In re Marriage of Walker

Opinion

Filed 11/26/08 NO. 4-07-0730

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from BARBARA G. WALKER, ) Circuit Court of Petitioner-Appellee, ) Adams County and ) No. 06D192 DAVID P. WALKER, ) Respondent-Appellant. ) Honorable ) Mark A. Drummond, ) Judge Presiding. ________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

Petitioner, Barbara G. Walker, filed a petition for

dissolution of marriage in August 2006 from respondent, David P.

Walker. In April 2007, the trial court entered the judgment for

dissolution of marriage and its order on the remaining issues.

On appeal, David argues the trial court erred in (1)

its findings of his net income, (2) the division of marital

property, (3) its award of permanent maintenance to Barbara, and

(4) requiring David to maintain a life-insurance policy to secure

the maintenance payments. We affirm.

I. BACKGROUND

Barbara and David were married on January 26, 1981.

The parties had two children during the marriage, Christopher and

Stacey, both of whom are adults. The parties separated in 2002.

In August 2006, Barbara filed a petition for dissolution of

marriage. In March 2007, the trial court conducted a hearing on

the petition for dissolution and related issues. Barbara testi-

fied she was 52 years old and worked as a teacher in the Quincy

public school system. Her net income amounted to approximately

$2,500 per month. She stated David made in excess of $200,000

per year gross salary. Barbara claimed $3,562.09 in monthly

expenses, which included the mortgage. The marital residence was

appraised at $221,000 with an outstanding mortgage of

$132,892.99. Barbara testified she had lived in the home for 11

years and she had no desire to sell it because she loved the

community and was "very comfortable" in the home. David made the

monthly mortgage payments of $814 plus $325 in taxes.

Barbara testified she had a retirement fund with the

Teacher's Retirement System of the State of Illinois, which would

pay her between $800 and $1,300 if she chose to retire. At

retirement, she would have to choose between the fund or social

security. She requested maintenance based on the 26-year mar-

riage as well as $3,800 in attorney fees.

On cross-examination, Barbara testified she did not

know David's $204,000 gross income included an $81,000 bonus in

2006 for performance in 2005. She testified she had nonmarital

stocks valued at approximately $14,360. Barbara also worked as

an adjunct professor at Quincy University and received $3,200 in

gross income per year.

- 2 - David, age 50, testified he lived in Andover, Massachu-

setts, and worked as vice president of engineering for Microwave

Radio Communications. He stated his "salary structure is

$135,000 base plus a performance bonus of 30[%]." His net pay

per month was $7,515.09. He received an $81,000 bonus in March

2006. He did not expect to receive a bonus "to that degree" in

the future. His 2007 bonus amounted to $40,000.

David stated he was agreeable to a 60/40 split in favor

of Barbara. He was also willing to pay maintenance of $1,025 per

month for two years. David had a life-insurance policy through

his employment with Barbara as the beneficiary.

In April 2007, the trial court issued the judgment for

dissolution of marriage. In the division of property, the court

awarded each party his or her personal property. The court

awarded the marital residence to Barbara. She also received her

interest in her retirement plan ($30,691) and the bank accounts

($5,010). David received his VISLINK 401K plan ($26,400), his

Glenayre retirement savings plan ($31,820), his Fidelity individ-

ual retirement account ($29,159), and his interest in the Bank of

America account ($23,700). The distribution amounted to approxi-

mately $104,644 to David and $155,279 to Barbara. The court

ordered David to pay Barbara $10,000 representing the 60/40 split

of marital assets between the parties.

The trial court also ordered David to pay $2,000 per

- 3 - month in maintenance for the months of April and May 2007, as he

continued to pay for Stacey's college expenses. In June 2007,

the court ordered David to pay $3,000 per month through May 2014.

Because Barbara will receive between $800 and $1,300 from her

retirement fund beginning in May 2014, the court required David

to pay only $1,640 per month thereafter. Also, the court re-

quired David to maintain life insurance naming Barbara as sole

beneficiary. The award of maintenance was subject to modifica-

tion based on a change in circumstances.

The trial court made specific findings in open court

pertinent to this appeal:

"THE COURT: Okay. The court's consid-

ered the evidence and the arguments and ap-

plies the statutory considerations with re-

gard to maintenance and property division.

The court will do a variation of the

60/40 split. The court awards her all of her

nonmarital property as set forth in her pre-

trial memorandum and notes there is approxi-

mately $14,000 in stock in addition to some

personal items in the--in her list.

Each party is awarded their personal

property currently held in their possession,

and the court is awarding the distribution as

- 4 - set forth on the [r]espondent's proposed

distribution with this proviso, and that is I

read down the numbers and taking the value of

the--to the husband of the Chevy at [$]409,

the Fidelity IRA I don't believe is [$]30,69-

1, I believe that is [$]29,159. I have added

[$]5,300 onto the Vislink 401K and rounded

that off at $26,400. Glenayre at [$]31,820.

I am awarding him the household items

he's requested, which amount to, the court

finds, at $140, so I am lowering the house-

hold items from [$]1,150 on his side down to

[$]140 and, accordingly, increasing hers on

the other side by that difference, and the

account of the Bank of America at [$]16,016.

I am adding in the kayak of [$]700. I come

to a total of [$]104,644.

She is awarded those items that are

listed on her side of the ledger. I have

increased the household items to [$]7,420,

and what I am going to order is on the payout

from [r]espondent, instead of [$]7,450, I am

rounding that off to an even $10,000. If I

would go to strictly 60/40 with no fractions,

- 5 - it would be [$]1,694, but I am taking into

account the attorney[] fees she's having to

pay. So it's 60/40, some odd percentage.

I'm not exactly sure what it is, but I don't

think it's even a full percent. So we need

to increase payout from [r]espondent by

$2,550.

Each party will pay their own attorney[]

fees, and with the maintenance award the

court finds that she can pay her attorney[]

fees.

Sara graduates in May. Am I correct on

that?

[PETITIONER'S ATTORNEY]: Yes.

