Lead Opinion
delivered the opinion of the court:
Petitioner Ward R. Dunseth appeals from the trial court’s division of marital property, direction that he pay respondent Barbara H. Dunseth $1,700 monthly in permanent maintenance, and order sentencing him to 30 days in jail for contempt. We affirm in part, reverse in part, and remand to the trial court.
Ward and Barbara were married in Las Vegas, Nevada, in 1978. That was the second marriage for both, and no children were born of the marriage. The parties separated at the end of July 1991, when Ward was 67 and Barbara was 57 years old. Ward worked as a doctor prior to and throughout the marriage, practicing surgery at Passavant Hospital in Jacksonville, Illinois, and consulting and performing minor surgeries in private offices in Jacksonville and Springfield, Illinois. In July 1991, Ward’s privileges at Passavant Hospital were restricted
Ward collected antiques and Indian artifacts and during the marriage he bought a Lincoln desk at a two-day auction. Barbara took the desk with her when she moved out of the former marital home, stating, "I felt as though he bought the desk for me.” Ward and Barbara purchased a cabin which they filled with antiques, an antique sleigh, and two antique wagons; they collected cranberry glassware throughout the marriage. The couple owned five lawnmowers, including one worth $5,000 on which a $4,700 debt remained. Ward testified he owned 200 of 650 shares in a medical corporation consisting of two buildings, a heliport, and a complete medical facility in Jacksonville from which he ran his practice. In his lifetime, he had owned three helicopters and one plane, as well as two motor homes. In addition, the parties owned five Cadillac automobiles, including a 1989 Cadillac Ward had bought for Barbara, upon which he still owed approximately $15,000 and on which he paid $478 per month. Ward owned property which was formerly occupied by a gas station, and he leased very expensive medical equipment for his practice, including a $20,000 complex of laparoscopy instruments leased in March 1991. Ward testified the value of such equipment depreciated almost as soon as it was acquired, much like the value of a new car. Nevertheless, Ward signed a contract on October 24, 1991, to lease surgical equipment over five years at a cost of $45,000. Monthly payments for that equipment totaled $1,350, and he had additional monthly equipment lease payments of $357.49.
Ward’s adjusted gross income, as reported on his income tax returns for the years 1987 through 1990, was $102,497 in 1987, $230,573 in 1988, $216,801 in 1989, and $246,937 in 1990. Ward’s gross income in 1991 was $454,971. In September 1991, the Internal Revenue Service (IRS) filed claims for Federal tax liens against Ward and Barbara for the years 1987 through 1990, totaling $281,834. Ward testified he did not pay all of his taxes in those years and used his available funds primarily for business expenses, since he was operating at a loss.
Ward left Barbara in July 1991, taking his girlfriend, Debbie Morrell, on a four-day weekend vacation in his motor home. Debbie was an employee in Ward’s office whom he claimed had hospital experience, although she was not a licensed nurse. She received a 25% salary increase in September 1991, which brought her salary to $1,600 a month. Debbie accompanied Ward to New York City in October 1991, where the couple stayed at the Waldorf Astoria for seven nights while Ward attended a medical conference. Ward claimed he was required to attend this conference to keep current on his continuing medical education credits; nevertheless, while in New York, Ward dined with Debbie at the Russian Tea Room, and spent $294 on theatre tickets and approximately $3,000 on the entire trip. In 1992, Debbie accompanied Ward to medical conferences at the Mayo Clinic and in Luxembourg, where Ward spent another $1,800 over the period of a week. Debbie moved into the marital residence with Ward after he received exclusive temporary possession of the home through a stipulated order in August 1991. Debbie lived there rent-free but paid for some food expenses. Ward stated Debbie did not receive a paycheck in December 1991, and on various other occasions due to his declining income. Ward gave Debbie a $1,400 ring and agreed to have the former marital residence painted and carpeted, although he claimed Debbie paid for the remodeling expenses. Shortly after he closed his Jacksonville office and opened the office in Carlinville, Ward made plans to move into Debbie’s newly purchased $114,000 home in Carlinville.
