In re Marriage of Walker

• Decision Date: 26 November 2008
• Docket Number: No. 4-07-0730.,4-07-0730.
• Parties: In re the MARRIAGE OF Barbara G. WALKER, Petitioner-Appellee, and David P. Walker, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

899 N.E.2d 1097

In re the MARRIAGE OF Barbara G. WALKER, Petitioner-Appellee, and

David P. Walker, Respondent-Appellant.

No. 4-07-0730.

Appellate Court of Illinois, Fourth District.

November 26, 2008.

Justice MYERSCOUGH delivered the opinion of the court:

Petitioner, Barbara G. Walker, filed a petition for dissolution of marriage in August 2006 from respondent, David P. Walker. In April 2007, the trial court entered the judgment for dissolution of marriage and its order on the remaining issues.

On appeal, David argues the trial court erred in (1) its findings of his net income, (2) the division of marital property, (3) its award of permanent maintenance to Barbara, and (4) requiring David to maintain a life-insurance policy to secure the maintenance payments. We affirm.

I. BACKGROUND

Barbara and David were married on January 26, 1981. The parties had two children during the marriage, Christopher and Stacey, both of whom are adults. The parties separated in 2002. In August 2006, Barbara filed a petition for dissolution of marriage.

In March 2007, the trial court conducted a hearing on the petition for dissolution and related issues. Barbara testified she was 52 years old and worked as a teacher in the Quincy public school system. Her net income amounted to approximately $2,500 per month. She stated David made in excess of $200,000 per year gross salary. Barbara claimed $3,562.09 in monthly expenses, which included the mortgage. The marital residence was appraised at $221,000 with an outstanding mortgage of $132,892.99. Barbara testified she had lived in the home for 11 years and she had no desire to sell it because she loved the community and was "very comfortable" in the home. David made the monthly mortgage payments of $814 plus $325 in taxes.

Barbara testified she had a retirement fund with the Teacher's Retirement System of the State of Illinois, which would pay her between $800 and $1,300 if she chose to retire. At retirement, she would have to choose between the fund or social security. She requested maintenance based on the 26-year marriage as well as $3,800 in attorney fees.

On cross-examination, Barbara testified she did not know David's $204,000 gross income included an $81,000 bonus in 2006 for performance in 2005. She testified she had nonmarital stocks valued at approximately $14,360. Barbara also worked as an adjunct professor at Quincy University and received $3,200 in gross income per year.

David, age 50, testified he lived in Andover, Massachusetts, and worked as vice president of engineering for Microwave Radio Communications. He stated his "salary structure is $135,000 base plus a performance bonus of 30[%]." His net pay per month was $7,515.09. He received an $81,000 bonus in March 2006. He did not expect to receive a bonus "to that degree" in the future. His 2007 bonus amounted to $40,000.

David stated he was agreeable to a 60/40 split in favor of Barbara. He was also willing to pay maintenance of $1,025 per month for two years. David had a life-insurance policy through his employment with Barbara as the beneficiary.

In April 2007, the trial court issued the judgment for dissolution of marriage. In the division of property, the court awarded each party his or her personal property. The court awarded the marital residence to Barbara. She also received her interest in her retirement plan ($30,691) and the bank accounts ($5,010). David received his VISLINK 401K plan ($26,400), his Glenayre retirement savings plan ($31,820), his Fidelity individual retirement account ($29,159), and his interest in the Bank of America account ($23,700). The distribution amounted to approximately $104,644 to David and $155,279 to Barbara. The court ordered David to pay Barbara $10,000 representing the 60/40 split of marital assets between the parties.

The trial court also ordered David to pay $2,000 per month in maintenance for the months of April and May 2007, as he continued to pay for Stacey's college expenses. In June 2007, the court ordered David to pay $3,000 per month through May 2014. Because Barbara will receive between $800 and $1,300 from her retirement fund beginning in May 2014, the court required David to pay only $1,640 per month thereafter. Also, the court required David to maintain life insurance naming Barbara as sole beneficiary. The award of maintenance was subject to modification based on a change in circumstances.

The trial court made specific findings in open court pertinent to this appeal:

"THE COURT: Okay. The court's considered the evidence and the arguments and applies the statutory considerations with regard to maintenance and property division.

The court will do a variation of the 60/40 split. The court awards her all of her nonmarital property as set forth in her pretrial memorandum and notes there is approximately $14,000 in stock in addition to some personal items in the—in her list.