[RESPONDENT]: Stacey, Your Honor. But

yes.

THE COURT: Stacey. I'm sorry. I don't

know where I got Sara.

The husband certainly has not been mi-

serly with regard to maintenance. He was at

$800 per week, which results in a payment of

$3,466 per month. That was then lowered to

[$]385 per week plus paying the mortgage, so

that lowered it to $2,873. However, at

- 6 - trial[,] the husband's position is a position

that I cannot accept under the case law.

When you have got a marriage of 26 years with

this disparity in income, I don't know of any

case where we have this value of property

distribution, even in a 60/40 split, that

would limit maintenance to [two] years at

this amount. There is simply too great a

disparity in income. There's not enough

assets to provide her security, and the court

notes that she has submitted what is essen-

tially a bare[-]bones budget. The court

notes that the husband is putting away a

thousand--nearly $1,000 a month in the 401K,

and she certainly ought to have funds suffi-

cient for her to live on, and in addition,

enjoy the life[]style to which the parties

had become accustomed.

The court is going to vary the mainte-

nance, though, based upon several contingen-

cies. First of all, the husband has and did

not put the wife to the time and expense of

filing a post-18 educational support case,

which is to his credit. Therefore, the main-

- 7 - tenance amount--

Has March been paid, the mortgage and

all of that?

[PETITIONER'S ATTORNEY]: I don't know.

[RESPONDENT]: That's correct.

THE COURT: So, for the months of April

and May, the maintenance amount is going to

be $2,000 for those [two] months, because

he's paying for the daughter's education. It

will go up to $3,000 per month and that will

be through the month of May of the year 2014.

The reason I pick that date is on her

[e]xhibit G that is her, [']retirement

date.['] That is [seven] years of mainte-

nance at $3,000 per month.

At that date, beginning with the June

payment, I am lowering it by the amount that

she should or could receive of [$]1,360. So

his maintenance payment will lower to $1,640

per month. During the time period that he is

paying maintenance[,] he is to maintain her

as a beneficiary on his insurance policy,

providing proof of that to her every year.

My biggest concern about maintenance is,

- 8 - ma'am, if I were to award you the maintenance

and he would, unfortunately, walk out here

and get hit by a car, the maintenance is

gone, because it ends upon his death. So,

the court attempts in maintenance awards,

instead of just setting it flat out, that I

want to set up various contingencies. So we

have the [$]2,000 for [two] months, goes up

to [$]3,000, and then we have a lowering of

it in the year 2014 when she becomes eligible

for her retirement.

In addition, it is secured by the life

insurance. In the event he should lose his

job and that life insurance is gone, then I

think this court or the parties should do the

following: I still want her maintenance pay-

ments secured by life insurance, but if he

has to go out into the market and purchase

life insurance, then the monthly maintenance

amount should be lowered by the amount that

he has to pay for insurance to secure her

maintenance payments, and for example, if

he's paying $36,000 per year and an insurance

policy costs him $2,000, well, let's make it

- 9 - easy, $2,400 per year, then the maintenance

should probably, in my opinion, be lowered by

the $200 per month he's paying for that

life[-]insurance policy.

The disparity in income at this point is

simply too large for me to limit maintenance

to [two] years, and I can't right off the top

of my head think of a maintenance case where

we had a marriage of this length where it was

limited for [two] years and limited to this

amount.

It is, of course, modifiable for any

change of circumstance. It is gone if she

remarries. It is gone if she cohabitates.

Likewise, should he lose his job or his in-

come be lowered, it can be varied on that

basis also.

So, what I have tried to build in here

is contingencies that will keep both of you

out of court by lowering the maintenance in

[seven] years, by securing the maintenance

with the life insurance, and giving the hus-

band a break--I know it is, albeit for only

[two] months, but since he is paying the

- 10 - daughter's, I think it should be $2,000 for

the next [two] months."

In May 2007, David filed a motion to vacate and recon-

sider, asking the trial court to reconsider its award of perma-

nent maintenance. In July 2007, the court denied the motion.

The court declined to reconsider its decision on maintenance and

division of property in light of the disparity in income, the

length of the marriage, and the fact that the property awarded to

Barbara was, for the most part, nonincome producing.

This appeal followed.

II. ANALYSIS

A. The Trial Court Did Not Err in Its Award of Permanent Maintenance to Barbara

David first argues the trial court erred in its award

of permanent maintenance to Barbara. We disagree.

Section 504(a) of the Illinois Marriage and Dissolution

of Marriage Act (Dissolution Act) sets forth 12 factors for the

trial court to consider in deciding whether to grant a temporary

or permanent maintenance award, as follows:

"(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 ca-

- 11 - pacity 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 de-

layed education, training, employment, or

career opportunities due to the marriage;

(5) the time necessary to enable the

party seeking maintenance to acquire appro-

priate education, training, and employment,

and whether that party is able to support

himself or herself through appropriate em-

ployment or is the custodian of a child mak-

ing 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 emo-

tional condition of both parties;

(9) the tax consequences of the property

division upon the respective economic circum-

stances of the parties;

(10) contributions and services by the

- 12 - 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

(12) any other factor that the court ex-

pressly finds to be just and equitable." 750

ILCS 5/504(a) (West 2006).

The trial court has the discretion to determine the

amount and duration of an award of maintenance. In re Marriage

of Donovan, 361 Ill. App. 3d 1059, 1062, 838 N.E.2d 310, 314

(2005). When a party challenges the trial court’s factual

findings, a reviewing court will affirm unless the court’s

findings were clearly against the manifest weight of the evi-

dence. In re Marriage of Wojcik, 362 Ill. App. 3d 144, 153, 838

N.E.2d 282, 290 (2005). However, the court's ultimate decision

to award maintenance will not be reversed on appeal absent an

abuse of discretion. Donovan, 361 Ill. App. 3d at 1062, 838

N.E.2d at 314. An abuse of discretion occurs where no reasonable

person would adopt the view taken by the trial court. Wojcik,

362 Ill. App. 3d at 168, 838 N.E.2d at 302. "Where an abuse of

discretion in awarding or denying maintenance is claimed, the

burden of showing such an abuse rests with the claiming party."

