In re Marriage of Donovan

• Decision Date: 04 November 2005
• Docket Number: No. 4-05-0097.,4-05-0097.
• Citation: 838 N.E.2d 310
• Parties: In re the MARRIAGE OF Ellen A. DONOVAN, Petitioner-Appellee, and Jerry R. Donovan, Respondent-Appellant.
• Court: Illinois Supreme Court

838 N.E.2d 310

In re the MARRIAGE OF Ellen A. DONOVAN, Petitioner-Appellee, and Jerry R. Donovan, Respondent-Appellant.

No. 4-05-0097.

Appellate Court of Illinois, Fourth District.

Argued September 21, 2005.

Decided November 4, 2005.

COPYRIGHT MATERIAL OMITTED

Helen E. Ogar (argued), Lawrence, Moore, Ogar & Jacobs, Bloomington, for Jerry R. Donovan.

Melissa M. McGrath (argued), Thomson & Weintraub, Bloomington, for Ellen A. Donovan.

Justice TURNER delivered the opinion of the court:

Petitioner, Ellen A. Donovan, filed a petition for dissolution of marriage in August 2002 from respondent, Jerry R. Donovan. In December 2003, the trial court issued an order as to the distribution of marital assets and debts, maintenance, as well as a judgment for dissolution of marriage.

On appeal, Jerry argues the trial court erred in (1) the amount and duration of maintenance awarded to Ellen, (2) failing to properly value Ellen's 401k account, (3) choosing different dates in the valuation of assets, and (4) categorizing certain property as marital. We affirm.

I. BACKGROUND

Ellen and Jerry were married on August 28, 1976. The parties had one son, Thaddeus, born in 1980, and he was emancipated from the marital home at the time of the petition for dissolution. In August 2002, Ellen filed a petition for dissolution of marriage.

In October 2002, the trial court conducted a hearing on Ellen's petition for temporary relief. Following testimony and the admission of exhibits, the court awarded Ellen temporary maintenance of $1,000 per month.

In January 2004, the trial court conducted a hearing on the parties' arguments on the remaining issues. Ellen argued the significant issues were spousal support and division of property. Ellen stated she had a gross income of $37,000 per year and Jerry's yearly income fell within a range of $60,000 to $76,000. Jerry argued Ellen's full-time employment increased her income and he was limited to 60 hours of work per week because of a federal law covering truck drivers. Jerry argued he would not have the opportunity to earn as much as he had in the past.

On December 3, 2004, the trial court entered an order, awarding Ellen $900 per month in maintenance for a term of 60 consecutive months. The court also awarded Ellen and Jerry various items of personal property, bank accounts, and annuities as described in the exhibits. On December 30, 2004, the court issued the judgment for dissolution of marriage. This appeal followed.

II. ANALYSIS

Initially, we note our review of this appeal is hindered by the lack of a transcript of the evidentiary hearing. At oral argument, appellate counsel indicated the lack of a sufficient number of court reporters available in McLean County for family-law hearings. With our continued hope the State will foster confidence and ensure fairness in our judicial system by providing sufficient court reporters in these important cases, we proceed to the issues presented.

A. Maintenance

Jerry argues the trial court abused its discretion in awarding $900 per month in maintenance to Ellen for 60 months. We disagree.

Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) sets forth 12 factors for the trial court to consider in deciding whether to grant a temporary or permanent maintenance award, including the following:

"(1) the income and property of each party, including marital property apportioned and non[ ]marital property assigned to the party seeking maintenance;

(2) the needs of each party;

(3) the present and future earning capacity of each party;

(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;

(5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment;

(6) the standard of living established during the marriage;

(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the property division upon the respective economic circumstances of the parties;

(10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable." 750 ILCS 5/504(a) (West 2002).

"The trial court has discretion to determine the propriety, amount, and duration of a maintenance award." In re Marriage of Reynard, 344 Ill.App.3d 785, 790, 279 Ill.Dec. 917, 801 N.E.2d 591, 595 (2003). A trial court's decision as to maintenance will not be reversed on appeal absent an abuse of discretion. In re Marriage of Culp, 341 Ill.App.3d 390, 394, 275 Ill.Dec. 221, 792 N.E.2d 452, 456 (2003). "Where an abuse of discretion in awarding or denying maintenance is claimed, the burden of showing such an abuse rests with the claiming party." In re Marriage of Homann, 276 Ill.App.3d 236, 240, 213 Ill.Dec. 22, 658 N.E.2d 492, 495 (1995).

