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In re Marriage of Culp
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-0951 Rel
Case Date: 06/30/2003

NO. 4-01-0951

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of: ) Appeal from
JEROLD S. CULP, ) Circuit Court of
                 Petitioner-Appellant, ) Vermilion County
                 and  ) No. 99D56
SUSAN K. CULP, )
                 Respondent-Appellee. )
) Honorable
) Joseph P. Skowronski,
) Judge Presiding.

JUSTICE KNECHT delivered the opinion of the court:

In February 1999, petitioner, Jerold S. Culp (Jerry),filed for dissolution of his marriage with respondent, Susan K.Culp. In June 1999, the trial court in Vermilion County enteredan order of dissolution, reserving jurisdiction to determine allancillary issues. In September 1999, the trial court entered asupplemental order incorporating the child support and maintenance provisions to which the parties had agreed. By its terms,the maintenance was to be reviewed in July 2000, two months afterthe Culps' younger daughter was to graduate from high school andJerry's child support obligation was to terminate. In June 2001,the trial court entered an order awarding Susan permanent maintenance. Jerry appeals, arguing the trial court abused its discretion by (1) awarding permanent maintenance, (2) setting theamount of maintenance unreasonably high, and (3) awarding maintenance retroactively. We affirm.

I. BACKGROUND

The parties married in June 1975. They have twochildren, Jennifer (born December 22, 1978) and Rebecca (Becky)(born February 28, 1982). When the parties first married, Jerrywas completing his training with the Illinois State Police andSusan worked full-time as a secretary. In July 1978, Jerrygraduated from the Illinois State Police Academy and beganworking for the Illinois State Police as a trooper. The Culpsmoved from Springfield to Champaign for Jerry's job, as a resultof which, Susan had to leave her job. Because she was thenpregnant with their first child, she did not return to work untilboth children started school. Susan worked throughout theremainder of the marriage; however, for most of that time, sheworked only part-time, devoting the remainder of her time tocaring for her daughters.

During the early years of their marriage, the Culpslived in mobile homes. In 1984, they purchased a three-acre lot in Oakwood, Illinois, and constructed a 2,000-square-foot, three-bedroom home on it. Jerry did most of the construction workhimself. They later added an exercise room, deck, pool, and hottub.

In 1983, Susan began having problems with her left hip. In 1993, she underwent a hip-replacement surgery. Although theseproblems do not significantly limit her present activities, theydo require ongoing medical care. The average useful life of anartificial hip is 10 to 15 years, after which time she will needanother hip replacement. She began experiencing difficulty withher right hip as well, which, ultimately, may also requiresurgery.

Jerry filed for dissolution in February 1999. Theparties sold the marital home in April 1999 and used the proceedsto pay off nearly all their marital debts. The trial courtentered an order dissolving the parties' marriage on June 4,1999. On September 2, 1999, the court entered a supplementalorder on ancillary issues. In it, the court ordered Jerry to paychild support of $195 per week for Becky, which was to terminateon May 31, 2000, upon her graduation from high school. Jenniferwas already in college at this time. The order incorporatedagreements of the parties, including a provision for "rehabilitative maintenance in the sum of $100 per week *** to be reviewablein July 2000 without the necessity of either party filing furtherpleadings."

The trial judge originally assigned to the casenotified the parties of a potential conflict of interest. Thecase was reassigned. The trial court did not hold themaintenance-review hearing until November 30 and December 5,2000. At that time, Susan worked as a loan processor for a bank,earning a gross income of approximately $17,000 per year. Herjob provided her with health insurance, a 401k retirement accountthat had accumulated $2,000, and annual raises of $500 per year.

Susan purchased a used, two-bedroom, 1,280-square-footmobile home but rented the lot on which it sat for $140 permonth. Becky, for whom Susan no longer received child support,lived with Susan, and Jennifer stayed with Susan most weekends. Neither daughter contributed financially to household expenses. Susan testified she could not afford to rent a house large enoughfor herself, her two daughters, and their dog. To help make endsmeet, she took on a second job, something she had never had to doduring the marriage. She began her second job on November 20,2000, six days before the maintenance-review hearing. Includingher estimated income from the part-time job, her annual incomewas approximately $22,000. She requested maintenance be increased to $1,600 per month.

