In re Marriage of Blum and Koster

• Citation: 377 Ill. App.3d 509,316 Ill.Dec. 552,879 N.E.2d 940
• Decision Date: 17 October 2007
• Docket Number: No. 2-06-0235.,2-06-0235.
• Parties: In re MARRIAGE OF Steven L. BLUM, Petitioner-Appellee, and Judy KOSTER, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

879 N.E.2d 940

377 Ill. App.3d 509

316 Ill.Dec. 552

In re MARRIAGE OF Steven L. BLUM, Petitioner-Appellee, and Judy KOSTER, Respondent-Appellant.

No. 2-06-0235.

Appellate Court of Illinois, Second District.

October 17, 2007.

As Modified Upon Denial of Rehearing November 20, 2007.

Marvin J. Leavitt, John G. Radosevich, David C. Adams, Grund & Leavitt, P.C., Chicago, for Judy Koster.

Christopher A. White, White, Scott & White, Lake Bluff, for Steven L. Blum.

Modified Upon Denial of Rehearing

Justice GILLERAN JOHNSON delivered the opinion of the court:

The respondent, Judy Koster, appeals from the trial court's orders modifying the maintenance she receives from the petitioner, Steven Blum, and dismissing her petition for contribution to attorney fees. In addition, Judy asks us to reconsider our decision in In re Marriage of Konchar, 312 Ill.App.3d 441, 245 Ill.Dec. 224, 727 N.E.2d 671 (2000). For the following reasons, we reverse and remand.

BACKGROUND

Judy and Steven were married on September 13, 1982. They had two sons: Eliot (born in 1984) and Theodore (born in 1986). Steven also had a son, Josh, from his first marriage, who lived with the family for several years. On February 25, 1998, Steven filed a petition for dissolution. On April 6, 2000, the trial court entered a judgment for dissolution that incorporated a marital settlement agreement (MSA).

The judgment granted Judy sole custody of the parties' children, who were 15 and 13 years old at the time. In the MSA, the parties also agreed that Judy would receive unallocated maintenance and support as follows:

"Judy shall receive as the unallocated maintenance and support for her and the minor children, commencing April 1, 2000, the sum of Five Thousand Dollars ($5,000.00) per month for a total of sixty-one (61) consecutive months. Judy's right to receive maintenance and Steven's obligation to pay maintenance after April 30, 2005 is reviewable. Maintenance shall not terminate without a court order. This award is based on Steven's gross monthly income of Thirteen Thousand Three Hundred Thirty Three Dollars and thirty three cents ($13,333.33) and the fact that Judy is presently unemployed. In addition to the aforesaid, Judy shall also receive thirty eight and one-half percent (38½%) of the gross amount of any bonus received by Steven during this time frame. In addition, $3,600.00 per year shall be paid by Steven to Judy from these bonus checks for the first 24 months of said bonus payments at the rate of an additional $1,200.00 in addition to her percentage for each bonus payment. Each payment shall be made at the time Steven receives his bonus check, but the total must be paid on or before December 31st of each year. The total amount of these additional payments is $7,200.00. Said monthly payments and percentage of Steven's bonus will continue until the first to occur of the following events:

A. The death of Judy Koster[;]

B. The remarriage of Judy Koster;

C. Judy Koster's cohabitation with an adult male on a resident continuing conjugal basis;

D. The death of Steven Blum;

E. The change of custody of one or more of the minor children;

F. Upon a showing of substantial change in circumstances which shall not include the attainment of majority or other emancipatory event of one or more of the minor children."

Within the same section of the MSA, the parties agreed that Judy had a duty to make reasonable efforts to become economically self-sufficient "during said period." At the proveup of the dissolution, Steven testified that he understood the above maintenance provisions to mean that he would pay maintenance to Judy until April 30, 2005, after which maintenance would be reviewable by the court. Judy testified similarly, as follows:

"Q. You understand that in the review provisions that if the maintenance is still continuing, if it hasn't been terminated for a reason that's set forth in this Agreement, that Steven's obligation to pay maintenance after April 30, 2005, and your right to receive it after that date is reviewable by the Court?

A. Yes, I understand that."

Both parties testified that they were familiar with all of the various provisions of the MSA and understood them.

