In re Marriage of Folley

2021 IL App (3d) 180427

Opinion filed May 19, 2021
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2021

In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
ANNE E.L. FOLLEY, ) Peoria County, Illinois.
)
Petitioner-Appellant, )
) Appeal No. 3-18-0427
and ) Circuit No. 10-D-643
)
GREGORY S. FOLLEY, ) Honorable
) Kim Lee Kelley,
Respondent-Appellee. ) Judge, presiding.
____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court, with opinion.
Presiding Justice McDade and Justice Lytton concurred in the judgment and opinion.
____________________________________________________________________________

OPINION

¶1 The parties, Anne E.L. Folley (Anne) and Gregory S. Folley (Greg), divorced after 28

years of marriage. Under the parties’ Marital Settlement Agreement (MSA), among other things,

Greg was obligated to pay Anne maintenance in the amount of $20,000 per month. Five years

later, after being forced to retire early by his employer, Caterpillar, Inc., Greg filed a petition to

terminate or modify maintenance and terminate or reduce his obligation to maintain $3,330,000

worth of life insurance for the benefit of Anne. The trial court found that Greg’s early retirement
 was a substantial change in circumstances and reduced Greg’s maintenance obligation to $0,

with Anne allowed to file a motion to review maintenance upon Greg obtaining reemployment

and with Greg ordered to continue to seek reemployment in good faith. The trial court also

reduced Greg’s obligation to maintain life insurance for the benefit of Anne from $3,330,000 to

$500,000. Anne appealed, arguing that the trial court abused its discretion by reducing Greg’s

maintenance payments to $0 until further order of the court and by reducing Greg’s life

insurance obligation. We vacate the trial court’s order and remand for further proceedings.

¶2 I. BACKGROUND

¶3 Greg and Anne were married on August 13, 1983. During their marriage, the parties had

nine children. For the duration of the marriage, as agreed to by the parties, Anne cared for the

children while Greg worked outside of the home. In April 2010, the parties separated. On June

29, 2012, a judgment of dissolution of marriage was entered, which incorporated the parties’

MSA.

¶4 At the time of the parties’ dissolution of marriage, Greg was employed as a vice president

with Caterpillar, Inc., earning a base monthly gross income of $38,880 plus additional short-term

incentive pay (paid annually) of approximately $66,451.50 per month. Pursuant to their MSA,

the parties equally divided their marital estate that was worth approximately $5 million. As part

of their property division, Greg took sole ownership of the parties’ marital home in Peoria,

Illinois (valued at $550,000 with a $576,000 mortgage), and Anne took sole ownership of their

second home in Peru, New York, which had been purchased during the dissolution proceedings

in 2011 (valued at $309,000 with a $245,000 mortgage). The property division also included the

equal division of the parties’ checking, savings, and investment accounts (total approximate

value of $1,365,155), as well as an equal division of Greg’s retirement benefits—a pension plan,

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 a supplemental pension plan, 401(k) ($1,449,386), individual retirement account (IRA)

($287,946), and Caterpillar stock options (valued at $604,464). The parties also had college

savings plans for the children valued at $881,000, which they agreed to continue to maintain for

the benefit of the children.

¶5 In 2012, at the time of the dissolution judgment, four of the parties’ nine children were

still minors. Under the MSA, Anne was to receive unallocated maintenance from which she was

obligated to pay for the expenses of the minors living with her. 1 Greg was to pay Anne $20,000

per month in “permanent maintenance” and 25% of any Short-Term Incentive Payments (STIP).

There was no separate child support allotted under the parties’ MSA. The terms of the MSA

indicated that Greg’s obligation to pay, and Anne’s right to receive, the maintenance payments

agreed to by the parties “shall terminate” upon the first to occur: the death of Greg; the death of

Anne; the remarriage of Anne; or “the cohabitation of [Anne] on a resident, continuing, conjugal

basis.” Additionally, under the MSA, Greg was also required to maintain health insurance for the

benefit of the parties’ children, with the parties’ splitting any expenses not covered by insurance.

Greg was also required to maintain $3,300,000 in life insurance for the benefit of Anne for the

duration of his maintenance obligation.

¶6 On July 14, 2017, Greg filed a petition to modify his maintenance obligation, his

obligation to maintain life insurance for the benefit of Anne, and his obligation regarding the

children’s health insurance. On November 13, 2017, a hearing took place on Greg’s petition.

