dissenting:
I respectfully dissent. I would reverse the trial court for a clear abuse of discretion. Mary Anne showed a substantial change in circumstances.
In the dissolution, the parties received roughly an equal division of marital property. Mary Anne did not receive a “hefty portion” as the majority states, but rather 52% in an attempt to equalize the gross disparity in the parties’ income and the reduction in Mary Anne’s maintenance because of Charles’ payment of Meghan’s college expenses. Charles no longer pays $2,900 to $3,400 per month to support Meghan in college. Since the dissolution, Meghan has graduated, Charles no longer has a mortgage on a condominium in Missouri, and Charles has received more than a $26,187 raise. At a minimum, considering no college expenses and the raise, Charles’s income has increased $62,000. While this amount may not be as substantial to Charles with a salary of $163,733, it certainly is substantial to Mary Anne with a salary of $34,000 per year and maintenance of $1,600 per month.
The trial court here erroneously utilized a percentage comparison, analogizing to the child-support guidelines. Such a percentage comparison is nowhere recognized by statute or case law in the State of Illinois and is grossly unfair to the spouse of many years who has newly joined the workforce at an entry-level position and at a later age with little hope of promotion. Gitlin has suggested a statistically average maintenance award of 29% of the ex-husband’s income or one-half. H. Gitlin, Specifics of a Fair Divorce Settlement, Chi. Daily L. Bull., August 27, 2007, at 5. This would entitle Mary Anne to roughly $53,000 or $62,000 a year in maintenance, a far cry from $19,200.
The majority’s missive on maintenance relies on its own majority in Reynard, 344 Ill. App. 3d at 791-92, 801 N.E.2d at 596-97, to which I also dissented because of the gross disparity in the parties’ incomes. That disparity has merely increased exponentially four years later and will continue to increase with the cost-of-living adjustment (COLA) Charles received in July — though he could not remember the figure (3.2% in 2006; 3.5% in 2007). A similar COLA will be received each upcoming year by Charles.
The majority further unfairly criticizes Mary Anne because she mortgaged her new, smaller, less-expensive home, and she contributes to a 403(b) and a Roth IRA. The majority does not similarly criticize Charles’s extensive home repairs and repayment of his loan to himself, instead recognizing these expenses as a replacement of college expenses.
The majority blithely ignores these substantial changes in income and expenses by stating:
“A party’s increase in income is generally not sufficient to warrant modification of a maintenance award. See, for example, In re Marriage of Plotz, 229 Ill. App. 3d 389, 392, 594 N.E.2d 366, 368 (1992) ***.” 378 Ill. App. 3d at 1005.
This is a misstatement of law unsupported by Plotz or any other case law or statute. Plotz addressed child support and maintenance and an absence of a change in circumstances where only moderate increases in income were shown. Such is not the case here where substantial changes in Charles’ income and expenses have been shown.
Moreover, substantial increases in income as well as substantial decreases in income may constitute substantial changes to warrant a modification of maintenance. In re Marriage of Stone, 191 Ill. App. 3d 172, 174, 547 N.E.2d 714, 715 (1989) (32% salary-increase factor favoring increase in child support); Thurston v. Thurston, 260 Ill. App. 3d 731, 733, 633 N.E.2d 118, 120 (1994) (“The reduction in the wife’s income is substantial. That the wife reduced her expenses and standard of living to fit her compelled reduction in income does not render such reduction immaterial”).
Finally, the trial court for the second time has again refused to consider appropriate statutory factors for the award of maintenance under section 504 of the Dissolution Act.
“In deciding whether a maintenance award should be modified, a court should consider the same factors used in making an initial maintenance award. {In re Marriage of Plotz (1992), 229 Ill. App. 3d 389, 391, 594 N.E.2d 366, 368.) Under section 504 of the Act such factors include: ‘(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance; (2) the needs of each party; [and] (3) the present and future earning capacity of each party.’ 750 ILCS 5/504(a) (West 1992); see also In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 793, 566 N.E.2d 429, 437.” Thurston, 260 Ill. App. 3d at 733, 633 N.E.2d at 120.
As previously stated in my prior dissent, the trial court has failed to recognize the disparity in earning potential and concomitant income inequality.
“Although Illinois law does not require an equalization of net disposable income in large-income cases (Claydon, 306 Ill. App. 3d at 902, 715 N.E.2d at 1205-06), the needs of the parties must still be met where possible. While this couple did not live an extravagant lifestyle so they could afford to send their children to college, they enjoyed substantial income, which should not be retained in large part by Charles, especially where, here, it was because of Mary Anne’s sacrifices and significant contributions to the family during the parties’ long marriage that Charles is able to have a greater earning capacity than does Mary Anne. As the majority points out[,] ‘[i]t is inequitable upon dissolution to saddle a party with the burden of her reduced earning potential and to allow the other party to continue in the advantageous position he reached through their joint efforts’ (344 Ill. App. 3d at 792[, 801 N.E.2d at 596]), and that is what the trial court did in this case.” Reynard, 344 Ill. App. 3d at 795, 801 N.E.2d at 599 (Myerscough, J., dissenting).
For these reasons, the trial court should be reversed.