In re Marriage of Kuper

• Decision Date: 17 April 2019
• Docket Number: Appeal No. 3-18-0094
• Citation: 429 Ill.Dec. 862,125 N.E.3d 568,2019 IL App (3d) 180094
• Parties: IN RE MARRIAGE OF Rita KUPER, Petitioner-Appellee, and Lavern Kuper, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 180094
125 N.E.3d 568
429 Ill.Dec. 862

IN RE MARRIAGE OF Rita KUPER, Petitioner-Appellee,
and
Lavern Kuper, Respondent-Appellant.

Appeal No. 3-18-0094

Appellate Court of Illinois, Third District.

Opinion filed April 17, 2019

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

429 Ill.Dec. 863

¶ 1 The trial court denied ex-husband's petition to modify or terminate maintenance and granted ex-wife's motion to modify maintenance. The trial court increased ex-husband's obligation based on its calculation of ex-husband's income; although

125 N.E.3d 570

429 Ill.Dec. 864

it should not have used the amended guidelines, the amount the court awarded in accord with the guidelines was appropriate based on the statutory factors. We affirm in part, reverse in part, and remand.

¶ 2 FACTS

¶ 3 Petitioner Rita Kuper and respondent LaVern Kuper were married on April 10, 1982, and had three children, all whom are now emancipated. Rita filed a petition for dissolution of the marriage in April 2011. A judgment of dissolution was entered on June 15, 2012, and a supplemental judgment of dissolution of marriage was entered on December 6, 2013, which incorporated the parties' marital settlement agreement (MSA). The MSA stated that LaVern would provide Rita $ 225 per week in maintenance and that maintenance would be reviewable in July 2016.

¶ 4 In August 2016, LaVern filed a petition to modify or terminate maintenance, alleging a substantial change in circumstances in that he retired. Rita filed a petition to modify or extend maintenance. A hearing took place on the parties' petitions. Rita testified that she lived in a house she bought for $ 83,000 in 2014, using assets she received in the dissolution for a $ 20,000 down payment and $ 5000 in repairs. She maintained a mortgage on the house. Her two adult children, aged 27 and 24, lived with her and each contributed $ 100 per month. She has a high school diploma and had attended two years of college but did not receive any degree or certificate. She took time off from working during the marriage beginning in 1986 and returning to the workforce in 1999 as a bus and lunchroom monitor. Her other work experience included employment at a fence and pool business, the movie theater, a video store, and the cafeteria at a Walmart distribution center. She currently worked at Didoughs Pretzel and had been there for five years. She earned $ 10.25 per hour, which was an increase from her initial pay of $ 9.35 per hour. She worked 40 hours per week but did not have insurance. She was last insured in 2009. She had applied for other jobs but was not granted interviews.

¶ 5 Rita testified regarding her financial affidavit. The affidavit, dated August 30, 2017, was admitted into evidence and provided as follows. Her net monthly earnings were $ 2899, which consisted of her earnings, maintenance payments and her portion of LaVern's Caterpillar pension. Her monthly expenses amounted to $ 2079. She had a monthly surplus of $ 820, which she deposited in her savings account. The account had a balance of $ 4220. She had total assets of $ 530,553, including her investment and retirement accounts. At the time of trial, her accounts were valued more than $ 536,000.

¶ 6 LaVern testified that he had remarried and his wife had three children aged 25, 22 and 20 years old. The 22-year-old was in college and lived with them on school breaks. LaVern owned and lived in the previous marital home. He maintained his wife's prior home and also owned and maintained his mother's house in Missouri, which he had inherited in 2013. LaVern retired from Caterpillar after 15 years in the maintenance department. He had started experiencing physical difficulties, received unsatisfactory performance reviews, and because he was planning to retire at the age of 60, he left. LaVern's physical difficulties included hand and arm tingling, which negatively affected his fingers, high blood pressure, diabetes, cataracts and depression, all of which impacted his ability to work. He officially retired on July 14, 2016, and began receiving his pension and profit sharing on August 1, 2016. At the time of his retirement, he had

429 Ill.Dec. 865

125 N.E.3d 571

been earning $ 56,000 per year, plus overtime and profit sharing.

¶ 7 LaVern testified as to his financial affidavit dated July 11, 2017. His gross income in 2016 was $ 74,544.91, and it had dropped to $ 0 in 2017 due to his retirement. His monthly income was now $ 1613.37 and his expenses amounted to $ 4192.58, for a monthly deficit of $ 2579.21. His assets amounted to approximately $ 1,913,338. He inherited assets valued at $ 652,448.90 from his mother, who died in April 2013, and $ 293,693.17 from his uncle, who died in May 2013. He had to withdraw $ 25,000 from his accounts prior to trial to meet monthly expenses. He paid for his new wife's expenses, including the maintenance of her prior home. He also paid tuition and college expenses for her daughter and tuition for her son, despite these payments requiring him to utilize sums from his investment accounts and inheritances.

¶ 8 The trial court issued a ruling on January 22, 2018, denying LaVern's petition, granting Rita's petition, increasing the amount of maintenance and making the award permanent. In reaching its decision, the court calculated LaVern's monthly income as $ 14,114.15 based on his pension payments and the amount he spent each month. The court considered the assets LaVern received from the inheritances from his mother and uncle provided additional assets from which he could afford to pay an increased amount in maintenance to Rita. Additionally, the court considered that LaVern was paying his new wife's expenses and supporting her children. The trial court found that Rita was in need of maintenance, in that without an award her monthly surplus of $ 50 would not allow for her to meet her needs. The court calculated a monthly maintenance amount of $ 3767 and made the award retroactive to January 1, 2017. LaVern timely appealed.

¶ 9 ANALYSIS

¶ 10 LaVern raises several issues on appeal. First, LaVern argues the trial court erred in increasing his maintenance obligation and making it permanent. Next, LaVern argues that the court inappropriately considered his investment withdrawals to determine his income. Last, he argues the court erred by applying the new statutory guidelines to a postjudgment review of maintenance.

¶ 11 We begin by addressing LaVern's claim that Rita does not need maintenance and the trial court erred in denying his motion to terminate it. He argues that the factors do not support a maintenance award, particularly in light of Rita's substantial investment accounts and her monthly needs. We disagree and affirm the award of maintenance.

¶ 12 In reviewing maintenance or considering a request to modify or terminate, the court should consider the following factors under section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (Act):

"(1) any change in the employment status of either party and whether the change has been made in good faith;

(2) the efforts, if any, made by the party receiving maintenance to become self-supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective economic circumstances of the parties;

429 Ill.Dec. 866

125 N.E.3d 572

(5) the duration of the maintenance payments previously paid (and remaining to be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the judgment of dissolution of marriage * * * and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the judgment of dissolution of marriage * * *; and

(9) any other factor that the court expressly finds to be just and equitable." 750 ILCS 5/510(a-5)(1)-(9) (West 2016).

¶ 13 The court must also consider the factors under section 504(a) of the Act, including: (1) the parties' income and property, including apportioned marital property and nonmarital property assigned to the party seeking maintenance and the financial obligations imposed on the parties resulting from their marriage dissolution; (2) each party's needs; (3) each party's realistic present and future earning capacity; (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting his or her time to domestic duties or forgoing or delaying education, training, employment or career opportunities as a result of the marriage; (5) the impairment, if any, of the realistic present and future earning capacity of the party against whom maintenance is sought; (6) the time necessary to enable the party seeking maintenance to acquire appropriate education,...