Jerry received promotions in his work along withcommensurate pay increases. By the time of the maintenance-review hearing, he had risen to the rank of master sergeant andwas earning a gross income of $78,000 per year with the likelihood of future promotions and pay increases. On March 25, 2000,he married a woman, also a master sergeant with the IllinoisState Police, who earned a salary of $65,000 per year. Thecouple resided in her three-bedroom, 2,300-square-foot home andpooled their funds for all living expenses. Although Jerry nolonger paid child support for Becky, he paid car, health, andlife insurance premiums for both girls and helped Jennifer payher rent at college.

On March 26, 2001, the trial court issued a letterruling in which it made extensive findings of fact. The courtdetermined the maintenance-review provision did not require Susanto file new pleadings and contained no language limiting theduration of continued maintenance or requiring Susan to file apetition to modify or prove a substantial change in circumstance. The court expressly found the intent of the parties was "to havethe [c]ourt review the entire maintenance issue in July 2000." Additionally, the court found Jerry overstated his expenses inhis financial affidavit by including expenses attributable to hissecond wife without including her income, and, further, Jerry'sfinancial support obligations for Jennifer, then a senior incollege, would likely terminate within a year.

On June 12, 2001, the trial court entered an orderadopting the findings in its March letter ruling and awardingSusan permanent maintenance of $1,400 per month retroactive toJuly 17, 2000. Giving Jerry credit for the maintenance he paidunder the stipulated order, the court calculated the retroactivemaintenance he owed Susan to be $9,838.72. The order containedno payment schedule but did contain a provision stating the courtwould enter a supplemental order on payment of the arrearage ifthe parties were unable to reach an agreement on this issue. This appeal followed.

II. ANALYSIS

Jerry argues the trial court abused its discretion in(1) awarding permanent maintenance after the agreed-upon maintenance review, (2) awarding $1,400 per month in maintenance, and(3) ordering him to pay it retroactively to July 17, 2000. Wedisagree.

The amount and duration of a maintenance award liewithin the sound discretion of the trial court. In determiningboth the amount and duration of maintenance, the trial court mustbalance the goal of encouraging the recipient to become financially independent against a realistic appraisal of the likelihood the former spouse will be able to support him or herself insome reasonable approximation of the standard of living established during the marriage. This court will not reverse a trialcourt's maintenance award on appeal absent an abuse of discretion. In re Marriage of Cheger, 213 Ill. App. 3d 371, 378, 571N.E.2d 1135, 1140 (1991).

A. Duration of Maintenance Jerry argues the trial court abused its discretion inawarding permanent maintenance because (1) it lacked the authority to modify an award of rehabilitative maintenance by making itpermanent and (2) the facts of the case at bar do not justify anaward of permanent maintenance. We find both arguments unpersuasive.

1. Trial Court's Authority To Change the Character of the Award

Jerry contends the trial court lacked the authority tomodify the maintenance award to one of permanent maintenance suasponte. Under the unique circumstances of the case at bar, wedisagree.

In support of his contention, Jerry cites the SecondDistrict Appellate Court's decision in In re Marriage ofCantrell, 314 Ill. App. 3d 623, 732 N.E.2d 797 (2000). InCantrell, 314 Ill. App. 3d at 625, 732 N.E.2d at 799, the dissolution order included an award of rehabilitative maintenance,reviewable after four years. At the scheduled maintenancereview, the trial court extended maintenance for two years,subject to review at the end of that time. Cantrell, 314 Ill.App. 3d at 626, 732 N.E.2d at 800. At the maintenance-reviewhearing after two years had elapsed, the trial court awarded therecipient permanent maintenance despite the fact that she hadmerely requested a continuation of rehabilitative maintenance. Cantrell, 314 Ill. App. 3d at 628, 732 N.E.2d at 801. The SecondDistrict vacated the award of permanent maintenance, holding thetrial court had erred, among other reasons, in exceeding therelief requested in the former wife's pleadings. Cantrell, 314Ill. App. 3d at 628, 732 N.E.2d at 801-02. For the reasons whichfollow, we conclude Cantrell does not require a result other thanthe one reached by the trial court.

