In re Marriage of Connors

Case Date: 02/16/1999
Court: 2nd District Appellate
Docket No: 2-98-0591

In re Mar. of Connors, No. 2--98--0591

2nd District, February 16, 1999

In re MARRIAGE OF JAMES P. CONNORS,

Petitioner-Appellant,

and

PATRICIA A. CONNORS,

Respondent-Appellee.

Appeal from the Circuit Court of De Kalb County.

No. 93--D--306

Honorable Wiley W. Edmondson, Judge, Presiding.

JUSTICE GEIGER delivered the opinion of the court:

The petitioner, James Connors, appeals from the April 7, 1998, order of the circuit court of De Kalb County requiring him to pay an additional five years of maintenance to the respondent, Patricia Connors. On appeal, James argues that the trial court's order (1) was contrary to the prior law of the case; (2) violated the doctrines of res judicata and collateral estoppel; (3) was based on unlawful considerations; (4) was based on the erroneous finding that Patricia had been reasonably diligent in seeking employment; (5) was against the manifest weight of the evidence; and (6) failed to account for the parties' standard of living at the time of the divorce. We affirm.

The parties' marriage was dissolved on December 27, 1994, following a 23-year marriage. Three children were born to the marriage. One child, having not yet reached majority, was still living with Patricia at the time of the dissolution. During the marriage, Patricia attained a bachelor's degree in education from Northern Illinois University. She also received certification to teach home economics in grades 6 through 12. However, she never worked as a teacher during the marriage. Patricia worked primarily as a homemaker during this time, although she worked occasionally outside the home while her youngest child went to school. At the time of the dissolution, James was employed as a city administrator and was earning approximately $70,000 a year.

The trial court's dissolution order awarded Patricia the majority of the marital property. Patricia was awarded the $114,000 marital residence, subject to the mortgage debt of $55,953. The trial court further awarded Patricia 15% of James's pension, which at the time of the dissolution was valued at $75,112. The trial court also ordered James to pay the family debts of $6,774, Patricia's attorney fees of $3,773, and $786 a month in child support to Patricia. The trial court further ordered James to pay Patricia $982 a month in maintenance after determining that maintenance was necessary in order for Patricia to provide for herself. The trial court declined to classify such maintenance as rehabilitative, specifically finding that "it would be speculation to assume that [Patricia] would be able to maintain herself after any set period of time." The trial court additionally ordered that the maintenance award would be reviewable after one year in order to assess Patricia's progress toward becoming self-sufficient and whether she was still in need of maintenance.

On January 26, 1996, James petitioned the trial court for a review of Patricia's maintenance award. On October 11, 1996, the trial court conducted an evidentiary hearing on the petition. At the close of the hearing, the trial court found that (1) Patricia had not made reasonable efforts to become self-sufficient; (2) the judgment of dissolution did not provide for permanent maintenance; and (3) Patricia, although in need of support, must be encouraged to make progress towards becoming self-sufficient as the original decree provided. The trial court therefore reduced Patricia's award of maintenance to $500 a month and ordered that the award be reviewable in one year to determine if it should be reduced or eliminated. On November 19, 1996, the trial court entered its amended findings and order, specifically finding that Patricia's award of maintenance was "rehabilitatory."

On October 7, 1997, James again petitioned the trial court for a review of Patricia's maintenance award. Between March 17, 1998, and April 7, 1998, an evidentiary hearing on the petition was held before a trial judge different from the one who had conducted the October 11, 1996, hearing. At the hearing, John Vicha, the assistant superintendent of Community Unit School District No. 300, testified on James's behalf. Vicha testified that his district had advertised three home economics teaching positions beginning in April 1997. He further testified that, as of March 1998, one position was still unfilled because of a lack of qualified applicants.

Barbara Coughman, an education consultant at Northern Illinois University's career planning and placement center, also testified on James's behalf. Coughman testified that she was the editor of the Education Vacancies Bulletin, which listed job openings for teachers in Lake County and northeastern Illinois. She testified that, between February 26, 1997, and August 20, 1997, there were 30 positions listed in the Bulletin for secondary home economics teachers and 29 positions for elementary school positions with a Type 3 certificate. Coughman further testified that Northern Illinois graduates could register as job seekers with the career planning and placement center. Coughman testified that, although Patricia had registered as a job seeker, she had allowed her registration to lapse early in 1997.