Each party is awarded their personal property currently held in their possession, and the court is awarding the distribution as set forth on the [r]espondent's proposed distribution with this proviso, and that is I read down the numbers and taking the value of the—to the husband of the Chevy at [$]409, the Fidelity IRA I don't believe is [$]30,691, I believe that is [$]29,159. I have added [$]5,300 onto the Vislink 401K and rounded that off at $26,400. Glenayre at [$]31,820.

I am awarding him the household items he's requested, which amount to, the court finds, at $140, so I am lowering the household items from [$]1,150 on his side down to [$]140 and, accordingly, increasing hers on the other side by that difference, and the account of the Bank of America at [$]16,016. I am adding in the kayak of [$]700. I come to a total of [$]104,644.

She is awarded those items that are listed on her side of the ledger. I have increased the household items to [$]7,420, and what I am going to order is on the payout from [r]espondent, instead of [$]7,450, I am rounding that off to an even $10,000. If I would go to strictly 60/40 with no fractions, it would be [$]1,694, but I am taking into account the attorney[] fees she's having to pay. So it's 60/40, some odd percentage. I'm not exactly sure what it is, but I don't think it's even a full percent. So we need to increase payout from [r]espondent by $2,550.

Each party will pay their own attorney[] fees, and with the maintenance award the court finds that she can pay her attorney[] fees.

Sara graduates in May. Am I correct on that?

[PETITIONER'S ATTORNEY]: Yes.

[RESPONDENT]: Stacey, Your Honor. But yes.

THE COURT: Stacey. I'm sorry. I don't know where I got Sara.

The husband certainly has not been miserly with regard to maintenance. He was at $800 per week, which results in a payment of $3,466 per month. That was then lowered to [$]385 per week plus paying the mortgage, so that lowered it to $2,873. However, at trial[,] the husband's position is a position that I cannot accept under the case law. When you have got a marriage of 26 years with this disparity in income, I don't know of any case where we have this value of property distribution, even in a 60/40 split, that would limit maintenance to [two] years at this amount. There is simply too great a disparity in income. There's not enough assets to provide her security, and the court notes that she has submitted what is essentially a bare[-]bones budget. The court notes that the husband is putting away a thousand—nearly $1,000 a month in the 401K, and she certainly ought to have funds sufficient for her to live on, and in addition, enjoy the life[]style to which the parties had become accustomed.

The court is going to vary the maintenance, though, based upon several contingencies. First of all, the husband has and did not put the wife to the time and expense of filing a post-18 educational support case, which is to his credit. Therefore, the maintenance amount—

Has March been paid, the mortgage and all of that?

[PETITIONER'S ATTORNEY]: I don't know.

[RESPONDENT]: That's correct.

THE COURT: So, for the months of April and May, the maintenance amount is going to be $2,000 for those [two] months, because he's paying for the daughter's education. It will go up to $3,000 per month and that will be through the month of May of the year 2014. The reason I pick that date is on her [e]xhibit G that is her, [`]retirement date.['] That is [seven] years of maintenance at $3,000 per month.

At that date, beginning with the June payment, I am lowering it by the amount that she should or could receive of [$]1,360. So his maintenance payment will lower to $1,640 per month. During the time period that he is paying maintenance[,] he is to maintain her as a beneficiary on his insurance policy, providing proof of that to her every year.

My biggest concern about maintenance is, ma'am, if I were to award you the maintenance and he would, unfortunately, walk out here and get hit by a car, the maintenance is gone, because it ends upon his death. So, the court attempts in maintenance awards, instead of just setting it flat out, that I want to set up various contingencies. So we have the [$]2,000 for [two] months, goes up to [$]3,000, and then we have a lowering of it in the year 2014 when she becomes eligible for her retirement.

In addition, it is secured by the life insurance. In the event he should lose his job and that life insurance is gone, then I think this court or the parties should do the following: I still want her maintenance payments secured by life insurance, but if he has to go out into the market and purchase life insurance, then the monthly maintenance amount should be lowered by the amount that he has to pay for insurance to secure her maintenance payments, and for example, if he's paying $36,000 per year and an insurance policy costs him $2,000, well, let's make it easy, $2,400 per year, then the maintenance should probably, in my opinion, be lowered by the $200 per month he's paying for...