i.e., $1,098,078 minus $235,000) to arrive at the

following values for their nonmarital and marital property:

Daniel’s Kathleen’s Values Values Daniel’s Nonmarital $350,000 $350,000 Property (Nord Farms) Daniel’s Kathleen’s Values Values

Kathleen’s Nonmarital $501,443 $474,020 Property Daniel’s Marital $449,263 $513,078 Property Kathleen’s Marital $1,961,543 $1,880,274 Property Daniel’s Total Nonmarital $799,263 $863,078 Property and Marital Property Kathleen’s Total Nonmarital $2,462,976 $2,354,294 Property and Marital Property

In its order, the trial court referenced the above

figures and stated the following:

"The court notes that the actual amount

of property received by Daniel is $841,446.00

more than what appears above because the

property figures are net figures which are

arrived at by taking the total amount of

property received and subtracting the amount

- 19 - of debt assumed by that party. Similarly,

the amount of property received by Kathleen

was actually $47,280.00 more than the net

figure reflected above because she assumed

$47,280.00 in debt." (Emphasis added.)

Later in its order, the trial court stated the

following:

"Daniel will receive between $800,000.00

to $860,000.00 in property. Daniel points

out that as part of the agreement he has

agreed to pay $841,000.00 in marital debt.

As the court has previously noted, the

property figures are net figures and the

total amount of property actually received by

Daniel is $841,000.00 more. *** Daniel

argues that he is not able to pay a

significant amount of spousal support because

of [the marital] debt. The court has

considered the reduction in the amount of

property he receives as a result of this

debt. To find that both he has received

considerably less property and has

considerably more debt would be in effect

double counting the debt." (Emphases added.)

- 20 - Based on the above-cited passages, Daniel argues the

trial court erred in finding he received $841,000 more property

than is reflected in the property settlement agreement.

During the hearing on Daniel’s motion to reconsider,

however, the trial court clarified its written order and stated

the following:

"It wasn’t the [c]ourt’s suggestion in

this opinion that [Daniel’s] net asset was

[$]841,000 more. The [c]ourt was simply

making an observation of the obvious--that if

you, whether you use the term ’net worth’ or

in the case of a divorce ’net assets,’ you

start out with the total property and you

subtract from that total debt to get the net.

If you have a thousand dollars worth of

property and you have two hundred dollars

worth of debt, you have eight hundred dollars

worth of net property.

The only point I was making there, and I

made this exact same observation with regard

to Kathleen. The only point I’m trying to

make is that the parties were arguing net

figures, but in terms of having property

available which could be used to dispose of

- 21 - debt, I’m also looking at the total amount of

property each party received; and that came

right from the parties’ own figures in the

marital settlement agreement.

***

[S]o, don’t misread the observations in

the opinion as thinking the [c]ourt was

mistakenly under the belief that [Daniel] has

$841,000 of more net property."

Thereafter, the following colloquy took place between

Daniel’s counsel and the trial court:

"MR. WEINTRAUB [(Daniel’s Attorney)]:

Well judge, why don’t you state that in your

opinion then? Why don’t you state in your

opinion, ’This is what I intended,’ and, you

know, just correct your opinion and state

that as opposed to what you actually stated

on pages six, nine[,] and ten, which I

believe will be totally misconstrued by an

[a]ppellate [c]ourt.

State in your opinion, ’Here is what I

intended,’ and then I can argue to the

[c]ourt, ’All right, look. My client has

$846,000 in debt. He has got $831,000 of

- 22 - property found by the [c]ourt,’ your own

finding, ’which basically leaves him with a

zero estate.’

But, you know, if you’re going to state

that, Judge, state that. State what you said

this morning in a corrected ruling as opposed

to what you stated on pages six, nine, and

ten.

[THE COURT:] Well, I’m not going to

amend the opinion. I said exactly what I

meant, and I think it’s clear as a bell.

If you have read something into that, I

guess you can make a record of what you

thought I meant, but I think the language is

clear. It’s simply an observation of what is

available to the parties to either reduce

debt or use to support their lifestyle.

I made the exact same observation as to

Kathleen, but we’re talking about much

smaller debt numbers. But I made the same

observation, and that’s all that was

intended, is to identify the total amount of

property available to each side.

I understand his net property is

- 23 - [$]841,000 less. I don’t think anybody could

read this opinion and misconstrue the meaning

of that."