Barbara stated Ward handled all financial matters during the marriage and never consulted her about obtaining loans, leasing medical equipment, or buying and selling his helicopter. Regarding the parties’ income tax returns, Barbara stated she "signed on the dotted line” because Ward told her to do so. She acknowledged she signed one of his medical equipment leases in 1990 and added she "would have signed anything.” Barbara knew there were money problems relatively early in the marriage, as Ward had borrowed $23,000 from her mother in 1983. In addition, she admitted at one hearing she had known about the IRS for years, as they had emptied her checking and savings accounts and had taken a certificate of deposit she had acquired prior to the marriage. In the spring of 1991, Barbara signed a note to borrow $50,000 which Ward indicated would go to the IRS. However, she was unaware of any payments made by Ward to the IRS. Barbara testified an IRS agent visited her and said if Barbara went to work, the IRS would garnishee her wages to pay for the couple’s tax liability. She then admitted she had not attempted to find work since the parties’ separation.
The parties agreed to a temporary order on August 12, 1991, which provided Ward would pay Barbara $1,250 in maintenance for August and September 1991, with payment due the 15th of each month. If the parties could not agree upon future temporary maintenance payments, either could petition the court to conduct a hearing between September 15 and October 1, 1991. Barbara was granted exclusive possession of the 1989 Cadillac, and Ward was ordered to forward two separate checks, payable to Farmers State Bank, in the amount of the car’s monthly loan payment. Ward was granted exclusive temporary possession of the marital home, while certain items of personal property Barbara had taken from that residence were ordered returned to Ward. The order enjoined each party from removing any marital or nonmarital property from the marital residence and from concealing, encumbering, or destroying any such property until further order of the court.
Barbara filed a petition for rule to show cause in September 1991, alleging Ward had failed to make the August temporary maintenance payment by the 15th in the amount required and failed altogether to make the August car payment. Barbara also petitioned for an extension of temporary support.
On September 27, 1991, the trial court heard evidence on the petitions. Ward testified he made the August temporary maintenance payment and the August and September car payments but did not make the September maintenance payment because Barbara had not returned all of his personal property. Regarding Barbara’s petition for temporary support, Ward testified there had been a significant decrease in his income as a
The maintenance Barbara received from Ward was her only source of income. Barbara was unemployed and did not know how to operate a word processor, had back problems and a history of cancer which had necessitated a hysterectomy, and lived with her mother and slept on a fold-out bed prior to moving to her four-room apartment. She had "lost 20 pounds over this” and requested maintenance of over $2,000 a month, including $400 a month for food and $50 a month for lunches, $510 per month for the car payment, and $250 per month for insurance, gas, and repairs.
On November 26, 1991, the trial court ordered Ward to pay Barbara $2,000 per month in temporary maintenance, in addition to the car payment, insurance, and any repairs on the car. The court further ordered the parties to refrain from incurring any unnecessary expenditures or debts, not including the ordinary and necessary expenses attendant to Ward’s medical practice, and prohibited the parties from transferring, concealing, or selling any property without the written consent of the other party. Although it refused to find either party in contempt, the court ordered payment of the September maintenance payment by 4 p.m. that afternoon and payment of future maintenance checks on the 15th of each month.
On December 26, 1991, Ward filed a petition to modify the temporary order, asserting a substantial change in circumstances precluded him from paying the December maintenance in full. Ward had paid Barbara only $1,000 for December and had only paid the interest portion of the December car payment. Barbara filed a petition for rule to show cause on January 6, 1992, alleging nonpayment of the entire December maintenance payment.
At the January 15, 1992, hearing, Ward stated an IRS agent visited his office on December 15 and he gave her a check for $3,000. The IRS agent instructed Ward to dispose of personal property, real estate, and all but two vehicles in order to facilitate payment to the IRS. When asked why he did not refuse to pay the agent, Ward responded, "I don’t refuse the IRS, sir.” On cross-examination, Ward admitted the check was dated December 19, four days after the maintenance payment was due, but insisted his December 15 bank balance of approximately $7,000 did not account for checks which had yet to be cleared.
Ward’s practice collected $39,851.23 in September, $31,926.66 in October, $26,605.55 in November, and $19,094.13 in December 1991. He stated the minimum amount required to operate his office was approximately $24,000 per month, and he did not make the court-ordered payments to Barbara in December because he lacked the funds. In fact, Ward borrowed money from a credit card to pay his malpractice insurance, due January 1. He stated he knew the IRS was going to visit his office December 15 but was unaware it would request money on the spot; it usually levied against his bank account after such a visit. After agreeing to the surgical consultation restriction, Ward had performed only two surgeries at Passavant Hospital in four months.
