specially concurring in part and dissenting in part:
Because I believe the trial court erred in calculating David’s net income in its award of permanent maintenance to Barbara and in requiring David to maintain a policy of life insurance to secure the maintenance payments, I dissent. I concur in the majority’s affirmance of the award of permanent maintenance and the property distribution.
A. Net Income
I would find the trial court’s determination of David’s income to be against the manifest weight of the evidence. The court’s determination of maintenance appears to have been made using David’s gross income from 2006, which included a large one-time bonus. David indicated the bonus was unusual and unlikely to recur. It appears the court’s consideration of David’s income of $204,000, with no exception for any fluctuations in the bonuses David might receive, directly impacted the amount of the permanent maintenance award. Although I would find the court did not abuse its discretion in awarding maintenance on a permanent basis, I would remand for a new maintenance determination based on David’s income without considering the one-time bonus.
B. Insurance Policy
I would also find the trial court erred in requiring David to maintain a policy of life insurance to secure the maintenance payments. Section 504 of the Dissolution Act authorizes a trial court to order one spouse to pay maintenance. 750 ILCS 5/504 (West 2006). “Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c) (West 2006).
The majority here holds a trial court may require a spouse to maintain life insurance as security for maintenance payments, while the Third District recently came to the opposite conclusion on this issue. In Ellinger, 378 Ill. App. 3d at 498, 882 N.E.2d at 693, the trial court ordered the ex-husband to pay his ex-wife maintenance on a monthly basis. The court also required him to maintain his ex-wife as the sole beneficiary of an insurance policy for as long as the maintenance obligation lasted. Ellinger, 378 Ill. App. 3d at 498-99, 882 N.E.2d at 693.
On appeal, the ex-husband argued the trial court erred in requiring him to designate his ex-wife as the beneficiary of the life-insurance policy as security for his maintenance obligation. Ellinger, 378 Ill. App. 3d at 499, 882 N.E.2d at 694. The Third District noted neither section 504 nor any other section of the Dissolution Act granted the trial court the authority to require the maintenance-paying spouse to designate the receiving spouse as a beneficiary of a life-insurance policy as security for the maintenance payments. Ellinger, 378 Ill. App. 3d at 500, 882 N.E.2d at 694. The appellate court also found the language of the Dissolution Act allowing for the designation of assets as security for child-support payments did not have a corresponding provision authorizing the same for maintenance obligations. Ellinger, 378 Ill. App. 3d at 500, 882 N.E.2d at 694-95. Thus, the court “presume [d] that the legislature intended different results by the different language in the [Dissolution] Act concerning child support compared with its language regarding maintenance.” Ellinger, 378 Ill. App. 3d at 500, 882 N.E.2d at 695.
In the case sub judice, the parties did not enter into an agreement providing David would maintain life insurance to secure the maintenance payments. Instead, the trial court ordered David to designate Barbara as the sole beneficiary on his employer-issued insurance policy during the time he was obligated to pay maintenance. If David lost his job, the court would require him to purchase life insurance and maintain Barbara as the sole beneficiary. Based on Ellinger and this court’s decision in Clarke, I would find the court erred by requiring David to maintain a life-insurance policy with Barbara as the sole beneficiary so long as he was obligated to pay maintenance. See In re Marriage of Feldman, 199 Ill. App. 3d 1002, 1007, 557 N.E.2d 1004, 1008 (1990) (finding the trial court lacked authority to enter a maintenance award secured by life insurance). The Dissolution Act provides no authority to the court to do so in the context of maintenance.
The majority, however, disagrees with Ellinger and disregards Clarke in favor of Vernon. Not only was the Vernon court’s discussion of Clarke dicta (see Ellinger, 378 Ill. App. 3d at 501, 882 N.E.2d at 695), but the reasoning failed to give proper deference to the legislature in this area of the law. Clearly, the General Assembly has the legislative authority to grant trial courts the discretion to designate assets as security for maintenance obligations as it has similarly done in the child-support area. See Ellinger, 378 Ill. App. 3d at 500, 882 N.E.2d at 694, citing 750 ILCS 5/510(d) (West 2006) (providing child support may be enforced after the payor parent’s death), and 750 ILCS 5/503(g) (West 2006) (allowing a court to set aside a portion of the estate in a separate fund or trust for child support).
