In re Marriage of Harms

2018 IL App (5th) 160472
NOTICE
Decision filed 05/03/18. The
text of this decision may be NO. 5-16-0472
changed or corrected prior to
the filing of a Petition for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the
) Circuit Court of
DAVID R. HARMS, ) St. Clair County.
)
Petitioner-Appellant, )
)
and ) No. 05-D-1038
)
RUTH PARKER, f/k/a Ruth Harms, ) Honorable
) Julia R. Gomric,
Respondent-Appellee. ) Judge, presiding.
______________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Cates and Overstreet concurred in the judgment and opinion.

OPINION

¶1 This appeal involves an amendment to the Illinois Marriage and Dissolution of Marriage

Act (Dissolution Act) that changes the way maintenance is calculated. Prior to 2015, the relevant

statute provided a list of factors courts were to consider in determining the propriety, amount,

and duration of maintenance. See In re Marriage of Johnson, 2016 IL App (5th) 140479, ¶ 94

(citing 750 ILCS 5/504(a) (West 2012)). Under the version of the statute now in effect, however,

the statutory factors are used to determine the propriety of maintenance, but the amount and

duration of maintenance are calculated using guideline formulas unless the court finds that there

is a reason to depart from those guidelines. 750 ILCS 5/504(a), (b-1), (b-2) (West 2016); In re

Marriage of Cole, 2016 IL App (5th) 150224, ¶ 8. At issue in this appeal is whether the new

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guidelines are applicable in proceedings to modify maintenance that was ordered before the

amendment went into effect. We hold that they are not.

¶2 The petitioner, David Harms, filed his petition for dissolution in 2005, long before the

amendment went into effect. At that time, the parties had been married for 19 years and 9

months. The 2007 order dissolving their marriage required David to pay maintenance to the

respondent, Ruth Parker, formerly known as Ruth Harms. The order provided that maintenance

could not be modified until Ruth reached the age of 65, after which time, either party could

request review of the original maintenance award. Both parties later filed petitions to modify

maintenance. The court found that the amended version of the statute was applicable and that

there was no reason to depart from the guidelines for calculating maintenance. The court denied

David’s petition to terminate or reduce maintenance and granted Ruth’s petition to increase

maintenance. David appeals, arguing that (1) the court erred by awarding permanent

maintenance without finding that there was a reason to depart from the guidelines, which provide

that permanent maintenance may only be awarded in marriages lasting at least 20 years, and

(2) both the amount and duration of maintenance constituted an abuse of the court’s discretion.

We affirm.

¶3 The parties married in Las Vegas on February 9, 1986. Their son was born in 1987. He

was an adult when the dissolution proceedings were initiated. During the parties’ marriage, they

took out a home equity loan on their marital home. They used the proceeds of that loan to

purchase a 20.5-acre parcel of land. David filed a petition for dissolution on November 28, 2005.

At that time, as previously noted, the parties had been married for 19 years and 9 months.

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¶4 In November 2006, Judge Laninya A. Cason presided over the hearing in the dissolution

proceedings. At that time, Ruth was 61 years old and was no longer working at a regular full-

time job. David would turn 44 the following month and was still working full time.

¶5 On January 10, 2007, Judge Cason entered an order dividing the parties’ property and

ordering David to pay maintenance in the amount of $1300 per month. In pertinent part, the court

awarded the marital home to Ruth and assigned the debt remaining on the home equity loan to

her. However, the court awarded the 20.5-acre parcel of land purchased with the loan to David.

The order provided that the maintenance award was “reviewable when respondent reaches the

age of 65 years.”

¶6 Both parties filed motions to reconsider or clarify this order. Ruth asked the court to

reconsider its decision to assign her the debt used to purchase the land that it awarded to David.

She also requested that her maiden name be restored. David noted that the January 10 order did

not dissolve the marriage. He further noted that the order did not make any findings as to Ruth’s

income and it did not state when his maintenance obligation was to begin. Finally, he asserted

that the order was “ambiguous and/or vague” as to his maintenance obligation, and he requested

“clarification of the Court’s ruling as it pertains to Respondent when she reaches the age of 65

years.”