We understand the trial court’s statements to mean only

what it said--that the total value of the property distributed to

the parties was a net value, i.e., the debt distributed to each

party was subtracted from the total value of all property

distributed to each party and this "net" figure is reflected in

the parties' exhibits attached to the property settlement

agreement and in the court’s order. The court made it clear

during the hearing on Daniel’s motion to reconsider that it "was

not mistakenly under the belief that [Daniel] has $841,000 of

more net property." Moreover, the court clearly acknowledged

Daniel’s net assets did not amount to $841,000 more than the

amount of property he received. Upon review of the record, we

find no basis for Daniel’s argument on appeal. As a result,

Daniel’s argument the court overvalued his estate by $841,000

fails.

5. Value of Nord Farms

Daniel next contends the trial court erroneously

overvalued Daniel’s 10% interest in his nonmarital farmland.

Specifically, Daniel contends the court erred in stating in its

opinion that the total acreage of the farmland appraised was

541.24 acres. Instead, Daniel maintains the court’s opinion

- 24 - included acreage not owned by Nord Farms, and the correct amount

was 328.32 total acres. As a result, Daniel argues the court

overvalued his 10% interest by at least $137,747--based upon the

court’s apparent determination the land was worth $6,467 per acre

($350,000 value divided by 54.24 acres equals $6,467). In

reality, however, the court did not assign a per-acre value to

Nord Farms. Even Daniel’s expert testified different tracts of

the farm carried different values as a result of different uses.

Some of the land was commercial, some was residential, and some

was agricultural.

Kathleen appears to concede the trial court’s

determination of the amount of land at issue was incorrect but

argues this error was harmless. Specifically, Kathleen contends

Daniel has failed to show any prejudice resulting from the

miscalculation.

According to James Riker, Daniel’s land appraiser, the

the total amount of land comprising Nord Farms is 328.32 acres.

The amount of acreage reflected in Donald Cochran’s report

(Kathleen’s land appraiser) was 417.92 total acres. In its

written opinion, the trial court stated the following:

"The total number of acres of which

Daniel owns 10% is 541.24. While the court

is not in the position to substitute its

judgment for that of certified appraisers,

- 25 - the court agrees with Daniel that Kathleen’s

appraisal is too high and the court agrees

with Kathleen that Daniel’s appraisal is too

low. Neither $2,800.00 nor $13,000.00 per

acre appear to be credible figures. It is

the court’s judgment that a more realistic

[figure] for the value of Daniel’s 10%

interest in Nord Farms, Inc. is between

$300,000.00 and $400,000.00."

In this case, the trial court erred by stating Nord

Farms consisted of 541.24 total acres, where Riker’s testimony

showed it consisted of 328.32 total acres, a difference of 212.92

total acres, and Cochran’s report showed it was 417.92 acres, a

difference of 123.32 acres. However, we find the court’s

calculation error immaterial.

According to Riker, the value of Daniel’s 10% interest

in Nord Farms was $152,280. According to Cochran, the value of

Daniel’s 10% interest was $705,125. In its opinion, the trial

court valued Daniel’s 10% interest at $350,000. An examination

of Daniel’s 10% interest in the farmland, as opposed to the total

acreage, shows the court erred by either counting just either

21.29 or 12.33 additional acres (10% of 212.92 or 123.32 acres

erroneously included).

This error is especially insignificant (1) when

- 26 - compared to the total marital property accumulated during the

marriage and (2) in relation to the issue of maintenance, which

in this case is more a function of Daniel’s annual income than

his nonmarital property. See, e.g., In re Marriage of Toole, 273

Ill. App. 3d 607, 617, 653 N.E.2d 456, 463-64 (1995) (finding

while the trial court made an $11,000 valuation error, the error

was harmless in light of the entire distribution scheme of the

estate valued at $136,503); In re Marriage of Weinstein, 128 Ill.

App. 3d 234, 248, 470 N.E.2d 551, 562 (1984) (finding the trial

court’s possible $4,300 valuation error harmless where the estate

was valued at $115,000); see also 750 ILCS 5/504(a)(1) (West

2008) (a factor to consider when determining maintenance is "the

income and property of each party, including marital property

apportioned and non[]marital property assigned to the party

seeking maintenance").

We note it would have been within the trial court’s

discretion to have accepted as credible Kathleen’s expert’s

opinion that the land was worth $13,000 per acre. See In re

Marriage of Reppen-Sonneson, 299 Ill. App. 3d 691, 693, 701

N.E.2d 1159, 1160 (1998) (conflicts in testimony regarding the

value of assets are matters for the trier of fact, and a

valuation within the range testified to by the parties’ experts

will not be disturbed on review). Thus, the court could have

valued Daniel’s 10% interest at $426,790 ($13,000 multiplied by

- 27 - 32.83 acres) or even $543,270 ($13,000 multiplied by 41.79 acres)

without having abused its discretion.