The court denied Ward’s petition to modify, stating Ward failed to meet his burden of proving that a substantial change in circumstances
Ward filed a second petition for modification of the court’s temporary support order on March 17, 1992, in which he again alleged a decrease in income and stated the IRS had levied on his accounts receivable and his surgical privileges at Passavant Hospital had been permanently suspended. Following Ward’s nonpayment of the March 1992 maintenance payment, Barbara filed another petition for rule to show cause.
A hearing on these petitions was held April 21, 1992. Ward testified that due to loss of income in the preceding few months, he could not pay the full $2,000 in maintenance to Barbara on the 15th of March and April, so he instead paid $1,000 for each period. Ward’s gross income was $24,814.35 in January, $29,945.64 in February, and $24,139.10 in March 1992. His total income in 1991 was $454,971.09, or approximately $34,000 per month. Ward stated the number of surgeries he performed had decreased from one or two majors and two minors a day to two or three majors and two or three minors a week. He attributed his decrease in surgeries to the restrictions placed on, and the subsequent permanent suspension of, his surgical privileges at Passavant.
In March 1992, the IRS had requested a list of all Ward’s accounts receivable and sent notices of levy to all Ward’s patients, indicating the Dunseths owed the IRS almost $324,000 and directing the patients to pay the IRS rather than Ward. The IRS also garnisheed Ward’s checking account, despite his plea that all these levies would likely lead to bankruptcy. Ward testified his basic monthly business expenses totaled $27,300 and he had been unable to pay in full his child support obligation in March and April. Regarding Barbara’s maintenance, Ward stated, "I cannot pay $2,000 a month. I don’t have it.” Ward made his medical equipment lease payments for March, but could not for April. He continued to meet his monthly mortgage payment, charged $1,500 worth of furniture to his credit card in September or October 1991, bought over $500 worth of music equipment in November, paid Debbie a salary of $679 on February 28, 1992, and was only a month or two behind on car payments for the cars in his possession.
The parties stipulated that the February maintenance payment was made February 25, a $1,000 payment was made March 31, and a second $1,000 payment was made April 17, 1992. Barbara testified the IRS appropriated the $100 in her checking account and the $400 in an individual retirement account which she had opened to try to obtain medical insurance for herself as a high-risk patient through the State pool. The bank which owned the note on the 1989 Cadillac contacted Barbara and demanded payment of $1,700 because the last payment had been made in December 1991.
The court found there had not been a substantial change in circumstances to support the petition to modify and found Ward’s monthly .income was fairly constant and in excess of the December 1991 income that was the basis of the first petition to modify. Given Ward’s 1992 average gross monthly income of $25,000, the court determined the $2,000 monthly payment to Barbara was less than 8% of Ward’s income and could not find such a payment unreasonable. The court then took Barbara’s petition for rule to show cause under advisement.
On July 13, 1992, Barbara’s attorney forwarded to the court an order for rule to show cause, and the court entered that order on July 14, 1992. A hearing on this rule was held July 22, 1992. Ward testified he was overdrawn by $4,000 at his bank, he was behind a total of $25,600 on rent for his two offices, the IRS had levied his bank account in February and the State of Illinois did so in June 1992, obtaining about $1,000, and he could only afford to pay Barbara $1,000. He continued to keep his mortgage payment and lease payments for medical equipment current.
The court found Ward in contempt for failing to abide by the court’s orders and ordered Ward to pay Barbara $2,000 per
A hearing on property, support, and all remaining issues was held November 17, 1992. Colleen Gregory, a bookkeeper at Ward’s office, and Ward testified as to his business income for 1992. Financial records from his medical practice were introduced into evidence. Plaintiff’s exhibit No. 1 showed gross earnings in 1992 to date of $236,604.13 and business expenses of $190,602.27. Plaintiffs exhibit No. 2 showed payments to Ward from the business in the amount of $42,788.45. From that amount, $13,000 went to Barbara as temporary maintenance, $3,672 was court-ordered child support Ward paid for a child from a previous marriage, and $1,159.61 was spent on Ward’s medical insurance. The $24,956.84 balance was Ward’s disposable income to date for 1992.
