dissenting:
Prior to this decision, trial courts, in following the legislative history of maintenance and property division, sought to give finality to personal and financial relationships between parties to a dissolution. With this decision, everyone is welcome back in domestic relations court, at any time, to modify or change trial court orders.
With respect to permanent maintenance, the majority correctly states, “Carol argues for the first time on appeal that she is entitled to permanent maintenance.” (251 Ill. App. 3d at 156.) It is necessary to point out the original judgment for dissolution filed on February 4, 1991, did not provide for permanent maintenance. No appeal was taken. The petition heard in May 1992 did not request permanent maintenance. The majority will now allow on remand a consideration of permanent maintenance. Pearson, Vendredi, and Lenkner do not justify or serve as precedent for such procedure. In Carpel, the dissenting opinion of Justice Lund as to maintenance and timely appeal is correct. See Carpel, 232 Ill. App. 3d at 833, 597 N.E.2d at 866 (Lund, J., dissenting).
The decision of the trial court was clearly not against the manifest weight of the evidence nor an abuse of discretion. To permit this opinion to stand will have a salutary effect. It will eliminate the need for trial courts to make difficult judgments as to maintenance. The parties should simply come to the appellate court, where we will make the determination de novo.
The record reveals that the trial court spent considerable time with respect to maintenance, setting the review hearing for three years from the time of the dissolution. At the May 22, 1992, hearing, there was testimony that Carol had just graduated from Lakeland College and had made numerous applications for jobs, although she was presently working at Wal-Mart. As stated by the majority, the court extended the $500-a-month maintenance for three months and set a further review hearing for August 20, 1992. At the close of the May 22,1992, hearing, the trial court stated:
“I want you to be certain to understand that this is not a signal by me that I am going to make this an open-ended award. My intention originally in this case was that you do what you have done; that is, complete your education and vigorously seek employment. I will expect you to continue that vigorous search. It will not be my inclination to simply continue this ad infinitum until such time as you obtain employment. I will expect that your search and hope that your search will be successful by that time. There will not be any inclination to order repeated extensions of this order.”
Kerber is easily distinguishable and is not authority for reversing the trial court. In Kerber, the parties had a marriage of long duration, the wife had limited resources to meet her needs independently, she had only a high school education so she needed time for educational training to enable her to seek employment, she suffered from debilitating migraine headaches, trigeminal neuralgia, and a painful ankle. Because of the agreed-upon division of labor during the marriage, she stayed home and raised the children and thus was attempting to enter the work force relatively late in life with limited skills.
In reviewing the factors set forth in section 504(b) of the Act, Carol was awarded maintenance for the time necessary to acquire sufficient education or training to enable her to find appropriate employment. There is nothing in the record to indicate Carol’s standard of living is different than that established during the marriage. She is in good physical and emotional condition, and there are no tax consequences of the property division. At the August 20, 1992, hearing, Carol had a position with Illinois Consolidated Telephone Company, her probationary status would be served by September 9, 1992, and she would be able to join the union and bid for positions.
There was no agreement that Carol not work and the record appears to indicate the parties agreed Carol should work. At the time of the marriage, she worked as a waitress and quit to look for other employment and did obtain other employment as a nurse’s aid. She worked during the years they were married while living in Ohio. They moved to Illinois and Carol worked at General Electric (G.E.) for approximately 11 years beginning in 1967. After terminating her employment at G.E., she worked as a cook and at Young’s Radiators. When she moved to Massachusetts, she also obtained a job as an assembly line worker.
The majority states “the record demonstrates that Carol is not living anywhere near the standard of living established during the marriage” (251 Ill. App. 3d at 161) and “while the parties did not live luxuriously during their marriage, they did live comfortably” (251 Ill. App. 3d at 160). A search of the record reveals no such evidence.
With respect to assets accumulated by the parties during the marriage, they purchased a home in 1972 and sold it during the pendency of these proceedings for $30,000, with a net proceeds value of $14,793.41. (Carol received 60% and Sloan 40% of the net.) The two vehicles suggested in the disposition were a 1987 Ford truck with a $6,300 debt against it and a 1981 Buick with a $2,200 debt. The boat and ski barge (one item), purchased by a loan with the 1981 Buick as security, was sold by the parties during the pendency of the dissolution for $1,500, the proceeds of which were used to pay on an outstanding loan against the 1981 Buick which was awarded to Carol. The camper owned by the parties was sold during the proceedings for $200. These assets hardly suggest a standard of living enjoyed by the parties during the marriage which they do not enjoy at this time. Carol purchased a 1988 Ford Escort subsequent to the separation by trading in the 1981 Buick, as to which she testified “I was afraid of the car. It wasn’t very reliable, leaking oil,” and “And I was just afraid of it,” “afraid it was going to fall apart.” At the time of the dissolution, Sloan lived in a $4,640 trailer, of which the full amount was owed to the credit union. The record does not show whether Sloan’s income as well as Carol’s was expended wisely. Income alone does not set a standard of living. The trial court certainly would be correct in finding that the standard of living enjoyed by the parties during and after the marriage is the same.
Debts for example were not for vacations or luxurious living, but for motor vehicles, $1,000 for the marriage of one son, and living expenses. The record does show that the husband does earn an income in the area of $45,000 per year. During the year 1991, at the time of the dissolution, he was receiving gross wages of $43,850.62. Although there are factors such as the financial resources or earning power of the ex-husband, the age of the ex-wife, the duration of the marriage which could be considered favorable to the ex-wife, the other factors which I have reviewed clearly indicate the decision of the trial court was not against the manifest weight of the evidence.
As we observed in Hart, it has been stated that the trial court abuses its discretion “in maintenance award only when no reasonable person could adopt the view of the trial court.” Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741, citing In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621.
This court has, both in this disposition and in Carpel and Kerber, quoted the special concurrence in Hart. I do not disagree with the quoted statement from the special concurrence in Hart; however, the majority decision in Hart stated: “We do not adopt the concurring opinion as to maintenance.” Hart, 194 Ill. App. 3d at 851, 551 N.E.2d at 744.
The majority takes a curious position in stating that if Carol succeeds at some future time in raising her income to a level substantially equivalent to Sloan’s income, Sloan can then seek modification of the maintenance order. It appears the majority has been blind-sided by the difference in annual income of the parties and feels that is the primary factor in determining whether maintenance should be paid. This is not the law.
At the close of the hearing on August 20, 1992, Carol, through her counsel, in his argument stated: “based upon the seven factors; based upon the evidence in this case, Your Honor, we are asking the court to extend the maintenance.” (Emphasis added.) It is important, once again, to show what the trial court stated to the parties at the close of that hearing:
“Counsel, Mr. and Mrs. Harlow, the original intention of the court’s order of maintenance in this case was to accomplish the rehabilitation of Mrs. Harlow through her efforts in this case. That has been partially accomplished. She has done what the court expected her to do and that was to obtain the education needed to get herself on the way to a firmer foundation in providing her own support. That’s the goal of the statute as it is that both parties post divorce to be self-supporting.
The purpose of the review of ability of maintenance award is to look at the present relative situations of the parties particularly with the rehabilitation level that the respondent in this case has obtained. The rehabilitation is near complete but not totally completed.
The decision of the court will be that the rehabilitative maintenance award will be reduced to the sum of $300 per month. It will continue for a period of 12 months from this date at which time maintenance shall terminate and the respondent shall be forever barred from maintenance thereafter.”
As stated heretofore, if the decision of the trial court in this case is an abuse of discretion, there will be no case in this appellate court district wherein the trial court will be in a position to make a decision which will not always be subject to second-guessing by this court.