Contrary to Jerry's contention, the Cantrell court didnot hold a trial court may never exceed the relief requested byparties in their pleadings; the court merely held the record inthe case before it lacked circumstances to justify an award ofpermanent maintenance absent a request in the pleadings for suchrelief. Cantrell, 314 Ill. App. 3d at 628, 732 N.E.2d at 801-02. The Cantrell court did not need to determine what circumstancesmight have justified such an award because it also found thecircumstances in front of it rendered even a continuation oftemporary maintenance an abuse of discretion. Cantrell, 314 Ill.App. 3d at 630, 732 N.E.2d at 803. Specifically, the formerwife, who was employed only in her own money-losing photographybusiness, had applied for only 8 to 12 full-time positions in thefour years since she had completed her college degree at herformer husband's expense. Cantrell, 314 Ill. App. 3d at 626, 732N.E.2d at 800.

By contrast, Susan works full-time and has taken on apart-time position on the side, something she never had to doduring her marriage, to try to make ends meet. In addition, sheapplied for two positions that would pay more than the positionshe now holds, despite the fact she enjoys her job. Unlike theformer wife in Cantrell, Susan has exercised good faith inworking to become financially independent from her former husband. Further, the trial court expressly found Susan's ongoinghealth concerns made it inadvisable for her to leave her employment to seek further education or different employment.

In In re Marriage of Drury, 317 Ill. App. 3d 201, 210,740 N.E.2d 365, 371 (2000), this court found an award of temporary rather than permanent maintenance to be an abuse of discretion under circumstances analogous to those in the case at bar. There, as here, the parties' marriage was one of lengthy duration(29 years), their present and future earning capacities weresignificantly disparate, and the former husband's earning capacity had been enhanced due to the contributions of the wife. Drury, 317 Ill. App. 3d at 210, 740 N.E.2d at 371. We conclude,therefore, that the record before us, unlike that before theCantrell court, justified a modification of the type of maintenance awarded.

Further, in the instant case, unlike Cantrell, thestipulated order specified the maintenance was to be reviewed inJuly 2000 "without the necessity of either party filing furtherpleadings." As such, by virtue of the parties' agreement, therewere no pleadings "to circumscribe the relief the trial court[was] empowered to order." Cantrell, 314 Ill. App. at 628, 732N.E.2d at 801. The stipulated order did not specify whether thescheduled review was to determine solely the amount of themaintenance or both the amount and duration, and the trial courtexpressly found the parties intended the entire maintenance issueto be reviewed at this time.

We conclude the agreement between the parties for Susanto receive very modest maintenance, which was labeled rehabilita-tive maintenance, was akin to an agreement for temporary maintenance, which would be thoroughly reviewed when the financialcircumstances of the parties would be clear and child support hadterminated. This is consistent with the trial court's approach.

Some confusion may have arisen because of the use ofthe descriptive term "rehabilitative maintenance," which is time-limited maintenance. When this term--not found in statutorylaw--is used, we conclude the trial court is usually trying toprovide an incentive for the recipient of maintenance to seekadditional training or education or seek employment that willprovide self sufficiency.

No facts or inferences here suggest Susan would meaningfully benefit from training or education or that she couldobtain employment that would obviate the need for maintenance. The evidence overwhelmingly favors an award of permanent maintenance as outlined in Judge Skowronski's careful and thoroughopinion. The trial court did not abuse its discretion by concluding the parties expected the question of maintenance would befully and finally addressed at the review hearing, which theyagreed would be conducted just 10 months after the court enteredits supplemental judgment of dissolution.

When trial courts set review hearings, it would bepreferable for the court to advise the parties who has the burdenof going forward, who has the burden of proof, and what issueswill be addressed. For example, if time-limitedmaintenance--whether temporary or rehabilitative--will continueonly if the recipient shows good faith in seeking education oremployment or proves the need for continued maintenance, then theparties should be so advised. Neither party should be requiredto guess what the court will consider at the review hearing.

If pleadings are required, that should be noted aswell. In this case, the parties agreed no further pleadingswould be necessary. The trial court concluded permanent maintenance was still an option, and we agree.