Patricia testified that since the previous hearing she had been substitute teaching and had taken two education courses in the spring of 1997. As a result of this course work, she stated, in June 1997 she had obtained her certificate to teach elementary school. Patricia testified that on August 4, 1997, she signed a contract at a salary of $19,550 for a full-time position teaching second grade at the Santa Maria del Popolo School in Mundelein. Patricia stated that, although she had applied for at least 30 full-time positions teaching elementary education since the last hearing, this was the only full-time job offer that she had received.

Patricia also testified that she had interviewed for a home economics position at Zion-Benton High School but that she did not receive the position. She stated that she made a job inquiry to the Carpentersville school district regarding a possible opening for a home economics teacher but learned that they currently had no openings. Patricia testified that, although she had a degree in home economics, she had difficulty finding a job in this area because she had no experience teaching the subject.

Patricia also testified that she had sold the marital home in May 1996 for $136,250, that she had moved out of the home and eventually sold it because it was in "poor repair," and that she was now living with her parents.

At the close of the hearing, the trial court ordered James to continue to pay Patricia maintenance in the amount of $500 per month and ordered that the award would be reviewable in 60 months. In support of its ruling, the trial court made the following factual findings: (1) James was currently earning $83,000 a year; (2) Patricia no longer owned a home and was living with her parents; (3) Patricia had received only 15% of James's pension; (4) Patricia had used reasonable diligence to find employment since the last hearing and was now working full time at a parochial school for a salary of $19,500; and (5) Patricia was in need of the current level of maintenance in order to maintain an appropriate standard of living.

The trial court explained that its ruling was not contrary to the earlier proceedings in the case, noting that the original maintenance order "contemplated the possibility of long-term maintenance." The trial court also noted that, at the subsequent maintenance review, although the previous judge had classified Patricia's award as "rehabilitatory," he did not, in fact, "set any cutoff on maintenance [or] purport to award non-modifiable maintenance." The trial court explained that this previous order indicated that "any future ruling on the amount and duration of maintenance would clearly depend on what the evidence showed at a subsequent hearing." On May 7, 1998, James filed a timely notice of appeal.

James's first argument on appeal is that the trial court erred in not following the prior law of the case. James contends that the trial court's previous orders established that Patricia's award of maintenance was not to be permanent but of a rehabilitative nature. James argues that the trial court ignored and effectively reversed its prior orders when it awarded Patricia maintenance without a termination date or any express conditions for termination.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/510(a) (West 1996)) provides that maintenance may be modified "only upon a showing of a substantial change in circumstances." The party seeking modification bears the burden of proving this change. In re Marriage of Logston, 103 Ill. 2d 266, 287 (1984). A trial court's determination of maintenance is entitled to great deference. In re Marriage of Ward, 267 Ill. App. 3d 35, 41 (1994). A maintenance award will not be set aside unless it is as an abuse of discretion or against the manifest weight of the evidence. Ward, 267 Ill. App. 3d at 41.

Relying on the "law of the case" doctrine, James contends that the trial court erred by not reducing or eliminating Patricia's award of maintenance. Under this doctrine, " 'a legal decision made at one stage of the litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes the law of the case for future stages of the same litigation, and the parties are deemed to have waived the right to challenge that decision at a later time.' " Aardvark Art v. Lehigh/Steck-Warlick, Inc., 284 Ill. App. 3d 627, 632 (1996), quoting Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987). The doctrine encompasses a court's explicit decisions as well as those issues decided by necessary implication. Aardvark Art, 284 Ill. App. 3d at 632-33. However, the law-of-the-case doctrine does not preclude the trial court's reconsideration of an earlier judge's order if the facts before the court have changed or if error or injustice must be remedied. People v. Williams, 138 Ill. 2d 377, 392 (1990).

We do not believe that the law-of-the-case doctrine is applicable to the instant case. Our research reveals no Illinois authority that has applied this doctrine in such a manner so as to preclude a trial court's authority to hear and rule upon a petition for a modification of a maintenance award. Indeed, we believe that applying this doctrine to the instant case is irreconcilable with the direct mandate of the Marriage Act, which provides that "any judgment" is subject to modification. See 750 ILCS 5/510(a) (West 1996). Therefore, regardless of how the trial court originally classified the maintenance award, we do not believe it was precluded from modifying the award upon a showing of a substantial change in circumstances. See In re Marriage of Mittra, 114 Ill. App. 3d 627, 635 (1983) (permanent award may be subject to modification); In re Marriage of Asch, 100 Ill. App. 3d 293, 298-99 (1981) (rehabilitative maintenance award may be extended for greater duration depending on wife's progress when reviewed after three years).