Morever, at the conclusion of the hearing on the motion

to reconsider, the trial court stated the following:

"So the [m]otion to [r]econsider will be

denied, and as far as correcting the factual

errors, I think I disagree that some of those

are errors. And the one potential error may

be in the amount of acres involved in [Nord

Farms], but I still think the [c]ourt’s

estimate of the value is, is reasonable.

I don’t know if we can ever put an exact

dollar figure on it, and obviously two

experts didn’t necessarily agree, if they did

agree on the number of acres. But I think

that’s a fair assessment, and if I overvalued

that asset by $137,000 it would not affect

the [c]ourt’s judgment." (Emphases added.)

As a result, we find the trial court’s valuation error

harmless.

D. The Amount of Maintenance Awarded

In this case, the parties lived an extravagant

lifestyle. They enjoyed luxury automobiles such as Mercedes,

Lexus, Jaguar, Porsche, and Rolls-Royce. Kathleen routinely

- 28 - shopped at stores such as Saks Fifth Avenue and Neiman Marcus.

The parties had employed multiple servants at both their

Bloomington and Guadalajara homes. The parties regularly

entertained friends and dignitaries in their home. They also

traveled and vacationed in Australia, New Zealand, Europe,

Mexico, Africa, and Japan.

The parties were married for approximately 34 years

before the initiation of these proceedings. While Kathleen

received a larger portion of the marital estate (between

$1,888,274 and $1,961,543) than Daniel (between $449,263 and

$513,078), Daniel has the greater present and future potential to

earn income and acquire assets. Kathleen, who was 58 years old

at the time of the hearing, has a high school education, little

job experience, and has not worked outside the home in 30 years.

The trial court based its maintenance award on Daniel’s 2007 and

2008 average income of approximately $800,000 per year. The

court awarded Kathleen $17,000 per month, or $204,000 per year in

maintenance. Thus, Kathleen’s maintenance represents

approximately 25.5% of Daniel’s income.

Daniel argues, however, that the award is reversible

under In re Marriage of Bratcher, 383 Ill. App. 3d 388, 390, 890

N.E.2d 1232, 1234 (2008). In Bratcher, this court reversed a

$12,500-per-month maintenance award where the wife was awarded an

equalizing lump-sum payment of $876,759 and commercial property

- 29 - valued at $725,000. Bratcher, 383 Ill. App. 3d at 388-89, 890

N.E.2d at 1233. However, this case is distinguishable from

Bratcher. The court in Bratcher found the ex-wife’s income

combined with the awarded maintenance would have resulted in

$26,500 monthly for the ex-wife, leaving the ex-husband with

$14,500 monthly. Bratcher, 383 Ill. App. 3d at 389, 890 N.E.2d

at 1234. Morever, in Bratcher, the ex-wife was awarded an asset

with a proven income stream of approximately $8,193 per month, or

almost $100,000 per year. Bratcher, 383 Ill. App. 3d at 389, 890

N.E.2d at 1233-34.

In this case, despite Daniel’s argument to the

contrary, the condominium and the marital farmland have only

speculative income-producing potential. As previously stated,

the fact the trial court did not determine with mathematical

certainty the income-generating potential of Kathleen’s assets

does not mean it failed to consider this factor in awarding

maintenance. Mittra, 114 Ill. App. 3d at 632, 450 N.E.2d at

1232. Moreover, "’where the spouse from whom maintenance is

sought has sufficient income to meet his own needs while meeting

those of his spouse, the spouse seeking maintenance is not

required to sell her assets or impair her capital in order to

maintain herself in the manner established during the marriage.’"

(Emphasis omitted.) In re Marriage of Mayhall, 311 Ill. App. 3d

765, 768, 725 N.E.2d 22, 25 (2000), quoting In re Marriage of

- 30 - Thornton, 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336, 1344

(1980). The court’s order reflects its careful consideration of

each applicable factor to be considered under sections 504(a)(1)

through (a)(12) (750 ILCS 5/504(a) (West 2008)). While Kathleen

originally sought $31,000 per month and Daniel sought to pay only

$5,000 per month, the court found both of these figures

unrealistic in light of the facts of this case. The court did

not abuse its discretion in awarding Kathleen $17,000 per month

in maintenance.

