In re Burdess

2020 IL App (3d) 190342

161 N.E.3d 1123

443 Ill.Dec. 471

IN RE MARRIAGE OF Laura BURDESS, Petitioner-Appellant, and Mark Burdess, Respondent-Appellee.

Appeal No. 3-19-0342

Appellate Court of Illinois, Third District.

Opinion filed July 8, 2020

Jeffrey Alan Ryva, of Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellant.

No brief filed for appellee.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 The trial court granted respondent Mark Burdess a reduction in the amount of maintenance he was obligated to pay petitioner Laura Burdess and denied Laura's requests for an increase in the monthly award based on the statutory maintenance guidelines and for a retroactive increase for the time period the case was pending. We affirm.

¶ 2 FACTS

¶ 3 Petitioner Laura Burdess and respondent Mark Burdess were married in 1985, and three children, now adults, were born during the marriage. Laura worked part time and seasonally at a nursery, enabling her to spend time with the children and tend to the household duties. She purchased insurance for the family through her employer. Mark worked as a graphic designer at his brother's business and was the family's primary financial support. The couple owned the marital residence, which was their principal asset and subject to encumbrances.

¶ 4 In March 2012, Laura filed a petition for temporary relief, seeking maintenance, in part, followed by a petition for dissolution of the marriage, which was filed in April 2012 and again sought maintenance. Mark filed a counterpetition for dissolution, denying Laura needed maintenance. Mark also sought sole possession of the marital residence. Following a series of hearings on temporary relief, Mark was awarded sole temporary possession of the marital residence and ordered to pay all the household bills and to contribute $500 toward Laura's attorney fees. In addition, the court ordered Mark to pay $750 per month in maintenance to Laura.

¶ 5 The parties submitted financial affidavits and updates to the affidavits. Per Mark's affidavit dated March 2013, he earned a gross monthly income of $6510, with a monthly net income of $5061, and had monthly expenses of $6045. Laura's affidavit from the same time period included earned gross monthly income of $965, with a net monthly income of $251, plus $750 in maintenance for a total monthly income of $1001. Her monthly expenses totaled $3640. In his memorandum of law in preparation of trial, Mark argued that his career as a graphic designer was uncertain, as business in the industry was declining. He further argued that Laura had sufficient skills to support herself and that temporary maintenance would suffice, and he recommended an award of $600 per month payable for five years. Mark wanted to purchase the marital residence, which was appraised at $220,000 with $24,729 in equity.

¶ 6 The trial court entered a judgment of dissolution on September 18, 2013. The trial court found the house to have a value of $223,000 subject to mortgages in the amount of $198,271. The trial court awarded the house and all the equity to Mark. In exchange for her marital interest in the home, the court awarded Laura a $9000 lump-sum maintenance payment and monthly maintenance in the amount of $1000 per month, reviewable in 24 months. Mark was ordered to pay $3500 in Laura's attorney fees. Laura moved to reconsider, seeking monthly maintenance of $2000. The trial court denied her motion.

¶ 7 In August 2015, Laura petitioned for a maintenance review. She submitted that she had sustained a work injury, was unable to work, and required additional medical procedures and surgeries in the future. She filed a workers' compensation claim for her injury and anticipated receiving a settlement. Currently, maintenance was her sole income, and she sought an increase in the monthly amount and also payment of her attorney fees. On Laura's motion, the court ordered that Mark make two $1000 payments while Laura's petition for review was pending. In October 2015 and January 2016, agreed orders were entered, continuing the $1000 maintenance payments until the petition for review was determined.