Here, the record contains no report of proceedings or certified bystander's report setting out what occurred on December 18, 2003. At that hearing on the remaining issues, Ellen and Jerry both testified and presented evidence. Dennis Knobloch also testified. Jerry now contends Knobloch presented testimony and documents that caused, in part, the trial court to commit error in calculating the maintenance award.

Jerry, as appellant, bears the burden to present a sufficiently complete report of proceedings to support his contentions of error. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958, 959 (1984). When the record on appeal is inadequate, "the reviewing court will presume that the order entered by the trial court was in conformity with the law and had a sufficient factual basis." Midstate Siding & Window Co. v. Rogers, 204 Ill.2d 314, 319, 273 Ill.Dec. 816, 789 N.E.2d 1248, 1252 (2003); see also In re Marriage of Newberry, 346 Ill.App.3d 526, 531, 282 Ill.Dec. 21, 805 N.E.2d 640, 644 (2004).

In the case sub judice, the trial court awarded Ellen maintenance of $900 per month for 60 months. Ellen contends no abuse of discretion occurred in the court's maintenance award based on the 27-year marriage. Jerry argues the court sought to "equalize" the parties' future resources. However, the record does not support such a contention. In petitioner's exhibit No. 1, Knobloch recommended a maintenance award of $1,250 per month or $1,300 per month. The court, however, only awarded $900 per month.

Jerry also complains the trial court failed to consider the current income of the parties or their ability to earn additional income. However, a trial court's determination as to the awarding of maintenance is presumed to be correct. In re Marriage of Krane, 288 Ill.App.3d 608, 618, 224 Ill.Dec. 294, 681 N.E.2d 609, 616 (1997). In reviewing a matter under the trial court's discretion, "reversal is justified only when it is obvious that the trial court acted arbitrarily or without conscientious judgment." In re Marriage of Schrimpf, 293 Ill.App.3d 246, 252, 227 Ill.Dec. 248, 687 N.E.2d 171, 175 (1997).

Jerry has not presented a sufficient record to establish the testimony of the parties involved. Further, Jerry's argument in his brief offers nothing to require the conclusion that the trial court acted arbitrarily or without conscientious judgment. The court's order indicated it heard the evidence and had been fully advised. Thus, without more, we find no abuse of discretion.

Jerry also argues the trial court abused its discretion in awarding maintenance for 60 consecutive months. Jerry contends that Ellen's educational background, recent increases in income, and potential future income made it reasonable to expect she would be able to support herself within a time frame shorter than 60 months.

In determining the amount and duration of maintenance, "the trial court must balance the ability of the spouse to support himself in some approximation to the standard of living he enjoyed during the marriage." In re Marriage of Rogers, 352 Ill.App.3d 896, 899, 288 Ill.Dec. 204, 817 N.E.2d 562, 566 (2004). The court's job is essentially to determine whether a party needs maintenance and whether the other party has the ability to pay. Rogers, 352 Ill.App.3d at 899, 288 Ill.Dec. 204, 817 N.E.2d at 566.

Here, the lack of a transcript regarding testimony as to the award of maintenance hinders our review of the issue. Jerry in essence asks us to reweigh the statutory factors to his arguments. However, "[m]aintenance issues are presented in a great number of factual situations and resist a simple analysis." In re Marriage of Mayhall, 311 Ill.App.3d 765, 769, 244 Ill.Dec. 227, 725 N.E.2d 22, 25 (2000). In this case, Jerry has not presented any evidence that would lead us to conclude the trial court abused its discretion.

B. Marital Property

Section 503(d) of the Dissolution Act requires the trial court to divide marital property "in just proportions" considering the enumerated and relevant factors. 750 ILCS 5/503(d) (West 2002). Such factors include, in part, the value of the property assigned to each spouse, the duration of the marriage, the age, health, occupation, sources of income, employability, and needs of each of the parties, and the reasonable opportunity for each spouse for future acquisition of capital assets and future income. 750 ILCS 5/503(d) (West 2002). In dividing marital property, the distribution by the court need not be equal so long as it is equitable. In re Marriage of Werries, 247 Ill.App.3d...