In re Marriage of Homann, 276 Ill. App. 3d 236, 240, 658 N.E.2d

- 13 - 492, 495 (1995).

1. The Trial Court’s Finding of David’s Net Income Was Not Against the Manifest Weight of the Evidence

David argues the trial court's award of permanent

maintenance was against the manifest weight of the evidence

because the award was based on an inflated figure for his net

income. In determining the amount of maintenance, a trial court

should consider the parties' income at the time of dissolution as

well as their potential incomes. In re Marriage of Harlow, 251

Ill. App. 3d 152, 161, 621 N.E.2d 929, 937 (1993). A court’s

factual finding as to the parties’ annual incomes will be re-

viewed under the manifest-weight-of-the-evidence standard.

Wojcik, 362 Ill. App. 3d at 153, 838 N.E.2d at 290.

In this case, the judgment order does not indicate

David's annual net income in the calculation of maintenance.

David testified he earned $135,000 per year plus a 30% perfor-

mance bonus. His December 1, 2006, earnings statement shows

gross pay of $204,469.44, including a bonus of $81,200. A letter

from his employer indicated the $81,200 included an executive

bonus of $31,200 and a performance bonus of $50,000. David

testified this executive bonus was "a one-time thing" and charac-

terized it as "unusual." He received a $40,500 bonus in 2007,

raising his total earnings for that year to $175,500. He testi-

fied no other bonuses were forthcoming in 2007 and he had not

deferred any bonuses or income. At the hearing on the motion to

- 14 - reconsider, the trial court indicated it made its decision on

maintenance based on David's income of $204,000 versus Barbara’s

income of $37,000.

Here, the trial court’s determination of David’s net

income was not clearly against the manifest weight of the evi-

dence. The only evidence presented to the court regarding

David’s net income was his 2006 income of $204,000 and his 2007

income of $175,000. Although David testified that the $31,200

executive bonus in 2006 was "unusual," he presented no other

evidence to show that he would not receive a similar or even

greater performance bonus in the coming years.

While the trial court did not make an express finding

as to David’s credibility, the court clearly rejected David’s

testimony that the bonus was a one-time occurrence. The trier of

fact is charged with assessing the credibility of a witness’s

testimony at trial. In re Marriage of Manker, 375 Ill. App. 3d

465, 477, 874 N.E.2d 880, 890 (2007). A reviewing court will

defer to a trial court’s determination of credibility because the

trial court is in the best position to observe the conduct and

demeanor of witnesses. Manker, 375 Ill. App. 3d at 477, 874

N.E.2d at 890. Therefore, this court defers to the trial court’s

implied finding of credibility and decision to base its order of

maintenance on David’s 2006 income.

Further, recognizing David’s income may fluctuate from

- 15 - year to year, the trial court specifically stated that David may

ask the court for a modification if he experiences a substantial

change in income. Therefore, the court’s determination of

David’s net income was not against the manifest weight of the

evidence.

2. The Trial Court Did Not Abuse Its Discretion in Its Division of Property

David argues the trial court erred in its allocation of

marital and nonmarital property as its actual division of prop-

erty did not meet the 60/40 split as intended by the parties.

David also contends the error in the division of property re-

sulted in an award of permanent maintenance that was against the

manifest weight of the evidence.

Section 503(d) of the Dissolution Act requires the

trial court divide marital property "in just proportions consid-

ering all relevant factors." 750 ILCS 5/503(d) (West 2006). The

court has broad discretion in the distribution of marital assets.

In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1113, 806

N.E.2d 701, 706 (2004). "The touchstone of proper and just

apportionment is whether it is equitable in nature." In re

Marriage of Dunlap, 294 Ill. App. 3d 768, 778, 690 N.E.2d 1023,

1029 (1998). An award of property in just proportions does not

mean equal proportions, and a trial court does not abuse its

discretion in awarding a larger share of the marital property to

one party. In re Marriage of Murphy, 259 Ill. App. 3d 336, 344,

- 16 - 631 N.E.2d 893, 898 (1994).

In this case, the trial court did not itemize the

division of marital property in the dissolution judgment.

Further, some of the figures in the court's April 2007 dissolu-

tion judgment do not match those mentioned at the March 2007

hearing. The envelope of exhibits on appeal includes a two-page

document of David's proposed distribution of property and mainte-

nance. This document has no exhibit number but contains the

court’s strikeouts and additional handwritten figures in the

distribution of property. The court referenced David's "proposed

distribution" at the hearing, read through the items listed, and

indicated any changes it had made. The court, however, made no

mention of that document in the dissolution judgment.

David attempted to set forth the trial court's line-by-

line distribution in his statement of facts and listed the amount

awarded him as $104,644. Unfortunately, the numbers listed only

total $85,869. In the distribution to Barbara, David listed

$2,059.10 in her savings account, but he did not list the Bank of

America account ($3,563) or the Mercantile Bank account ($1,447)

mentioned in the court's order. David also stated Barbara

received assets totaling $151,230, but the court apparently

determined the amount to be $155,279. Barbara did not include a

line-by-line itemization in her brief.

The trial court apparently awarded Barbara the follow-

- 17 - ing:

Her retirement fund $ 30,691 Bank of America account $ 3,563 Mercantile Bank account $ 1,447 Marital residence (equity) $ 88,463 Jeep $ 10,000 Toyota $ 3,695 Her personal property $ 7,420 David's payment $ 10,000 Total $155,279

- 18 - David received the following:

Fidelity IRA $ 29,159 (court's order states $30,691) VISLINK account $ 26,400 Glenayre account $ 31,820 Household items $ 140 Bank of America account $ 16,016 (court's order states $23,700) Chevy Trail Blazer $ 409 Kayak $ 700 Total $104,644

Taking these figures into consideration, Barbara

received 59.7% of the marital property, while David received

40.3%. David argues his $10,000 payment to Barbara was not

removed from his total, thereby skewing the 60/40 distribution.