¶7 On April 12, 2007, Judge Cason entered two additional orders. One order dissolved the

parties’ marriage, effective that date, and restored Ruth’s maiden name of Parker. In the other

order, Judge Cason attempted to clarify David’s maintenance obligation, stating that the award of

maintenance was “non-modifiable until Respondent’s 65th birthday, July 8, 2011,” and that it

would be “reviewable” after that time. She denied both parties’ motions in all other respects.

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¶8 On August 28, 2007, Judge Cason entered a supplemental dissolution order, which

contained findings of fact and provided some of the clarification sought by David in his earlier

motion. Judge Cason found that David’s net income at that time was $3750 per month, while

Ruth’s income was $390 per month. She further found that Ruth needed maintenance and David

was able to pay maintenance. She ordered David to pay $1300 “in maintenance, commencing on

January 15, 2007.” The order provided that this maintenance would be nonmodifiable until July

8, 2011, when Ruth would turn 65, and that after that time, maintenance would be “subject to

review upon [the] request of either party.”

¶9 In July 2014, David filed a petition to terminate or reduce his maintenance obligation. In

September 2014, Ruth filed a petition to modify maintenance, requesting an increase in

maintenance. In June 2016, the matter came for a hearing before Judge Julia Gomric. Both

parties testified at the hearing.

¶ 10 David testified that he was 52 years old at that time. He had remarried, and he lived with

his wife and their six-year-old daughter in a home they built on the 20.5-acre parcel of land that

was awarded to him in the dissolution. David was asked about the economic circumstances of the

parties at the time they separated. He testified that he was then earning approximately $48,000

per year and had a retirement account that was valued at $3090. At that time, Ruth worked in a

home business the couple owned called Cornfield Industries. David explained that the business

sold decals and hitch covers and “that type of stuff.” Asked about Ruth’s earnings from the

business, he testified that he did not “know really what the dollar amounts were” because they

put all the proceeds from the business back into the business.

¶ 11 David then testified about his current economic circumstances. He testified that his

retirement account was now worth $77,224. His wife, Erika, worked outside the home with an

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income of approximately $90,000 to $100,000 per year. David initially testified that his own

income was approximately $82,000 per year, but he later acknowledged that his 2015 income

was $82,786.72, which did not reflect a 2% raise he received in March 2016. David was also

asked about Ruth’s circumstances at the time of the hearing. He admitted that he did not expect

Ruth, who would be 70 years old the following month, to return to work. He acknowledged that

her only income was the maintenance he paid and approximately $800 per month in Social

Security income. (We note that Ruth’s Social Security was $820.90 per month before her

$104.90 Medicare premium was deducted, leaving her with an actual payment of $716 per

month.) Asked how Ruth would be able to support herself if the court granted his request to

terminate her maintenance, David replied, “I don’t know.”

¶ 12 Ruth testified that the last time she worked at a full-time job outside the home was in

1996 or 1997. She was not working at the time of the parties’ dissolution. She testified, however,

that she worked at two part-time jobs on a temporary basis subsequent to the dissolution. One of

those jobs was a part-time position cleaning trays at an elementary school cafeteria. The other

job involved cleaning the offices of a used car dealership owned by her son-in-law. She worked

at this job to “fill in” for her son-in-law while he was busy with litigation.

¶ 13 Ruth testified that her only income at the time of the hearing was $1300 per month in

maintenance and her Social Security check, which was $716 per month after her Medicare

premium was deducted. She began drawing Social Security benefits when she was 62 years old.

She acknowledged at the hearing that her Social Security benefits would have been higher had

she waited until age 65 to begin drawing them. She estimated that she would have received $400

or $500 more per month had she waited. Asked why she did not wait until she was 65, Ruth

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explained that she did not have sufficient income to pay all her bills and pay for necessary

repairs to her home.

¶ 14 On her financial statement, Ruth stated that she spent $300 per month for home

maintenance and repairs. She was asked about this figure by David’s attorney at the hearing. She

explained that to arrive at this figure, she “took whatever it took to keep the home going, and

divided it by 12.” However, she could not recall much specific information about the home

repairs she had paid for over the previous year. She testified that she had to have her air

conditioner rewired and she had to have a plumber repair a broken water line under the house.

