Find Legal Information

JUSTICE MELISSA CHAPMAN delivered the opinion of the court:

Sherry L. Keip appeals two portions of the final judgment dissolving her 22-yearmarriage to Michael L. Keip. She argues (1) that the trial court abused its discretion inawarding a small amount of maintenance for a short, fixed duration and (2) that the decisionof the trial court specifying that each party would be responsible for his or her own attorneyfees was error. We reverse the decision of the trial court regarding the maintenance awardand modify both the amount and the duration. However, we affirm the portion of thedecision involving the attorney fees.

Sherry and Michael Keip were married on December 24, 1977, and divorced on May4, 2000. During their marriage, the couple had four children. At the time of the divorce,Sherry and Michael were each 43 years old and in reasonably good health for their age. Three of the children were minors, ages 4, 9, and 16, and the eldest child, who was 21, alsostill resided at home at the time. Under the dissolution decree, the parties got joint custodyof the three minor children, although Sherry was awarded physical custody. The courtordered Michael to pay child support of $1,780 per month under the statutory minimumguidelines and maintenance of $400 per month for a period of 12 months. With regard tothe distribution of property, the trial court adopted Michael's proposed distribution andawarded Sherry assets in the amount of $86,401.92 and debts in the amount of $74,191.13. The court awarded Michael assets in the amount of $47,594.55 and debts in the amount of$72,572.95. Sherry therefore had a positive net worth of $12,210.79, and Michael had anegative net worth of $24,978.40.

Michael works as the finance manager at a car dealership. He has been employedthere for 15 years and works between 65 and 70 hours per week. Michael's incomefluctuates with the economy because a part of his income is based on commissions; however,his income has steadily risen in recent years. His tax returns indicate that his income in 1997was $81,330, his income in 1998 was $96,630, and his income in 1999 was $100,489.Additionally, his employer provides him with a vehicle to use at no cost to him besides fuel.

Sherry has obtained her GED certificate and has also obtained a teacher's aidecertificate. She works as a cook's helper at a local grade school, and she has done so for 13years. Her hours are approximately the same as her children's school schedule-from 7 a.m.to 3:15 p.m. Also, Sherry does not work during the summer months. Her income was$12,243 in 1997, $13,255 in 1998, and $14,001 in 1999.

One goal of maintenance is to terminate the financial interdependence of formerspouses, if possible. In re Marriage of Lee, 246 Ill. App. 3d 628, 646, 615 N.E.2d 1314,1327 (1993). Another goal is to allow an ex-spouse the time and resources to achieve self-sufficiency. In re Marriage of Kusper, 195 Ill. App. 3d 494, 500, 552 N.E.2d 1023, 1026(1990). A trial court's determination of maintenance will not be altered absent an abuse ofdiscretion or a finding that the award is against the manifest weight of the evidence. In reMarriage of Marcello, 247 Ill. App. 3d 304, 311, 617 N.E.2d 289, 294 (1993). Weconclude that the trial court abused its discretion in failing to award Sherry sufficientmaintenance for a sufficient period of time.

According to section 504(a) of the Illinois Marriage and Dissolution of Marriage Act(Act), a trial court may grant maintenance to either spouse in such an amount and for sucha period of time that the court deems just after considering all relevant factors. 750 ILCS5/504(a) (West 2000). First, a court must consider the resources and needs of each party. 750 ILCS 5/504(a)(1), (a)(2) (West 2000). Next, a court must look at each party's presentand future earning capacity and any impairment of said earning capacity because of timedevoted to domestic duties or forgone or delayed education, training, employment, or careeropportunities due to the marriage. 750 ILCS 5/504(a)(3), (a)(4) (West 2000). Also alongthose lines, a court must consider the amount of time needed to acquire education, training,and employment and whether he or she is able to engage in appropriate employment or isthe custodian of a child, making it appropriate for that party not to seek employment. 750ILCS 5/504(a)(5) (West 2000). A court also must look at the standard of living establishedduring the marriage and the duration of the marriage. 750 ILCS 5/504(a)(6), (a)(7) (West2000). Other factors include the parties' ages and their physical and emotional conditions,any tax consequences of the division of property, any contributions made to the educationor career of the other spouse, and any valid agreement between the parties. 750 ILCS5/504(a)(8) through (a)(11) (West 2000). Lastly, a court may also consider any other factorthat the court expressly finds to be just and equitable. 750 ILCS 5/504(a)(12) (West 2000).

