NO. 4-05-0178
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
STEPHANIE M. THORNLEY, ) Circuit Court of
Petitioner-Appellee, ) Sangamon County
and ) No. 03D915
JASON P. THORNLEY, )
Respondent-Appellant. ) Honorable
) Steven H. Nardulli,
) Judge Presiding.
PRESIDING JUSTICE COOK delivered the opinion of the
court:
On November 24, 2003, Stephanie Thornley filed apetition for dissolution of her marriage to Jason Thornley. ASangamon County trial court found that the factors it consideredin dividing the marital estate favored an unequal distribution toStephanie and awarded a greater share of the marital property toher. The court also ordered Jason to pay Stephanie $18,000maintenance in gross. Jason appeals, arguing that the courtimproperly distributed marital property and debt and lacked theauthority to award Stephanie maintenance. We affirm.
I. BACKGROUND
Stephanie and Jason Thornley married on June 30, 2001. They had no children as a result of the marriage. The coupleseparated in August 2003, and Stephanie filed a petition fordissolution of marriage on November 24, 2003. In the petition,she requested an order awarding her an equitable share of themarital property and "denying maintenance to the [p]etitioner and[r]espondent." The trial court held a hearing on October 13,2004, at which the following was elicited.
Stephanie testified that during the marriage she wasemployed full time. She earned approximately $900 every twoweeks. Jason was not employed, but attended Palmer College ofChiropractic. He periodically received money for living expenses. Stephanie believed that the amount averaged $2,500 oneach occasion, but Jason testified that he received approximately$5,000 for living expenses per trimester, which he had to repayas part of his student loans. The couple had been married forseven trimesters before they separated, so Jason estimated thathe had received about $35,000 for living expenses while they weretogether. However, Jason later stated that Palmer Collegecharged him $120,000 for his 10 trimesters at the school, and hereceived $140,000 in student loans, including the money forliving expenses.
The couple deposited Stephanie's paycheck and Jason'sliving expenses funds into a joint checking account. Jasonacknowledged that the majority of the deposits into the accountwere from Stephanie's employment. They paid some of Jason'sschool expenses from the account, including $350 for Jason'sboard exam and $2,190 and $5,835 payments to Palmer College. OnNovember 25, 2003, Stephanie withdrew $4,191.82 from the account,leaving a balance of $3,086.09.
Stephanie and Jason also had a Morgan Stanley brokerageaccount that they funded with money from their checking account. Stephanie testified that in June 2004 she withdrew the entirebalance, $7,166.38, but had not cashed the check she received.
Stephanie stated that she had a City American AirlinesMasterCard in her name and that Jason was a cardholder. Shesubmitted statements reflecting various charges Jason made at thePalmer College bookstore. He did not reimburse her for thoseamounts.
Jason had opened a Verizon credit card prior to themarriage. Stephanie was not a signatory. Jason admitted thatStephanie had paid the balance on the card before the two married. He estimated that the amount had been $2,000, but Stephanie believed that it was about $3,000. After they married, thecouple occasionally used the Verizon card, such as for someexpenses from their trip to Fiji and Australia. Stephanieestimated that they charged $2,000 on the Verizon card together. Jason stated that the current balance on the Verizon card was$8,578.
Jason testified that he had opened an MBNA credit cardafter he and Stephanie separated. The balance at the time of thehearing was $5,284.
Stephanie testified that during their marriage she andJason paid two loans that Jason had obtained prior to theirmarriage, estimating a $2,000 payment to Illinois State University and a $1,000 payment to Monmouth College. However, Jasontestified that the couple had only paid a Monmouth College loanfor $500. He stated that he had sent a check for $1,660 toIllinois State University, but the University sent the check backwithout cashing it because the loan had been consolidated intohis other loans.
Stephanie and Jason had two cars, a 2001 Malibu and a2002 Yukon. Stephanie testified that her parents had given herthe Malibu as a gift prior to her marriage to Jason. The car hadbeen titled to "Stephanie M. Seitz and Jason R. Thornley" becausethey had been engaged to be married at the time. Jason had thatcar in his possession at the time of the hearing. Stephanie'sparents had given her the Yukon while she was married to Jason. Both Stephanie's and Jason's names were on the title. Stephaniehad that car at the time of the hearing.
