In re Marriage of Chapman
Case Date: 12/04/1996
Court: 3rd District Appellate
Docket No: 3-96-0376
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_________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D. 1996 _________________________________________________________________ IN RE THE MARRIAGE OF: ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, ROSALIND MARIE CHAPMAN, ) Henry County, Illinois ) Petitioner-Appellant, ) ) v. ) No. 92--D--215 ) RICHARD EUGENE CHAPMAN, ) Honorable ) Jeffery W. O'Connor, Respondent-Appellee. ) Judge Presiding. _________________________________________________________________ JUSTICE McCUSKEY delivered the opinion of the court: _________________________________________________________________ The petitioner, Rosalind Chapman n/k/a Rosalind Vandersnick, appeals from a judgment of dissolution of marriage. The judgment dissolved her marriage to the respondent, Richard Chapman, distributed the parties' property, ordered Richard to continue her health insurance for a period of two years and awarded her no maintenance. On appeal, Rosalind argues that the trial court abused its discretion: (1) when it failed to award maintenance, considering her failing health and inability to work; and (2) when it failed to order Richard to provide health insurance for longer than two years and pay her uncovered medical expenses. After carefully reviewing the record on appeal, we reverse the trial court's determination. For reasons that follow, we remand the case to the circuit court of Henry County for further proceedings consistent with this opinion. FACTS Rosalind and Richard were married on August 20, 1988, and separated on August 30, 1992. No children were born during the marriage. Rosalind filed her petition for dissolution of marriage on October 7, 1992. At that time, she was 35 years old, and Richard was 39 years old. On February 19, 1993, the trial court entered an order requiring Richard to pay Rosalind $400 per month in temporary maintenance. On August 24, 1994, after a hearing, an order was entered finding grounds for the dissolution of the marriage. A hearing on the remaining contested matters was held on January 23, 1995. Richard's financial affidavit said he worked for John Deere and earned about $3,400 gross per month. However, he testified that, just prior to the hearing, he had changed jobs at John Deere to obtain greater job security. He anticipated that his gross monthly income would be about $2,586 in the new job. Evidence was presented that it would cost him $187.68 per month to keep Rosalind covered under his group health insurance after the dissolution of marriage was final. Rosalind testified that she was diagnosed with myotonic dystrophy in September 1992. Evidence was presented that it is a hereditary disease. Her deceased father had the disease, as well as several other family members. She stated that her symptoms include difficulty in walking, balance problems and weakness in her hands which makes it difficult to write. She also needs a lot of sleep. Rosalind testified that it is difficult for her to do daily tasks such as brushing her teeth, using a blow dryer on her hair, turning faucets on and off, opening and closing doors and going up and down steps. She said that she cannot use a mop or run a vacuum cleaner. Rosalind previously worked as a teller at Farmers National Bank for almost 18 years. Her gross pay was $1,024.97 per month, and her net pay was $718.80 per month. She voluntarily left her employment on December 31, 1994, because she was unable to adequately perform her job responsibilities. Rosalind stated that the stress and frustration associated with the job were too much for her to continue. She testified that she had applied for social security disability, but was not yet receiving any benefits. In her financial affidavit, she claimed that her monthly living expenses were $1,394.50. Rosalind's mother, Rosella Vandersnick, testified that Rosalind moved in with her in May 1994. She said Rosalind has balance problems and problems with choking when she tries to take medication. Rosella testified that Rosalind also is often very tired and has limited ability to perform tasks, such as buttoning clothing, because of weakness in her hands. Rosella testified that she is 60 years old and works part time. She does the housecleaning and laundry and also helps Rosalind with the many tasks that Rosalind is unable to accomplish. Rosella stated that Rosalind pays rent to help pay the bills. Marsha Flemming, an operations manager at Farmers National Bank, testified that she was one of Rosalind's supervisors. She stated that Rosalind's condition deteriorated during the last six months Rosalind worked at the bank. Rosalind had difficulty walking because of balance problems and had difficulty writing legibly. Janet Cady, the head teller at the bank, testified that Rosalind had been an excellent worker but became less and less efficient because of her physical problems. Cady stated that Rosalind had problems with vision and needed help lifting heavy items such as bags of coins. Cady testified that Rosalind's speech had become slurred and it was hard for her to speak clearly to bank customers. Rosalind had trouble concentrating and sometimes needed help to finish her transactions or to balance her cash drawer at the end of the day. Also, Cady said it was hard for Rosalind to write clearly enough so that coworkers could read her handwriting. Cady testified that it was extremely difficult for Rosalind to perform her job the last two weeks she was employed at the bank. Cady specifically stated that, because of all the difficulties Rosalind was having, she was not able to continue her employment at the bank. Flemming testified that there was no part time position available for Rosalind and that all of the jobs at the bank require writing and verbal