Jerry argues, however, even if the trial court otherwise had the authority to order permanent maintenance, it couldnot do so absent a request for permanent maintenance in Susan'sattorney's closing arguments. We have already concluded thecircumstances of the instant case, unlike those present inCantrell, justify relief exceeding that requested. This courthas held a trial court may exceed the relief requested by a partyas an exercise of its discretion in determining the appropriateduration of a maintenance award. In Cheger, 213 Ill. App. 3d at380, 571 N.E.2d at 1141, we rejected the former husband's contention the trial court had erred in ordering maintenance to continue for 10 years when the former wife had only asked for acontinuation of maintenance to be reviewed after 5 years. Weheld the trial court had "acted within its discretion in independently determining the amount and duration of the maintenanceaward." Cheger, 213 Ill. App. 3d at 380, 571 N.E.2d at 1141.

Although Cheger involved the extension of maintenancefor a period longer than that requested by the recipient ratherthan an award of permanent maintenance upon review, we do notfind this distinction dispositive. The distinction between"permanent" and "temporary" maintenance is a fine one, amounting,in essence, to the burden of proving a change in circumstances tojustify the termination or modification of "permanent" maintenance shifting to the paying party. See In re Marriage ofMayhall, 311 Ill. App. 3d 765, 770, 725 N.E.2d 22, 26 (2000). Weconclude the trial court had the authority to order permanentmaintenance after the maintenance-review hearing under thecircumstances in this case.

2. Propriety of Permanent Maintenance

Jerry next contends even if the trial court did notexceed its authority in ordering permanent maintenance, it abusedits discretion in doing so because the circumstances do notjustify such an award. We disagree. Several statutorily prescribed factors justify an award of permanent maintenance. At 24years, the marriage was a lengthy one. See 750 ILCS 5/504(a)(7)(West 2000). The parties' present and future earning capacitiesare greatly disparate (see 750 ILCS 5/504(a)(3) (West 2000)), andSusan's standard of living since the dissolution is substantiallylower than that enjoyed during the marriage (see 750 ILCS5/504(a)(6) (West 2000)). Although Susan worked through much ofthe marriage, she did not work for several years when the girlswere very young and then worked part-time for most of her careerso she could devote her time to serving as her daughters' primarycaregiver. See 750 ILCS 5/504(a)(4) (West 2000). In lengthymarriages in which the recipient of maintenance served as caregiver for the children, "'[t]here is no question but that Illinois courts give consideration to a more permanent award ofmaintenance to wives who have undertaken to *** raise and supportthe family.'" Drury, 317 Ill. App. 3d at 206, 740 N.E.2d at 368,quoting In re Marriage of Rubinstein, 145 Ill. App. 3d 31, 40,495 N.E.2d 659, 665 (1986). We conclude the trial court properlyexercised its discretion in determining permanent maintenance wasappropriate.

B. Amount of Maintenance

Jerry next argues the trial court abused its discretionin setting maintenance at $1,400 per month because this amountwas significantly higher than the amount of maintenance orderedin the stipulated order of September 1999 and also higher thanthe total amount of monthly expenses listed in Susan's financialaffidavit. He also contends in assessing Susan's income, thetrial court should have imputed to her income he contends shewould receive in the future for the federal earned-income taxcredit. We disagree.

The benchmark for determining the amount of maintenanceis the recipient's reasonable needs in light of the standard ofliving established during the marriage. Cheger, 213 Ill. App. 3dat 379, 571 N.E.2d at 1140. Susan's financial affidavit reflectsher actual expenditures since the dissolution at a standard ofliving significantly lower than she enjoyed during the marriage. During the marriage, she lived in a three-bedroom home on threeacres of land with a pool, hot tub, and exercise room. She nowresides in a two-bedroom, used mobile home on a small lot withnone of these amenities. In the latter years of the marriage,when she returned to work full-time, Susan hired a cleaningservice to clean her home for her. She now works 14 hours perweek in addition to the full-time job she held during the marriage and can no longer afford a cleaning service. Although shecontinues to spend money for clothes and entertainment, shespends less than she did during the marriage.