Jason offered into evidence Kelly Blue Book estimatesof each car's value. The trade-in value for the Malibu was$2,670, private party value was $4,710, and retail value was$8,090. However, it had some damage from an accident that Jasonand Stephanie had agreed not to repair. The trade-in value forthe Yukon was $14,805, private party value was $18,285, andretail value was $23,360.
During the marriage, Stephanie and Jason opened a Searscredit card to purchase a washer and dryer for about $800. Theyhad paid off the account. Jason had possession of the washer anddryer at the time of the hearing, but stated that he did notobject to them going to Stephanie.
Jason's affidavit of income and expenses estimated hisexpenses as $345 per month. He testified that he lived with hisgirlfriend who contributed to his living expenses. Jason'sschool loans were in forbearance for a year, but he believed thathe will eventually have to pay about $596 per month.
Jason stated that he had finished his education and wasemployed as a teacher by Metropolitan Community College. He wasteaching because he was waiting for the results of his board examand license. His gross income was $2,143.76 per month. Jasonstated that a new chiropractor can earn between $10,000 and$50,000 a month. He planned to work for an individual after hereceived his license but had made no agreements with anyone.
On January 31, 2005, the trial court entered a memorandum of opinion stating in part, "In dividing the marital estate,the court must consider the contribution each party made to theaccumulation of the assets and liabilities of the marriage; theability of each party to accumulate assets in the future; and therelative economic circumstances of the parties. Each factorfavors an unequal distribution to Ms. Thornley." The courtawarded the proceeds from the brokerage account, the washer anddryer, and the Yukon to Stephanie. It awarded Jason the Malibu. Each party received the other personal property in his or herpossession and bank accounts in his or her name. Each had the responsibility to pay the financial obligations in his or hername.
Citing section 504(a)(10) of the Illinois Marriage andDissolution of Marriage Act (Dissolution Act) (750 ILCS5/504(a)(10) (West 2004)), the trial court then consideredStephanie's contributions to Jason's education, training, careeror career potential, and license. It awarded Stephanie $18,000maintenance in gross, to be paid in 24 monthly installments of$750, beginning January 1, 2005.
On February 16, 2005, the trial court entered ajudgment for dissolution of marriage consistent with andincorporating its memorandum of opinion. This appeal followed.
II. ANALYSIS
A. Distribution of Marital Property
Jason first argues that the trial court improperlydistributed marital property and debt. He contends that thecourt's decision to award Stephanie property worth more than$30,000, while it awarded him property worth only $5,000, wasarbitrary and without reason. He also challenges the court'sdivision of debt. Jason must pay the MBNA credit card balance of$5,284 for purchases he made after he separated from Stephanie,the Verizon credit card balance of $8,579, and his student loansfrom chiropractic college, totaling over $140,000. Stephaniemust pay the American Airlines MasterCard balance, but neitherparty presented evidence regarding the amount owed.
Section 503(d) of the Dissolution Act requires a trialcourt to divide marital property "in just proportions consideringall relevant factors." 750 ILCS 5/503(d) (West 2004). "Thetouchstone of proper and just apportionment is whether it isequitable in nature," which does not require mathematicalequality. In re Marriage of Dunlap, 294 Ill. App. 3d 768, 778,690 N.E.2d 1023, 1029 (1998). We will not disturb a trialcourt's division of marital assets unless it has clearly abusedits discretion. In re Marriage of Crook, 211 Ill. 2d 437, 453,813 N.E.2d 198, 206 (2004).
Factors relevant in determining the just apportionmentof marital property include the contributions of each party, theduration of the marriage, the relevant economic circumstances ofeach spouse, and the reasonable opportunity of each spouse forfuture acquisition of assets and income. 750 ILCS 5/503(d)(1),(d)(4), (d)(5), (d)(11) (West 2004). Though Stephanie andJason's marriage was relatively short, the trial court found thatother factors favored an unequal distribution to Stephanie. Itnoted that, during the marriage, Jason relied on Stephanie forsupport while he attended school, stating that "[t]here was verylittle, if any, money from the loan proceeds over and above thecost of tuition and other school expenses. *** In addition, Ms.Thornley directly paid some of the chiropractic college expensesMr. Thornley incurred." The court also found that when Jasonreceives his license, "he anticipates that his income willincrease to $10,000 to $50,000 per month." The court'sapportionment of marital property and debt admittedly favorsStephanie, but it did not abuse its discretion. Accordingly, weaffirm the court's judgment distributing marital property anddebt.