communication skills. At the hearing, several exhibits were admitted into evidence. These included letters from two doctors concerning Rosalind's condition, as well as the evidence deposition of Dr. Ionesescu. The record indicates that all of the exhibits substantiated the fact that Rosalind had been diagnosed as having myotonic dystrophy. However, we note that none of the exhibits have been included in the record on appeal. After the hearing, the trial court took the matter under advisement. Thereafter, the parties submitted written arguments. On May 12, 1995, the parties submitted a stipulation that Rosalind was found eligible for social security disability benefits and would begin receiving $636 per month on July 3, 1995. On August 4, 1995, the trial court entered a judgment of dissolution resolving all issues. In the judgment, Rosalind was given the right to resume using her maiden name of Vandersnick. Also, the parties were awarded the personal property in their possession. Each party was also awarded ownership of a motor vehicle. Rosalind was awarded all rights to her 401(k) plan at the bank, and Richard was awarded his 401(k) retirement plan at John Deere. Richard was ordered to pay two outstanding debts, as well as $2,238.15 of Rosalind's attorney fees. Richard was additionally awarded five acres of real estate which was found to be his nonmarital property. The judgment ordered Richard to maintain health insurance coverage for Rosalind for the next two years. The judgment further stated that Rosalind would be responsible for all of her medical expenses not covered by insurance. The judgment provided that Rosalind was permanently barred from receiving maintenance from Richard. The trial court said the decision not to award maintenance was based upon its consideration of "the length of the marriage and separation; the extent of rehabilitative maintenance paid and the award of $636.00 per month of Social Security Benefits." Rosalind filed a motion to reconsider, contesting the trial court's denial of maintenance and failure to make adequate provision for health insurance and payment of medical expenses. The trial court denied the motion to reconsider. Thereafter, Rosalind filed a timely notice of appeal. ANALYSIS I. Omissions from the Record We initially recognize that none of the exhibits admitted at the hearing, including the evidence from Rosalind's doctors, are contained in the record on appeal. Copies of these exhibits have been attached to the parties' briefs. However, we note that all matters reviewed on appeal must be made part of the official court record. 155 Ill. 2d R. 321; Dopp v. Village of Northbrook, 257 Ill. App. 3d 820, 824, 630 N.E.2d 84, 86 (1993). Accordingly, a copy of an item attached to a brief cannot be considered by this court. See Dopp, 257 Ill. App. 3d at 824, 630 N.E.2d at 86. It is well established that the appellant has the burden of presenting a reviewing court with an adequate record concerning the claimed error. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 546- 47, 662 N.E.2d 1248, 1258 (1996). However, an incomplete record does not automatically preclude a reviewing court from determining whether the trial court's findings or rulings are correct where that determination can be made from the incomplete record presented on appeal. Dubey v. Abam Building Corp., 266 Ill. App. 3d 44, 46, 639 N.E.2d 215, 217 (1994). After reading the record on appeal, we conclude that it is adequate for purposes of our review. II. Maintenance A trial court's determination regarding maintenance will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Uehlein, 265 Ill. App. 3d 1080, 1089, 638 N.E.2d 706, 714 (1994). An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court. In re Marriage of Werries, 247 Ill. App. 3d 639, 652, 616 N.E.2d 1379, 1390 (1993). In deciding whether to award maintenance and the amount of maintenance, the trial court should review and consider the relevant statutory factors, including: "(1) the income and property of each party, including marital property apportioned *** to the party seeking maintenance; (2) the needs of each party; (3) the present and future earning capacity of each party; * * * (6) the standard of living established during the marriage; (7) the duration of the marriage; (8) the age and the physical and emotional condition of both parties." 750 ILCS 5/504(a) (West 1994). No one statutory factor is dispositive of the determination whether maintenance should be granted or denied. In re Marriage of Harlow, 251 Ill. App. 3d 152, 157, 621 N.E.2d 929, 934 (1993). However, a trial court is required to consider the parties' health and economic circumstances as they exist when the court rules on the maintenance award. In re Marriage of Brooks, 138 Ill. App. 3d 252, 265, 486 N.E.2d 267, 275-76 (1985). It is incumbent upon a trial judge to take a spouse's physical condition into account as a significant factor in determining whether an award of maintenance is proper. See In re Marriage of Marcello, 247 Ill. App. 3d 304, 313, 617 N.E.2d 289, 295 (1993). Accordingly, maintenance is generally appropriate where a spouse is not employable because of a physical condition. See In re Marriage of Stam, 260 Ill. App. 3d 754, 756-57, 632 N.E.2d 1078, 1079-80 (1994); In re Marriage of Morse, 240 Ill. App. 3d 296, 311, 607 N.E.2d 632, 643 (1993); In re Marriage of Tietz, 238 Ill. App. 3d 965, 972, 605 N.E.2d 670, 676 (1992). A dependent former spouse is entitled to continue to live in some approximation to the standard of living established during the marriage, unless the payor spouse's financial situation indicates otherwise. In re Marriage of Dunseth, 260 Ill. App. 3d 816, 833, 633 N.E.2d 82, 95 (1994). In Stam, this court considered a situation remarkably similar to the instant case. In the Stam case, the parties lived together for only 2 |