In re Marriage of Bernay
2017 IL App (2d) 160583
Ill. App. Ct.2017Background
- Parties married 1978; Lynn stayed home raising children while Jerry worked in family debt-collection business; separated 1992 and judgment of dissolution entered 1995.
- Lynn retrained as a nurse after separation, earned ~ $42,000 in 2006; court found she had reduced earning capacity from years as homemaker and awarded permanent maintenance of $3,600/month in 2006.
- Jerry’s income and assets were substantially greater: high earnings historically, sizeable investment and retirement accounts, multiple properties.
- Jerry petitioned in 2014 to terminate maintenance, citing reduced salary, impending retirement, and a lymphoma diagnosis; trial court granted termination, finding a substantial change and that Lynn failed to make reasonable efforts toward self-sufficiency.
- Appellate court reversed, finding the trial court abused its discretion by re‑weighing prior findings about the parties’ marital standard of living, failing to require Jerry to meet his heavy burden to show a substantial change, and improperly imposing new conditions on Lynn.
Issues
| Issue | Plaintiff's Argument (Lynn) | Defendant's Argument (Jerry) | Held |
|---|---|---|---|
| Whether Jerry showed a "substantial change in circumstances" to terminate permanent maintenance | Maintenance was permanent based on 2006 findings; any modification requires a true substantial change and deference to prior findings | Retirement, reduced salary, and lymphoma constitute a substantial change justifying termination | Reversed: Jerry did not meet burden; retirement and illness were not unforeseen and assets show ability to pay |
| Whether trial court properly assessed the parties' marital standard of living | Court should defer to prior findings (2006 order and 2007 affirmance) about the marital standard of living | Trial court re-examined and concluded standard was less lavish, supporting termination | Reversed: trial court improperly substituted its own, attenuated findings and failed to give due deference |
| Whether Lynn failed to make reasonable efforts toward self-sufficiency | Lynn made good-faith efforts; permanent maintenance recognized limited earning capacity and preserved marital standard of living | Lynn worked only part-time, did not pursue full-time work, further training, commuting, or draw Social Security | Reversed: court imposed new obligations not required by 2006 order and ignored that self-sufficiency is only one factor when disparities persist |
Key Cases Cited
- Dunseth v. Dunseth, 260 Ill. App. 3d 816 (Ill. App. Ct. 1994) (permanent maintenance appropriate where recipient unemployable or only employable at much lower income; recipient must make good-faith efforts toward self-sufficiency)
- Blum v. Koster, 235 Ill. 2d 21 (Ill. 2009) (maintenance orders labeled "permanent" remain modifiable upon a substantial change unless parties agreed otherwise)
- Lenkner v. Lenkner, 241 Ill. App. 3d 15 (Ill. App. Ct. 1993) (inequitable to force former homemaker to bear reduced earning capacity; permanent maintenance justified where disparity is severe)
- Walker v. Walker, 386 Ill. App. 3d 1034 (Ill. App. Ct. 2008) (recipient need not lower marital standard of living so long as payor has sufficient assets for both)
- Mueller v. Mueller, 2015 IL 117876 (Ill. 2015) (court should not base decisions on hypothetical Social Security benefits that recipient may never receive)
- Connors v. Connors, 303 Ill. App. 3d 219 (Ill. App. Ct. 1999) (burden on party seeking modification to prove substantial change)
- Anderson v. Anderson, 409 Ill. App. 3d 191 (Ill. App. Ct. 2011) (substantial change requires either reduced needs of recipient or inability of payor to pay)
- Reynard v. Reynard, 378 Ill. App. 3d 997 (Ill. App. Ct. 2008) (courts reluctant to find substantial change when the change was contemplated at time of award)
- Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681 (Ill. App. Ct. 1994) (trial courts should give deference to prior judicial determinations as baseline evidence)