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The record is not clear as to how many of the minors lived with Anne at the time the dissolution
judgment was entered in 2012, which incorporated the parties’ unallocated maintenance agreement
pursuant to the MSA. In his affidavit of December 5, 2011, Greg indicated that the two older minors (ages
16 and 17) lived with him. Therefore, presumably, the parties two youngest children (ages 9 and 13) lived
with Anne at that time. However, following the subsequent modification of maintenance proceeding in
2018, the trial court found that three of the minors were living with Anne at that time.
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¶7 At the hearing on November 13, 2017, Greg testified that he had worked at Caterpillar

from August l, 1995, until his retirement on July 3l, 2017, and had been a vice president for the

company since 2009. He earned over $2 million per year. On June 15, 2017, Greg had been

given the option of retiring or being terminated due to restructuring within the company. At that

time, Greg was 58 years old and had intended to continue to work until at least the age of 62,

which was the age he would have received full retirement benefits at an unreduced rate. Upon

being told he would no longer be employed with Caterpillar, Greg chose to retire, with his

retirement becoming effective on July 31, 2017. Greg testified that he received his regular pay

through July 31, 2017. He also received a gross severance payment of $1.16 million (net

$657,159.78). He would also be receiving a pro rata STIP payment in March 2018 for 2017, of

which Anne would receive 25% pursuant to the MSA.

¶8 At the time of filing his financial affidavit in October 2017, Greg had approximately $12

million worth of assets in various checking, savings, investment, and retirement accounts, which

included 169,972 shares of Caterpillar stock with a fair market value of $7.3 million. At the

hearing, Greg testified that a few weeks prior he had exercised about 70,000 of his Caterpillar

stock options and received a net payout of approximately $1.9 million (after paying

approximately 40% in taxes). He also testified that upon retiring he received a gross payout of

$325,000 ($228,000 net) from a supplemental savings account.

¶9 Greg testified that if he had retired at the full retirement age of 62, his monthly pension

benefits would have been $34,366.76 per month, but that amount was reduced to $28,981.49 due

to his early retirement. After an offset for the portion of the pension payments to be paid to Anne

(approximately $11,000), Greg could have received pension payments of $17,852.60 per month

under a single life annuity option but opted for reduced pension payments of $16,233.37 per

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 month during his lifetime (under the 50% joint and survivorship option) so that his current wife,

Margo, could receive payments of $8115.69 per month after his death.

¶ 10 According to Greg’s 2017 financial affidavit, Greg’s gross retirement income was

anticipated to be $23,500 per month (monthly pension benefits of $16,233, interest and dividend

income of $3150, and supplement deferred compensation payments of $3624 per month (to start

in February 2018)). Greg indicated on his financial affidavit that his monthly expenses of

approximately $49,719 per month (not including Anne’s $20,000 maintenance payments)

exceeded his monthly income of $23,500.

¶ 11 Greg lived with his current wife, Margo, to whom he had been married since 2016. She

did not contribute to their living expenses. They lived in a home that Greg had purchased in 2014

for $2 million on North Prospect Road in Peoria, Illinois, with Greg still owing $1.6 million on

that home. Greg also still owned the parties’ marital home, which he was trying to sell. Greg paid

almost $23,000 per month in relation to the two homes—$11,648 for the two mortgages, $5031

in property taxes, $1025 for homeowners’ insurance, $4000 in necessary repairs and

maintenance, $860 for gas, $565 for water and sewer, $290 for cable, and $450 for cleaning

services. His other monthly expenses of almost $27,000 were for, among other things, car

payments ($2600); entertainment/dining out/hobbies ($4500); donations ($4000); vacations

($3750); and $1880 of “minor and dependent child expenses,” which included $1680 per month

for “children only” vacations. Greg’s monthly car payments were $2,598 per month for two

leases—one for a 2016 Porsche 911, and one for a Hyundai, with all but $190 being paid for the

Porsche. Greg leased the Porsche in August 2016 and could not trade it in for a less expensive

vehicle until September 2018.

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¶ 12 Additionally, Greg indicated that he was paying for $5.5 million worth of life insurance,

with $3.5 million allocated for the benefit of Anne. Greg indicated that he paid $1,891 per month

in premiums for term life insurance and $735 per month for whole life insurance, although he did

not specifically indicate how much he paid for the portion of life insurance that was carried for

the benefit of Anne.

¶ 13 As for looking for employment, Greg testified that he was seeking reemployment but had

yet to be hired. If Greg could find a “suitable job,” he would like to work. He had been looking

for fulltime work and had a couple of “significant” leads, but those leads concluded at the

“headhunter stage.” Greg indicated he had four telephone interviews with Amazon and

anticipated having an in-person meeting, possibly at the end of January 2018.

