In re the Marriage of Bratcher

Filed 6/27/08 NO. 4-07-0621

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of LELA ANN ) Appeal from
BRATCHER, ) Circuit Court of
Petitioner-Appellee, ) McLean County
and ) No. 04D202
DAVID L. BRATCHER, )
Respondent-Appellant. ) Honorable
) Rebecca Simmons Foley,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Petitioner, Lela Ann Bratcher, and respondent, David L.

Bratcher, were married in 1972, the year they graduated from high

school. Neither has a college education. They have two chil-

dren, born in 1973 and 1976. On May 7, 2004, Lela filed a

petition for dissolution of marriage. At that time, the parties

were each 50 years of age. On November 29, 2006, the trial court

entered a judgment of dissolution of marriage, awarding each

party the personal property in his or her possession and dividing

equally the remaining marital property, with each receiving about

$1,634,000. Additionally, the trial court ordered David to pay

maintenance of $12,500 per month for a period of 111 months.

David appeals the award of maintenance. We reverse and remand.

I. BACKGROUND

The trial court made the following findings. The

parties founded Bratcher Heating and Air Conditioning in 1983.
When the parties opened the business, Lela assisted for approxi-

mately seven years in various capacities, including answering the

phones, billing, payroll, hiring, decorating, and training with

their supplier, Lennox. Lela also worked as a checker at a local

grocery store to obtain health-insurance benefits for the family.

Lela's involvement in the workforce ceased in 1992, when she

became the primary caregiver of the parties' granddaughter who

had a number of health problems.

The trial court found that Bratcher Heating and Air

Conditioning has a value of $1,297,922. That figure included a

discount of 20% for lack of marketability, finding that the

business is essentially a "one man show" in terms of its manage-

ment. "Dave Bratcher is Bratcher Heating and Air Conditioning.

By his own admission, the business cannot run without him."

The trial court awarded Lela the former marital resi-

dence and some accounts. The primary asset awarded Lela was a

commercial property on Fort Jesse Road valued at $725,000. The

trial court also ordered David to make an equalizing lump-sum

payment to Lela of $876,759. With the lump-sum payment, the

total award of marital property to Lela, even after deducting

$34,682 in credit-card debt that she was required to pay, was

$1,634,449.

David was awarded Bratcher Heating and Air Condition-

ing, a residence, a commercial property on East Pine Street, and

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a number of accounts, and he was charged with dissipation for

payments he made to the parties' daughters in the amount of

$6,467. After deducting the lump-sum payment, the total award of

marital property to David was $1,634,719.

Under the trial court's order, Lela will receive

monthly income of approximately $14,000, consisting of $8,193

rental income on the Fort Jesse Road property and $5,845 interest

at 8% on the lump-sum payment, plus perhaps some income from her

anticipated work as a realtor. In ruling on David's motion to

reconsider, the trial court noted that the rental income on the

Fort Jesse Road property "is less certain" than the higher amount

argued by David, $10,829. David will receive monthly income of

approximately $27,000, consisting of $9,013 wages, $417 divi-

dends, $1,710 rental income on the East Pine Street property, and

$21,900 other income from Bratcher Heating and Air Conditioning,

reduced by $5,845 interest on the lump-sum payment. If mainte-

nance is factored in, Lela will have monthly income of $26,500

and David will have monthly income of $14,500.

In awarding maintenance, the trial court noted that in

terms of personal incomes, Lela would never generate the type of

income that David produces.

"While the Court declines to 'equalize' the

parties' income by virtue of the maintenance

award, it does find that it can look beyond

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 the basic needs of the parties and allow for

additional, discretionary income, particu-

larly in a marriage of this duration with the

amount of income available for the Court's

consideration. As referenced above, the

parties' venture into the business world was

truly a joint effort."

The trial court also quoted from Justice Steigmann's special

concurrence in In re Marriage of Hart, 194 Ill. App. 3d 839, 853,

551 N.E.2d 737, 745 (1990) (Steigmann, J., specially concurring):

"Marriage is a partnership, not only

morally, but financially. *** It is inequi-

table upon dissolution to saddle petitioner

with the burden of her reduced earning poten-

tial and to allow respondent to continue in

the advantageous position he reached through

their joint efforts."

II. ANALYSIS

"Maintenance 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, 725 N.E.2d 22, 25 (2000).

"The trial court has discretion to determine the propriety,

amount, and duration of a maintenance award. A reviewing court

will not reverse the trial court's maintenance determination

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absent an abuse of discretion." In re Marriage of Reynard, 344

Ill. App. 3d 785, 790, 801 N.E.2d 591, 595 (2003) (Reynard I).