Jerry did not ask the trial court to consider theearned-income-credit part of Susan's income either in his writtenargument to the court or in his posttrial motion. He has forfeited this argument on appeal. Further, we reject his contention on the merits. Had the trial court included the amount ofearned-income credit Susan received on her 1999 tax return aspart of her income, this would have increased her monthly incomeby slightly more than $200. This amount would not allow her tolive at anywhere near the standard of living established duringthe marriage. Further, the trial court did take into account theincome from Susan's second job, and the necessity of working asecond job is itself a reduction in her standard of living. Weconclude the trial court properly exercised its discretion indetermining the amount of maintenance.

C. Retroactive Maintenance

Jerry last contends the trial court abused its discretion by awarding maintenance retroactive to July 17, 2000, thedate originally set for the review hearing. In support of hiscontention, he cites In re Marriage of Martin, 223 Ill. App. 3d855, 585 N.E.2d 1158 (1992). We find Martin inapposite.

In Martin, 223 Ill. App. 3d at 858, 585 N.E.2d at 1161,the trial court awarded the former wife in a short-term marriagemaintenance for a period of 24 months, to be reviewed at the endof the 24-month period. The hearing on the former wife's petition to extend maintenance was scheduled for December 31, 1990,to coincide with the end of the period for which maintenance hadbeen ordered; however, the hearing was continued for nearly threemonths because the former wife's attorney was unable to attenddue to inclement weather. Martin, 223 Ill. App. 3d at 860, 585N.E.2d at 1162. The trial court denied her request to extendmaintenance. Martin, 223 Ill. App. 3d at 860, 585 N.E.2d at1162.

On appeal, in addition to her claim the trial court haderred in denying her petition, the former wife contended she wasentitled to payments of maintenance under the original order forJanuary, February, and March 1991. Martin, 223 Ill. App. 3d at860, 585 N.E.2d at 1162. This court framed the issue presentedas follows: "whether the right to receive maintenance extendsbeyond the time period stated in the court's order." Martin, 223Ill. App. 3d at 861, 585 N.E.2d at 1163. We held it did not. Martin, 223 Ill. App. 3d at 861, 585 N.E.2d at 1163. We held,however, the trial court had abused its discretion in not extending maintenance, and we reversed and remanded for a determinationof the amount and duration of maintenance. Martin, 223 Ill. App.3d at 863, 585 N.E.2d at 1164. Martin did not address the issueof whether the trial court, on remand, would have the discretionto award the extension of maintenance retroactively to the datemaintenance ended under the previous order because that issue wasnot presented. We thus find Martin does not limit the trialcourt's discretion to award maintenance retroactively in theinstant case.

Jerry further argues, however, the only authority toaward maintenance retroactively comes from section 510 of theIllinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510(West 2000)). Section 510 authorizes and prescribes proceduresfor modification of permanent maintenance upon a showing of asubstantial change in circumstances. 750 ILCS 5/510 (West 2000). Because the trial court found the parties' agreement did notrequire such a showing and the review hearing was, therefore, nota "modification hearing," Jerry argues the statute is inapplicable and the trial court was thus without authority to awardmaintenance retroactively. We disagree.

Section 510(a) provides, in pertinent part, "theprovisions of any judgment respecting maintenance or support maybe modified only as to installments accruing subsequent to duenotice by the moving party of the filing of the motion formodification." 750 ILCS 5/510(a) (West 2000). Thus, the statuteis not the source of a trial court's authority to modify maintenance retroactively; rather, it is a limit on the time period forwhich a court may do so.

The trial court determined the September 1999 order didnot require Susan to show a substantial change in circumstancesas required by the statute. Further, the order expressly negatedthe requirement of filing a petition to have maintenance reviewedat that time. Thus, the statute is inapplicable. Nevertheless,the order changed the amount of maintenance Jerry was required topay and, as such, considerations of fairness would require thetrial court to limit retroactive maintenance to a period forwhich he had due notice his obligations might change. Becausethe supplemental order, by its terms, provided maintenance wouldbe reviewed automatically in July 2000, and because Jerry hadnotice of the scheduled July 17 hearing, he had notice hismaintenance obligation might change as of that time. We concludethe trial court acted within its authority in awarding maintenance retroactively to the date the hearing was originally tooccur.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

APPLETON and McCULLOUGH, JJ., concur.

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