She thought that the bill for the air conditioner was $300 and the plumbing bill was $250 or

$260, but she was not certain of the precise amounts. Ruth testified that there were probably

other repairs to the house during the previous 12 months, but those were the only two she could

remember offhand. She also testified that she was putting off other necessary home repairs

because she could not afford to pay for them, but she offered no specifics.

¶ 15 Ruth testified that she did not have a credit card and that she therefore used cash to pay

for most of her necessities—gas, car repairs, groceries, and paper supplies—as well as any

entertainment. She stated on her financial statement that she spent $50 per month on

entertainment. At the hearing, David’s attorney pointed out that records she provided showed

cash withdrawals of approximately $700 per month in both April and May 2016. Ruth did not

know whether those were typical months or not. She emphasized, however, that those cash

withdrawals covered all of her expenses for the month.

¶ 16 David’s attorney questioned Ruth at length about one of the expenses she pays for with

cash—specifically, playing video gaming machines. Ruth testified that she goes out to play

video gaming machines because it is something that gets her out of the house and gives her an

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opportunity to be around people. She acknowledged that this activity had become a major part of

her social life. She testified, however, that the amount of time she spent on video gaming

depended on whether she won. She explained that, if she won, she would use her winnings to

continue to play but, if she did not win, she was “done quickly.” Ruth testified that she did not

know exactly how much she spent on video gaming each month. As noted earlier, Ruth stated on

her financial statement that she spent $50 per month on entertainment. At the hearing, she

explained that this amount included video gaming, buying newspapers, and any other type of

entertainment.

¶ 17 David also offered into evidence a report prepared by a private investigator he hired to

attempt to prove that Ruth had an addiction to video gaming. David paid the investigator $5900.

The investigator’s report describes two different occasions on which he observed Ruth using

video gaming machines at a bowling alley. On the first occasion, he observed her for a period of

two hours. During that time, he saw her leave the machine she was playing and withdraw cash

from an ATM. She then went to the snack bar and had a conversation with someone before

returning to play the machine. After two hours, the investigator returned to his vehicle and

waited in the parking lot to see when Ruth left. She left 1½ hours later. On the second occasion,

the investigator observed Ruth using the gaming machines at the bowling alley for a period of

2½ hours. He saw her put money into the machine four or five times during this period. One time

she put $10 into the machine; the other times, she put in $5. On this occasion, he spoke to Ruth,

who gave him tips on how to increase his odds of winning. The report also described other

occasions on which the investigator attempted to find Ruth using the gaming machines at the

bowling alley but did not find her there. The report was admitted into evidence with no

objection.

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¶ 18 The court took the matter under advisement and entered an order containing detailed

findings on July 13, 2016. The court first noted that the statute governing maintenance had been

recently amended and indicated that it would apply the amended version of the statute. In setting

forth the procedural history of the case, Judge Gomric noted that Judge Cason previously

“entered a permanent maintenance order requiring David to pay maintenance to Ruth in the

amount of $1300 per month.” Judge Gomric also noted that Judge Cason ordered Ruth to assume

the debt remaining on the home equity loan but awarded the real estate purchased with the

proceeds of that loan to David.

¶ 19 The court then made its findings of fact. The court found that Ruth was 70 years old and

retired. Based on her age and the fact that she had not worked in a full-time job since 1997, the

court found that Ruth retired in good faith. The court found that “no reasonable efforts at

rehabilitation to become self-supporting by Ruth exist” and that there is no reason to believe that

she will ever be able to support herself.

¶ 20 The court further found that Ruth’s income from sources other than maintenance had

increased from $390 per month to $890 per month (as noted previously, it was actually $820.90

per month), while David’s income had increased from $48,000 per year to $85,000 per year. The

court arrived at this figure by applying the 2% raise David received in 2016 to his 2015 earnings.

The court found that Ruth’s future earning capacity was impaired by her age and the fact that she

was retired. The court found that while David’s retirement account had increased in value from

$3090 to over $77,000, Ruth had exhausted her retirement account and other savings to pay for

home repairs and living expenses.

¶ 21 The court found that both parties’ reasonable and necessary monthly expenses totaled

$2800 per month. In calculating Ruth’s expenses, the court discounted the $300 per month Ruth

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attributed to home repairs. The court also addressed David’s efforts to show that Ruth had a

gambling addiction. The court stated:

“Although David, through cross-examination and through the report of Kellermann

Investigations, has denigrated Ruth’s purported gambling addiction, the Court finds that

based upon the limited income available to Ruth, and looking at the reasonable and

necessary expenses she has indicated, her purported gambling does not constitute a

reason for the court to disbelieve the other expenses she has contained in her financial

statement.”

