In re Marriage of Awan

• Decision Date: 17 February 2009
• Docket Number: No. 3-07-0068.,3-07-0068.
• Citation: 902 N.E.2d 777
• Parties: In re MARRIAGE OF Khadim Hussain AWAN, Petitioner-Appellant and Cross-Appellee, and Zahida Parveen, Respondent-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

902 N.E.2d 777

In re MARRIAGE OF Khadim Hussain AWAN, Petitioner-Appellant and Cross-Appellee, and Zahida Parveen, Respondent-Appellee and Cross-Appellant.

No. 3-07-0068.

Appellate Court of Illinois, Third District.

February 17, 2009.

Sharon L. Pulsifer, Attorney At Law, Moline, IL, for Appellant.

James W. Hanauer, Wheaton, IL, for Appellee.

Justice McDADE delivered the opinion of the court:

In 2006 the circuit court of Rock Island County entered a judgment of dissolution of the marriage of petitioner, Khadim Hussain Awan, and respondent, Zahida Parveen. The matter is before us on cross-appeals. Petitioner has challenged the award of maintenance, the finding that he dissipated marital assets, the requirement that he pay respondent's attorney fees, and the trial court's allocation of debts and marital assets. Respondent complains that maintenance should have been permanent and that the valuation date of the marital estate was erroneous. For the reasons that follow, we affirm.

BACKGROUND

Khadim Hussain Awan married Zahida Parveen in 1977 in LaHore, Pakistan. They emigrated to the United States in 1979. In 1981 they moved from the Chicagoland area to Champaign for Awan to attend the University of Illinois. During Awan's education, Parveen worked part-time jobs. Awan earned a master's degree in reproduction and gynecology in animals and a doctorate of veterinary medicine in 1983. Parveen had a master's degree in chemistry from Pakistan. After Awan completed his education, the couple moved back to Chicago so that Awan could obtain employment. Between 1983 and 1986 Parveen worked nine months in a retail store. In 1986 Awan began employment with the United States Department of Agriculture and the parties moved to Green Bay, Wisconsin. The Department of Agriculture continues to employ Awan. At Awan's request, Parveen did not work in Green Bay.

In 1988 Awan received a promotion that required the parties to move to Springfield, Illinois. Parveen also did not work in Springfield because, according to her, Awan wanted her to be free to travel with him on business. Parveen asserts that she wanted to continue her education in the United States but Awan refused. In 1991, the Department of Agriculture transferred Awan and the parties moved to Hanover Park, Illinois. In Hanover Park, Parveen worked part-time for her brother in his dental office. She states that she worked only part-time so that she could continue to travel with Awan. Again, she expressed a desire to continue her education and Awan refused. In 1994 the parties moved again, to Moline, because Awan's employer transferred him. Parveen has not worked in Moline.

During the marriage the parties enjoyed a comfortable lifestyle, owned three homes, purchased new vehicles, and took vacations. The parties separated and Parveen moved back into their Hanover Park residence while Awan remained in Silvis, Illinois. Parveen tried but failed to obtain employment in Hanover Park. She also attempted to continue her education, but the university to which she applied declined to recognize her Pakistani degree and consequently she would have been required to complete two additional years of study. Parveen felt that because of her age she would be unable to utilize a degree by the time she completed her education.

In 2001, Awan filed a petition for dissolution of marriage. The parties separated in 2002. During the proceedings, Parveen alleged that Awan dissipated marital assets in that he incurred credit card debt for a purpose unrelated to the marriage and used the parties' 2001, 2002, and 2003 tax refunds for purposes unrelated to the marriage after September 2001 when the marriage became irretrievably broken. The trial court found that Awan earns a monthly net income of $6,700 and has approximately $4,700 in monthly expenses. Parveen has no income and reasonable monthly expenses totaling approximately $4,000. The court found Parveen more credible on the issue of why she did not work or continue her education prior to the parties' separation. The court found that Awan dissipated $76,000 in marital assets and awarded Parveen half that amount. The court ordered Awan to pay $1,750 per month maintenance and provided that its maintenance award is reviewable in five years. The court ordered Parveen to file a yearly summary of her efforts to find employment. This appeal followed.

ANALYSIS

Temporary Maintenance

Both parties have challenged the maintenance award—Awan denying the propriety of any maintenance and Parveen contending the award should have been permanent.