Of course, that does not mean that trial courts can do whatever

they please in awarding maintenance. It is important that

reviewing courts have some ability to maintain control of and

clarify the legal principles underlying maintenance awards.

With the enactment of the Illinois Marriage and Disso-

lution of Marriage Act (Dissolution Act) (750 ILCS 5/101 et seq.

(2006)) in 1977, the legislature sought to provide for the

financial needs of the spouses through the disposition of prop-

erty rather than through maintenance. Mayhall, 311 Ill. App. 3d

at 768, 725 N.E.2d at 24. The 1993 amendments to the Dissolution

Act made it easier for maintenance to be awarded, but maintenance

is not the absolute right of every party to a marriage and should

mainly be reserved for circumstances of necessity. Mayhall, 311

Ill. App. 3d at 768, 725 N.E.2d at 24.

It is interesting to compare the facts in this case to

those in In re Marriage of Rubinstein, 145 Ill. App. 3d 31, 495

N.E.2d 659 (1986), where the parties were married after graduat-

ing from college and the wife then taught school for 10 years

while the husband pursued his medical education and training.

Shortly after the husband commenced his medical practice, he

filed for dissolution of marriage. The Second District reversed

and remanded, stating, "[T]he contributing spouse must receive

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some form of compensation for the financial effort and support

provided to the student spouse in the expectation that the

marital unit will prosper in the future particularly where, as

here, Harry filed the suit for divorce so soon after Helen

completed her part of the bargain." (Emphasis added.) Rubinste-

in, 145 Ill. App. 3d at 39, 495 N.E.2d at 664. In Rubinstein,

that compensation could not be achieved by division of marital

assets, because the dissolution occurred before significant

assets were acquired.

That is not true in the present case where the parties

had acquired several millions of dollars in assets and Lela was

awarded half of those assets. Lela was not "saddle[d] *** with

the burden of her reduced earning potential" (Hart, 194 Ill. App.

3d at 853, 551 N.E.2d at 745)--she was awarded assets totaling

more than the value of the business. It is true that Lela will

never generate the income that David does, but there is no need

for Lela to work. In some cases, the family business may consti-

tute almost all of the assets and it may be necessary to award

that business to the operator of the business and compensate the

other spouse through maintenance. That is not true in the

present case where Lela was awarded substantial assets, including

a $876,759 lump-sum payment, similar to maintenance in gross.

Lela made important contributions to the business in its early

years, but she has been compensated for those contributions.

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 In awarding maintenance, the court may consider impair-

ment of earning capacity due to "devoting time to domestic duties

or having foregone or delayed education, training, employment, or

career opportunities due to the marriage." 750 ILCS 5/504(a)(4)

(West 2006). The court may also consider "contributions and

services by the party seeking maintenance to the education,

training, career or career potential, or license of the other

spouse." 750 ILCS 5/504(a)(10) (West 2006). In Mayhall, the

parties were married after high school and their marriage was

dissolved 14 years later. The wife maintained the household and

was the primary caretaker of the parties' two children. We

affirmed an award of maintenance to the wife on the basis she had

been disadvantaged by the marriage in comparison to her husband

because of her delayed entry into the workforce. Mayhall, 311

Ill. App. 3d at 769, 725 N.E.2d at 25. Mayhall, however, in-

volved average-income earners with no substantial assets, not the

situation here. Lela's earning capacity would probably be

greater if she had worked continuously outside the home after the

parties' marriage, but it would never have approached David's.

Lela was not "disadvantaged by the marriage in comparison to"

David. Mayhall, 311 Ill. App. 3d at 769, 725 N.E.2d at 25.

Equalization of incomes might be appropriate even

though neither spouse has been disadvantaged by the marriage,

where the parties have been married for many years, they have few

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assets, and both have been employed with one spouse earning more

than the other. Mayhall, 311 Ill. App. 3d at 769, 725 N.E.2d at

25. Again, that is not the situation here. It is not necessary

to equalize the income of these parties so that they may continue

at the standard of living enjoyed during the marriage. This case

involved sufficient assets to make a substantial award to Lela,

and the lump-sum distribution eliminated any inequality between

the parties.