Moreover, even if the law-of-the-case doctrine were applicable to the instant case, we do not believe that the trial court's order at issue here conflicts with the prior orders entered in the case. As noted above, the trial court's original December 27, 1994, dissolution order required James to pay Patricia $982 a month in maintenance and required Patricia to make attempts to become self-sufficient. The trial court expressly refused to characterize its maintenance order as rehabilitative and provided for review of its award after one year. On October 11, 1996, the trial court extended Patricia's award of maintenance but reduced the award to $500 a month. The trial court provided for review of the order after one year and classified the maintenance award as rehabilitative rather than permanent. On April 7, 1998, the trial court again extended Patricia's award of maintenance of $500 per month, finding that she was still in need of assistance. The trial court then expressly declined to make a finding that the maintenance was permanent and ruled that the award could be reviewed after 60 months.

At each of these hearings, the trial court found that Patricia was in need of assistance but declined to make a permanent award of maintenance so that Patricia would be encouraged to become self-sufficient. Indeed, during the April 7, 1998, hearing, the trial court explicitly stated that it was not awarding permanent maintenance because such an award would eliminate any incentive for Patricia to pursue the long-term options available to her to improve her ability to support herself. Despite James's contentions to the contrary, we do not believe that the trial court's April 7, 1998, order is inconsistent with the prior law of the case, and therefore we decline to disturb the trial court's judgment on this basis.

In a related argument, James's second contention on appeal is the trial court improperly extended Patricia's maintenance award in violation of the doctrines of res judicata and collateral estoppel. James argues that the trial court was bound by its prior factual findings as to the nature and the amount of maintenance.

Contrary to James's assertions, the doctrine of res judicata does not apply to the instant case. Res judicata bars the relitigation of an issue between the same parties after a final judgment on the merits has been rendered by a court of competent jurisdiction. In re Marriage of Firestone, 158 Ill. App. 3d 887, 891 (1987). An essential part of res judicata is that there be an identity of causes of action, meaning an identity of the facts essential to the continuance of the action. Firestone, 158 Ill. App. 3d at 891. A maintenance award is res judicata only to those facts at the time it is entered, and changed circumstances justifying the modification of maintenance must occur after the award. In re Marriage of Waldschmidt, 241 Ill. App. 3d 7, 11 (1993). Courts in modification proceedings allow the parties to present only the evidence going back to the latest petition for modification in order to avoid the relitigation of matters already settled. In re Marriage of Pedersen, 237 Ill. App. 3d 952, 957 (1992).

As discussed above, we do not believe the trial court was obligated to classify the nature of the maintenance award the same as the prior trial courts had done. Instead, the trial court was required to consider only those facts since the last modification hearing and to alter the award only upon a showing of a substantial change of circumstances. Pedersen, 237 Ill. App. 3d at 957. The burden was on James, as the party seeking modification, to prove that a substantial change of circumstances had occurred. Logston, 103 Ill. 2d at 287 (1984). Since the last hearing, the most salient changed facts were that Patricia had attained employment at a parochial school and was earning a salary of $19,550; Patricia had sold the marital home and was now living with her parents; and James had received an increase in salary to $83,000 per year. As all of these facts were new since the last hearing, the trial court was not barred by res judicata from considering them in relation to the propriety of the maintenance award. See Waldschmidt, 241 Ill. App. 3d at 11.

Moreover, we note that James's argument may have been more persuasive had the trial court actually altered the maintenance award. Instead, the trial court left the amount of the maintenance award the same and extended its duration for an additional five years. As stated above, the burden was on James to establish why the award should be reduced. Logston, 103 Ill. 2d at 287. Considering the salient facts that were adduced at the hearing and are reiterated above, we cannot say that the trial court abused its discretion in finding that Patricia was still in need of maintenance in order to live at the level to which she was accustomed during the marriage. Additionally, despite James's contentions to the contrary, we do not believe that the duration of Patricia's award violated res judicata or evidenced an abuse of the trial court's discretion. See In re Marriage of Hensley, 210 Ill. App. 3d 1043, 1045, 1050 (1991) (award of maintenance for 8