¶ 14 Anne testified that she was 56 years old. According to her affidavit filed in October 2017,

Anne had total assets of approximately $5.5 million, consisting of $4.25 million in various

checking, savings, and investment accounts, a 401(k) retirement account of $477,160, two

vehicles (valued at $48,000 with no outstanding loans), and a North Carolina home (valued at

$695,000). In September 2017, Anne had sold her New York home for $301,500 and purchased

the home in North Carolina for $695,000. Anne paid for her North Carolina home after cashing

in some stock so she would not have a mortgage payment.

¶ 15 In addition to receiving her portion of the monthly pension payments (approximately

$10,500 to $11,000 per month), Anne earned approximately $9600 per month from investment

income and dividends, which she reinvested. In her affidavit, Anne indicated that her total

monthly living expenses were $18,000 per month. Her monthly expenses included approximately

$7000 per month in home expenses—$548 for property taxes, $145 for homeowners’ insurance,

$1000 in necessary repairs and home maintenance, $610 for utilities, cable, garbage services, and

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 cleaning services, and $5046 for “additional upgrades to house and property.” Anne’s other

monthly expenses included, among other things, groceries ($2000); car payments ($1425), which

she testified were her “travel expenses”); entertainment, dining out, and hobbies ($1860); gifts

($2416); vacations ($625); and “travel/lodging for court and house, attorney fees, broker fees”

($650). She also indicated that she paid “minor and dependent children expenses” (presumably

for the parties’ minor 14-year-old daughter) in the amount of $617 per month. Anne explained

that she had estimated that she spent almost $2500 per month on gifts in the past year as the

result of spending $15,000 to help one of the parties’ sons, spending $5,000 on their other son

who had gotten married, and giving other gifts “out to the kids.” She also spent approximately

$6000 per month on home improvements in preparing to sell her New York home, and she

anticipated having extensive home improvement costs for her new home.

¶ 16 Anne testified that if her maintenance payments were terminated, she would have to

spend her savings or sell stock. Anne also testified that she had paid for her expenses from her

maintenance payments and had never taken money from her investments or investment income

to pay bills (except for the purchase of her North Carolina home).

¶ 17 On November 17, 2017, the trial court issued a memorandum of its decision. The trial

court found: under the MSA, Greg’s maintenance obligation to Anne was $20,000 per month

(commencing on June 30, 2012), plus 25% of any STIP pay he received; there was no separate

child support provision under the MSA because the children’s expenses were to be paid from the

spousal maintenance payments; at the time of the dissolution of marriage in 2012, the parties had

three minor children in Anne’s care, but there was currently only one minor child in her care; at

the time of the dissolution, Qualified Domestic Relations Orders (QDROs) were entered, which

equally divided Greg’s retirement and deferred compensation plans between the parties; at the

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 time of the parties’ MSA, Greg had base gross income of $38,380 per month plus significant

additional short-term and long-term incentive pay; on July 1, 2017, defendant opted to retire as

the result of being forced to choose between retiring or being terminated without apparent cause

and, as such, constituted a good faith change in circumstance; pursuant to the severance package

Greg had negotiated with Caterpillar, Greg received gross severance pay of $1,161,000 (net of

$657,159.58); the parties “have enjoyed and continue to enjoy [a] luxurious life style within the

proverbial one percent of top wage earner”; the parties’ financial affidavits each had “ ‘fat’ ” in

their budgets in regard to overstatements of current expenses (with the court noting, for example,

Anne’s house repair expenses for her sold home and car payment expense which was actually

$0) and discretionary expenses that were “clearly non-essential and could easily be reduced”

(with the trial court noting, for example, Greg’s donations, entertainment, and vacations); Greg

was to receive pension payments of $16,233 per month; and Anne was to receive pension

payments between $10,500 and $11,000.

¶ 18 The trial court further found Greg’s decision to retire was “forced by Caterpillar Inc and

[was] in no way to avoid his obligation to his former spouse or [his] children” and constituted “a

substantial change in circumstances which warrant[ed] a reduction in maintenance, but for

[Greg’s] severance package.” The trial court found there had not been any change in

circumstances at that time, though, because Greg was receiving his full wages plus benefits for at

least 30 additional weeks as the result of his severance pay. The trial court found Greg would not

be eligible for a reduction of maintenance until March 5, 2018, denied Greg’s request for a

reduction in maintenance, and indicated it would review the matter after March 5, 2018. In the

meantime, Greg was ordered to continue his job search, report any job offers to Anne’s attorney,

and provide verification of his compensation upon reemployment.

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¶ 19 On March 12, 2018, a hearing for a review of maintenance took place. According to his

affidavit filed on March 2, 2018, Greg had approximately $12 million worth of assets. Greg’s

current gross monthly income was approximately $23,683.62 per month ($16,233.37 from his

pension and $7450.25 in interest and dividend income; there was no reference to the supplement

deferred compensation pay of $3624 per month previously listed as income to start in February

2018 on his 2017 affidavit).