¶ 22 The court stated that it was considering several statutory factors, including the reasonable

needs of both parties (see 750 ILCS 5/504(a)(2) (West 2016)); the standard of living established

during the marriage (see id. § 504(a)(7)); the income and property of each party and the debt

obligations assigned to each party in the dissolution judgment (see id. §§ 504(a)(1), 510(a-5)(6));

the duration of the marriage (see id. § 504(a)(8)); the age, health, and employment capability of

the parties (see id. § 504(a)(3), (5), (9)); and the tax consequences of ordering maintenance (see

id. § 510(a-5)(4)). The court expressly found that “No facts have been presented to the Court in

this matter that support a deviation from the guideline maintenance calculations contained in the

statute.” The court then determined that the guideline amount for maintenance was $1900 per

month. The court did not address the provisions of section 504 governing the duration of

maintenance under the new guidelines.

¶ 23 The court ordered David to pay $1900 per month in maintenance, retroactive to January

1, 2015, and to pay Ruth’s attorney fees. David filed a posttrial motion, which the court denied.

This appeal followed.

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¶ 24 The propriety, amount, and duration of maintenance are matters within the sound

discretion of the trial court. We will not reverse these determinations absent an abuse of the

court’s discretion. Johnson, 2016 IL App (5th) 140479, ¶ 93. However, because statutory

construction is a question of law, we will review de novo the court’s interpretation of the

pertinent statutes. In re Marriage of Brill, 2017 IL App (2d) 160604, ¶ 40.

¶ 25 David first argues that the court erred under the new guidelines in determining that

permanent maintenance was appropriate. He correctly notes that the length of the marriage is

determined by using the date the petition for dissolution is filed, not the date the dissolution

becomes final. See 750 ILCS 5/504(b-1)(1)(B) (West 2016). He also correctly notes that under

the new guidelines, permanent maintenance is only awarded in marriages of 20 years or longer.

See id. Instead, as he points out, the guidelines provide that the duration of maintenance awarded

after a marriage of at least 19 but less than 20 years is calculated by multiplying the length of the

marriage by 0.80. See id. David acknowledges that the court has the discretion to depart from the

guidelines with respect to the amount or duration of maintenance. However, he argues that the

court must set forth its reasons for doing so. See id. § 504(b-2)(2). Here, not only did the court

not set forth reasons to depart from the guideline for determining the duration of maintenance, it

explicitly stated that it found no reason to depart from the guidelines. Thus, David contends, the

court either misapplied the new guidelines or erroneously determined that the parties’ marriage

was a 20-year marriage.

¶ 26 In response, Ruth argues that trial courts have discretion to depart from the statutory

guidelines. See id. § 504(b-1). She further argues that, under the facts of this case, the court

would have abused its discretion if it had not ordered permanent maintenance.

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¶ 27 We agree with David that the court misconstrued the new statutory guidelines. The

statute includes guideline formulas for determining both the amount and duration of

maintenance. See id. § 504(b-1)(1). The statute further provides that if a court orders

maintenance that is not in accordance with these guidelines, the court “shall” make findings as to

the amount or duration of maintenance that would have been ordered under the guidelines as

well as its reasons for not using the guideline amount or duration. Id. § 504(b-2)(2). Thus, courts

are required to make these findings if they depart from either aspect of the new guidelines. Here,

the court found that there was no reason to depart from the guidelines, but it did not follow the

guidelines with respect to the duration of maintenance and did not make the required findings.

¶ 28 More importantly, however, we believe the court erred in finding the guidelines to be

applicable under these circumstances at all. We reach this conclusion after consideration of the

language of two pertinent statutes—section 504 of the Dissolution Act, which governs initial

awards of maintenance, and section 510, which governs petitions to modify maintenance or child

support. See id. §§ 504, 510.

