Marriage of Seymour, In re
| Decision Date | 19 December 1990 |
| Docket Number | No. 2-90-0411,2-90-0411 |
| Citation | 565 N.E.2d 269,206 Ill.App.3d 506,152 Ill.Dec. 27 |
| Parties | , 152 Ill.Dec. 27 In re MARRIAGE OF James SEYMOUR, Petitioner-Appellant, and Scheryl Seymour, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
James R. Truschke, Thomas P. Murphy, James R. Truschke & Associates, Arlington Hts., Michael J. DuWaldt, Franks and Filler, for James Seymour.
Thomas F. Loizzo, Kell, Nuelle & Loizzo, Woodstock, for Scheryl Seymour.
Emery L. Duffy, guardian ad litem, Crystal Lake, for Jeff and Jana Seymour.
Petitioner, James Seymour, appeals the judgment of dissolution of marriage (the decree) entered by the circuit court after three days of trial. He raises two issues: first, that the trial court erred in ordering maintenance of $750 per month when respondent, Scheryl Seymour, was choosing a low-paying vocation; and second, that the trial court erred by granting custody of the parties' daughter, Jana, to respondent. Respondent contends the trial court's rulings regarding maintenance and custody were not an abuse of the court's discretion. The attorney appointed by the trial court to represent the children has also filed a brief in which he asks the court to affirm the custody order but does not address the maintenance issue.
Subsequent to the trial, the circuit court entered a 20-page memorandum which became the basis for the decree. The court summarized the evidence and its impressions of the parties and children. Petitioner was granted the sole custody of Jeffrey, who was almost 18 years old and would soon attend a college or seek employment. Respondent was granted the sole custody of Jana, who was nine years old and in the fourth grade. The decree directed that the children spend weekends together, i.e., together they would spend alternating weekends with the other parent. A visitation schedule was also specified. The court ordered each parent to use 20% of his or her net income for child support, i.e., petitioner would pay 20% of his net monthly salary of $3,230, or $646, and respondent would pay 20% of her net monthly salary of $571, or $114.20. Petitioner was ordered to pay respondent the difference of $532 every month. In addition, the court ordered petitioner to continue deducting $400 per month from his gross income to contribute to a section 401(k) (26 U.S.C.A. § 401(k) (West Supp.1990)) account established for the purpose of financing the children's college education.
The court divided the marital estate with 52% to respondent and 48% to petitioner because respondent would not be able to accumulate capital as a minister or as a teacher and respondent needed more funds to complete her education and preserve her investment in her vocation. This distribution resulted in a projected total of $86,700 for respondent and $80,000 to the petitioner, before petitioner's vested pension plan was divided. The distribution also included proceeds from the sale of the marital residence, which was to be sold before Jana entered a new school upon her completion of the fifth grade.
The court stated it was troubled in determining the proper amount of maintenance because respondent had chosen a vocation which pays low wages. Nevertheless, the court ordered petitioner to pay respondent $750 per month, subject to review by the court after 30 months. The court offered the following summary of the parties' monthly income:
Petitioner Respondent
January through August
$5,416.66 gross income $ 791.66
3,230.00 net income 571.00
- 532.00 net child support k 532.00
------------------------- ------------------------
$2,698.00 $1,103.00
- 750.00 maintenance k 750.00
------------------------- ------------------------
$1,948.00 spendable $1,853.00
September through December, after the maximum Social Security tax is paid
$3,630.00 net income $ 571.00
- 612.00 net child support k 612.00
------------------------- ------------------------
$3,018.00 $1,183.00
- 750.00 maintenance k 750.00
------------------------- ------------------------
$2,268.00 spendable $1,933.00
estimated year end bonus
5,000 bonus 0
- 1,000 support for Jana k 1,000
Petitioner contends in his first argument that the court erred in granting maintenance in the amount of $750 per month when respondent was capable of earning a better salary. Respondent graduated in 1971 with a bachelor of science degree and a teaching certificate that enabled her to teach orthopedically handicapped children. She kept the certificate current although she had made no inquiries into possible teaching positions in over two years and had never in fact used her certificate in a teaching position. For the last few years she had attended Bethany Theological Seminary to become a Congregational minister, and she would graduate in June 1990.
A court may award maintenance only if a spouse:
"(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment * * *, or
(3) is otherwise without sufficient income." (Ill.Rev.Stat.1989, ch. 40, par. 504(a).)
The court should consider all factors in determining the amount of maintenance, including:
"(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently * * *;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties." (Ill.Rev.Stat.1989, ch. 40, par. 504(b).)
Petitioner notes that the Illinois Marriage and Dissolution of Marriage Act (Act) creates an affirmative duty on a spouse requesting maintenance to seek and accept appropriate employment. (In re Marriage of Philips (1990), 200 Ill.App.3d 395, 405, 146 Ill.Dec. 191, 558 N.E.2d 154; In re Marriage of McNeeley (1983), 117 Ill.App.3d 320, 328-29, 72 Ill.Dec. 873, 453 N.E.2d 748.) A spouse cannot use self-imposed poverty as a basis for claiming maintenance when she has the means of earning more income. (In re Support of McGrew (1980), 90 Ill.App.3d 27, 32, 45 Ill.Dec. 414, 412 N.E.2d 996.) The award of maintenance to a spouse capable of improving her income can be an abuse of discretion. (In re Marriage of Wisniewski (1982), 107 Ill.App.3d 711, 719, 63 Ill.Dec. 378, 437 N.E.2d 1300.) While petitioner does not contest respondent's privilege to pursue her vocation, he does not believe that he should be punished by paying a large maintenance award to increase her income when she is capable of earning more and could have proved she could earn more if she started teaching rather than preaching prior to the dissolution of marriage. Petitioner contends that if he chose to become a minister, the court would still order maintenance at a level commensurate with his past earnings.
The trial court in its memorandum addressed these concerns. It noted respondent was seeking more than mere rehabilitative maintenance but a new career as well. The court warned respondent that petitioner was not responsible to support her according to their past standard of living if she was unwilling to work for financial security. The standard of living must fall when the number of households increases but the income does not rise by the same level. The trial court found that exhausting her share of the property distribution before she could seek maintenance was inappropriate. The court cited In re Marriage of Magnuson (1987), 156 Ill.App.3d 691, 699, 109 Ill.Dec. 569, 510 N.E.2d 437 (), In re Marriage of Gentry (1989), 188 Ill.App.3d 372, 377, 135 Ill.Dec. 939, 544 N.E.2d 435 (), and In re Marriage of Courtright (1989), 185 Ill.App.3d 74, 78, 133 Ill.Dec. 161, 540 N.E.2d 1027 (), in its memorandum.
The trial court's determination in awarding maintenance will not be disturbed absent an abuse of discretion. (Philips, 200 Ill.App.3d at 405, 146 Ill.Dec. 191, 558 N.E.2d 154.) While petitioner is correct in his citation of the law, the evidence adduced at trial does not show the trial court abused its discretion. The cases cited by petitioner, while helpful in our determination, are distinguishable in the light of the facts and conduct of the parties in this cause.
In Wisniewski, the trial court clearly abused its discretion in awarding $600-per-month...
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