"[T]he propriety of a maintenance award is within the discretion of the trial court and the court's decision will not be disturbed absent an abuse of discretion. [Citation.] A trial court abuses its discretion only where no reasonable person would take the view adopted by the trial court. [Citation.] Moreover, the burden is on the party seeking reversal concerning maintenance to show an abuse of discretion." In re Marriage of Schneider, 214 Ill.2d 152, 173, 291 Ill.Dec. 601, 824 N.E.2d 177, 189 (2005).

Awan first argues that the trial court erred in awarding Parveen reviewable maintenance because "the award of maintenance would leave Parveen with little incentive to procure training or skills to attain self-sufficiency." Awan notes that Parveen "did not stay home and take considerable time out of the job market to care for young children," that she did not work during the marriage, and "only did the cooking" while he did all of the rest of the household chores.

"The power of the court also includes the authority to award time-limited maintenance with a provision for review. [Citation.]" In re Marriage of Rodriguez, 359 Ill.App.3d 307, 312, 295 Ill.Dec. 846, 834 N.E.2d 71, 75 (2005). With regard to Parveen's contention that maintenance should have been permanent, the trial court's order awarding Parveen temporary maintenance was appropriate. "Rehabilitative maintenance may be granted if the receiving spouse has the present or future ability to become self sufficient or the ability to acquire skills that would allow employability at an appropriate income level, but to do so would require some time." In re Marriage of Brackett, 309 Ill.App.3d 329, 340, 242 Ill.Dec. 798, 722 N.E.2d 287, 296 (1999). Parveen has a university degree from Pakistan and also has the opportunity to obtain an advanced degree in her field in this country. She does not suffer from a medical condition that prevents her from working. Accordingly, we find that the trial court did not abuse its discretion in making its maintenance award subject to periodic review to ascertain what efforts Parveen has made to become self-sufficient.

Although Awan complains that the trial court's award provides Parveen little incentive to become self-sufficient, the court has found that "[t]he purpose of a time limit on the award is generally intended to motivate the recipient spouse to take the steps necessary to attain self-sufficiency. [Citation.] At the end of the specified time period, the court determines whether the maintenance award should be extended." Rodriguez, 359 Ill.App.3d at 312, 295 Ill.Dec. 846, 834 N.E.2d at 75. Awan admits that Parveen must "file a report with the Clerk of the Court summarizing what efforts she has made to find education employment or training that is commensurate with her health." If Parveen fails to make reasonable efforts to become self-sufficient, Awan may file a motion to terminate Parveen's maintenance.

In In re Marriage of Callaway, 150 Ill.App.3d 712, 716-17, 104 Ill.Dec. 103, 502 N.E.2d 366, 370 (1986), the trial court awarded the spouse temporary maintenance. On appeal, the court held:

"if at the end of that time respondent has made no bona fide attempt to seek appropriate employment or has refused to accept employment appropriate to her skills or interests, payments should then be terminated. This is consistent with the goal of the Illinois Marriage and Dissolution of Marriage Act to permit the parties to sever economic ties within a reasonable time period and to provide an incentive for a spouse seeking maintenance to acquire the skills necessary to become self-sufficient." Callaway, 150 Ill.App.3d at 716-17, 104 Ill.Dec. 103, 502 N.E.2d at 370.

The trial court did not abuse its discretion in awarding Parveen temporary maintenance. The temporary maintenance award provides Parveen the incentive to become self-sufficient. If she does not make a reasonable effort to do so, the court may terminate maintenance. If, on the other hand, she fails to secure gainful employment despite reasonable efforts to do so, continuation of maintenance on a temporary or permanent basis would be possible. Neither party has demonstrated that the trial court abused its discretion. Accordingly, the court's order awarding temporary maintenance to Parveen is affirmed.

Date of Valuation of the Marital Estate in Bifurcated Dissolution Proceedings

Parveen argues that the trial court must determine the value of the marital estate as of the date of the final judgment and not as of the date of a preliminary order in bifurcated dissolution proceedings. Here, the court entered an order in March 2004 dissolving the parties' marriage. The court entered its final order in these proceedings on September 25, 2006. The court distributed the marital property based on the property's value in March 2004.

Parveen cites In re Marriage of Leopando, 96 Ill.2d 114, 120, 70 Ill.Dec. 263, 449 N.E.2d 137, 140 (1983), where the court held that "issues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under Rule 304(a)." She argues that under Leopando, the court's determination of whether grounds for dissolution exist does not represent a separate claim and, therefore, the court's order in March 2004 finding that grounds for dissolution existed was not a final order. She argues that the court's order did not become...