Buhlig v. Buhlig
| Decision Date | 07 May 2018 |
| Docket Number | NO. 4-17-0221,4-17-0221 |
| Citation | 2018 IL App (4th) 170221 -U |
| Parties | In re MARRIAGE OF LYNETTE BUHLIG, Petitioner-Appellee, and CLARK BUHLIG, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Greene County
Honorable James W. Day, Judge Presiding.
¶ 1 Held: The circuit court did not err in ordering direct maintenance to petitioner, setting the valuation date for petitioner's equity interest in the marital home, modifying child support, and requiring respondent to pay a portion of petitioner's attorney fees.
¶ 2 In April 2016, respondent, Clark Buhlig, filed a petition for review and modification and for order to refinance, seeking to terminate his maintenance obligation to petitioner, Lynette Buhlig, and for him to become the sole owner of the marital residence. Petitioner filed a response to the petition and then later an amended response to the petition, in which she requested a modification of child support and for respondent to pay her attorney fees. In October 2016, the Greene County circuit court held a hearing on the pending issues. On December 2, 2016, the court entered a written judgment, (1) ordering respondent to pay petitioner $612.02 per week in maintenance for a period of 2 1/2 years; (2) ordering petitioner to vacate the marital residence by August 1, 2017; (3) finding petitioner's equity interest in the marital residence would be valued at the time respondent exercises his right of first refusal; (4) modifying child support; and (5) directing respondent to pay petitioner's attorney $4620 for fees and $116.54 for expenses. Both parties filed postjudgment motions. Petitioner noted that, with the direct maintenance payments, the proper amount of weekly child support would be $300.20. The court held a joint hearing on the motions in January 2017. In February 2017, the court denied respondent's motion to reconsider, and in March 2017, the court entered a uniform order for support consistent with petitioner's postjudgment motion ($300 per week).
¶ 3 Respondent appeals, contending (1) the dissolution judgment created a property allocation subject to review when it allowed petitioner to live in the marital residence and ordered respondent to make payments for it, (2) the circuit court could not grant petitioner maintenance for the first time four years after the dissolution judgment, (3) the court lacked jurisdiction to distribute the equity in the marital residence after a lengthy time had passed since the dissolution judgment, (4) the court lacked authority to address child support and attorney fees, (5) the court failed to determine whether a change in circumstances necessitated a modification of child support and the court did not enter a proper support order, and (6) the court did not follow the statutory guidelines and relevant case law for ordering a party to pay another party's attorney fees. We affirm.
¶ 5 The parties were married in February 2005 and had three children, Elleigh (born in 2005), Addison (born in 2006), and Beau (born in 2007). Addison has autism. The marital residence was a home that had been in respondent's family for 150 years.
¶ 6 In June 2011, petitioner filed her petition for the dissolution of the parties'marriage. In August 2011, respondent filed a counterpetition for dissolution of marriage. In May 2012, the circuit court entered an order, finding the parties had established grounds for the dissolution of their marriage and incorporating the parties' agreement contained in the mediator's March 20, 2012, report. On October 26, 2012, the court entered a supplemental judgment, giving petitioner the right to live in the marital residence until she found employment or left. Her right to live in the marital home was subject to annual review. Respondent was given the right of first refusal to purchase the marital residence "in the manner suggested in [respondent]'s position paper." In his position paper, respondent had asked to be awarded the marital residence and did not object to paying petitioner $15,000 for her portion of the home's equity. He then requested that, if petitioner was awarded the marital residence, he should be given an option of first refusal should petitioner decide to sell the home. As to maintenance, the order stated the following:
Respondent filed a motion to modify the supplemental judgment. At a February 2013 hearing, respondent withdrew his motion.
¶ 7 On August 8, 2013, the circuit court entered its dissolution judgment, incorporating (1) the parties' agreement regarding their tangible personal property and (2) the mediator's report regarding child custody and visitation. The judgment required respondent to pay $370.50 per week in child support. The judgment did not address maintenance but allowedpetitioner to reside in the marital residence until she found employment or voluntarily left. Petitioner's use of the marital residence was to be reviewed on an annual basis. The judgment ordered respondent to pay the mortgage plus water, electrical, and propane bills for the marital residence while petitioner resided there.
¶ 8 In April 2016, respondent filed a petition for review and modification and for an order to refinance. The petition sought to terminate respondent's "spousal support/maintenance" obligation and to allow respondent to refinance the marital residence. Respondent wanted to refinance the home to give petitioner her share in the equity of the home and have petitioner quitclaim her interest in the home to him. In June 2016, petitioner filed a response to respondent's petition. She later amended her response to include a request for an increase in child support and to have respondent pay her attorney fees.
¶ 9 On October 31, 2016, the circuit court held a hearing on respondent's petition. The parties both testified and called each other as adverse witnesses. The testimony relevant to the issues on appeal is set forth below.
¶ 10 Petitioner testified she was 47 years old and a high school graduate. The parties were married for 6 1/2 half years and had been divorced for 4 1/2 years. When petitioner met respondent, she was working at State Farm in Bloomington. She worked there until the birth of their second child, daughter Addison. Petitioner planned to return to work but did not once Addison was diagnosed as being severely autistic. Addison attended school in a specialized classroom and rode the bus to school. Addison had spent the night with petitioner in a hotel on occasion. According to petitioner, Addison has a hard time adjusting to new people and new places. Addison required constant attention. Petitioner also believed moving from the marital home would have a negative effect on Addison's condition.
¶ 11 Since petitioner filed for dissolution of the parties' marriage, petitioner had not paid the mortgage on the marital residence. After the circuit court granted the dissolution, she had not paid the propane, electric, and water expenses. The marital residence had not been modified to accommodate any of the children. Moreover, petitioner had not attempted to voluntarily leave the marital residence since the dissolution judgment.
¶ 12 As to her employment search, petitioner testified she had not (1) gone back to school, (2) attended any job seminars, or (3) applied to work at the children's school. Petitioner completed job applications online. She had only applied for jobs that would pay her enough to afford a babysitter for the children, which would cost around $270 per week, and pay for the gas and maintenance for her car that was 14 years old and had 135,000 miles. Petitioner had not been able to find a job that paid more than minimum wage.
¶ 13 Additionally, petitioner testified about her financial affidavit. Her two sources of income were child support and supplemental social security income for Addison, which was around $423.61 a month. Petitioner testified the affidavit fairly and accurately reflected her monthly income and expenses. At the time, her living expenses exceeded her income. Petitioner made up the difference with credit cards. She also had a $1500 debt for a prior attorney, and a medical debt related to care for her. Petitioner had around $50 in her bank account at the time of the hearing. Her annual income the previous year was $28,290.32. She paid $60 a month to a friend for garbage removal but is not always able to pay it. Petitioner had not investigated other living arrangements after the divorce but had looked at housing prices and how much of a down payment she would need.
¶ 14 Respondent testified he was a high school graduate. He had worked for Prairie Power, Inc., for five years. Additionally, respondent explained the marital residence had been inhis family for 150 years. His grandmother and mother were both born and raised in the home. Currently, both parties' names were on the marital residence, and he wanted it in his name only. He desired to move back into the home and maintain it. The marital residence was the only home the children had known. At the time of the hearing, respondent lived in a garage but stayed with his mother when he had the children.
¶ 15 As to Addison, respondent testified she did fine at his mother's home. Respondent explained she is just like the other children. He took the children on vacation and stayed in a condominium. He did not have...
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