In re Marriage of Scardino

2021 IL App (2d) 200789-U

• Court: Appellate Court of Illinois
• Decided: September 14, 2021
• Docket: 2-20-0789
• Status: Unpublished

Opinion

2021 IL App (2d) 200789-U No. 2-20-0789 Order filed September 14, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 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 ELIZABETH M. SCARDINO, ) of Du Page County. ) Petitioner-Appellee, ) ) and ) No. 12-D-1578 ) JOSEPH SCARDINO, ) Honorable ) Timothy J. McJoynt, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: Respondent did not show that the trial court abused its discretion in setting maintenance.

¶2 The petitioner, Elizabeth Scardino (now known as Elizabeth Franko), and the respondent,

Joseph Scardino, were divorced in 2014, after 29 years of marriage. In June 2018, Joseph filed a

motion seeking to terminate or, in the alternative, decrease maintenance. The trial court ultimately

reduced maintenance to $722 per month. Joseph appeals, arguing that maintenance should have

been either terminated or reduced to about $13 per month. We affirm.

¶3 I. BACKGROUND 2021 IL App (2d) 200789-U

¶4 As part of the 2014 judgment of dissolution, Joseph was ordered to pay Elizabeth $1200

per month as maintenance. The amount was based on a finding that Joseph received $3200 per

month from a pension and had imputed income of $3000 per month from his electrical business.

The judgment found that Elizabeth’s income was disability insurance of $2020 per month, plus

$2000 of imputed income based on the trial court’s determination that Elizabeth was able to earn

that much.

¶5 In his 2018 motion to terminate or decrease maintenance, Joseph stated that his health had

declined to the point that he was no longer capable of earning as much income and he could not

afford to pay any maintenance. Discovery on the issue commenced, and Joseph was permitted to

subpoena Elizabeth’s bank accounts in Nebraska, where she lived. Elizabeth had identified her

checking account as her only bank account.

¶6 The evidentiary hearing on Joseph’s motion was held on October 8, 2019. Among other

things, Joseph testified that his income consisted of his pension and social security (totaling about

$3804 per month) and income from his electrical business. However, because of his health (he

had been diagnosed with prostate cancer and had had surgery in June 2018), he could no longer

work as much as he had before. Although his doctor had not restricted his ability to work, he could

work only two to three hours per day, and could only perform lower-paying electrical work that

paid $90 per hour. He did not work much; on most days, he read and went to the gym to work out.

The evidence as to Elizabeth’s income was mixed. She was no longer on disability, and she had

obtained a job with an annual salary of $80,000 soon after the dissolution, and a job with a salary

of $50,000 after that. However, by the time of trial, she no longer had either of those jobs and was

no longer working. Her current income totaled $1931.60 per month from social security and

various pensions.

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¶7 In November 2019, the trial court issued an order denying Joseph’s request to terminate

maintenance but reducing the amount of that obligation. The trial court noted that it had asked the

parties which version of the recently-amended maintenance statute to apply, but neither party

expressed an opinion. Under the applicable case law, it would apply the version of the statute in

effect in 2018 when Joseph’s motion was filed.

¶8 The trial court found that there had been a substantial change in Joseph’s circumstances,

such that the level of maintenance should be reconsidered. The trial court found that much of

Joseph’s testimony was not credible and was not supported by any documentary evidence. Based

on Joseph’s admissions that he could work up to three hours per day and earn $90 per hour, the

court found that he could earn $1350 per week or about $70,000 gross per year. However, the trial

court reduced this amount, imputing only $30,000 per year of gross income from Joseph’s

electrical business to him. When added to his annual income of $45,648 in pension and social

security benefits, Joseph’s gross annual income was $75,648.

¶9 As to Elizabeth’s income, the trial court found that her imputed income should be reduced

from the 2014 level ($2,000 per month, or $24,000 per year) to $10,000 per year. Beyond finding

that both parties were able to perform at least some work, the trial court did not explain its reasons

for setting Elizabeth’s imputed income at this level. When the imputed income was added to her

income from other social security and other sources, her gross annual income was $32,788 per

year. Applying the statutory guidelines, monthly maintenance would be $969. However, stating

that the statute capped maintenance at the level that would leave the recipient’s total income

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(including maintenance) at no more than 40% of the combined net monthly income of the parties,

the trial court set maintenance at $515.1

¶ 10 Joseph filed a motion to reopen the proofs, contending that he had not received Elizabeth’s

bank records until after the evidentiary hearing was held, and those records showed that Elizabeth

had an interest in a business that was not disclosed on her financial statements, and also had

received unexplained amounts of cash. The trial court granted the motion.