B. Maintenance
Jason next argues that the trial court improperlyawarded Stephanie maintenance. He contends that the courtexceeded its authority because Stephanie's petition specificallyrequested an order "denying maintenance to the [p]etitioner andthe [r]espondent." Stephanie claims that Jason forfeited thisissue by not objecting at the hearing or filing a motion toreconsider. However, the evidence presented at the Octoberhearing was pertinent to the division of marital assets as wellas maintenance; Jason could not be expected to object to suchtestimony. Illinois Supreme Court Rule 366(b)(3)(ii) (155 Ill.2d R. 366(b)(3)(ii)) permits our review of substantive matters innonjury cases even if the appellant has not filed a postjudgmentmotion. See In re Marriage of Steadman, 283 Ill. App. 3d 703,712, 670 N.E.2d 1146, 1153 (1996).
In In re Marriage of Hochleutner, 260 Ill. App. 3d 684,685, 633 N.E.2d 164, 165 (1994), the petitioner asked that thetrial court bar the respondent from maintenance, distribute theparties' property, and for "'such other and further or differentrelief the [c]ourt may deem just.'" The respondent appeared atan evidentiary hearing but did not file a response. Hochleutner,260 Ill. App. 3d at 687, 633 N.E.2d at 166. When the courtawarded the respondent maintenance, the petitioner appealed. Heargued that, because the respondent never requested maintenance,the issue was never raised, and he was never placed on notice soas to challenge such an award; therefore, the court exceeded itsauthority in granting it. Hochleutner, 260 Ill. App. 3d at 689,633 N.E.2d at 167. He conceded, however, that "a judgment of thecourt can be upheld if the relief was generally prayed for andwas supported by the evidence." (Emphasis in original.) Hochleutner, 260 Ill. App. 3d at 689, 633 N.E.2d at 168.
The appellate court found that the trial court did notexceed its authority because the petitioner raised the issue ofmaintenance in his prayer for relief by asking that the court barthe respondent from receiving it. Hochleutner, 260 Ill. App. 3dat 690, 633 N.E.2d at 168. It further found that "in addition toraising the issue of maintenance generally, petitioner alsoprayed for 'such other and further or different relief the[c]ourt may deem just.' *** No more specific pleading wasrequired under the circumstances." Hochleutner, 260 Ill. App. 3dat 690-91, 633 N.E.2d at 169. The court noted that where amarriage dissolution statute authorizes maintenance under just orequitable terms, "all that is required to sustain the award isthat the recipient be entitled to it and the award be equitable." Hochleutner, 260 Ill. App. 3d at 691, 633 N.E.2d at 169.
In In re Marriage of Culp, 341 Ill. App. 3d 390, 792N.E.2d 452 (2003), the trial court originally ordered thepetitioner to pay the respondent rehabilitative maintenance,which was reviewable on a specific date "'without the necessityof either party filing further pleadings.'" Culp, 341 Ill. App.3d at 393, 792 N.E.2d at 454. Following the review, the courtawarded the respondent permanent maintenance. Culp, 341 Ill.App. 3d at 393-94, 792 N.E.2d at 455. On appeal, that petitionerargued "the trial court lacked the authority to modify themaintenance award to one of permanent maintenance sua sponte,"citing In re Marriage of Cantrell, 314 Ill. App. 3d 623, 732N.E.2d 797 (2000). Culp, 341 Ill. App. 3d at 394-95, 792 N.E.2dat 456. The Second District held in Cantrell that the trialcourt had erred by awarding the recipient permanent maintenancewhere she had only requested a continuation of rehabilitativemaintenance, in part, because the court had exceeded the reliefrequested in her pleadings. Cantrell, 314 Ill. App. 3d at 628,732 N.E.2d at 801-02.
In Culp, this court found:
"[T]he Cantrell court did not hold a trial
court may never exceed the relief requested
by parties in their pleadings; the court
merely held the record in the case before it
lacked circumstances to justify an award of
permanent maintenance absent a request in
the pleadings for such relief." Culp, 341
Ill. App. 3d at 395, 792 N.E.2d at 456,
citing Cantrell, 314 Ill. App. 3d at 628,
732 N.E.2d at 801-02.
This court also noted that "a trial court may exceed the reliefrequested by a party as an exercise of its discretion indetermining the appropriate duration of a maintenance award." Culp, 341 Ill. App. 3d at 397, 792 N.E.2d at 458.