¶ 20 Greg testified as to his continued efforts to find employment. Greg indicated that younger

colleagues with similar backgrounds and experience were having more success at securing

employment. Greg was also prohibited from working for a competitor of Caterpillar under a non-

compete agreement, which would expire in July 2018. Greg had been screened by headhunters

for some jobs but did not pass beyond the screening process. Greg had interviewed for a law

professor job for a salary of between $125,000 to $150,000 and was waiting to hear back. He

was unable to secure any other job interviews.

¶ 21 Since the prior hearing, Greg sold the parties’ martial home for $361,000 (the mortgage

was “just under” $500,000 at the time of the sale). He was also trying to sell his home on North

Prospect for $2.1 million, on which he owed approximately $1.6 million. On or around January

23, 2018, Greg purchased a condominium in Florida (condo) for $3,050,000, paying for the

condo outright with no outstanding loans.

¶ 22 As for his expenses, Greg’s 2018 financial affidavit indicated living expenses of

$47,455.18 (without the additional $20,000 paid in maintenance). Greg’s “monthly household

expenses” of approximately $22,522 per month (a $3588 decrease from the prior affidavit)

included: $4765.18 for the mortgage on the North Prospect home (decrease in mortgage

payments of $6883 after selling the marital home); $5916 for property taxes ($900 increase

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 presumably due to the purchase of the condo); $1667 for condo association dues ($1667

increase); $1257 for homeowners insurance ($222 increase); $1200 for gas ($340 increase); $290

for cable (no change); $565 for water and sewer (no change); $850 for house cleaning services

($400 increase); and $4000 for necessary repairs and maintenance (no change). Greg’s other

monthly expenses did not change from his 2017 affidavit, except as follows: $3018 for car

payments ($420 increase after the prior lease on the Hyundai ran out and he began leasing a new

Kia); $505 for auto insurance, license, and city stickers ($87 increase); $2500 for entertainment,

dining out, and hobbies ($2000 decrease); $2000 in donations ($2000 decrease); $3750 for

vacations ($1750 decrease); and $1500 in professional fees and association dues ($670 increase).

Greg additionally indicated spending $6280 in “minor and dependent child expenses” per month

(a $4400 increase), which included Greg paying $1000 for transportation and $2000 for rent and

food for the parties’ 25-year-old daughter, Catherine. Catherine’s 529 plan had been depleted.

Greg anticipated that Catherine would graduate from college in December of 2018. Greg also

anticipated that he would be assisting the parties’ 22-year-old son, who also would be graduating

in December, because their son’s 529 account was going to be depleted “fairly soon.”

¶ 23 Greg had no debt other than the mortgage associated with the North Prospect home.

Chase, Greg’s stepson (Margo’s son), lived in the North Prospect home and did not pay rent. The

water and sewer expenses listed on Greg’s affidavit were for the North Prospect home, and

almost all of the $4000 per month Greg paid in “necessary repairs and maintenance” (listed on

his affidavit) was for the North Prospect home. Greg testified that he had actually paid “way

more” than $48,000 in repairs and maintenance for the North Prospect home in the last 12

months. He estimated that he would spend about the same amount “going forward.” Greg

testified that selling the North Prospect home would “substantially” reduce his cost of living.

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¶ 24 Anne testified that the parties’ minor daughter lived with her. The parties’ minor daughter

was 15, would turn 18 in August 2020, and would graduate from high school in 2021. In

addition, a few months prior, in December 2017, the parties’ 20-year-old daughter moved back

into Anne’s home.

¶ 25 Anne filed an updated financial affidavit on March 7, 2018. Anne’s monthly income

(without maintenance) was $20,410.38, which consisted of $10,796.13 in pension payments,

$640.83 of interest income, $4024.92 of dividend income, and $4948.50 of investment income.

Anne’s total monthly expenses were listed as $17,814.73, with no substantial change to her

expenses from her prior affidavit filed in 2017, except for a $400 per month increase in groceries

and household supplies (presumably due to the parties’ 20-year-old daughter moving in with

Anne) and the removal of the “car payments” expense previously listed as $1425.83, which Anne

had testified at the prior hearing were travel expenses. According to her 2018 affidavit, Anne’s

total assets had increased to approximately $7.5 million, consisting of various checking, savings,

and investment accounts (totaling $6.27 million), a 401(k) account ($557,877), two vehicles

(valued at $48,000), and her North Carolina home (valued at $695,000).