The trial judge stated in the final judgment that he had considered the statutory factorsrelated to an award of maintenance. However, neither in his final comments nor in his finaljudgment are there any findings or other indications that these factors were in fact aconsideration, beyond the comment regarding undisputed evidence that Sherry worked ninemonths out of the year and Michael worked 60 to 70 hours per week. The court's onlyrecognition of Sherry's need was a one-year award of $400-per-month maintenance for thestated purpose of the youngest child's day care. There is no evidence that the award of $400-per-month maintenance earmarked for day care will in any way allow Sherry to achieve self-sufficiency at the expiration of that year.

The court should have considered Sherry's needs in determining the maintenanceaward. The court ordered Michael to pay Sherry $1,780-per-month child support, based onthe statutory minimum guidelines and Michael's average annual income of $98,000. Basedon the court's child support determination, Michael's net monthly income totaled $5,560. Therefore, Michael's net monthly income after the child support obligation is $3,780. Thestated purpose of child support is "for the reasonable and necessary physical, mental[,] andemotional health needs of the child." 750 ILCS 5/505(a) (West 2000). The court maydeviate from these guidelines only if, after considering evidence on all the relevant factors,it finds a reason, and if the court orders a lower award, it must make express findings tosupport its reason. 750 ILCS 5/505(a)(2) (West 2000). Because, after its consideration ofthe evidence presented on all relevant factors, the court did not find a reason to deviate fromthe minimum guidelines, this court assumes that the trial court made a determination that$1,780 per month is reasonable and necessary for the support of the three minor children. Child support is for the benefit of the children, not a parent (see In re Marriage of Pihaly,258 Ill. App. 3d 851, 856, 627 N.E.2d 1297, 1302 (1994)), and thus we believe that it shouldnot be considered as a substitute for maintenance.

The reasonable needs of the party seeking maintenance are to be measured by thestandard of living the parties enjoyed during the marriage. In re Marriage of Simmons, 87Ill. App. 3d 651, 658, 409 N.E.2d 321, 327 (1980). Because, in reality, two households aremore costly than one, most parties are not able to afford the same standard of living theyenjoyed when living together. In those circumstances, the court must apportion the deficit,balancing the parties' claims to their remaining incomes. See In re Marriage of Simmons,87 Ill. App. 3d at 661, 409 N.E.2d at 328. With her undisputed monthly net income of$1,214, Sherry's expenses clearly exceed her income. The monthly installment payments forher mortgage, the real estate taxes, and the minimum payments on credit card balances areabout equal to her income. Sherry is not able to meet her needs in any marginal way, letalone approximate the comfortable lifestyle established during the marriage, when thecouple's combined income exceeded six figures. Her needs are clearly not going to be metunder the current setup.

At a minimum, it is clear that Sherry's present earning capacity has been impaired dueto her domestic duties, as reflected by the significant disparity in the incomes of the parties. In 1999, Sherry earned less than $15,000, while Michael earned more than $100,000 in thesame year. Although it is true that neither party has an educational degree beyond highschool, Michael has developed marketable skills while Sherry has not. Michael has beenemployed for 15 years as a finance manager for a car dealership. Sherry, who has obtainedher GED and a teacher's aide certificate, has been employed as a cook's helper for 13 years.

It is also clear that the court failed to take into account that Sherry is and has been theprimary caretaker for the parties' four children over a 21-year span. Sherry's work as acook's helper began when her eldest child was in grade school. This position has been well-suited and appropriate to the family's schedule, permitting Sherry to be at home with thechildren whenever they were not in school, including the summer, thus also saving moneyon child-care expenses. This work schedule reflected a family choice that the partiespreferred that a parent be the homemaker and caretaker when the children were not inschool. See In re Marriage of Hensley, 210 Ill. App. 3d 1043, 1052, 569 N.E.2d 1097, 1102(1991). She should not now be penalized for this joint decision.