¶ 29 The primary rule in statutory construction is that we must ascertain and effectuate the

intent of the legislature. In re Marriage of Lubbs, 313 Ill. App. 3d 968, 969-70 (2000). The best

indicator of legislative intent is the plain language of the statutes themselves. Id. at 970. Where,

as here, multiple statutes relate to the same subject, we must presume that the legislature

intended those statutes to be “consistent and harmonious.” DeLuna v. Burciaga, 223 Ill. 2d 49,

60 (2006). We must also presume that the legislature “did not intend absurdity, inconvenience or

injustice.” Id.

¶ 30 The guidelines are found in section 504. By its express terms, the statute applies only in

proceedings “for dissolution of marriage or legal separation,” proceedings for a “declaration of

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invalidity of marriage,” or in proceedings where one party seeks an award of maintenance

“following dissolution of the marriage by a court which lacked personal jurisdiction over the

absent spouse.” 750 ILCS 5/504(a) (West 2016). These are all proceedings involving initial

maintenance orders. Section 504 is relevant in proceedings on petitions to modify maintenance

only because it is referenced in section 510, which, as we noted, governs petitions to modify. See

id. § 510. That statute provides that, in ruling on a petition to modify maintenance, courts must

consider “the applicable factors set forth in subsection (a) of Section 504” as well as several

additional factors listed in subsection (a-5) of section 510. (Emphasis added.) Id. § 510(a-5).

Section 510 does not refer to subsection (b-1) of section 504, which contains the new guidelines.

See id.

¶ 31 It is worth noting that section 510 has been amended four times since the guidelines went

into effect. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016); Pub. Act 99-764, § 5 (eff. July 1,

2017); Pub. Act 100-15, § 5 (eff. July 1, 2017); Pub. Act 100-201, § 705 (eff. Aug. 18, 2017).

None of these amendments added language directing courts to apply the guidelines in

proceedings to modify maintenance. Had the legislature intended to make the guidelines

applicable in proceedings to modify maintenance, it easily could have added language to section

510 to achieve this result. Thus, under the express terms of the two statutes, the guidelines are

not applicable in such proceedings.

¶ 32 Although we need not look beyond the express statutory language, we find further

support for our interpretation from the fact that applying the guideline formula for duration to a

preexisting maintenance award will often lead to results that are absurd or unjust. This case

provides a perfect illustration.

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¶ 33 The instant case involves an award of indefinite or permanent maintenance. Although we

note that none of Judge Cason’s orders expressly labeled the maintenance as either “permanent”

or “rehabilitative,” as we mentioned earlier, Judge Gomric characterized the original award of

maintenance as “permanent maintenance,” and we agree with this characterization.

¶ 34 If an award of maintenance “bears all the hallmarks of traditional permanent

maintenance,” it will be deemed to be permanent regardless of whether it is labeled as such. In re

Marriage of Bolte, 2012 IL App (3d) 110791, ¶ 21. The purpose of rehabilitative maintenance is

to provide the recipient spouse an incentive to develop the job qualifications necessary to

become self-sufficient after a period of time. In re Marriage of Carpenter, 286 Ill. App. 3d 969,

972 (1997). Thus, awards of rehabilitative maintenance generally require maintenance to be paid

for a specified period of time, “thereby presumably allowing the recipient to become

‘rehabilitated’ and able to support herself.” Bolte, 2012 IL App (3d) 110791, ¶ 24.

¶ 35 Here, the 2007 orders did not provide that maintenance would automatically terminate

after a fixed period of time. The orders also did not provide that, after a fixed period of time,

Ruth would have to demonstrate that she had made reasonable efforts to become self-sufficient,

although they did provide that the maintenance could be reviewed after Ruth turned 65 at the

request of either party—presumably to allow the court to reassess the financial positions of the

parties once Ruth began collecting Social Security. See id. The 2007 dissolution orders thus gave

Ruth a right to receive permanent maintenance. It would be unjust and absurd to alter this right

years later because of a statutory amendment. As stated previously, we must presume that the

legislature did not intend such a result. See DeLuna, 223 Ill. 2d at 60. We therefore hold that the

guidelines are not applicable in proceedings to modify preexisting maintenance orders. The court

erred in reaching the opposite conclusion.