¶ 26 Anne testified that when she agreed to permanent maintenance in the amount of $20,000

per month she understood that to mean she would receive that amount until she or Greg died.

Anne had graduated from Notre Dame in 1983. She testified that she did not plan to work

because she was not qualified for anything above an entry level job and her income “would just

get sucked into taxes.” She also indicated that she could not do anything physical because she

had an arthritic hip.

¶ 27 On March 16, 2018, the trial court entered a memorandum of its decision. The trial court

found: Greg’s severance pay had been exhausted and Greg was, in good faith, continuing to seek

11
re-employment but was unsuccessful “for a variety of reasons, including his age (almost 59)”;

although Greg sold one of his two homes (at a loss), he then purchased a $3.1 million home

while still owning a $2.1 million home; Greg had “not appreciably improved his monthly cash

flow situation in the face of his severance package becoming exhausted,” which was a situation

“of his own volition”; Anne had extensive liquid assets and income (from her portion of the

pension and from investment income and dividends) “from which to meet most of her and the

minor child’s needs”; statutory maintenance guidelines were not applicable but were

“instructive” in that those guidelines would not yield any spousal maintenance because the

parties’ “regular monthly income [was] relatively equal”; the parties were married over 27 years

(at the time of the filing of the dissolution petition), and they had negotiated a full MSA that

provided for permanent maintenance; there was no provision in the parties’ MSA indicating that

maintenance was non-modifiable; Anne was not anticipated to make efforts to secure

employment under the MSA; any income she would be able to secure from employment, “likely

entry level minimum wage,” would not appreciably meet her reasonable needs; Greg had

“extensive talents and business training” and “very marketable job skills,” but “the present social

economic environment was not favorable for the employment of an older white male in an

executive or board of director capacity, making [Greg’s] reemployment search more difficult”;

Greg “demonstrated by a preponderance of the evidence that a substantial change in

circumstances ha[d] occurred which warrant[ed] a modification of the spousal maintenance”; and

“maintenance should properly abate, until he obtains employment.” The trial court further found

that “[i]t would be inequitable to completely terminate maintenance” after over 27 years of

marriage and given Greg’s potential employability, but “abating the same (i.e., setting current

12
 maintenance payments at zero, with no accumulating arrearage) is proper commencing in the

month of March 2018 and thereafter until further order of the court.”

¶ 28 Greg was ordered to submit his daily job search history to Anne “on quarterly basis until

he obtains employment” and, when reemployed, submit proof of his employment and his

compensation package to Anne. Upon Greg submitting proof of his employment and

compensation, Anne “shall then have the option to revisit the issue of spousal maintenance upon

filing a motion to review the same.” The trial court also indicated that Greg similarly had the

right to seek termination of maintenance if the circumstances warranted it.

¶ 29 Additionally, the trial court reduced Greg’s obligation to provide life insurance for the

benefit of Anne to $500,000. The trial court awarded Anne child support for the parties’

youngest child in the amount of $1800 per month, from March 2018 through May 2021. The trial

court noted that under the statutory guidelines, child support would have been $1157 per month,

but it had deviated upward in light of Greg liquidating sizable assets to purchase a second home

at $3.1 million (thereby reducing his income), the fact that “his Caterpillar option may and will

likely yield greater income,” the standard of living the child would have enjoyed if the parties

had remained married, and the reasonable needs of the child.

¶ 30 Anne filed a motion to reconsider, requesting that the trial court clarify its order in regard

to her 25% portion of Greg’s 2017 STIP pay and for specific dates for the abatement of

maintenance to begin and for the payment of $1800 per month in child support and for dates for

Greg to produce quarterly job search reports. The trial court modified its prior order to clarify

that Greg was still obligated to pay Anne 25% of the 2017 STIP payment that he had received in

March 2018, the abatement of maintenance was to commence with the March 2018 maintenance

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 payment, child support payments were to commence on March 1, 2018, and Greg was to provide

quarterly job reports to Anne on the 15th of the month following the end of each quarter.

¶ 31 Anne appealed.

¶ 32 II. ANALYSIS

¶ 33 On appeal, Anne argues the trial court abused its discretion by reducing Greg’s

maintenance obligation to $0 until further order of the court and reducing Greg’s life insurance

obligation for her benefit from $3,300,000 to $500,000. Anne does not contest the trial court’s

finding that Greg’s forced early retirement constituted a substantial change in circumstances.

Rather, Anne argues the trial court abused its discretion by granting the relief that it did in this

case—modifying maintenance to $0 while Greg remained unemployed. Specifically, Anne

argues that the trial court erred in abating maintenance despite Greg’s ability to pay. Anne

contends that reducing her maintenance to $0 until further order of the court constituted a de

facto termination of her permanent maintenance award under the circumstances of this case.