With receipt of only $94,644, David's total actually amounted to

37.9% ($94,644/$249,923).

Although the percentages differ slightly from the

proposed 60/40 distribution, the difference is minimal. See In

re Marriage of Alexander, 368 Ill. App. 3d 192, 205, 857 N.E.2d

766, 776 (2006) (error in valuation of property was de minimus).

Further, Barbara received few liquid assets, including the

$14,000 in nonmarital stocks, while David had several accounts

totaling over $100,000. The trial court did not abuse its

discretion.

3. The Trial Court Did Not Abuse Its Discretion in Awarding Barbara Permanent Maintenance

David argues Barbara's good health, employment history,

and lifestyle did not warrant an award of permanent maintenance.

- 19 - 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. In re Marriage of

Schiltz, 358 Ill. App. 3d 1079, 1084, 833 N.E.2d 412, 415-16

(2005). A spouse should not be required to lower the standard of

living established in the marriage as long as the payor spouse

has sufficient assets to meet his needs and the needs of his

former spouse. In re Marriage of Drury, 317 Ill. App. 3d 201,

207, 740 N.E.2d 365, 369 (2000). A court's maintenance decision

will not be overturned on appeal unless the court abused its

discretion. In re Marriage of Gentry, 188 Ill. App. 3d 372, 376,

544 N.E.2d 435, 438 (1989).

Barbara testified her net income from her teaching

positions amounted to approximately $2,500 per month. Her listed

monthly expenses amounted to $3,500, which included nearly $1,200

for the mortgage and taxes that David had been paying. She

testified her expenses reflected her current lifestyle as well as

that which she enjoyed during the marriage. The trial court

ordered David to pay $2,000 per month in permanent maintenance

for April and May 2007, then $3,000 per month through May 2014.

Beginning in May 2014, Barbara will receive between $800 and

$1,300 from her Teacher’s Retirement Fund. For this reason, the

court required David to pay only $1,640 per month in permanent

maintenance starting in May 2014.

- 20 - The trial court’s award of permanent maintenance in the

amount of $3,000 through May 2014, and $1,640 thereafter, does

not constitute an abuse of discretion. The testimony indicated

Barbara's income failed to cover the monthly expenses needed to

maintain the standard of living enjoyed during the 26-year

marriage. She earned approximately $2,500 per month from teach-

ing, and her salary would most likely not increase by a signifi-

cant amount during the years leading up to retirement. David, on

the other hand, had sufficient income to meet both his needs and

Barbara's needs. Therefore, the court did not abuse its discre-

tion in awarding Barbara maintenance on a permanent basis.

B. The Trial Court Did Not Err in Ordering David To Maintain Life Insurance as Security for Barbara’s Maintenance Payments

David argues the trial court erred in requiring him to

maintain a policy of insurance to secure the maintenance payments

in the event of David’s death. We disagree.

This court has previously held that a trial court does

not have the authority to order a payor of maintenance to keep an

insurance policy on his life as security for maintenance. In re

Marriage of Clarke, 125 Ill. App. 3d 432, 439, 465 N.E.2d 975,

979 (1984). The Clarke court based its holding, in large part,

on section 510(b) of the Dissolution Act, which stated that the

obligation to pay future maintenance terminated upon the death of

either party. Clarke, 125 Ill. App. 3d at 436, 465 N.E.2d at

977; Ill. Rev. Stat. 1983, ch. 40, par. 510(b) ("Unless otherwise

- 21 - agreed by the parties in a written agreement set forth in the

judgment or otherwise approved by the court, the obligation to

pay future maintenance is terminated upon the death of either

party" (now found in 750 ILCS 5/510(c) (West 2006))). This court

also relied on the fact that a previous version of the divorce

statute contained a section allowing the trial court to order

security for maintenance, while the current statute did not have

a similar provision. Clarke, 125 Ill. App. 3d at 436-37, 465

N.E.2d at 977-78.

However, nine years later in In re Marriage of Vernon,

253 Ill. App. 3d 783, 625 N.E.2d 823 (1993), this court called

into question the holding of Clarke and whether a court has the

authority to order insurance as security for maintenance. In

Vernon, this court reasoned that while the Dissolution Act does

prohibit maintenance payments after a payor’s death, the Dissolu-

tion Act does not prohibit payments during a payor’s life that

may have an effect after the payor’s death. Vernon, 253 Ill.

App. 3d at 789, 625 N.E.2d at 828. For example, a trial court is

encouraged to award a large amount of property in lieu of mainte-

nance, so that property, like insurance, is available to the

payee after the payor’s death. Vernon, 253 Ill. App. 3d at 789,

625 N.E.2d at 828. From this, the Vernon court concluded that

section 510(b) of the Dissolution Act does not address the

possible use and potential effect of maintenance payments but

- 22 - only the time in which payments may be made. Vernon, 253 Ill.

App. 3d at 789, 625 N.E.2d at 828; see also Ill. Rev. Stat. 1983,

ch. 40, par. 510(b) (now 750 ILCS 5/510(c)).

Further, Vernon explained that the current statute,

which no longer contained a provision allowing the trial court to

order security for maintenance, was not simply a revision of

Illinois law but adoption of a standardized, uniform act.

Vernon, 253 Ill. App. 3d at 789, 625 N.E.2d at 828. Consequent-

ly, such an omission should not be construed as evincing a

legislative intent to change the law and withdraw the court’s

authority to order security for maintenance. Vernon, 253 Ill.

App. 3d at 789, 625 N.E.2d at 828.

"The [Dissolution] Act is not simply a revi-

sion of Illinois law, however, but a uniform

act, and it may be inappropriate to give much

weight to the fact that the uniform act does

not contain specific provisions found in the

earlier Illinois statute. It is true that

the Act specifically authorizes a court to

set aside property in a trust for children

(Ill. Rev. Stat. 1983, ch. 40, par.