Both parties' monthly expense affidavits included expenses that the trial courtallocated to the other party. After this is taken into consideration and after the appropriatedeductions, it appears that Sherry's monthly expenses, including those of the three minorchildren she retains custody of, are approximately $4,000. (Specifically, $4,385.67 in statedexpenses minus the $400 mortgage payment for the residence awarded to Michael with thedebt.) Sherry's monthly net income of $1,214, plus the child support of $1,780, leaves herapproximately $1,000 short of the estimated $4,000 figure. Michael, on the other hand,estimated his monthly expenses alone to be $4,253.23, despite the fact that he was allocatedless debt. (As noted earlier, $72,572.95 of debt went to Michael and $74,191.13 went toSherry.) After the deduction of approximately $1,200 of debts that are not Michael'sobligation-$400 in child-care expenses, $200 for clothing for the children, $100 for beautyand barber shops for the children, along with the $500 mortgage on the residence awardedto Sherry with the debt-a more accurate monthly expense estimate for Michael is $3,053.23. After the $1,780 child support payment, Michael is left with $3,780 per month out of his$5,560 net income.

One key monthly-expense consideration is transportation. Michael has the free useof a vehicle as a fringe benefit of his employment; this includes insurance, all repairs, andmaintenance. His only auto expense is gas. Sherry's vehicle, which is used to transportherself and the children, is a 1988 Ford Aerostar van with more than 100,000 miles on it anda rebuilt engine. It is valued at $500. She estimates her monthly auto expenses, includinggasoline, repairs, and maintenance, at $254 per month.

This court is aware that Sherry has been awarded an unequal share of the maritalassets. However, her primary asset is the marital residence, where she and the childrenreside. The house has a substantial mortgage, which is also her obligation. Sherry's otherassets are a retirement fund valued at $5,711.92 (which she would have to quit heremployment in order to obtain) and $3,190 worth of household contents and propertyconsisting of used furniture and her car. It is important to note that none of these assets areincome-producing. Illinois law is clear that one is not required to liquidate assets in orderto generate income to live on. In re Marriage of Emery, 179 Ill. App. 3d 744, 750-51, 534N.E.2d 1014, 1018 (1989). There simply are no other additional assets to award Sherry inlieu of maintenance.

After considering both the testimony at the trial and the record regarding the factorsin section 504 of the Act (750 ILCS 5/504 (West 2000)), we do not believe that the trialcourt awarded Sherry an adequate amount of maintenance. We therefore modify themaintenance award to $800 per month. This award would strike a balance between thereasonable needs of the parties and the ability of Michael to pay, and it would also take intoconsideration the other enumerated statutory factors.

Further, we believe that it was error for the court to limit the maintenance to one yearwithout review. We find nothing in the record to support such an arbitrary cutoff. Therecord was void of any information to arrive at an expectation that Sherry's income wouldbe any greater by the end-of-the-year time limit. The court cannot merely speculate onwhen, or if, Sherry will become self-sufficient in a manner approaching the standard ofliving the couple enjoyed during the marriage. See In re Marriage of Ward, 267 Ill. App.3d 35, 42, 641 N.E.2d 879, 884 (1994). While there is no formula prescribing what a "just"time period is or whether an award should be temporary or permanent, all the relevantfactors here indicate a case for permanent maintenance. Examples of such evidence in therecord that would support such an award would include educational background, educationalpursuits, and income at the time of the dissolution. See In re Marriage of Ward, 267 Ill.App. 3d at 42, 641 N.E.2d at 884.

By ignoring the contributions Sherry made as a homemaker and caretaker for thechildren, the court also ignored the policies underlying an award of maintenance. Thisvaluable contribution of 22 years of marital service should not now be punished; rather, itshould be viewed in the totality of the agreed-to marriage partnership. As the court in In reMarriage of Kerber, 215 Ill. App. 3d 248, 253-54, 574 N.E.2d 830, 833 (1991), noted whenquoting from the special concurrence in In re Marriage of Hart, 194 Ill. App. 3d 839, 853,551 N.E.2d 737, 745 (1990) (Steigmann, J., specially concurring):

" 'Marriage is a partnership, not only morally, but financially. Spouses arecoequals, and homemaker services must be recognized as significant when theeconomic incidents of divorce are determined. Petitioner should not be penalized forhaving performed her assignment under the agreed-upon division of labor within thefamily. It is inequitable upon dissolution to saddle petitioner with the burden of herreduced earning potential and to allow respondent to continue in the advantageousposition he reached through their joint efforts.' "

Sherry's current employment, which matches the children's school schedule, is clearlyappropriate for the custodian of school-age children. In fact, Sherry even described her jobas "perfect for the children." Although Sherry holds a teacher's aide certificate, there wasno evidence submitted that there were any employment opportunities available to her in thisfield or that she could earn more money as a teacher's aide. There was simply no evidenceat the trial that there was any other more suitable employment for Sherry, other than herstated desire to obtain some training towards a two-year associate degree (which would alsopermit her to work in a school setting). This desire to better herself is commendable and isin line with the rehabilitative goal of financial independence following divorce. However,even with additional training or education, the court must take into consideration the realisticlikelihood that Sherry will always have a "reduced earning potential." See In re Marriageof Kerber, 215 Ill. App. 3d at 253-54, 574 N.E.2d at 833.