Greg argues that the trial court did not abuse its discretion in abating maintenance until further

order of the court or by reducing his insurance obligation.

¶ 34 The decision to modify a maintenance award is within the trial court’s discretion and will

not be disturbed absent an abuse of discretion. In re Marriage of Heroy, 2017 IL 120205, ¶ 24.

An abuse of discretion takes place when “the trial court's ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the trial court.”

(Internal quotation marks omitted.) Id. Also, a reviewing court will not reverse the court’s factual

findings unless they are against manifest weight of the evidence. In re Marriage of Micheli, 2014

IL App (2d) 121245, ¶ 21. “Findings are against the manifest weight of the evidence where the

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 opposite conclusion is clearly evident or where the court’s findings are unreasonable, arbitrary,

and not based upon any of the evidence.” Id.

¶ 35 Section 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides

that an order for maintenance may be modified or terminated “only upon a showing of a

substantial change in circumstances.” 750 ILCS 5/510 (a-5) (West 2016). Where a party has

shown a substantial change in circumstances, a court may modify a maintenance award but is not

required to do so. In re Marriage of Anderson, 409 Ill. App. 3d 191, 204 (2011). After

determining that a substantial change in circumstances occurred, a trial court will then consider

whether a modification of maintenance is warranted under the factors listed in section 510(a-5)

of the Act, as well the factors listed in section 504(a) of the Act. 750 ILCS 5/510(a-5) (West

2016)); Heroy, 2017 IL 120205, ¶ 25. The movant who is seeking the modification or

termination of a maintenance obligation bears the burden of establishing a substantial change in

circumstances sufficient to warrant the relief requested. In re Marriage of Bernay, 2017 IL App

(2d) 160583, ¶ 14; Shen v. Shen, 2015 IL App (1st) 130733, ¶ 132; Anderson, 409 Ill. App. 3d at

198; In re Marriage of Krupp, 207 Ill. App. 3d 779, 790 (1990).

¶ 36 In making a determination of whether to modify or terminate maintenance, the trial court

is to consider the same factors set forth in section 504(a) of the Act that are to be considered at

the time that maintenance is initially awarded, which include: (1) the income and property of

both parties; (2) the needs of each party; (3) the “realistic” present and future earning capacity of

each party; (4) any impairment of the 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) any impairment of the realistic

present or future earning capacity of the party against whom maintenance is sought; (6) the time

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 required for 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 any parental responsibility arrangements and its effect on the party seeking

employment; (7) the standard of living established during the marriage; (8) the duration of the

marriage; (9) the age, health, station, occupation, amount and sources of income, vocational

skills, employability, estate, liabilities, and the needs of each of the parties; (10) all sources of

public and private income (including disability and retirement income); (11) the tax

consequences of the property division; (12) contributions and services by the party seeking

maintenance to the education, training, career or career potential, or license of the other spouse;

(13) any valid agreements of the parties; and (14) any other factor that the court expressly finds

to be just and equitable. 750 ILCS 5/504(a) (West 2016).

¶ 37 The section 510(a-5) factors that should also be considered when determining whether to

modify or terminate maintenance include: (1) changes in the employment status of either party

and whether the changes were made in good faith; (2) the efforts, if any, made by the party

receiving maintenance to become self-supporting, and the reasonableness of those efforts; (3)

any impairment of the present and future earning capacity of either party; (4) the tax

consequences of the maintenance payments; (5) the duration of the maintenance payments

previously paid (and remaining to be paid) relative to the length of the marriage; (6) the property,

including retirement benefits, awarded to each party under the judgment of dissolution of

marriage and the present status of the property; (7) the increase or decrease in each party's

income since the prior judgment or order from which a review, modification, or termination is

being sought; (8) the property acquired and currently owned by each party after the entry of the

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 judgment of dissolution of marriage; and (9) any other factor that the court expressly finds to be

just and equitable. 750 ILCS 5/510(a-5)(1)-(9) (West 2016).

