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In re Marriage of Cantrell, No. 2-99-0807

2nd District, 11 July 2000

JUSTICE HUTCHINSON delivered the opinion of the court:

This case comes to us following the trial court's judgment rendered upon respondent Ronald G. Cantrell's petition to terminate or modify maintenance paid to petitioner, Mary Lynne Cantrell. The trial court awarded permanent maintenance to petitioner and also ordered respondent to pay petitioner's attorney fees. We conclude that the trial court lacked the authority to change the form of maintenance from that of rehabilitative to that of permanent maintenance, resulting in an abuse of the trial court's discretion. Consequently, we vacate in part, reverse in part, affirm in part, and remand the cause with directions.

Petitioner and respondent were married on June 22, 1966. Two children were born of the marriage, both now emancipated. Petitioner filed her petition for dissolution of marriage in August 1991. At a hearing conducted in February 1992, the trial court found that grounds for the parties' dissolution had been established. On July 8, 1992, the trial court filed its judgment of dissolution of marriage, which found, inter alia, that petitioner had been a housewife who had devoted herself to rearing their children; she obtained a two-year associate's degree, but not a four-year bachelor's degree; a large disparity existed in the earning abilities of the parties in favor of respondent; and the parties accumulated considerable assets that would be equitably divided. The trial court ordered:

"[Respondent] shall pay to [petitioner] the sum of $300.00 per week as and for maintenance. *** [M]aintenance will be reviewed at the nearest reasonable date four (4) years from June 29, 1992. At the maintenance review, the court will further address the need for a Master's Degree by [petitioner]. Maintenance may be modifiable prior to the review date per statute. All maintenance payments will be made directly to [petitioner] for good cause shown.

***

[Respondent] shall pay before due [petitioner's] college expenses through a Bachelor's Degree. Such expenses include tuition, books, fees and transportation expenses."

On December 29, 1992, the trial court modified respondent's maintenance obligation to $3,000 per month to petitioner. Petitioner received an equitable distribution of marital property worth approximately $411,718, or roughly 60% of the total estate; respondent received approximately $234,450. On March 1, 1994, respondent petitioned the trial court to terminate his maintenance obligation because he became unemployed. On June 7, 1994, the trial court entered an order abating respondent's obligation to pay maintenance; however, respondent was still required to pay for petitioner's college education expenses. The trial court also ruled that petitioner did not have an affirmative obligation to seek full-time or part-time employment because of her college enrollment.

On July 13, 1995, the trial court reinstated respondent's $3,000 maintenance obligation retroactive to June 1, 1995. The trial court issued a maintenance review decision on August 21, 1996, wherein the trial court found that petitioner was diligent in securing her college degree, "so that she has the training or skills to become self-sufficient." The trial court further found that petitioner was making a good-faith effort to establish herself in her field of work, which involves a time period for her to market her job skills. The trial court also noted its agreement with respondent that petitioner should make every effort to sustain self-sufficiency and full employment at the earliest possible time. Thereafter, on September 5, 1996, the trial court ordered respondent to continue paying maintenance as previously ordered and scheduled a further review of maintenance two years from August 1996.

On June 16, 1998, respondent filed a petition to terminate or review maintenance. The trial court conducted a hearing on May 21, 1999. In his opening statement, counsel for petitioner noted that the parties stipulated that the issues did not relate to respondent's ability to pay maintenance but rather the questions of review and termination of maintenance.

Respondent testified that his year-to-date earnings ending April 18, 1999, were $123,548 and that he also received a bonus in approximately the same amount. Respondent reported $219,296 in wages for 1996; $252,721 for 1997; and $306,266 for 1998.

Petitioner testified that she received a bachelor of fine arts degree with honors from Northern Illinois University in 1995. Since obtaining her degree, she started her own business, particularly focusing on photography. Petitioner also illustrates, paints, and does computer work. Petitioner gave detailed testimony regarding her portfolio and discussed the exhibits presented to the trial court.