I would also note that in the almost 15 years since Vernon’s publication, it has not once been cited for the proposition that a trial court has statutory authority to order the procurement of life insurance as security for maintenance. Nonetheless, the two-judge majority in this case audaciously proclaims “[w]e hereby abandon Clarke and adopt the reasoning of Vernon.” 386 Ill. App. 3d at 1049. In the end, I disagree with the majority, which syllogistically justifies its holding as follows: because the Dissolution Act does not prohibit an order requiring insurance as security for maintenance payments, because the trial court should have wide discretion in this area, and because courts are to liberally construe the Dissolution Act to make reasonable provisions for spouses, the courts should have the discretion to secure maintenance payments through life insurance. QED.
The majority’s holding leaves an open question of what factors the trial court should consider when deciding whether to order an ex-spouse to maintain an insurance policy to secure maintenance payments. In my view, these factors should be decided through the legislative process. Under South Carolina law, for example, a trial court must undertake a comprehensive review of multiple factors when ordering a payor spouse to carry life insurance, including “the cost of premiums, insurance plans carried by the parties during marriage, insurability of the payor spouse, the probable economic condition of the supported spouse upon the death of the payor spouse, and any other factors the court may deem relevant.” S.C. Code Ann. §20 — 3— 130(D) (Supp. 2007); see also Wooten v. Wooten, 364 S.C. 532, 551, 615 S.E.2d 98, 107 (2005). As one can readily determine, these factors are explicitly set forth in the state statute.
Other states have also enacted legislation allowing a trial court to order security for maintenance obligations. See Fla. Stat. Ann. §61.08(3) (West 2004) (“the court may order any party who is ordered to pay alimony to purchase or maintain a life[-]insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose”); N.Y. Dom. Rel. Law §243 (McKinney 1999) (the court “may direct the spouse from whom maintenance or support is sought to give reasonable security, in such a manner and within such a time as it thinks proper, for the payment, from time to time, of the sums of money required for that purpose”); 19 Me. Rev. Stat. Ann. tit. 19 — A, §951 — A(7) (Supp. 2007) (“The court may also order the obligated party to maintain life insurance or to otherwise provide security for the payment of spousal support in the event the obligation may survive the obligated party’s death”); Conn. Gen. Stat. §46b — 82(a) (2004) (in entering an alimony decree, “the court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance!,] or such party is uninsurable”); N.D. Cent. Code §14 — 05—25 (1983) (“The court may require either party to give reasonable security for providing maintenance or making any payments”); Vt. Stat. Ann. tit. 15, §757 (1981) (in granting maintenance, “the court may require sufficient security to be given for payment thereof’); see also Brockman v. Brockman, 264 Neb. 106, 112, 646 N.W2d 594, 599 (2002) (noting the Nebraska legislature “has long given specific statutory authorization for a court, in an appropriate case, to require sufficient security to be given for the payment of alimony and child support awards”); Jacobitti v. Jacobitti, 135 N.J. 571, 578, 641 A.2d 535, 539 (1994) (stating the New Jersey legislature explicitly allowed “a court to order the supporting spouse to maintain life insurance for the benefit of the dependent spouse to protect the dependent spouse if the dependent spouse outlives the supporting spouse”).
The preceding statutes and case law offer confirmation that whether courts should be authorized to order procurement of insurance as security for maintenance is a matter for the legislature to debate and decide after careful deliberation. The majority articulates reasons why courts should have the power to order payors of maintenance to obtain life insurance. However, the question here is not whether requiring life insurance in maintenance cases is right or wrong. The issue is simply whether this court or the legislature should make the law, and I decidedly believe it should be the latter. Accordingly, I would reverse that portion of the trial court’s judgment order requiring David to maintain a life-insurance policy with Barbara as the beneficiary.