¶ 38 “Whether a spouse may rely on his retirement as a change in circumstances to justify the

modification of maintenance depends on the circumstances of each case.” In re Marriage of

Schrimpf, 293 Ill. App. 3d 246, 252 (1997). In determining whether retirement is a change in

circumstances sufficient to warrant a modification of maintenance, the relevant factors a court

considers include the payor spouse’s age, health, and motives, the timing of the retirement, the

payor spouse’s ability to pay maintenance after retirement, and the former’s spouse’s ability to

provide for himself or herself. Id. Where a payor spouse has sufficient assets to continue to meet

his or her maintenance obligation after retirement, a reduction in income does not, in and of

itself, constitute a substantial change in circumstances to support a termination or reduction of

maintenance. Bernay, 2017 IL App (2d) 160583, ¶ 19 (where the husband had sufficient assets to

continue to meet his maintenance obligations after retirement, his decreased income after

retirement did not constitute a substantial change in circumstances); Schrimpf, 293 Ill. App. 3d at

252-53 (affirming the trial court’s denial of husband’s request to terminate or reduce

maintenance based on his retirement where he had sufficient assets to pay maintenance).

¶ 39 In this case, in determining that abating maintenance was appropriate, the trial court

appeared to mainly focus on the fact that Greg’s employment status had changed in good faith,

which the record shows resulted in a decreased “income” from over $2 million per year down to

approximately $280,000 per year. However, the record is also clear that Greg had the ability to

pay Anne maintenance where his assets were worth approximately $12 million. Insofar as the

trial court found that Greg did not have a present ability to pay maintenance, the finding was

against the manifest weight of the evidence. See Micheli, 2014 IL App (2d) 121245, ¶ 21.

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¶ 40 Although Greg presented evidence that following his retirement his income was

substantially reduced and his monthly expenses exceeded his monthly income, that evidence was

insufficient to support a reduction in Greg’s maintenance obligation to $0 where he had

substantial assets from which to pay maintenance. See Bernay, 2017 IL App (2d) 160583, ¶ 19.

Greg’s expenses were not such that he did not have the ability to pay Anne’s maintenance where

he had assets of approximately $12 million. Greg’s only debt was the mortgage on the $2.1

million North Prospect home. In fact, a large portion of Greg’s total expenses were related to that

home (mortgage payment, property taxes, utilities, house cleaning, and etc.), and Greg testified

that his financial situation would “substantially” improve upon the sale of that home. Also, Greg

could opt to reduce his $2400 per month Porsche lease payment in September 2018.

¶ 41 We also note that Greg’s “expenses” included $2000 per month in donations and $3000

per month in support for the parties’ adult daughter who would be graduating from college in

December 2018. Greg also chose to receive reduced pension payments so that his current wife

would receive survivor benefits upon his death. Additionally, Greg cashed out a large portion of

his Caterpillar stock options to purchase a $3.1 million condo in Florida prior to selling the $2.1

million North Prospect home and allowed his adult stepson to live in the North Prospect home

free of charge. These “expenses” were not evidence of a lack of an ability to pay the maintenance

obligation. See In re Marriage of Kuper, 2019 IL App (3d) 180094, ¶ 24 (“a payor’s voluntary

acceptance of nonlegal obligations are not to be considered in deciding whether maintenance

should be modified or terminated”). As the trial court found, it was of Greg’s “own volition” that

Greg’s monthly cash flow situation did not appreciably improve in the face of his severance

package becoming exhausted. Consequently, the fact that Greg’s monthly “expenses” exceeded

his monthly income following his retirement was insufficient to support a reduction of his

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 maintenance obligation to $0 where Greg had substantial assets from which to take funds if he

had chosen to do so. Moreover, although the trial court found that the parties’ “regular monthly

income” was “relatively equal,” the record shows the trial court considered Anne’s earnings from

her investments as “income” but did not appear to have equally considered evidence that Greg

had an even greater potential earning capacity in that regard where Greg had approximately $5

million more in assets than Anne.

¶ 42 In this case, the trial court specifically found that termination of maintenance would not

be appropriate in light of, among other things, Anne’s reasonable needs and “the standard of life

accomplished during the marriage.” “An award of maintenance is generally determined by the

needs of the spouse seeking maintenance and the ability of the other spouse to pay, in relation to

the standard of living to which they were accustomed during the marriage.” Anderson, 409 Ill.

App. 3d 191, 209 (2011); see also Shive v. Shive, 57 Ill. App. 3d 754, 760 (1978). A spouse is

entitled to maintain a “reasonable approximation of the standard of living established during the

marriage.” Bernay, 2017 IL App (2d) 160583, ¶ 17 (quoting In re Marriage of Dunseth, 260 Ill.

App. 3d 816, 833 (1994)).