Accounts receivable totaled $121,830.89, of which $95,641.63 were over 90 days old. The IRS had again placed a lien on these accounts for back taxes. In addition, Professional Leasing, one of the lessors of Ward’s medical equipment, notified Ward it had a lien on his accounts receivable and indicated it would repossess all the leased equipment if Ward continued to miss payments. He testified the former marital residence was being sold and the IRS would receive any net proceeds after payment of mortgages on the real estate. The Illinois Department of Revenue had also attached his accounts receivable and had required Ward to pay $2,500 on his back State taxes or it would take action to suspend his medical license. At the time of the hearing, the total amount owed the IRS was $368,636.04. Ward listed his total debts as of January 1, 1992, at over $1 million. He had further reduced his office staff, was behind in his medical equipment lease payments, and stated his malpractice insurance for 1993 would amount to $32,000. The first payment, due December 15, 1992, would be $8,000.
Barbara testified her current monthly living expenses were $2,113. She had borrowed approximately $7,500 from her mother and had insufficient funds to pay the gas and electric bills. The 1989 Cadillac had been repossessed by the bank, so she was without transportation. The parties then stipulated as to the value of certain items of personal property the rightful owner of which was in dispute. The court took the matter under advisement. On December 11, 1992, at a hearing to review payment of temporary maintenance, the court sentenced Ward to 30 days in jail for his contempt but stayed the mittimus until further hearing.
A further hearing on the sentence of contempt was held January 11, 1993. Ward testified his income for the first 17 days of December 1992 was $3,707. In December, the IRS had again levied on his accounts receivable, and his bank account remained overdrawn. He was still in the process of moving his practice from Jacksonville to Carlinville and indicated that, due to overdue outstanding loans at various area banks and those banks’ decisions to press charges, he had no prospects of obtaining the money due to purge himself of contempt in the near future. The court stayed the mittimus to allow Ward another month to determine whether his practice in Carlin-ville would succeed.
The court filed a memorandum decision on February 18, 1993, in which it determined Barbara had had little or nothing to do with Ward’s financial dealings and therefore deemed it inequitable to hold her responsible for payment of any debts. The court noted, however, the marriage was one based on overindulgence, lavishness, and lack of responsibility of both parties. Although this was definitely a case for maintenance, the court indicated there was no evidence to suggest Barbara could not regain employment
On March 2, at a hearing on all pending matters, arguments were heard and the court sentenced Ward to 30 days’ incarceration in the Morgan County jail. The court provided Ward could purge himself by making full payment of all maintenance due by April 10, 1993. Ward’s post-trial motions, including a motion to reconsider the sentence of contempt, were denied. This appeal followed. On April 8, 1993, the court ordered a stay pending appeal with bond set at $2,500. Ward posted the bond.
Ward first argues the trial court’s failure to accept his two requests for modification of temporary maintenance was error. The party seeking modification of a maintenance order has the burden of persuading the trial court that a change in maintenance is justified. (In re Marriage of Logston (1984),
The trial court denied Ward’s initial petition for modification of temporary maintenance because it determined he had not proved a substantial change in circumstances. Despite the reduction in Ward’s surgery practice and his December 1991 income of only $19,000, the court found Ward’s income had merely dipped in December and, without further evidence, could find no such substantial change. At the second modification hearing, where Ward testified to the IRS levy on his accounts receivable, the court determined no substantial change had occurred since the last modification hearing, as Ward’s average monthly income in the first few months of 1992 was $25,000. We agree that when a maintenance payor’s income fluctuates a temporary decline does not always necessitate modification. The trial court here properly left the burden of proving a substantial change of circumstances to Ward, and we cannot say its determination that no such change occurred was an abuse of discretion.