Petitioner testified that in 1996 she reported gross business income of approximately $3,000 and business expenses of $6,000, resulting in a business loss of approximately $3,000. In 1997 she reported gross business income of approximately $6,350 and business expenses of $7,600, resulting in a business loss of approximately $1,250. In 1998 petitioner reported gross business income of approximately $10,500 and business expenses of $11,000, resulting in a business loss of approximately $500. At the time of the hearing, petitioner's 1999 accounts receivable totaled approximately $4,125.

On cross-examination, petitioner testified that, in the four years since she graduated, she had applied for 8 to 12 full-time positions but received no offers of employment. She admitted that, in 1992, she testified that she intended to go to college, get a degree, obtain employment, and achieve self-sufficiency. Petitioner further testified that she did not know when she would become self-sufficient.

Petitioner's counsel testified regarding legal fees he has recently incurred by representing petitioner. His fees totaled approximately $4,500, of which petitioner had paid $3,000.

Respondent testified that he has a heart condition that will require surgery within a few years. Respondent further testified that he runs a division of a manufacturing company. His job is to improve the operation such that the company would no longer be in danger of going out of business. He was terminated from a company in 1993 and remained unemployed for approximately 18 months. Respondent anticipated that his income in 1999 would total approximately $276,000, which includes a base salary of $210,000, a bonus of $60,000, and an automobile allowance.

Following closing arguments, the trial court issued its ruling. The trial court stated:

"First of all, whether or not [petitioner] has exercised good faith efforts in attempts to rehabilitate herself and become self-sufficient. In answer to that question, I would say yes, I believe she has.

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This is the woman that he married. She was artistic in nature when he married her. She will always be artistic in nature. She will never be the industrialist that [respondent] is, and I can't change that. And ordering her to go out and go to school and asking her to jump through hoops and do all sorts of things won't change that.

The bottom line is this. This is a long-term marriage. They have a couple of children together who are now emancipated.

[Respondent] *** successfully climbed the corporate ladder. *** This year he is anticipated to make $270,000.

I guess we could order [petitioner] to go out and flip hamburgers ***. She could make probably 5, 6 bucks an hour, but I don't think the law requires her to do that.

***

*** I believe that [petitioner] has put forth a good faith effort. She is not self-sufficient. [Respondent] has the ability to continue paying the maintenance. [Petitioner] has the need for it.

I don't find there has been any change in circumstances except for [petitioner] having achieved her degree, but financially that hasn't changed her position. On the other hand, [respondent's] income has gone up substantially.

Counsel, you indicate this isn't permanent maintenance. I submit to you that it is permanent, maintenance. If it doesn't have a term certain to end, then it's permanent maintenance. I am going to consider this a permanent maintenance order.

Maintenance will continue at $3,000 per month. It will be subject to statutory terms for modification and termination."

The trial court then ordered respondent to pay $4,500 for reasonable attorney fees incurred by petitioner. Respondent timely appeals, contending that the trial court erred when it awarded permanent maintenance. Respondent also contends that maintenance should have been modified or terminated and that the trial court should have ordered petitioner to make an effort to provide for her own needs. Last, respondent contends that the trial court erred when it ordered him to pay petitioner's attorney fees.

Under the Illinois Marriage and Dissolution of Marriage Act (the Act)(750 ILCS 5/101 et seq. (West 1998)), an award of spousal support is known as maintenance. See 750 ILCS 5/504 (West 1998). The policy underlying rehabilitative maintenance is to sever the financial ties between a former married couple in an expeditious, but just, manner and make each spouse independent of the other as soon as practicable. In re Marriage of Carpenter, 286 Ill. App. 3d 969, 973 (1997). In the present case, the record clearly reflects that, at the May 1999 hearing, neither party requested that petitioner be awarded permanent maintenance. The hearing was conducted pursuant to respondent's June 1998 petition to terminate maintenance. In his opening statement, counsel for petitioner stated that the issue to be decided concerned the review and termination of respondent's maintenance obligation. The only mention of permanent maintenance was when counsel for respondent reminded the trial court that the original award of maintenance was that of a rehabilitative and reviewable nature.

We note that a trial court's jurisdiction is plenary, but not boundless. See Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994). With limited exceptions, circuit courts have "original jurisdiction of all justiciable matters." Ill. Const. 1970, art. VI,