Like the petitioner in Hochleutner, Stephanie raisedthe issue of maintenance. She alleged in her petition that"there is no agreement or understanding as to the maintenance ofeither party" and prayed for an order denying maintenance and"such other and further relief as the [c]ourt deems equitable andjust." Pursuant to Culp and In re Marriage of Cheger, 213 Ill.App. 3d 371, 571 N.E.2d 1135 (1991), the trial court in this casehad the authority to exceed the relief Stephanie requested and,like the courts in those cases, exercised its discretion in doingso. Therefore, the only remaining issue is whether the award issupported by the evidence. Hochleutner, 260 Ill. App. 3d at 689,633 N.E.2d at 168.
The supreme court recently refused to allow a spouse toretract her waiver of maintenance simply because the circuitcourt did not accept her valuation of her ex-husband's dentalpractice. In re Marriage of Schneider, 214 Ill. 2d 152, 172, 824N.E.2d 177, 188-89 (2005). In Schneider, however, there was aclear waiver of maintenance, along with a stipulation as to grossand net income from the dental practice. Schneider, 214 Ill. 2dat 156, 824 N.E.2d at 179. The ex-wife did not dispute that shehad waived maintenance, arguing instead that the court abused itsdiscretion in failing to sua sponte declare her waiver ofmaintenance unconscionable when it excluded good will and/oraccounts receivable from the valuation of the dental practice. Schneider, 214 Ill. 2d at 172, 824 N.E.2d at 188.
In the present case, however, no formal waiver ofmaintenance occurred, only a suggestion to the trial court in thepleadings that it was best to resolve the matter by adistribution of property rather than an award of maintenance. The suggestion did not deprive the court of its discretion toaward maintenance. The parties were aware that an award ofmaintenance was possible. Even if the pleadings were nottechnically correct, a pleading may be amended at any time,before or after judgment, to conform the pleadings to the proofs. 735 ILCS 5/2-616(c) (West 2004).
Section 504 of the Dissolution Act sets out a number offactors a trial court may consider in determining whether amaintenance award is appropriate. 750 ILCS 5/504(a) (West 2004). The section lists as relevant the income and property of eachparty, including marital property apportioned to the partyseeking maintenance, the present and future earning capacity ofeach party, the duration of the marriage, and the contributionsand services by the party seeking maintenance to the education,training, career or career potential, or license of the otherspouse. 750 ILCS 5/504(a)(1), (a)(3), (a)(7), (a)(10) (West2004). Though professional licenses and scholastic degrees donot constitute a property interest subject to division as amarital asset, "the contributing spouse must receive some form ofcompensation for the financial effort and support provided to thestudent spouse in the expectation that the marital unit willprosper in the future." In re Marriage of Rubinstein, 145 Ill.App. 3d 31, 38-39, 495 N.E.2d 659, 664 (1986). "There are threeprincipal methods of affording compensation: (1) distribution ofmarital assets; (2) some form of maintenance or alimony; or (3)an equitable monetary award based on some equitable principle." Rubinstein, 145 Ill. App. 3d at 39, 495 N.E.2d at 664. An awardof maintenance in gross may be proper where one spouse hassupported the other as he obtained his license or degree. See Inre Marriage of Weinstein, 128 Ill. App. 3d 234, 245, 470 N.E.2d551, 559-60 (1984). "In any event, the propriety of amaintenance award is within the discretion of the trial court andthe court's decision will not be disturbed absent an abuse ofdiscretion." Schneider, 214 Ill. 2d at 173, 824 N.E.2d at 189.
At the hearing, the trial court heard evidenceregarding Jason's present and future earning capacity, theduration of the marriage, and the contributions Stephanie madetoward Jason's education during that time. In its memorandum ofopinion, the court wrote:
"The entire focus of this marriage was getting
Mr. Thornley through chiropractic school.
While much of the expense was borrowed, and
this court has directed Mr. Thornley to pay
those student loans, and while the court has
disproportionately distributed the majority
of the assets to Ms. Thornley, the allocation
of property falls short of that which is
needed to equitably divide the marital estate
and recognize Mr. Thornley's career potential
when he becomes Dr. Thornley."
Accordingly, the court awarded Stephanie $18,000 as maintenancein gross. Because the court properly considered relevant factorsand ordered maintenance consistent with the principles set forthin Rubinstein, the court did not abuse its discretion.. III. CONCLUSION
For the reasons stated, we affirm the trial court'sjudgment.
Affirmed.
APPLETON and KNECHT, JJ., concur.