We question whether an order awarding temporary maintenance, or an order refusing to modify a temporary award of maintenance, may be appealed. Temporary orders certainly may not be appealed immediately, on an interlocutory basis, before the entry of a final order. (See In re Marriage of Kitchen (1984),
Ward challenges the court’s refusal to modify its temporary orders in order to support his attack on the court’s contempt order. In most cases a contempt proceeding cannot be used as a method for attacking a court’s order which has become final, unless that order is void. (In re Marriage of Betts (1990),
Ward next contends the trial court erred by finding him in contempt for failing to pay the full amount of temporary maintenance, and by failing to offer him an opportunity to purge himself of contempt. The penalties assessed in a civil contempt case can only serve to coerce the contemnor to comply with a court order, and they must cease when the contemnor complies. (In re Marriage of Carpel (1992),
When the court determined Ward had twice failed to comply with its orders, it found him in contempt and ordered him to pay $1,000 per month on the $6,000 arrearage in maintenance payments, plus the arrearage in car payments, and to continue with the $2,000 monthly temporary maintenance payments. In March 1993, when Ward’s maintenance arrearage had risen to $10,000, the court sentenced him to 30 days in the Morgan County jail but provided Ward could purge himself by paying all arrearages by April 10, 1993. Although Ward asserts he was not given "the keys to his cell” because he had no funds with which to pay off the accrued maintenance and car payments, the trial court found otherwise. Ward continued to make large payments toward his mortgage, equipment leases, and malpractice insurance,
Noncompliance with a court order to make support payments is prima facie evidence of contempt. (Lyons,
Ward contends his failure to pay was not wilful and insists that since he was unable to make the maintenance payments, the trial court’s decision to hold him in contempt was error. At the first modification hearing, the trial court heard testimony that Ward paid Debbie a $1,600 salary in November; took her on a $3,000 trip to New York in October, where they stayed at the Waldorf Astoria and saw a $294 show; gave a $3,000 check to the IRS four days after the December maintenance payment was due; and continued to singlehandedly pay the mortgage and utility payments, even though Debbie was living with him. At the second modification hearing, the court heard evidence that Ward had spent $1,500 on furniture in St. Louis, $500 on music equipment, $1,400 on a ring for Debbie, and had taken a $5,000 cash advance in January 1992. While Ward had not made payments on Barbara’s car for over four months, he was only one or two months behind on his car payments, and had found $679 in salary for Debbie by the end of February. In January 1993, the court heard Ward had taken a trip to Luxembourg with Debbie, on which he spent $1,800. As mentioned above, the court found Ward was able to make payment to Barbara but had chosen to spend his money in other ways. The trial court’s determination that Ward’s failure to pay was wilful certainly was not against the manifest weight of the evidence. Given these facts, we cannot say the trial court abused its discretion in finding Ward in contempt and sentencing him to 30 days in jail for that contempt.
Ward next asserts the trial court erred in finding he dissipated $17,000 in marital assets and ordering him to reimburse Barbara one-half of that amount. Dissipation is defined as the use of marital property for one spouse’s benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of O’Neill (1990),
Ward seems to argue the trial court erred in failing to state what conduct constituted dissipation and how it arrived at the amount. A trial court is not required to make such a specific statement when finding dissipation. The court had ample evidence on which to base its finding of dissipation: Ward took two expensive trips, ostensibly to maintain his continuing medical education credits, on which he spent nearly $5,000 and lost two weeks of employment; bought his girlfriend a $1,400 ring, spent $500 on music equipment and $1,500 on furniture, while refusing to pay the IRS and claiming insufficient funds to pay his wife’s maintenance; continued to sign, and make payments on, leases for thousands of dollars worth of medical equipment, even though his practice was declining; and took a $5,000 cash advance, sold one of the Cadillacs for $2,800, and received $34,000 in cash from a lease, disposing of this money without accounting for it. The trial court had the opportunity to view Ward and assess his credibility, and we find nothing in the record to indicate the court abused its discretion in determining Ward had dissipated marital assets.