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¶ 36 Although we have concluded that the court’s interpretation of the relevant statutory

provisions was not correct, we do not believe the court’s use of the new guidelines to calculate

the amount of maintenance necessarily requires reversal. This court has previously recognized

that even where the guidelines are not applicable, an award of maintenance that is consistent with

the guideline amount will typically be a proper exercise of the court’s discretion. See Johnson,

2016 IL App (5th) 140479, ¶¶ 108, 110 (recognizing that the new guidelines were not applicable

but finding additional support for its conclusion that the amount of maintenance awarded was an

abuse of discretion because there was a significant disparity between the amount awarded and

the amount that would have been awarded under the guidelines). Here, the court expressly stated

that it considered the relevant factors in both section 504 and section 510 (750 ILCS 5/504(a),

510(a-5) (West 2016)), as it was required to do. After consideration of these factors, the court

determined that guideline amount of maintenance was appropriate. We may affirm the court’s

ruling on any basis appearing in the record, even if it was not the basis relied upon by the court.

In re Marriage of Fortner, 2016 IL App (5th) 150246, ¶ 15. Thus, as long as the court considers

the required factors and does not abuse its discretion in determining the amount or duration of

maintenance, we may affirm its ruling.

¶ 37 This brings us to David’s next argument. He argues that the court abused its discretion

both by increasing his maintenance obligation and by making maintenance permanent. He argues

that the court overlooked various factors, including an increase in Ruth’s income and the lack of

any evidence that Ruth had attempted to become self-sufficient. He complains that Ruth

“overstated” the amount of money she spent for home maintenance and repairs. Finally, he

emphasizes the evidence he presented to attempt to show that Ruth had a gambling addiction and

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the evidence that she had not paid off the home equity loan assigned to her. We are not

persuaded.

¶ 38 Contrary to David’s assertion, the court did in fact consider the factors he claims it

overlooked. The court expressly found that Ruth’s income had increased when she began

receiving Social Security benefits, and the court took that amount of income into consideration

when determining the amount of maintenance to award. The court also expressly found that there

was no reason to believe that Ruth, a 70-year-old retiree, had any realistic avenue to become self-

sufficient. This finding was amply supported by the record, and David acknowledged as much in

his testimony when he admitted he did not expect Ruth to go back to work and that he had no

idea how she would support herself if maintenance were terminated.

¶ 39 We find David’s argument that Ruth “overstated” her expenses for home maintenance

and repair particularly unavailing. If anything, it appears that she likely underestimated these

expenses. She testified at the hearing that she was required to pay for two major repairs to her

home during the 12 months before the hearing—one was a repair to a broken pipe underneath

the house, and the other was a rewiring of her air conditioner. She could not remember precisely

how much she paid for either repair, and she could not remember what other repairs were

needed. It is likely that it cost more than $260 to repair a pipe under the house. However, it was

Ruth’s burden to establish these expenses, and the court discounted the $300 per month Ruth

claimed she spent on home maintenance and repair when it found that her reasonable monthly

expenses were $2800 per month.

¶ 40 The court also addressed David’s evidence that Ruth spent time playing video gaming

machines. The court referred to this evidence as evidence of a “purported gambling addiction,”

implying that the court did not find the evidence particularly persuasive, but the court did not

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make any express credibility determinations. The court did, however, find that $2800 of the

expenses listed by Ruth in her financial statement were reasonable, a determination that was

supported by the evidence. Thus, even assuming Ruth understated the amount of money she

spent on video gaming, as David asserts, the court’s maintenance award was properly based on

its finding that her other expenses were reasonable.

¶ 41 It is also worth noting that the investigator’s report only revealed that Ruth spent a few

hours playing video gaming machines on two different occasions and that on one of those

occasions, she spent approximately $30. Although the precise nature and extent of the

surveillance leading to these two observations is not clear, it appears that the investigator spent a

significant amount of time following Ruth attempting to find evidence of a gambling addiction.

His reports indicated that on at least three other occasions, he went to the parking lots of two

different bowling alleys looking for Ruth’s car and that on one other occasion, she noticed him

following her car and took evasive action. During the hearing, Ruth’s attorney attempted to ask

Ruth if she wanted the court to order David’s private investigator and members of David’s

family to stop following her, but the court noted that she did not request this relief in any

pleadings. We find nothing in this evidence that renders the court’s decision an abuse of

discretion.