¶ 11 The hearing on the reopened proofs took place on two days in September and November

2020. At the hearing, Joseph introduced bank records showing that (1) Elizabeth’s name was on

two bank accounts that she had not disclosed, one that served as the account for the Cumings

School (an entity that owned the apartment building where she lived) and another account that

Elizabeth testified belonged to her sister; and (2) Elizabeth’s own checking account showed

deposits of cash in varying amounts totaling over $30,000 between February 2018 and June 2019.

As to the Cumings School account, Elizabeth testified that, although she was a signatory on the

account as a convenience to her family members who owned the business, she had no interest in

the business itself. The evidence did not show that Elizabeth ever withdrew money from that

account for herself; to the contrary, Elizabeth testified that, when she received rent checks that

other tenants had mistakenly made payable to her, she deposited them into the Cumings School

account. Elizabeth also testified that she was added to her sister’s account for a brief time so that,

1 The November 2019 order also found Joseph in contempt of court for failing to pay

Elizabeth amounts that were due under previous court orders. Although that finding (which was

affirmed in the December 2020 order) is included in the orders being appealed here, Joseph’s briefs

do not assert any legal challenge to the finding of contempt. We therefore do not address it here.

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if her sister became incapacitated or died, the bills for her sister’s husband’s dialysis would

continue to be paid. As to the cash deposits into her own account, which ranged between $100

and $5000, she testified that she did not know the source of that money. She noted that she had

worked at Pizza Hut during part of that time.

¶ 12 In December 2020, the trial court issued an order modifying its previous order on

maintenance. It found that Joseph had not proven that Elizabeth had an interest in the Cumings

School business or in her sister’s bank account. As to the cash deposits into Elizabeth’s bank

account, the trial court noted that these deposits and Elizabeth’s Pizza Hut job were not disclosed

during the initial hearing on Joseph’s motion. The deposits averaged $1100 per month, or $13,200

per year. This amount would be counted as income to Elizabeth. However, the trial court also

held that, “[b]ecause of this increased income, imputation of additional income” to Elizabeth was

“no longer applicable.” The trial court held that Elizabeth’s income was $35,988 per year ($13,200

of unexplained cash income and $22,788 of social security and pension payments), rather than

$32,788 as calculated in its prior order. However, the November 2019 order also contained an

error in the application of the 40% cap which, under the 2018 version of the statute, should have

been based on the parties’ gross incomes rather than net. Correcting this error and applying the

statutory formula to the parties’ incomes, the correct amount of maintenance was $722 per month,

and that obligation would take effect in January 2021.

¶ 13 Joseph filed a timely notice of appeal from the November 2019 and December 2020 orders.

¶ 14 II. ANALYSIS

¶ 15 Joseph raises a host of arguments to support his main contention, which is that the trial

court set his maintenance obligation too high. An award of maintenance is within the trial court’s

discretion, and we will not reverse the trial court’s determination unless it is clear that it has abused

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that discretion. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005). A trial court abuses its

discretion only when its ruling is arbitrary, fanciful, or unreasonable, or no reasonable person

would take the view adopted by the trial court, or when its ruling rests on an error of law. People

v. Olsen, 2015 IL App (2d) 140267, ¶ 11. The party challenging the award of maintenance bears

the burden of showing such an abuse of discretion. Schneider, 214 Ill. 2d at 173. Joseph suggests

that we should review some of the trial court’s rulings de novo, because they involve statutory

interpretation. We reject this suggestion, as Joseph does not raise any purely legal issues on appeal.

Thus, in order to prevail, Joseph must show that the trial court abused its discretion. We find that

he has failed to carry this burden on any of his arguments.

¶ 16 Joseph begins by arguing that the trial court erred because it did not count the unexplained

cash deposits into Elizabeth’s checking account as income to her. However, this argument is

clearly refuted by the record: in its December 2020 order, the trial court explicitly stated that it

considered these deposits, which averaged $1100 per month, as income to Elizabeth. It therefore

held that her annual income included $13,200 more than she acknowledged receiving in social

security and retirement payments. We note that this portion of Joseph’s arguments never

challenges the trial court’s calculations; it simply advances the legal argument that the deposits

met the statutory definition of income. As the trial court agreed with and adopted this proposition,

Joseph has not shown any error in this regard.