503(g)),but it is difficult to read that

specific authorization as a legislative pro-

hibition of orders requiring a maintenance

- 23 - obligor to maintain insurance on his life to

prevent the premature termination of mainte-

nance." Vernon, 253 Ill. App. 3d at 789, 625

N.E.2d at 828.

While the Dissolution Act does not contain language

specifically authorizing a trial court to order security for

maintenance, the legislature did not specifically prohibit such

an order. Therefore, this court will not presume that an order

requiring a payor to keep a life-insurance policy as security for

maintenance violates the Dissolution Act’s requirement that the

obligation to pay maintenance terminate upon the death of either

party. See Vernon, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.

"Only where the legislature may be said to have intended a

particular requirement to serve as a limitation on the authority

of the court to act should such a limitation be imposed."

Vernon, 253 Ill. App. 3d at 788, 625 N.E.2d at 827.

In fact, the Dissolution Act grants the trial court

wide discretion in awarding maintenance and dividing the marital

property. The legislature directs a trial court to consider all

relevant factors in its award of maintenance and authorizes a

trial court to order maintenance for the duration and amount as

it deems just. 750 ILCS 5/504 (West 2006). Similarly, the

Dissolution Act grants a trial court the authority to divide the

marital property in "just proportions." 750 ILCS 5/503(d) (West

- 24 - 2006). Further, in section 102(5), the legislature directs

courts to liberally construe the Dissolution Act in order to make

reasonable provisions for spouses. 750 ILCS 5/102(5) (West

2006).

"This Act shall be liberally construed

and applied to promote its underlying pur-

poses, which are to:

(1) provide adequate procedures for the

solemnization and registration of marriage;

(2) strengthen and preserve the integ-

rity of marriage and safeguard family rela-

tionships;

(3) promote the amicable settlement of

disputes that have arisen between parties to

a marriage;

(4) mitigate the potential harm to the

spouses and their children caused by the

process of legal dissolution of marriage;

(5) make reasonable provision for spous-

es and minor children during and after liti-

gation, including provision for timely awards

of interim fees to achieve substantial parity

in parties' access to funds for litigation

costs;

- 25 - (6) eliminate the consideration of mari-

tal misconduct in the adjudication of rights

and duties incident to the legal dissolution

of marriage, legal separation[,] and declara-

tion of invalidity of marriage;

(7) secure the maximum involvement and

cooperation of both parents regarding the

physical, mental, moral[,] and emotional

well-being of the children during and after

the litigation; and

(8) make provision for the preservation

and conservation of assets during the litiga-

tion." 750 ILCS 5/102 (West 2006).

In light of this liberal construction, sections 503 and 504 are

sufficiently broad to allow the trial court to award a form of

security for a maintenance obligation, not necessarily limited to

life insurance.

In the present case, the trial court ordered David to

maintain Barbara as the sole beneficiary on his employer-issued

insurance policy during the time he was obligated to pay mainte-

nance. If life insurance were no longer available to David

through his employer, the court required that David purchase life

insurance and maintain Barbara as the sole beneficiary. The

court also ordered that in such an instance, David could deduct

- 26 - the cost of the insurance policy from the monthly maintenance

payment to Barbara.

The Act grants a trial court the discretionary author-

ity to order a payor to keep a life-insurance policy to prevent

the premature termination of maintenance, as it did in the

present case. Contrary to David’s argument, ordering a life-

insurance policy as security for maintenance does not equate to

payment after death but rather is a guard against premature

death. Consequently, the court’s order did not violate the

prohibition in 510(c) of payments after death. See 750 ILCS

5/510(c) (West 2006). Therefore, the court did not err by

requiring David to maintain a life-insurance policy with Barbara

as the sole beneficiary so long as he was obligated to pay

maintenance.

In In re Marriage of Ellinger, 378 Ill. App. 3d 497,

882 N.E.2d 692 (2008), the Third District utilizes a faulty

rationale, applying a presumption that the legislature intended

to change prior law by deleting language that gave a court

discretion to designate life insurance as security for mainte-

nance obligations. "Additionally, when the legislature deleted

certain language from previous legislation, it is presumed that

the legislature intended to change the law." Ellinger, 378 Ill.

App. 3d at 499, 882 N.E.2d at 694. As previously stated, the

legislature did not amend legislation; the legislature enacted a

- 27 - completely new law; therefore, that presumption does not apply.

Ellinger erroneously relied on Forest City Erectors v.

Industrial Comm'n, 264 Ill. App. 3d 436, 636 N.E.2d 969 (1994),

for this presumption. However, Forest City Erectors did not

address the legislature's enactment of a new law but rather dealt

with an amendment to the Workers' Compensation Act (Ill. Rev.

Stat. 1975, ch. 48, par. 138.8(d)(1)). The legislature changed

the language in section 8(d)(1) of the Workers' Compensation Act

providing "for wage differential benefits based on the 'differ-

ence between the average amount which [claimant] earned before

the accident' and the average amount he is earning after the

accident" (emphasis added and in original) (Forest City Erectors,

264 Ill. App. 3d at 440, 636 N.E.2d at 972, citing Ill. Rev.

Stat. 1975, ch. 48, par. 138.8(d)(1) (see also Ill. Rev. Stat.

1973, ch. 138.8(d))), to "'the difference between the average

amount which he would be able to earn in the full performance of

his duties in the occupation in which he was engaged at the time

of the accident and the average amount which he is earning or is

able to earn in some suitable employment or business after the

accident'" (emphasis in original) (Forest City Erectors, 264 Ill.

App. 3d at 439, 636 N.E.2d at 972, quoting Ill. Rev. Stat. 1991,

ch. 48, par. 138.8(d)(1)). The presumption of the legislature's

intent to change the statute, therefore, applied in Forest City

Erectors, 264 Ill. App. 3d 436, 636 N.E.2d 969, permitting the

- 28 - commission to calculate benefits without regard to claimant's

earnings prior to the accident.

In the case sub judice, however, the legislature's

presumption is rebutted.