The trial court abused its discretion in its award of

maintenance. The trial court properly provided for Lela by its

division of marital property. Where it is possible to do so, a

division of property that adequately provides for the parties is

preferable to an award of maintenance. Lela has the advantage of

certainty with the lump-sum payment; it cannot be modified or

terminated in the future. The fact that David could afford to

pay some maintenance is not a reason for ordering him to do so.

III. CONCLUSION

We reverse the award of maintenance in this case and

remand so that the trial court may reconsider its award in

accordance with the views expressed in this opinion.

Reversed and remanded.

TURNER, J., specially concurs.

MYERSCOUGH, J., dissents.

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 JUSTICE TURNER, specially concurring:

Since I find the maintenance award was excessive in

light of the factors contained in section 504(a) of the Dissolu-

tion Act (750 ILCS 5/504(a) (West 2004)), I agree the trial court

abused its discretion in determining the amount of maintenance

and remand is warranted. However, I write separately to empha-

size a particular point.

In accordance with a plethora of case law, the trial

court bore a duty to determine maintenance based upon "'the

reasonable needs of the spouse seeking maintenance in view of the

standard of living established during the marriage.'" In re

Marriage of Selinger, 351 Ill. App. 3d 611, 615, 814 N.E.2d 152,

157 (2004), quoting In re Marriage of Tietz, 238 Ill. App. 3d

965, 972, 605 N.E.2d 670, 676 (1992). Neither of the trial

court's letter rulings demonstrates it considered this well-

settled benchmark in fashioning its maintenance award.

While petitioner submitted an "Imputed Financial

Affairs Affidavit" and the trial court considered it in determin-

ing maintenance, the evidence at trial failed to show the affida-

vit had any relationship to the standard of living established

during the marriage. Moreover, even if the affidavit accurately

represented petitioner's needs in view of the standard of living

established during the marriage, income from the rental property

awarded to petitioner would by itself generate a substantial

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portion of the "needs" set forth in the affidavit. Although the

rental property was not fully leased at the time of hearing, the

trial court's letter ruling on the motion to reconsider appears

to essentially disregard this valuable asset. I note petitioner

herself testified it was important she receive the parties'

commercial property because the rental income from the property

could offer her "long-term security." Further, as was recognized

in the majority opinion, petitioner also received an award of

$876,759 in cash, which presumably will generate significant

additional income. See slip op. at 6.

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 JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. I would affirm the trial court,

which did an exceptional job explaining its decision. The court

clearly did not abuse its discretion here. The court meticu-

lously crafted a fair dissolution judgment. The majority creates

a magical new law and is second-guessing the trial court, which

is inappropriate: "Of course, that does not mean that trial

courts can do whatever they please in awarding maintenance. It

is important that reviewing courts have some ability to maintain

control of and clarify the legal principles underlying mainte-

nance awards." Slip op. at 4. This trial court did not do

whatever it pleased. The trial court followed the law and should

be affirmed. The trial court's award of maintenance and a

property settlement in this high-income family does not consti-

tute an abuse of discretion.

The amount of a maintenance award lies within the sound

discretion of the trial court, and this court must not reverse

that decision unless it was an abuse of discretion. Selinger,

351 Ill. App. 3d at 619, 814 N.E.2d at 161. "An abuse of discre-

tion occurs where no reasonable person would take the view

adopted by the trial court." Tietz, 238 Ill. App. 3d at 972, 605

N.E.2d at 675.

Section 504 of the Dissolution Act (750 ILCS 5/504

(West 2004)) sets forth factors the trial court is to consider

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when fashioning a maintenance award. In considering the factors,

the court is not required to give them equal weight "so long as

the balance struck by the court is reasonable under the circum-

stances." In re Marriage of Miller, 231 Ill. App. 3d 480, 485,

595 N.E.2d 1349, 1353 (1992). "Although the trial court must

consider all the relevant statutory factors, it need not make

specific findings as to the reasons for its decisions." In re

Marriage of Reynard, 378 Ill. App. 3d 997, 1004, 883 N.E.2d 535,

541 (2008) (Reynard II).

David argues the trial court improperly fashioned its

maintenance award in an attempt to equalize the parties' dispos-

able net income. "Neither the Dissolution Act nor Illinois case

law requires the equalization of [disposable] incomes." Reynard

I, 344 Ill. App. 3d at 791, 801 N.E.2d at 596. However, equal-

ization of parties' incomes may be appropriate in some cases.

Reynard I, 344 Ill. App. 3d at 792, 801 N.E.2d at 596.

"The benchmark for determination of maintenance is the

reasonable needs of the spouse seeking maintenance in view of

the standard of living established during the marriage." (Empha-

ses added.) Tietz, 238 Ill. App. 3d at 972, 605 N.E.2d at 676.

