In re Dea

2020 IL App (1st) 190234

178 N.E.3d 608

449 Ill.Dec. 1

IN RE MARRIAGE OF Dana DEA, Petitioner-Appellee, and Paul Dea, Respondent-Appellant.

No. 1-19-0234

Appellate Court of Illinois, First District, FIFTH DIVISION.

SEPTEMBER 18, 2020

Michael T. Tristano and Marly R. Tristano, of Tristano & Tristano, Ltd., of Hickory Hills, for appellant.

Matthew D. Elster, of Beermann LLP, of Chicago, for appellee.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 The respondent-appellant, Paul Dea (Paul), appeals from the circuit court of Cook County's denial of his motion to modify maintenance regarding the maintenance amount he receives from petitioner-appellee, Dana Dea (Dana). For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 The parties were married in 1989 and divorced on April 3, 2012. In the judgment for dissolution, the trial court awarded maintenance to Paul in the amount of $1600 per month (the 2012 dissolution judgment). The trial court determined that Dana's monthly living expenses were $4853.09 and Paul's monthly living expenses were $3800. Paul is disabled due to multiple sclerosis (MS) and receives Social Security benefits. Prior to his MS diagnosis in 2005, Paul worked as a truck driver. For most of the marriage, Dana took care of the parties' children and worked as a waitress. In 2001, however, she began a career in information technology (IT). She was working in IT at a law firm and earning a salary of $83,642 when the parties divorced. In the 2012 dissolution judgment, the trial court noted that Dana's financial status had improved through her recent career change and that her income was steadily growing, while Paul's income had declined due to his disability. The 2012 dissolution judgment stated: "Paul Dea has no present or future ability to earn income and he cannot be rehabilitated so as to support himself through appropriate employment."

¶ 4 Dana appealed the 2012 dissolution judgment. On appeal, this court remanded the case to the trial court regarding the maintenance amount. In re Marriage of Dea , 2013 IL App (1st) 122213, 377 Ill.Dec. 60, 1 N.E.3d 947. We held that the trial court had failed to consider Paul's income from his Social Security benefits when it determined the maintenance award. Id. ¶ 22. We found that Paul only needed an additional $395 per month to pay for his expenses. Id. ¶ 29. Our opinion also noted that Dana would not be able to pay for her own expenses if she was required to pay a maintenance amount of $1600 per month. Id. ¶ 30.

¶ 5 On remand, the trial court modified the 2012 dissolution judgment and adjusted Paul's maintenance award to $395 per month.

¶ 6 On February 14, 2017, Paul filed a motion to modify maintenance, which is the subject of the instant appeal. His motion alleged that there had been a substantial change in circumstances, necessitating an increase in his maintenance award. Specifically, Paul alleged, inter alia , that his Social Security benefits had been reduced by $200 per month, that his MS had "worsened," making "any type of employment nearly impossible," and that Dana had a "substantial income" that could support him.

¶ 7 A hearing on Paul's motion to modify maintenance commenced. Paul testified that his mortgage payment is $737 per month and his health insurance deductible is $184 per month. Paul testified that his Social Security benefits are $2272 per month. Paul's counsel later clarified to the trial court that Paul's Social Security benefits have increased approximately 5% over the last five years. Paul also testified that, in the 2012 dissolution judgment, he was awarded $216,000 from his retirement account, but it was down to $33,000 at the time of his motion to modify. Paul further testified that he does not have any credit card debt and is able to pay his monthly expenses. He explained that he puts the monthly maintenance payments that he receives from Dana into a savings account "in case [he] need[s] things done to the house or something [he] may need."

¶ 8 Paul testified that he worked as a security guard at a wind farm for a short time after the 2012 dissolution judgment, where he made $10 per hour, but he no longer worked because of his health issues. During his testimony, the following exchange ensued:

"[PAUL'S COUNSEL]: Now, could you—are you suffering from any physical conditions at this time, sir?

[PAUL]: Well, I have multiple sclerosis.

* * *

[PAUL'S COUNSEL]: Now, sir, have—what do you—how long have you experienced—strike that. How long have you suffered from multiple sclerosis?

[DANA'S COUNSEL]: You know, Judge, I'm going to object again for relevance.

THE COURT: I don't know what the relevance is. [Counsel]?

[PAUL'S COUNSEL]: He's had multiple sclerosis—

THE COURT: He had it before.

[PAUL'S COUNSEL]: And he still has it. Judge.