"The spouse need not be reduced to poverty before maintenance is appropriate." Inre Marriage of Martin, 223 Ill. App. 3d 855, 860, 585 N.E.2d 1158, 1162 (1992). A balancemust be achieved between providing maintenance as an incentive to Sherry to attempt toachieve self-sufficiency and a "realistic appraisal" of whether such self-sufficiency is evenpossible under these circumstances. See In re Marriage of Carpenter, 286 Ill. App. 3d 969,972-73, 677 N.E.2d 463, 466-67 (1997). Here, there is an $85,000 disparity between theparties' incomes. It is unlikely that even with additional training, at this stage in her life,Sherry will ever earn a salary that will meet her needs commensurate with the standard ofliving she had while married to Michael. "[W]hen the facts make it clear that one spouseis unable to support herself in the manner in which [the parties] lived during the marriage,then it is an abuse of discretion to award only rehabilitative maintenance." (Emphasisomitted.) In re Marriage of Carpel, 232 Ill. App. 3d 806, 828, 597 N.E.2d 847, 863 (1992). Despite the great deference we pay to a trial court's determination of maintenance, weconclude that the court did abuse its discretion in requiring that the maintenance terminateafter only one year. We therefore also modify the award of maintenance, making itpermanent.

Generally, attorney fees are the responsibility of the party for whom the services wererendered. In re Marriage of McGuire, 305 Ill. App. 3d 474, 479, 712 N.E.2d 411, 414(1999). However, section 508(a)(1) of the Act specifies that a trial court may order a partyto pay all or a part of the other party's attorney fees and costs incurred in maintaining anaction. 750 ILCS 5/508(a)(1) (West 2000).

Section 503(j), which sets forth the procedures to be followed in presenting andhearing issues of attorney fees in dissolution cases, codifies the standard criteria courts hadtraditionally applied in determining whether to award attorney fees and in what proportion. 750 ILCS 5/503(j) (West 2000). Specifically, a court should consider the allocation ofassets and liabilities between the parties, any maintenance awarded, and the relative earningabilities of each of the parties. In re Marriage of McGuire, 305 Ill. App. 3d at 479, 712N.E.2d at 414. The trial court's determination of whether one spouse should pay the attorneyfees of the other and in what proportion lies within the sound discretion of the trial court andwill not be disturbed absent an abuse of that discretion. In re Marriage of McGuire, 305 Ill.App. 3d at 479, 712 N.E.2d at 414.

Sherry argues that the trial court erred in failing to require Michael to pay all or aportion of her attorney fees. A party seeking an award of attorney fees must show that heor she is unable to pay the fees while the other party is able to do so. In re Marriage ofMcGuire, 305 Ill. App. 3d at 479, 712 N.E.2d at 414. The record shows, however, thatSherry did not meet her burden to show that she was unable to pay her attorney fees or thatMichael was able to pay. In her petition for contribution, Sherry's sole argument was thatMichael was in a superior position to pay her attorney fees because he had "the ability tocontinue to earn in his previous capacity." She does not provide any support to show howMichael would be able to pay her attorney fees. In fact, neither Sherry nor Michael appearsto be in a strong financial position subsequent to this divorce, and each will probablystruggle to pay their attorneys.

Sherry also failed to show that she was unable to pay the fees herself. She needed toshow that paying her attorney fees would undermine her economic stability, for example,by requiring that she deplete part of her principal to make the payments. We find no abuseof discretion in the trial court's decision denying Sherry's petition for contribution to attorneyfees.

Based on the forgoing, we conclude that the trial court abused its discretion indetermining the amount and duration of maintenance awarded to Sherry. We thereforemodify the final judgment pursuant to our authority under Supreme Court Rule 366(a)(5)(155 Ill. 2d R. 366(a)(5)) by raising the amount of maintenance to $800 per month andmaking it permanent. We affirm the trial court's decision, however, with regard to attorneyfees.

Affirmed as modified.

GOLDENHERSH and HOPKINS, JJ., concur.