2018 IL App (4th) 180112
Ill. App. Ct.2019Background
- Kyria Van Hoveln filed for dissolution in 2012; maintenance was repeatedly reserved during the multi-year litigation and property division.
- Kyria was employed at Illinois Wesleyan University (avg. ~$31k) and remained gainfully employed until she voluntarily left in Aug 2016 to cohabit with a boyfriend.
- Brenton Van Hoveln worked as a Bloomington police officer until his termination in May 2014; his pretermination pay was substantially higher (up to ~$95k in 2013). After termination he earned far less running a tree business and receiving unemployment.
- In Feb 2017 the parties entered a marital settlement agreement dividing assets and assigning each party responsibility for liabilities; maintenance remained reserved.
- In Jan 2018 the trial court awarded Kyria retroactive maintenance of $356.33/week for Aug 10, 2012–Aug 1, 2016 (207 weeks; ~$73,760), and imputed to Brenton his pretermination police income for the relevant period based on his misconduct leading to termination.
- The appellate court reversed, holding the trial court abused its discretion in imputing income after Brenton’s involuntary termination and in awarding retroactive maintenance after property division.
Issues
| Issue | Kyria's Argument | Brenton's Argument | Held |
|---|---|---|---|
| Whether retroactive maintenance (Aug 2012–Aug 2016) was proper | Maintenance was justified by income disparity, marital standard of living, and Kyria’s depletion of savings/credit use | Kyria never sought temporary maintenance; parties divided marital estate and maintenance was reserved — award functionally redistributed property post-division | Reversed: award was improper as maintenance; record did not support common maintenance forms and award amounted to post-division redistribution of property |
| Whether court properly imputed Brenton’s pretermination police income for period after his firing | Court may impute income because Brenton unreasonably disregarded department policy and knowingly risked employment while divorce pending | Brenton was involuntarily terminated, appealed, and did not voluntarily quit or try to evade support; no evidence similar law-enforcement employment was available | Reversed: imputation after involuntary termination was abuse of discretion — no showing he was voluntarily unemployed, evading support, or unreasonably failing to take available employment |
Key Cases Cited
- Freeman v. Freeman, 106 Ill. 2d 290 (1985) (maintenance in gross defined as a nonmodifiable, vested sum certain)
- Gosney v. Gosney, 394 Ill. App. 3d 1073 (2009) (imputing income is improper where obligor was involuntarily terminated and no similar employment was shown)
- Heroy v. Heroy, 385 Ill. App. 3d 640 (2008) (retroactive temporary maintenance should be funded from marital estate before property division)
- Lees v. Lees, 224 Ill. App. 3d 691 (1992) (maintenance and property division are distinct; maintenance cannot be used to reallocate property after distribution)
- Lamp v. Lamp, 81 Ill. 2d 364 (1980) (periodic maintenance is preferred except in exceptional circumstances)