"Where the legislature repeals an existing

act and replaces it with an entirely new act,

however, that presumption is rebutted. [Peo-

ple v.] Nunn, 77 Ill. 2d [243,] 248[, 396

N.E.2d 27, 29 (1979)]. In Nunn, the change

in the relevant law came about because the

legislature repealed the original statute in

toto and replaced it and others with the

Uniform Act Regulating Traffic on Highways

(now the Illinois Vehicle Code). Nunn, 77

Ill. 2d at 247[, 396 N.E.2d at 29]. Thus,

this court concluded, 'the presumption is not

invocable because the action of the legisla-

ture in 1935 was to adopt a new act *** and

not to amend the previous statute.' (Empha-

sis added.) Nunn, 77 Ill. 2d at 248[, 396

N.E.2d at 29]." In re K.C., 186 Ill. 2d 542,

549, 714 N.E.2d 491, 495 (1999).

Ellinger further errs in adopting Clarke's interpretation of the

statutory language prohibiting an award of insurance as security

- 29 - for maintenance. There is no doubt the language in the statute

is unclear and ambiguous. Maintenance payments after death may

be insured both by agreement and if "otherwise approved by the

court." Clarke argues "otherwise approved by the court" means:

"The word 'approve' is defined by Black's Law

Dictionary as follows: 'To be satisfied with;

to confirm, ratify, sanction, or consent to

some act or thing done by another.' (Empha-

sis added.) (Black's Law Dictionary 94 (5th

ed. 1979).) The word is said to be distin-

guished from the word 'authorize.' Within

the context of section 510(b) there must be a

preexisting 'act' or 'thing' for the court to

approve. That 'act' or 'thing' is the agree-

ment of the parties. The court's authority

in this case is not inherent. It arises only

when there is a written agreement of the

parties which either has been incorporated in

the judgment and approved in that manner or

'otherwise approved by the court.'" Clarke,

125 Ill. App. 3d at 436, 465 N.E.2d at 977.

However, the Clarke court never explains how the court could

"otherwise approve" such post-death maintenance payments. In

fact, the Clarke court found there was no such agreement and the

- 30 - trial court had no authority to order unallocated maintenance

beyond the husband's death. "Here, there was no such agreement.

The court had no authority under section 510(b) to order

unallocated maintenance beyond petitioner's death." Clarke, 125

Ill. App. 3d at 436, 465 N.E.2d 977.

However, the Clarke court is wrong on both counts.

There was an agreement: a detailed property settlement agreement

and an agreement to submit matters to the court for determination

including inter alia security for unallocated maintenance and who

should pay the premiums. What the Clarke court ignores until the

last paragraph of the opinion is the reality that unallocated

maintenance includes child support which the Clarke court at

length explains can be secured by insurance. The Clarke court

then finds it sufficient as security for child support that the

parties allocated $100,000 in life insurance to the children as

beneficiaries. However, the written agreement to provide the

$100,000 in insurance and approved by the trial court was specif-

ically for college expenses to "assume [the daughters'] support

and payment of their educational expenses through four years of

college or vocational school." That $100,000 insurance was not

to secure child support but was for college expenses and those

children were nowhere near college age. Regardless, Clarke

should not be relied upon as authority for the proposition a

trial court lacks the inherent authority to order insurance on

- 31 - maintenance payments.

Unfortunately, Ellinger did not address the concerns

raised in Vernon but simply dismissed Vernon as dicta. We hereby

abandon Clarke and adopt the reasoning of Vernon.

The trial court's order to take out a life-insurance

policy simply does not violate the Dissolution Act's requirement

that the death of either party terminates the obligation to pay

future maintenance. An insured makes no payments on a life-

insurance policy after his death. Life insurance is designed to

guard against the risk of premature death, not to leave large

amounts of money after the death of the parties. Moreover, the

insurance company, not the insured's estate, pays the proceeds to

the ex-wife upon the insured's death, negating any concept of

postmortem alimony. A. Rutkin, Family Law and Practice,

§§45.02[2], 45-10 (1985). Further, many life-insurance policies,

like other insurance policies, never pay out. Consider the

operation of a term life-insurance policy. A spouse usually

would not keep renewing such a policy until the date of his

death, only until the period of risk expired. For example, a

spouse might stop renewing such a policy after family debts have

been paid off or his pension has kicked in. The policy here

would be terminated upon death of either spouse or remarriage of

Barbara.

The legislature did not intend that a trial court never

- 32 - order that a maintenance payor name his ex-spouse as beneficiary

on his life insurance. We cannot simply make the assumption that

the legislature intended the court never be able to order life

insurance as security. If there can be no life insurance, a

judge trying to make a fair division cannot give much weight to

the fact that the ex-spouse is ordered to pay maintenance. That

order may result in the ex-spouse paying hundreds of thousands of

dollars or it may result in him paying almost nothing if he died

quickly. The legislature does not require such uncertainty. An

order for life insurance is not like ordering a 50-year-old man

to pay maintenance for 60 years even after death, the type of

action the legislature intended to prohibit. Equating an order

to maintain life insurance for the benefit of securing mainte-

nance to maintenance is simply erroneous.

Further, to carry the dissent's argument to its logical

conclusion, neither can child support be secured by life insur-

ance because the legislature has not specifically authorized life

insurance as security for child support. The legislature only

authorized child support after death and setting aside a portion

of an estate to pay that child support. Obviously, the legisla-

ture intended the trial court to broadly interpret the Dissolu-

tion Act to do justice by the parties. This trial court did a

yeoman's job at doing justice to the parties. We cannot now say

the court abused its discretion.

- 33 - In a particular case, the trial court may appropriately

limit how long the policy must be kept in force. A court may

appropriately order the use of a term policy, not a whole-life

policy, although another solution may be to recognize the asset

value of the whole-life policy in the division of assets. In

fact, the court here recognized the gross disparity of income,

Barbara's bare-bones budget, David's putting away $1,000 a month

in a 401K, and the parties' lifestyle. The court balanced the

equities, accounted for contingencies, and adjusted maintenance

down for college expenses and retirement. The court recognized

that maintenance ends upon death and chose to secure that mainte-

nance with life insurance, stating, "My biggest concern about

maintenance is, ma'am, if I were to award you the maintenance and

he would, unfortunately, walk out here and get hit by a car, the

maintenance is gone, because it ends upon his death."