¶ 17 Joseph next argues that the trial court erred in its imputation of income to both parties, by

imputing too much income to Joseph and too little to Elizabeth. Because one of the factors to be

considered in maintenance determinations is “the realistic present and future earning capacity of

each party” (750 ILCS 5/504(a)(3) (West 2018)), a trial court may impute income to a party based

on evidence that the party is voluntarily unemployed or underemployed. In re Marriage of Ruvola,

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2017 IL App (2d) 160737, ¶ 39. As with other aspects of an award of maintenance, we review the

trial court’s determinations regarding imputed income for an abuse of discretion, and the party

challenging the award of maintenance bears the burden of showing such an abuse of discretion.

Schneider, 214 Ill. 2d at 173.

¶ 18 As to Joseph’s imputed income, this argument lacks merit. Joseph testified that he was

able to work two to three hours per day, earning $90 per hour, an earning capacity of about $45,000

to $70,000 per year. Nevertheless, he instead chose to read and go to the gym each day, and

declared only a few thousand dollars of annual income from his electrical business. This evidence

amply supported the trial court’s finding that Joseph was underemployed, as well as its calculation

that Joseph had an unrealized earning capacity of at least $30,000 per year.

¶ 19 As to Elizabeth, the trial court determined that she was capable of earning some income,

and it attributed an annual income of $13,200 to her based on the evidence of the deposits into her

checking account. Joseph argues that the trial court should have found that she was underemployed

and had the capacity to earn more, without identifying what he believes her earning capacity was

or evidence that mandates such a conclusion.

¶ 20 Joseph points out that in 2014 the trial court imputed an income of $24,000 per year to

Elizabeth, and she was employed at higher salaries during the next few years after that. However,

Joseph did not seek to reduce maintenance until June 2018. Thus, the relevant issue was her

“realistic present or future earning capacity” at that time. The evidence as to that period was that

Elizabeth was either unemployed or working at Pizza Hut. Although her work history before 2018

was relevant to her present earning capacity, it was not a sufficient measure in itself, as parties’

earning capacities change over time. Joseph had the opportunity to inquire into Elizabeth’s current

qualifications, her health, her attempts to obtain other work, and other facts that would establish

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her earning capacity, but he did not do so. Accordingly, he has not met his burden of showing that

the trial court abused its discretion in determining that Elizabeth’s earning capacity was no greater

than the $13,200 per year it found she was producing.

¶ 21 Joseph’s final argument is that the trial court erred in calculating the proper amount of

maintenance. He believes that Elizabeth’s annual income from the unexplained cash deposits was

not $13,200 as found by the trial court, but was instead $27,378. Although it is not entirely clear

from Joseph’s briefs or the record, it appears that the trial court may have excluded certain deposits

from consideration and may also have averaged Elizabeth’s income from the deposits over a longer

period of time, whereas Joseph appears to have selected the 12-month period during which

Elizabeth made the greatest amount of deposits as the basis for his calculations of “annual” income.

Regardless, however, what Joseph has not done is show that the trial court’s method of calculating

Elizabeth’s income was an abuse of discretion, either by showing that the exclusion of certain

amounts was improper under the statute or that the averaging method used was incorrect. Instead,

Joseph simply puts forward his own calculations of Elizabeth’s income. This is insufficient to

carry his burden of showing that the trial court abused its discretion—i.e., that its ruling was

arbitrary, fanciful, or unreasonable, or no reasonable person would take the view adopted by the

trial court, or that its ruling rested on an error of law. Olsen, 2015 IL App (2d) 140267, ¶ 11.

¶ 22 We note that Joseph also suggested that, on review, we should hold that the trial court

should have applied the version of the maintenance statute that was in effect in 2019 when it first

ruled, rather than the version in effect when he filed his 2018 motion seeking to terminate or

modify maintenance. However, Joseph forfeited this argument by failing to raise it in the trial

court and, on appeal, by failing to provide any legal reasoning showing that the trial court’s

decision was error. See Williams v. Bruscato, 2019 IL App (2d) 170779, ¶ 24 (“It is well settled

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in Illinois that an appellant who fails to raise an issue before the trial court forfeits the issue and

may not raise it for the first time on appeal.”); People ex rel. Illinois Dep’t of Labor v. E.R.H.

Enterprises, 2013 IL 115106, ¶ 56 (“A point not argued or supported by citation to relevant

authority fails to satisfy the requirements of Supreme Court Rule 341(h)(7), (i) (see Ill. S. Ct. R.

341(h)(7), (i) (eff. Feb. 6, 2013))” and “results in forfeiture” of the argument). We therefore

decline to address the issue.

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed.

¶ 25 Affirmed.

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