While one goal is for the formerly dependent spouse to become

financially independent, "the trial court should bear in mind

that financial independence does not mean the ability to merely

meet one's minimum requirements, but entails the ability to earn

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an income which will provide a standard of living similar to that

enjoyed during the marriage." (Emphasis added.) In re Marriage

of Sisul, 234 Ill App. 3d 1038, 1039-40, 600 N.E.2d 86, 88

(1992).

The trial court equalized the distribution of marital

property. However, contrary to David's claims that the court

equalized the parties' disposable net incomes, the court specifi-

cally stated it did not fashion its maintenance award to equalize

the parties' disposable income. Regardless, whether the court

equalized the parties' disposable income is irrelevant because,

as stated, equalizing parties' incomes may be appropriate in some

cases. Reynard I, 344 Ill. App. 3d at 792, 801 N.E.2d at 596.

The real question is whether the amount of maintenance is reason-

able in light of the factors set forth in section 504 of the

Dissolution Act and the standard of living established during the

marriage.

The trial court's November 2006 letter ruling shows the

court considered the appropriate factors. The court's initial

letter ruling correctly stated it was within the court's discre-

tion to look "beyond the basic needs of the parties and allow for

additional, discretionary income, particularly in a marriage of

this duration with the amount of income available for the

[c]ourt's consideration." The court noted that (1) Lela was 52

years of age and does not have a college education; (2) the years

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spent establishing the business were a joint effort; (3) while

David acted as primary breadwinner, Lela acted as primary care-

giver to their daughters; (4) Lela's involvement in the workforce

came to an end when she became primary caregiver to their grand-

daughter Olivia; (5) Lela currently generates no income but gets

support from David in the amount of $5,400 per month and by his

payment of the mortgage on her house; (6) Lela estimates future

expenses at $9,000 per month; (7) Lela hopes to generate $20,000

per year after reestablishing herself in the real-estate busi-

ness; (8) after combining David's three financial affairs affida-

vits, David has a monthly surplus of over $14,000 even after

paying monthly expenses on behalf of Lela; and (9) the parties

enjoyed a good standard of living. The court noted that Lela

will never produce the type of income David produces. Further,

David's exhibit Nos. A and B fail to take into consideration the

considerable tax deduction he will receive for making $150,000 in

maintenance payments and the tax consequences to Lela. Finally,

David in large part controls how much income he receives and will

control how much rental income Lela receives and, in fact, has

indicated he intends to move the business from the property

awarded to Lela. As he testified, he has left large amounts of

profit in the business.

This couple lived a very nice lifestyle. They enjoyed

substantial income. While David was the primary breadwinner,

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Lela had a substantial part in helping get the business started.

She was the primary caregiver to their children and later to

their granddaughter. Because of Lela's sacrifices and signifi-

cant contributions to the family, David has a much greater

earning capacity than does Lela. "It is inequitable upon disso-

lution to saddle a party with the burden of her reduced earning

potential and to allow the other party to continue in the advan-

tageous position he reached through their joint efforts."

Reynard I, 344 Ill. App. 3d at 792, 801 N.E.2d at 596. The trial

court did not abuse its discretion in awarding Lela $12,500 per

month in maintenance for 111 months where the parties enjoyed a

high standard of living and there is sufficient income to sustain

that standard for both parties. The majority outrageously

claims, "Lela made important contributions to the business in its

early years, but she has been compensated for those contribu-

tions." Slip op. at 6. Au contraire, Lela has not been compen-

sated for those contributions. She created that family business

side by side with her husband since high school. David and Lela

even worked for nothing for years to get that business off the

ground. Lela also worked for years as a grocery store clerk to

provide the family health insurance. Lela gave up a career in

education to work for her family, to raise her family, and to

raise a disabled granddaughter, all with David's agreement and

encouragement. Lela gave up no less than the wives in Rubinstein

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and Mayhall, and she was just as disadvantaged by the marriage in

comparison to David as were those wives in comparison to their

husbands. She is a 52-year-old uneducated woman in the process

of obtaining a real-estate license, hoping to earn $20,000 a

year. David, on the other hand, earns $31,124 per month, and the

business retains earnings regularly on a yearly basis in excess

of half a million dollars. Lela deserves more than a property

settlement. Lela deserves the maintenance the trial court

awarded to sustain her lifestyle.

For these reasons, I would affirm the trial court's

judgment.

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