It is one thing to hold that a trial court's failure to

comply with a statute is error. It is much more drastic to hold

that a court's action is not authorized by statute. If the

legislature wants to declare that an action is prohibited, the

legislature should be specific. Here, Clarke was decided in 1984

and Vernon in 1993, and the legislature has apparently chosen not

to amend the statute to correct an interpretation that life

insurance may be ordered to secure maintenance payments.

III. CONCLUSION

- 34 - For the reasons stated, we affirm the trial court’s

judgment.

Affirmed.

COOK, J., specially concurs.

TURNER, J., specially concurs in part and dissents in

part.

- 35 - JUSTICE COOK, specially concurring:

Justice Turner's special concurrence/dissent character-

izes our holding in Vernon as dicta, a casual discussion we had

no reason to make, because the parties had not raised the issue.

However, the issue of subject-matter jurisdiction cannot be

waived and a court has the duty to assess its subject-matter

jurisdiction, regardless of whether the parties question it.

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199

Ill. 2d 325, 333-34, 770 N.E.2d 177, 184 (2002) (argument "impli-

cates the subject matter jurisdiction of the circuit court");

Jackson v. Alverez, 358 Ill. App. 3d 555, 558, 831 N.E.2d 1159,

1162 (2005). Belleville Toyota cited Mitchell and Vernon with

approval, in fact quoting the above language from Vernon.

Belleville, 199 Ill. 2d at 341, 770 N.E.2d at 188. The Vernon

holding was not dicta. It was our duty to consider our subject-

matter jurisdiction even though the issue was not raised by the

parties.

Did the legislature intend that courts have no power to

order payors of maintenance to obtain life insurance? The

dissent discusses language in the child support portion of the

Dissolution Act, the presumption that deletion of language from

previous legislation manifests an intent to change the law, and

the laws of other states. The best evidence of legislative

intent, however, is the language used in the statute itself,

- 36 - which must be given its plain and ordinary meaning. What did the

legislature mean when it said that "the obligation to pay future

maintenance is terminated upon the death of either party"? 750

ILCS 5/510(c) (West 2006). The language says nothing about life

insurance. Payments on a life-insurance policy are not made

after death. There is nothing inherently wrong with requiring

life insurance in maintenance cases, as is shown by the fact that

many other states allow it. Illinois clearly allowed requiring

life insurance under the prior statute. Dissolution of marriage

cases are complicated and may involve very diverse asset and

income situations. The legislature did not attempt to spell out

exactly how these cases should be handled. The legislature gave

the courts broad powers to deal with these situations, and did

not intend courts to act only to the extent the legislature made

specific provision therefor.

- 37 - JUSTICE TURNER, specially concurring in part and

dissenting in part:

Because I believe the trial court erred in calculating

David's net income in its award of permanent maintenance to

Barbara and in requiring David to maintain a policy of life

insurance to secure the maintenance payments, I dissent. I

concur in the majority's affirmance of the award of permanent

maintenance and the property distribution.

A. Net Income

I would find the trial court's determination of David's

income to be against the manifest weight of the evidence. The

court's determination of maintenance appears to have been made

using David's gross income from 2006, which included a large one-

time bonus. David indicated the bonus was unusual and unlikely

to recur. It appears the court's consideration of David's income

of $204,000, with no exception for any fluctuations in the

bonuses David might receive, directly impacted the amount of the

permanent maintenance award. Although I would find the court did

not abuse its discretion in awarding maintenance on a permanent

basis, I would remand for a new maintenance determination based

on David's income without considering the one-time bonus.

B. Insurance Policy

I would also find the trial court erred in requiring

David to maintain a policy of life insurance to secure the

- 38 - maintenance payments. Section 504 of the Dissolution Act autho-

rizes a trial court to order one spouse to pay maintenance. 750

ILCS 5/504 (West 2006). "Unless otherwise agreed by the parties

in a written agreement set forth in the judgment or otherwise

approved by the court, the obligation to pay future maintenance

is terminated upon the death of either party, or the remarriage

of the party receiving maintenance, or if the party receiving

maintenance cohabits with another person on a resident, continu-

ing conjugal basis." 750 ILCS 5/510(c) (West 2006).

The majority here holds a trial court may require a

spouse to maintain life insurance as security for maintenance

payments, while the Third District recently came to the opposite

conclusion on this issue. In Ellinger, 378 Ill. App. 3d at 498,

882 N.E.2d at 693, the trial court ordered the ex-husband to pay

his ex-wife maintenance on a monthly basis. The court also

required him to maintain his ex-wife as the sole beneficiary of

an insurance policy for as long as the maintenance obligation

lasted. Ellinger, 378 Ill. App. 3d at 498-99, 882 N.E.2d at 693.

On appeal, the ex-husband argued the trial court erred

in requiring him to designate his ex-wife as the beneficiary of

the life-insurance policy as security for his maintenance obli-

gation. Ellinger, 378 Ill. App. 3d at 499, 882 N.E.2d at 694.

The Third District noted neither section 504 nor any other

section of the Dissolution Act granted the trial court the

- 39 - authority to require the maintenance-paying spouse to designate

the receiving spouse as a beneficiary of a life-insurance policy

as security for the maintenance payments. Ellinger, 378 Ill.

App. 3d at 500, 882 N.E.2d at 694. The appellate court also

found the language of the Dissolution Act allowing for the

designation of assets as security for child-support payments did

not have a corresponding provision authorizing the same for

maintenance obligations. Ellinger, 378 Ill. App. 3d at 500, 882

N.E.2d at 694-95. Thus, the court "presume[d] that the legisla-

ture intended different results by the different language in the

[Dissolution] Act concerning child support compared with its

language regarding maintenance." Ellinger, 378 Ill. App. 3d at

500, 882 N.E.2d at 695.

