finding that the trial court’s deduction for “nonrecurring income” was in error because section 505 does not provide for such a deduction and holding that “[t]he trial court’s responsibility is to determine child support payments as required by section 505 of the Act”
How later courts described this case
- finding that the trial court’s deduction for “nonrecurring income” was in error because section 505 does not provide for such a deduction and holding that “[t]he trial court’s responsibility is to determine child support payments as required by section 505 of the Act”
- evidence supported trial court's finding that purchasing certain assets constituted reasonable and necessary expenses for producing income
- error for trial court to deny $500 per month, two-year rehabilitative maintenance to wife who took care of domestic responsibilities over the course of a 20-year marriage to husband, a surgeon, and where divided marital assets were minimal
- error for trial court to deny rehabilitative maintenance to wife who took care of domestic responsibilities over the course of a 20-year marriage to husband, a surgeon
Written by the judges who cited it.
The opinion
JUSTICE STEIGMANN, specially concurring:
I concur in the opinion reached by the majority of the court. I write separately because I believe the inequities in this case are representative of similar inequities that occur all too frequently in dissolution proceedings in this State, particularly with regard to maintenance.
Maintenance is an important part of the public policy of this State and ought not be viewed with disfavor. As the majority states in its opinion, an award of maintenance is within the discretion of the trial court and will not be reversed on appeal unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. I conclude the trial court in this case grossly abused its discretion.
Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 504) sets forth the standards for awarding maintenance. An award of maintenance is warranted where the court finds that the party seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs and is unable to support herself. (Ill. Rev. Stat. 1987, ch. 40, pars. 504(a)(1), (a)(2); In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269 , 511 N.E.2d 156, 166 .) The phrases “lacks sufficient property *** to provide for [her] reasonable needs” and “is unable to support [herself],” however! cannot mean that a party must be reduced to penury before maintenance becomes appropriate.
A proper understanding of when maintenance is apprOpriaté under section 504(a) may be obtained from the description-of the factors to be considered under section 504(b) in determining the amount of maintenance to be ordered. (Ill. Rev. Stat. 1987, ch. 40, pars. 504(a), (b).) According to section 504(b), maintenance should be sufficient to provide the spouse seeking it with the standard of living established during the marriage, except where the financial situation of the paying spouse, the duration of the marriage, or the health of either party indicates otherwise. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) It makes no sense to say that a party is not entitled to maintenance because she is able to support herself at some level of subsistence, and then to say that if she is entitled to maintenance, it should be in an amount consistent, among other factors, with “the standard of living [established] during the marriage.” See In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1013-14 , 462 N.E.2d 30, 38-39 .
In the instant case, after 18 years of marriage and three children, petitioner filed a petition for dissolution. She then began to work part time as a staff nurse at a nursing home, netting only $860 per month. Although she indicated a desire to return to school to obtain a bachelor’s degree in nursing, she had no income to achieve this goal (much less support herself) in the standard of living that she had grown accustomed to as the wife of an established surgeon. Respondent, on the other hand, has substantial income. As a surgeon affiliated with the Carle Clinic of Urbana, respondent had a guaranteed minimum gross salary of $140,000, starting in July 1988, and has the potential to earn much more.
At oral arguments, respondent’s counsel was asked to consider the respective positions of these parties four years after the dissolution of their marriage. He conceded that under the best possible circumstances, petitioner might be able to gross $40,000 a year as a nurse, while under the worst possible circumstances, respondent would continue to gross $140,000 a year as a surgeon.
Immediately prior to the dissolution of their marriage, these parties had a partnership in marriage. Viewed in a light most favorable to respondent, four years after the dissolution of that partnership, the former partners will be earning a combined gross income of $180,000. However, at best, petitioner is to receive only 22% of the former partners’ total earnings. Respondent gets to enjoy the remaining 78% and need not suffer through retraining, as petitioner must, in order to get it.
Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.
What makes the denial of maintenance in this case all the more egregious is the quality of life which all of the members of this family enjoyed prior to the dissolution of marriage and which respondent will still continue to enjoy. A few of the more notable features of how they lived prior to the dissolution (and prior to a bankruptcy in 1986) are the following: a marital home with an adjoining 10-acre tract and barn and three horses maintained thereon; four motor vehicles, including a 1978 Porsche; and several airplanes purchased over the years (including one twin-engine plane) for the respondent, who is a pilot.
On remand, the trial court has been directed to take additional evidence to ascertain the current and future financial status and needs of both parties. In doing so, I conclude the trial court may use income potential rather than actual income on the date of the hearing (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 631 , 450 N.E.2d 1229, 1232 ); and, given the relative certainty of financial predictions in this case, it may be viewed as error for the trial court not to do so. In addition, the court may take judicial notice of the fair earning power of money or invested capital over a certain time period. (In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 612 , 527 N.E.2d 18, 26 .) Thus, the trial court, based upon the evidence presented, should project income four and eight years into the future, using a consumer price index adjustment. This approximation of income will enable the trial court to properly consider the real financial resources of the parties as they will be, as well as what they are at the time of the hearing.
Directing that the trial court should look four and eight years (at least) into the future as it determines what an appropriate order of maintenance should be should not be understood as requiring such an approach only on the facts of this case. Rather, such an approach is required whenever the evidence permits it to be utilized.
As stated earlier, section 504(b) directs that maintenance “shall be in such amounts and for such periods of time as the court deems just.” (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) That section further directs the court to consider the following factors, inter alia, in deciding the amount of maintenance:
“(1) [T]he financial resources of the party seeking maintenance *** and his ability to meet his needs independently ***;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties; [and]
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” (Ill. Rev. Stat. 1987, ch. 40, pars. 504(b)(1), (b)(3), (b)(4), (b)(5), (b)(6).)
On remand, the above-quoted factors should be the particular focus of the trial court’s attention. By so focusing, the trial court will be better able to place these parties in positions of equity with regard both to their present financial circumstances and their future financial circumstances as well.
The denial of maintenance in this case is outrageous. In my judgment, petitioner’s original request for maintenance was too paltry a sum; that she did not even get what she requested reveals the need for trial courts and the bar to reexamine attitudes too often brought to the resolution of the issue of maintenance.