¶ 8 In July 2018, prior to a hearing on Laura's motion to review maintenance, Mark moved to terminate maintenance. He argued that he was unable to pay it because his job profitability continued to decline, he had health issues that were becoming severe, he was contemplating taking early retirement in the next few years, and he was incurring debt and depleting his savings. He further argued that Laura was capable of working. His financial affidavit dated September 2018 stated he had gross monthly earnings of $2170 with a net income of $170 after $2000 in deductions. His monthly expenses amounted to $2104, leaving him a monthly shortfall of $1934. He had approximately $1500 in his checking account and $27,252 in his savings account, which consisted of the proceeds from his sale of the marital home. Laura filed a trial memorandum in which she argued Mark's potential retirement did not constitute grounds for terminating maintenance. She sought an increase of maintenance to $1500 per month based on the amended statutory guidelines. Her financial affidavit dated November 2018 indicated she was on medical leave from the nursery; had net monthly income of $1350, consisting of Social Security disability payments and maintenance; had monthly expenses of $1913; had a monthly shortfall of $563; had debts of $62,735; and had a $50 balance in her bank account.

¶ 9 A hearing took place on Laura's petition for maintenance review and Mark's petition to terminate maintenance. The court first found that the judgment of dissolution contemplated reviewable maintenance, not rehabilitative, as evidenced by the long-term, 27-year marriage and that Laura forwent her career opportunities to care for the home and children. Second, the court found the amended guidelines did not apply per In re Marriage of Harms , 2018 IL App (5th) 160472, 422 Ill.Dec. 615, 103 N.E.3d 979. It determined that both Laura and Mark were credible witnesses. It considered that Mark's business experienced a downturn and estimated his gross yearly income to be $33,666, a deduction of 50% from his previous earnings. The court further found that the decrease in Mark's income was "economically legitimate" and a "good faith reduction." The court noted that Laura earned $405 per month in Social Security disability insurance and spent $134 of that amount on health insurance. It found that, although Laura had skills, she lacked job experience due to the fact she did not work outside the home in a career capacity during the marriage. It also noted her workers' compensation claim and anticipated settlement. The court found Mark demonstrated a substantial change in circumstances that warranted modification of maintenance and reduced his monthly payment to Laura to $675. The court made the award automatically reviewable when Mark turned 62, when Laura received her workers' compensation award, or upon petition by the parties. It denied Laura's request to apply the statutory guidelines and increase the amount of maintenance. The court also denied retroactive application of the modified maintenance amount to the period of time that Laura's petition was pending. The court denied her motion to reconsider, and she appealed.

¶ 10 ANALYSIS

¶ 11 Laura raises two issues on appeal: whether the trial court erred in reducing her maintenance and in failing to increase the maintenance amount due during the pendency of the proceedings. Although Laura was the only party to submit a brief, the record is simple, and because the issues may be decided without Mark's brief, we will reach the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

¶ 12 We begin with Laura's claims regarding the trial court's downward modification of her maintenance award. She argues the statutory factors support an extension of maintenance, the amended statutory guidelines formula applies, and guidelines dictate an increase in the amount of Mark's maintenance obligation. She also argues the court misconstrued the availability of the proceeds Mark received from the sale of the marital house.

¶ 13 Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/510(a-5) (West 2018)) concerns the modification, termination, or review of prior maintenance awards. In determining a modification, termination, or review of maintenance, the trial court must consider the factors from section 504(a) of the Act, as well as the factors in section 510(a-5) of the Act. Id. §§ 504(a), 510(a-5). Maintenance may be modified or terminated only when a substantial change in circumstances has been demonstrated. Id. § 510(a-5). A change of circumstances does not need to be established when maintenance is before the court on review. Blum v. Koster , 235 Ill. 2d 21, 35-36, 335 Ill.Dec. 614, 919 N.E.2d 333 (2009).

¶ 14 Section 504(a) requires the court to apply the following factors to determine whether a maintenance award is warranted: (1) each party's income and property, including apportioned marital property and nonmarital property assigned to the party who is requesting maintenance as well as the financial obligations imposed on each party as a result of the dissolution of marriage; (2) each party's needs; (3) each party's realistic present and future earning capacity; (4) any impairment to the present and future earning capacity of the party seeking maintenance due to that person devoting his or her time to domestic duties or having forgone or delayed his or her own education, training, employment or career opportunities due to the marriage; (5) any impairment of the present and future earning capacity of the party who is being asked to pay maintenance; (6) the time needed by the party seeking maintenance to acquire appropriate training and employment and...