E. The Duration of Maintenance

Daniel last argues the trial court erred by awarding

Kathleen permanent maintenance of $17,000 per month. Instead,

Daniel contends Kathleen should be awarded $5,000 per month for

five years. Daniel thus argues the court erred by awarding

Kathleen permanent maintenance as opposed to rehabilitative

"Permanent maintenance should be awarded where a spouse

is not employable or is only employable at a lower income as

compared to the spouse's previous standard of living." Walker,

386 Ill. App. 3d at 1044, 899 N.E.2d at 1105. Rehabilitative

maintenance is appropriate where the spouse is employable at an

income that would provide the spouse the approximate standard of

living enjoyed during the marriage. In re Marriage of Selinger,

351 Ill. App. 3d 611, 615, 814 N.E.2d 152, 158 (2004). It is

- 31 - within the trial court's discretion to set the duration of the

maintenance award. Selinger, 351 Ill. App. 3d at 614, 814 N.E.2d

at 157. The trial court is in a better position to determine

whether permanent or rehabilitative maintenance was more

appropriate. In re Marriage of Golden, 358 Ill. App. 3d 464,

469, 831 N.E.2d 1177, 1181 (2005), citing In re Marriage of Gunn,

233 Ill. App. 3d 165, 179, 598 N.E.2d 1013, 1022 (1992). The

court's decision to award permanent or rehabilitative maintenance

will not be overturned unless the court abused its discretion.

Walker, 386 Ill. App. 3d at 1044, 899 N.E.2d at 1105.

We note permanent maintenance is not limited to spouses

who are unemployable. See Heroy, 385 Ill. App. 3d at 652-53, 895

N.E.2d at 1038-39 (affirming a maintenance award to the ex-wife

who had a law degree and earning potential of more than $100,000

per year). Permanent maintenance is also appropriate where a

spouse is "only employable at a lower income as compared to the

spouse’s previous standard of living." Walker, 386 Ill. App. 3d

at 1044, 899 N.E.2d at 1105. "In lengthy marriages in which the

recipient of maintenance served as caregiver for the children,

’"[t]here is no question but that Illinois courts give

consideration to a more permanent award of maintenance to wives

who have undertaken to *** raise and support the family."’"

Culp, 341 Ill. App. 3d at 398, 792 N.E.2d at 458, quoting In re

Marriage of Drury, 317 Ill. App. 3d 201, 206, 740 N.E.2d 365, 368

- 32 - (2000), quoting In re Marriage of Rubinstein, 145 Ill. App. 3d

31, 40, 495 N.E.2d 659, 665 (1986).

In this case, Kathleen and Daniel married in 1972, when

Kathleen was 21 years old. During the early years of the

marriage, while Daniel was in medical school, Kathleen held

various jobs. However, since 1980, and with Daniel’s agreement,

Kathleen stayed home to raise the parties’ two children.

Kathleen is a high school graduate who has not been employed

outside the home since 1980--almost 30 years at the time of the

February 2009 maintenance hearing.

During closing arguments, Daniel questioned Kathleen’s

inability to obtain a job, asking "is it so unreasonable that

[Kathleen] work half the hours that her husband works? I mean,

I’m not even asking her to work the amount of hours he works.

*** Is it so unreasonable to ask that she work at least part of

the time when she’s in good health and she’s the exact same age

as [Daniel]?" However, the goal that the spouse obtain

employment is balanced against the likelihood that the "spouse

will be able to support herself in some reasonable approximation

of the standard of living established during the marriage." In

re Marriage of Stam, 260 Ill. App. 3d 754, 757, 632 N.E.2d 1078,

1080 (1994). "[W]hen the facts make it clear that one spouse is

unable to support herself in the manner in which they lived

during the marriage, then it is an abuse of discretion to award

- 33 - only rehabilitative maintenance." (Emphases omitted.) In re

Marriage of Carpel, 232 Ill. App. 3d 806, 828, 597 N.E.2d 847,

863 (1992). The record contains no evidence that Kathleen is

employable at an income that would provide anything near the

approximate standard of living enjoyed during the marriage.

Accordingly, we find no abuse of discretion in the court’s

decision to award permanent maintenance.

In this case, Daniel has not established the trial

court's findings of fact were against the manifest weight of the

evidence or its maintenance award was an abuse of discretion.

The court's written findings and orders show it considered all of

the section 504 factors and the evidence before it. Having

reviewed (1) the record; (2) the court's detailed, written order;

and (3) the parties’ property settlement agreement, under the

applicable standard of review, we conclude the court did not

abuse its discretion by awarding Kathleen permanent maintenance

of $17,000 per month.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

KNECHT and APPLETON, JJ., concur.

- 34 -