In 2002 and 2003, the parties both filed petitions relating to college expenses, and Steven filed a petition to reduce maintenance. Thereafter, on May 28, 2003, the parties entered into an agreed order (Agreed Order) providing that Steven would pay for the children's college expenses and that Judy would pay for their travel to and from college and certain other incidental expenses. In addition, the agreement identified income of Steven's that was "described as a `other' on his employment records" and made provisions for the allocation of this income. Steven retained the "other income" for 2000 through 2002 in return for his payment of Judy's attorney fees, and was required to pay Judy 25% of the gross amount of the "other income" in 2003 and thereafter. The parties specified that the agreement regarding the "other income" in no way modified the provisions of the MSA regarding maintenance and support, but instead imposed new, "additional maintenance payments."

On January 3, 2005, Steven filed a petition seeking among other things to terminate maintenance after April 30, 2005, pursuant to the MSA's provision that the unallocated maintenance and support payments would be reviewable after that date. Steven argued that his obligation to pay maintenance should be terminated because the children had attained their majority, he was paying their college expenses in the amount of $55,000 per year, Judy's living expenses were lower because she had moved into a smaller home, and Judy was a licensed attorney who could support herself and had an obligation under the MSA to do so. In response, Judy denied that the majority of the unallocated payments had been child support and pointed out that the children's attainment of majority had been expressly excluded as a ground to modify the payments under the MSA. She also denied that Steven's personal contribution to the children's college expenses was as high as he claimed, because maritally funded accounts had been created for those expenses earlier. Judy denied that she was able to support herself and contended that Steven had failed to show any substantial change in circumstances as required under the MSA and section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/510(a-5) (West 2004)) in order to modify or terminate maintenance. Judy combined her response with a counterpetition, in which she sought an accounting of the distribution of the maritally funded accounts for the children's educational expenses.

Prior to the trial of the matter, Steven moved to reset Judy's maintenance temporarily, for the period between April 30, 2005, and the trial date. On May 25, 2005, the trial court granted this motion and reduced Judy's maintenance to $3,000 per month. On June 28, 2005, the trial court modified the interim maintenance to $5,000 per month. On August 11, 2005, the trial court again reduced the interim maintenance to $3,000 per month, but maintained Steven's obligation to pay 38.5% of his bonuses pursuant to the MSA, plus the additional maintenance provided for in the Agreed Order. In addition, the trial court awarded Judy $10,000 in interim attorney fees prior to trial.

Trial commenced on August 9, 2005, and continued intermittently for seven days, culminating on October 25, 2005. At the close of Steven's case, Judy filed a motion for a directed finding, in which she argued that Steven had failed to carry his burden of proving that there had been a substantial change in circumstances sufficient to warrant modifying the judgment for dissolution. Steven argued that he bore no such burden of proof, citing In re Marriage of Golden, 358 Ill.App.3d 464, 294 Ill.Dec. 852, 831 N.E.2d 1177 (2005), for the proposition that a "review" of maintenance differs from a proceeding to modify maintenance and in a review neither party must prove a substantial change in circumstances. Relying on Golden, the trial court denied the motion for a directed finding.

The evidence presented at trial established the following facts. Judy was born in 1949, and graduated from the University of Illinois with a bachelor's degree in French and English literature. She obtained a master's degree in teaching in 1972, but never taught except for her student teaching. She worked as an editor for about two years. She began taking night classes at law school in 1975. During law school she worked briefly for a personal injury lawyer and then began work at Foos, Meyers & Jacobs. After she graduated and passed the February 1978 bar exam, she became an associate at the same firm for approximately one year, writing briefs and doing whatever tasks were assigned her. After leaving that firm, she was hired by a company called Franchise Concepts, which assisted franchisees across the country with registration, contracts, and other legal work. Judy testified that she was not familiar with franchise law and procedures and relied on others with more expertise. Judy then opened her own law practice in Chicago, which she maintained for about a year and a half, handling a variety of small cases.

Judy and Steven married in September 1982. At the time, Steven had just completed his residency in anesthesiology and was living in California. Judy wound up her law practice and joined him in California in October 1982. The parties' sons Eliot and Teddy were born in 1984 and 1986. In addition, Steven's son Josh from his first marriage lived with them for several years.

Judy passed the California bar exam and did occasional legal work for one client, but did not have an active legal career. Steven was on call on a regular basis and was very busy with work. At one point while Josh was living with them and after Eliot was born, Judy was involved in a...