THE COURT: Okay. And he was on Social Security disability then. He's still on Social Security.

[PAUL'S COUNSEL]: That's correct.

THE COURT: So, if you're looking for something different, he's not going to get more money from Social Security or anybody else, because his condition is what it was. So where are we going with this?

[PAUL'S COUNSEL]: Well, because his condition worsened and he can't—he was able to earn money under Social Security. And it shortly—well, two or three years after the judgment was entered he got a job driving security for wind farms in construction. At that time, he was able to work—

[DANA'S COUNSEL]: I'm going to object.

THE COURT: This is an offer—I'm going to treat this as an offer of proof. So you can go ahead.

[PAUL'S COUNSEL]: And he worked on a wind farm that required him—he could drive and check all day. He worked there and he earned money. Since that time, his physical condition has deteriorated. He's not able to walk without the use of the walker. He has a hard time making it the length of his house.

[DANA'S COUNSEL]: Judge, again, objection. Relevance.

THE COURT: It's an offer of proof. You can object at the end of the offer of proof and I'll determine or not whether to go ahead with it.

[DANA'S COUNSEL]: Okay.

[PAUL'S COUNSEL]: He's also fallen twice but hospitalized for serious urinary infections and has lost his mobility to a point where he can't walk. He can't even earn side money. But as—in addition to that, our testimony will show that when you're disabled, you have to spend more money. And he has to go into a—he's going to testify that he has to go into an assisted living [facility] which runs in his area between $4,500 and [$]8,000 a year. He is only able to maintain his house because his neighbor is a real nice guy. And that is the change of circumstances.

THE COURT: Okay. Is that the end of your offer of proof?

[PAUL'S COUNSEL]: On that portion, yes.

THE COURT: Okay.

[DANA'S COUNSEL]: Objection. Relevance, Judge. In the initial ruling, Judgment for Dissolution of Marriage, it was found that [Paul] did not work, wasn't employed at all. So, in fact, he's—the fact that he was working at all since that happened is a change in the opposite direction. The award was based on his inability to work and on his being disabled and having multiple sclerosis. Judge. And there's no—and I'm objecting to counsel testifying as to what—

THE COURT: He's not testifying. He made an offer of proof.

* * *

THE COURT: I don't think that I have heard anything in your offer of proof that would sway me to think there was [a] change in circumstances. It sounds like the same things that were going on in 2012.

* * *

THE COURT: But the basis of all of this was he wasn't able to work. He's now not able to work. One would anticipate that multiple sclerosis is a downward spiral. That may have been taken into consideration. But nothing in your offer of proof would be persuasive in allowing for a modification of maintenance at this point."

¶ 9 Dana testified that she earned $93,316 in 2016 and $105,000 in 2017. She further testified that she had accumulated $165,000 in assets since the 2012 dissolution judgment.

¶ 10 Following the hearing, Paul filed a memorandum in support of his motion to modify maintenance. His memorandum argued that his income and retirement account had both decreased since the 2012 dissolution judgment while Dana's income and assets had increased. He claimed that, coupled with his deteriorating health, the changes in both parties' incomes established a substantial change in circumstances warranting a maintenance modification.

¶ 11 Dana filed a memorandum in opposition to Paul's motion. Her memorandum argued: that the evidence showed that Paul's expenses had decreased since the 2012 dissolution judgment; that Paul's Social Security benefits had increased by approximately 5% in the last five years; and that Paul had other sources of income that he had not disclosed. She also highlighted Paul's testimony that he is able to pay for all his expenses on his own and puts his maintenance payments from Dana into a savings account. Dana conceded that her income has increased by approximately 20% since the 2012 dissolution judgment, but argued that, standing alone, that was insufficient to constitute a substantial change in circumstances justifying a maintenance modification.

¶ 12 On January 8, 2019, the trial court entered an order denying Paul's motion to modify maintenance. The trial court found that Paul had failed to meet his burden and prove that there was a substantial change in circumstances. The order stated: "[Paul] does not use the maintenance payments for his day-to-day expenses and * * * he puts his maintenance payments into a savings account to save for his future." The order further explained that Paul does some side work for his neighbors in exchange for food and supplies, which he did not disclose in his financial statements. Additionally, the order noted that Paul "continues to be a heavy smoker, smoking two packs a day, at the cost of upwards of $100 per 2 cartons of cigarettes." Paul subsequently appealed the trial court's order.

¶ 13 ...