¶ 43 Here, the record does not contain detailed information regarding the parties’ standard of

living during the marriage, undoubtedly because the parties had agreed to permanent

maintenance in the amount of $20,000 per month under their MSA. Even so, the record is clear

that the parties’ “standard of living” included their ability to consistently save and invest money

and accumulate assets. In its order of November 17, 2017, the trial court specifically found that

“[t]he parties have enjoyed and continue to enjoy [a] luxurious life style within the proverbial

one percent of top wage earners.” The trial court also found that Anne’s needs would be

“mostly” met by relying on her investment and dividend income, rather than Anne being able to

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 reinvest that income as she had always done in the past. However, Anne was not required to

lower her standard of living that was established during the marriage where Greg had sufficient

assets to meet his needs as well as the needs of Anne. See Shen, 2015 IL App (1st) 130733, ¶ 87

(a former spouse is not required to lower his or her standard of living that had been established

during the marriage where the payor spouse has sufficient assets to meet his or her needs and the

needs of his or her former spouse).

¶ 44 Under the parties’ MSA, Greg and Anne had agreed to permanent maintenance of

$20,000 per month, and the trial court found that a complete termination of maintenance would

be “inequitable” given the length of the parties’ marriage and Greg’s potential employability. We

agree. See Bernay, 2017 IL App (2d) 160583, ¶ 21 (“An award of permanent maintenance should

not be lightly terminated”). Nonetheless, the trial court abated Greg’s maintenance obligation

“until he obtains employment,” with the trial court essentially reserving its jurisdiction over the

maintenance issue until after Greg became reemployed even though Greg had a present ability to

pay maintenance. Cf. In re Marriage of Marriott, 264 Ill. App. 3d 23, 41 (1994) (“[A] ‘reserved

jurisdiction’ approach to maintenance is appropriate where the responsible party’s present ability

to pay maintenance is limited”). Upon Greg obtaining employment, Anne would “then” have the

option to revisit the issue of spousal maintenance “upon filing a motion to review the same.”

However, despite Greg’s forced early retirement and substantial decrease of income, it is clear

from the record that Greg had the present ability to continue to pay maintenance in some amount

and, arguably, the ability to meet his full maintenance obligation of $20,0000 per month as

agreed to by the parties under their MSA. See In re Marriage of Bothe, 309 Ill. App. 3d 352, 356

(1999) (an award of maintenance must be made on the basis of the circumstances disclosed by

the evidence and a trial court should not speculate as to the future condition of the parties in

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 determining maintenance). Based on the evidence presented, we conclude that no reasonable

person would have determined that Greg had an inability to pay at least some portion of the

permanent maintenance award the parties had agreed to under their MSA. Accordingly, the trial

court abused its discretion by reducing Anne’s maintenance to $0. See Heroy, 2017 IL 120205, ¶

24.

¶ 45 Additionally, we note that under the trial court’s order, the triggering event for Anne to

file a motion for a review of maintenance was Greg securing reemployment. The trial court

ordered Greg to provide Anne with quarterly employment search reports “until he obtains

employment,” so that “[w]hen he obtains employment,” Anne “shall then” have the option to

revisit the issue of spousal maintenance upon filing a motion to do so. The trial court placed no

time limitation for review, essentially reserving its jurisdiction over the issue of maintenance

indefinitely. As discussed above, the trial court abused its discretion by abating maintenance and

reserving its jurisdiction on the issue of maintenance where the record is clear that Greg had the

present ability to pay maintenance. See In re Marriage of Scafuri, 203 Ill. App. 3d 385, 396

(1990) (the trial court abused its discretion by reserving the issue of the wife’s right to

maintenance where the husband had the present ability to pay maintenance). The trial court’s

failure to set a reasonable and certain time for reviewing the maintenance issue was also an abuse

of discretion. See Bothe, 309 Ill. App. 3d at 357 (although the trial court properly reserved the

issue of maintenance, the trial court abused its discretion by doing so indefinitely; the trial

court’s failure to set a reasonable and certain time for review of the maintenance issue amounted

to an abuse of discretion”); See In re Marriage of Wojcik, 362 Ill. App. 3d 144, 168 (2005)

(reserving the issue of the wife’s right to maintenance was warranted where the husband was

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 presently unable to pay maintenance, but the trial court abused its discretion by indefinitely

reserving jurisdiction over the issue).

¶ 46 Therefore, we vacate the trial court’s judgment and remand with directions for the trial

court to reexamine its modification of Greg’s maintenance obligation in light of Greg’s clear

ability to pay maintenance and to calculate any arrearages. We also direct the trial court to

reexamine its reduction of Greg’s insurance obligation where there was no evidence presented as

to the portion of insurance premiums paid for Anne’s benefit and no evidence presented that

Greg could not afford to pay that portion of the insurance premiums.

¶ 47 III. CONCLUSION

¶ 48 For the foregoing reasons, we vacate the judgment of the circuit court of Peoria County

and remand for further proceedings in accordance with this order.

¶ 49 Order vacated; cause remanded.

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