In the case sub judice, the parties did not enter into

an agreement providing David would maintain life insurance to

secure the maintenance payments. Instead, the trial court

ordered David to designate Barbara as the sole beneficiary on his

employer-issued insurance policy during the time he was obligated

to pay maintenance. If David lost his job, the court would

require him to purchase life insurance and maintain Barbara as

the sole beneficiary. Based on Ellinger and this court's deci-

sion in Clarke, I would find the court erred by requiring David

to maintain a life-insurance policy with Barbara as the sole

beneficiary so long as he was obligated to pay maintenance. See

- 40 - In re Marriage of Feldman, 199 Ill. App. 3d 1002, 1007, 557

N.E.2d 1004, 1008 (1990) (finding the trial court lacked author-

ity to enter a maintenance award secured by life insurance). The

Dissolution Act provides no authority to the court to do so in

the context of maintenance.

The majority, however, disagrees with Ellinger and

disregards Clarke in favor of Vernon. Not only was the Vernon

court's discussion of Clarke dicta (see Ellinger, 378 Ill. App.

3d at 501, 882 N.E.2d at 695), but the reasoning failed to give

proper deference to the legislature in this area of the law.

Clearly, the General Assembly has the legislative authority to

grant trial courts the discretion to designate assets as security

for maintenance obligations as it has similarly done in the

child-support area. See Ellinger, 378 Ill. App. 3d at 500, 882

N.E.2d at 694, citing 750 ILCS 5/510(d) (West 2006) (providing

child support may be enforced after the payor parent's death) and

750 ILCS 5/503(g) (West 2006) (allowing a court to set aside a

portion of the estate in a separate fund or trust for child

support).

I would also note that in the almost 15 years since

Vernon's publication, it has not once been cited for the proposi-

tion that a trial court has statutory authority to order the

procurement of life insurance as security for maintenance.

Nonetheless, the two-judge majority in this case audaciously

- 41 - proclaims "we hereby abandon Clarke and adopt the reasoning of

Vernon." Slip op. at 29. In the end, I disagree with the

majority, which syllogistically justifies its holding as follows:

because the Dissolution Act does not prohibit an order requiring

insurance as security for maintenance payments, because the trial

court should have wide discretion in this area, and because

courts are to liberally construe the Dissolution Act to make

reasonable provisions for spouses, the courts should have the

discretion to secure maintenance payments through life insurance.

QED.

The majority's holding leaves an open question of what

factors the trial court should consider when deciding whether to

order an ex-spouse to maintain an insurance policy to secure

maintenance payments. In my view, these factors should be

decided through the legislative process. Under South Carolina

law, for example, a trial court must undertake a comprehensive

review of multiple factors when ordering a payor spouse to carry

life insurance, including "the cost of premiums, insurance plans

carried by the parties during marriage, insurability of the payor

spouse, the probable economic condition of the supported spouse

upon the death of the payor spouse, and any other factors the

court may deem relevant." S.C. Code Ann. §20-3-130(D) (Supp.

2007); see also Wooten v. Wooten, 364 S.C. 532, 551, 615 S.E.2d

98, 107 (2005). As one can readily determine, these factors are

- 42 - explicitly set forth in the state statute.

Other states have also enacted legislation allowing a

trial court to order security for maintenance obligations. See

Fla. Stat. Ann. §61.08(3) (West 2004) ("the court may order any

party who is ordered to pay alimony to purchase or maintain a

life[-]insurance policy or a bond, or to otherwise secure such

alimony award with any other assets which may be suitable for

that purpose"); N.Y. Dom. Rel. Law §243 (McKinney 1999) (the

court "may direct the spouse from whom maintenance or support is

sought to give reasonable security, in such a manner and within

such a time as it thinks proper, for the payment, from time to

time, of the sums of money required for that purpose"); 19 Me.

Rev. Stat. Ann. tit. 19-A, §951-A(7) (Supp. 2007) ("The court may

also order the obligated party to maintain life insurance or to

otherwise provide security for the payment of spousal support in

the event the obligation may survive the obligated party's

death"); Conn. Gen. Stat. §46b-82(a) (2004) (in entering an

alimony decree, "the court may order that a party obtain life

insurance as such security unless such party proves, by a prepon-

derance of the evidence, that such insurance is not available to

such party, such party is unable to pay the cost of such insur-

ance[,] or such party is uninsurable"); N.D. Cent. Code §14-05-25

(1983) ("The court may require either party to give reasonable

security for providing maintenance or making any payments"); Vt.

- 43 - Stat. Ann. tit. 15, §757 (1981) (in granting maintenance, "the

court may require sufficient security to be given for payment

thereof"); see also Brockman v. Brockman, 264 Neb. 106, 112, 646

N.W.2d 594, 599 (2002) (noting the Nebraska legislature "has long

given specific statutory authorization for a court, in an appro-

priate case, to require sufficient security to be given for the

payment of alimony and child support awards"); Jacobitti v.

Jacobitti, 135 N.J. 571, 578, 641 A.2d 535, 539 (1994) (stating

the New Jersey legislature explicitly allowed "a court to order

the supporting spouse to maintain life insurance for the benefit

of the dependent spouse to protect the dependent spouse if the

dependent spouse outlives the supporting spouse").

The preceding statutes and case law offer confirmation

that whether courts should be authorized to order procurement of

insurance as security for maintenance is a matter for the legis-

lature to debate and decide after careful deliberation. The

majority articulates reasons why courts should have the power to

order payors of maintenance to obtain life insurance. However,

the question here is not whether requiring life insurance in

maintenance cases is right or wrong. The issue is simply whether

this court or the legislature should make the law, and I decid-

edly believe it should be the latter. Accordingly, I would

reverse that portion of the trial court's judgment order requir-

ing David to maintain a life-insurance policy with Barbara as the

- 44 - beneficiary.

- 45 -