Ward contends the court erred in its property division and debt allocation. Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(d) (West 1992)) requires the trial court to divide the marital property in just proportions. (Thomas,
The trial court determined Barbara should not be responsible for the parties’ staggering debt, including the over $300,000 debt to the IRS, which included $80,000 in penalties and interest. We think this determination was an abuse of the trial court’s discretion. First of all, the court’s attempt to shield Barbara from the various creditors was ineffective. The creditors were not parties to the dissolution proceeding and are not bound by the court’s order that Ward and not Barbara pay the various debts. Barbara may be able to persuade the IRS that she is an "innocent spouse,” but she will have to do that in a proceeding to which the IRS is a party. (See 26 U.S.C. § 6013 (1988); Annot., Validity, Construction, and Application of Innocent Spouse Statute (26 U.S.C.S. § 6013(e)), Under Which Innocent Spouse is Relieved of Federal Income Tax Liability in Certain Cases,
Individuals sometimes make decisions during a marriage which result in great profits, and their spouses benefit from those decisions. Other decisions result in great losses, and spouses are harmed. A trial court should not penalize an individual in a. dissolution of judgment order for mistaken decisions during a marriage. Only conduct which amounts to dissipation, the use of property for one’s sole benefit and for a purpose unrelated to the marriage, may be considered in awarding marital property. Even dissipation may not be considered where it simply occurred during the marriage, and not " 'at a time that the marriage is undergoing an irreconcilable breakdown.’ ” (In re Marriage of O’Neill,
Ward finally asserts the court erred in awarding Barbara permanent maintenance in the amount of $1,700 per month. The awarding and modification of maintenance rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Pedersen (1992),
The trial court wisely entered an order of permanent maintenance in this case. The major question here is whether Ward will be able to recover from the problems which have beset him, and an award of maintenance provides the necessary flexibility to provide for Barbara’s needs to the extent allowed by Ward’s income. Ward challenges the amount of maintenance, $1,700 per month, as excessive but it is difficult to accurately determine the net income of a self-employed individual. Such a determination is one for the trial court. In this case Ward continued to receive substantial amounts as gross income
Accordingly, we affirm the trial court’s refusal to modify its temporary maintenance order, its order finding Ward in contempt and imposing of a 30-day jail sentence for that contempt, and its determination Ward dissipated marital assets. We reverse the trial court’s division of the parties’ property and debt and remand with instructions to reallocate that property and debt more equitably between the parties. On remand the trial court may make any other changes to its judgment which it deems warranted, including a change to its order of maintenance.
Affirmed in part; reversed in part and remanded.
Concurrence Opinion
specially concurring:
Justice Steigmann’s special concurrence suggests the change in section 504 of the Act eifective January 1, 1993 (see Pub. Act 87—881, eff. January 1, 1993 (1992 Ill. Laws 1019, 1023-24)), "deprives Mittra — and its progeny — of continuing validity.” (
What has been intended, and is now intended, is that permanent maintenance be given in proper cases. However, that does not negate an obligation by the maintenance recipient to seek partial or full self-support in proper cases. I need not waste print by repeating what has continually been set forth by our court and others on this subject. (See Lenkner,
Having carefully examined the changes to section 504 since inception through the latest changes, I find no justification for holding Mittra no longer has validity.
Concurrence Opinion
specially concurring:
Although I agree fully with the result and with almost everything the majority says in reaching it, I write specially because the majority opinion purports to breathe life into a doctrine of law I believe no longer valid. Specifically, the majority states that "even a spouse awarded indefinite maintenance has a good-faith obligation to work toward becoming self-sufficient.” (
In support of the above statements, the majority cites Pedersen (
This court based its decision in Mittra upon the original intent of the Act in 1977, which was to replace maintenance with property division to the extent possible. In 1977, the legislature clearly viewed maintenance with some disfavor, and that disfavor is the source of the Mittra rule that "even a spouse awarded indefinite maintenance has a good-faith obligation to work toward becoming self-sufficient.”
Sixteen years later, through its 1993 amendments to the Act, the legislature has made equally clear that it no longer views maintenance with disfavor. Effective January 1, 1993, the legislature gutted section 504 of the Act and rewrote it. (See Pub. Act 87—881, eff. January 1, 1993 (1992 Ill. Laws 1019, 1023-24).) Because this court premised Mittra so strongly upon section 504 and its committee comments (see Mittra,
Note specifically that the “old” section 504(b)(2)—the section before Public Act 87—881 amended it — defined the following as a relevant factor: “the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.” (Ill. Rev. Stat. 1991, ch. 40, par. 504(b)(2).) As a result of Public Act 87—881, section 504(b)(2) became section 504(a)(5) and now reads as follows: "the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herseljf through appropriate employment or is the custodian of a child making it appropriate that the custodian not seek employment.” (Emphasis added.) (750 ILCS 5/504(a)(5) (West 1992).) I suggest that one of the changes sought by the legislature with this new language was the elimination of the Mittra doctrine that the majority today claims is still good law. Note also that the maintenance order in this case was entered on February 18, 1993, after the effective date of Public Act 87 — 881.
As a result of the recent amendment to section 504, that section is now neutral regarding what the spouse receiving maintenance must do, leaving the matter to the sound judgment and discretion of the trial court. In other words, if the trial judge in this case thinks it appropriate to order respondent, the recipient of permanent maintenance, to seek reasonable employment toward the goal of becoming self-sufficient, then the judge can so order. He does not need us peering over his shoulder, telling him how he should view the issue of maintenance in a case he has spent months adjudicating.