¶ 42 Finally, David complains that Ruth was “completely derelict in her duty” to pay the home

equity loan that was assigned to her in the dissolution. As we have discussed, the loan was taken

out by David and Ruth during their marriage and used to purchase a piece of land that was

awarded to David in the dissolution, free and clear of any claim by Ruth. David acknowledged at

the hearing that Ruth made the required payments under the loan. He complained, however, that

she took an additional loan without his consent, thereby adding to the debt, and that she did not

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refinance the loan to remove his name from it. Although David claims that the continued

existence of the loan has impacted his own ability to borrow money, he has not provided any

explanation or examples. Ruth testified that the bank would not allow her to refinance the loan to

remove David’s name. She acknowledged that she added to the debt. She explained that she

borrowed additional money on the line of credit because she needed that money to make the

monthly payments.

¶ 43 We are not convinced by David’s argument that this additional loan required the court to

terminate or reduce Ruth’s maintenance. A former spouse receiving maintenance is not required

to exhaust all of her assets in order to meet her basic needs. In re Marriage of Nord, 402 Ill. App.

3d 288, 304 (2010). By the time of the hearing in this matter, Ruth had already exhausted her

retirement account and other savings in order to provide for her basic needs and to pay the debt

assigned to her. The court did not abuse its discretion by increasing the amount of her

maintenance under these circumstances, and the evidence that she felt compelled to take on

additional debt in order to pay a loan used to purchase property now owned and enjoyed by

David does not alter this conclusion.

¶ 44 As stated previously, an award of maintenance consistent with the guideline amount will

ordinarily not be found to be an abuse of the court’s discretion even in cases where the

guidelines are not applicable. The maintenance awarded in this case represents an increase of

$600 per month. This is hardly excessive in light of the fact that David’s income nearly doubled

in the years since the dissolution. As Ruth points out, the maintenance award still leaves her with

slightly less than she needs to meet the $2800 per month in expenses the court found reasonable.

We find no abuse of discretion in the amount of maintenance ordered by the court.

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¶ 45 We likewise find no abuse of discretion in the court’s decision to award permanent

maintenance. As previously discussed, the original 2007 maintenance order was, in substance, an

award of permanent maintenance despite the lack of clarity in Judge Cason’s order. Moreover,

regardless of how the original order is characterized, we agree with Ruth that the court would

have abused its discretion had it not awarded permanent maintenance. Rehabilitative

maintenance is only appropriate if the recipient spouse is employable at an income level

sufficient to allow her to live at the standard of living established during the marriage. Nord, 402

Ill. App. 3d at 305. Permanent maintenance is appropriate in cases where the recipient spouse is

not employable at that level or not employable at all. Johnson, 2016 IL App (5th) 140479, ¶ 93.

In such cases, an award of rehabilitative maintenance is an abuse of discretion. Carpenter, 286

Ill. App. 3d at 973. At the time of the hearing in this matter, Ruth was about to turn 70 and had

long ago retired. David admitted that he did not expect her to return to work. Under these

circumstances, the court would have abused its discretion if it had awarded anything other than

permanent maintenance.

¶ 46 We find no abuse of discretion in either the amount or duration of maintenance, and we

find that the court considered the factors it was required to consider. We therefore affirm the

court’s order increasing David’s maintenance obligation to $1900 per month and denying

David’s petition to terminate maintenance.

¶ 47 Affirmed.

18

 2018 IL App (5th) 160472
NO. 5-16-0472
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
DAVID R. HARMS, ) St. Clair County.
)

Petitioner-Appellant, )

)

and ) No. 05-D-1038
)
RUTH PARKER, f/k/a Ruth Harms, ) Honorable
) Julia R. Gomric,
Respondent-Appellee. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: May 3, 2018
______________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Judy L. Cates, J., and
Honorable David K. Overstreet, J.,
Concur
______________________________________________________________________________

Attorneys Anthony R. Garavalia, Brian D. Flynn, Flynn, Guymon & Garavalia,
for 300 West Main Street, Suite 4, Belleville, IL 62220
Appellant
______________________________________________________________________________

Attorneys Charles W. Courtney, Jr., Jayni A. Desai, Alana I. Mejias, Courtney,
for Clark & Mejias, P.C., 104 S. Charles Street, Belleville, IL 62220
Appellee
______________________________________________________________________________