                                  Illinois Official Reports

                                          Appellate Court



                        In re Marriage of Heasley, 2014 IL App (2d) 130937



Appellate Court              In re MARRIAGE OF DIANA L. HEASLEY, Petitioner-Appellant,
Caption                      and KEVIN L. HEASLEY, Respondent-Appellee.


District & No.               Second District
                             Docket No. 2-13-0937



Filed                        December 2, 2014



Held                         Although the trial court’s order providing for review of petitioner’s
(Note: This syllabus         maintenance award in 18 months only directed petitioner to remain
constitutes no part of the   fully employed and seek promotions and better job opportunities that
opinion of the court but     would increase her income, the trial court abused its discretion at the
has been prepared by the     later review hearing when it exceeded the limited scope of review set
Reporter of Decisions        forth in the prior order by terminating petitioner’s maintenance and
for the convenience of       faulting her for failing to pursue educational opportunities, especially
the reader.)                 when there was no suggestion in the trial court’s prior order that
                             petitioner seek further schooling or job opportunities outside the bank
                             where she held a full-time job; therefore, the termination of
                             maintenance was vacated and the cause was remanded for a review
                             hearing consistent with the appellate court’s construction of the prior
                             order.



Decision Under               Appeal from the Circuit Court of Winnebago County, No. 05-D-650;
Review                       the Hon. Gwyn Gulley, Judge, presiding.



Judgment                     Vacated and remanded with directions.
     Counsel on               Joyce O’Neill Austin, of Shriver, O’Neill & Thompson, of Rockford,
     Appeal                   for appellant.

                              Stephen M. Langley and George P. Hampilos, both of Hampilos &
                              Langley, Ltd., of Rockford, for appellee.



     Panel                    JUSTICE BIRKETT delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Burke and Justice Schostok concurred in the
                              judgment and opinion.


                                               OPINION

¶1         In this divorce proceeding, petitioner, Diana L. Heasley, appeals the trial court’s
       judgment terminating the obligation of respondent, Kevin L. Heasley, to pay her
       maintenance. The trial court entered the termination order at the second review of
       maintenance following the divorce decree. We agree with petitioner that the trial court failed
       to recognize the limited scope intended for the second review. Accordingly, we vacate the
       judgment terminating maintenance and remand for further proceedings.

¶2                                           I. BACKGROUND
¶3         The parties were married in 1984 and have one child, Trista, born in March 1994. In May
       2005, petitioner filed for dissolution of the marriage. In 2007, the trial court held an
       evidentiary hearing on contested issues. No transcripts or exhibits from that hearing are in the
       record, but this does not hamper our review of the issues presented in this appeal.
¶4         In December 2007, the court issued its judgment of dissolution. At the time, petitioner
       and respondent were, respectively, 45 and 44 years of age. The court ordered joint legal
       custody of Trista but granted petitioner sole physical custody. Respondent was ordered to pay
       $1,040 per month as child support. Also, he was required to pay maintenance in accord with
       the following provisions:
                   “7. *** [Respondent] is fully employed, earning $91,208 per year and [petitioner]
               is employed part time earning approximately $12,000 per year. Due to the length of
               the marriage and other appropriate [s]tatutory factors, the Court finds that
               maintenance should be awarded from [respondent] to [petitioner] in the amount of
               $1,050 per month, and the Court further finds that there may be a review of said
               maintenance after 24 months upon petition by either party. The Court expects
               [petitioner] to either seek full time employment, or seeking [sic] additional schooling.
               ***
                   8. ***
                       ***


                                                  -2-
                      B. *** [Respondent] is barred from receiving maintenance from [petitioner]
                  forever, but [petitioner] is entitled to receive maintenance from [respondent] in
                  the amount of $1,050 per month. The maintenance shall terminate upon the death
                  of [petitioner], her remarriage, or other appropriate statutory factors. Maintenance
                  is reviewable upon petition by either party on or after 24 months of maintenance
                  payments from [respondent] to [petitioner], and the Court may, upon appropriate
                  proofs, review maintenance after appropriate hearing. “
¶5        In December 2009, respondent filed a motion to modify maintenance. He asked that
     maintenance be terminated or reduced because petitioner had had sufficient time to become
     financially independent.
¶6        Several months later, in June 2010, the motion was heard by the Honorable R. Craig
     Sahlstrom. Petitioner was the sole witness at the hearing. She testified to her education and
     employment history. Petitioner graduated from Penn State in 1982 with an associate’s degree
     in architectural engineering. Unable to find immediate work in her field of training, petitioner
     became a dental assistant. After the parties married, they moved to New Jersey and petitioner
     became employed full-time with a civil engineering firm, where she did drafting. When
     Trista was born in 1994, petitioner switched to part-time work with the firm, then later
     reverted to full-time work. Petitioner’s full-time yearly salary at the firm was about $38,000.
     Three-and-a-half years after Trista was born, petitioner ceased working outside the home.
     She became a homemaker and operated a home business (there are suggestions in the record
     that the business involved crafts). Petitioner was still not working outside the home when, in
     May 2005, she filed for divorce. In June 2005, while the dissolution petition was pending, the
     trial court directed petitioner to find employment in her field of training. Petitioner
     subsequently obtained part-time employment, working Mondays and Wednesdays at
     Lawrence Clayton Associates (LCA) (the record does not disclose the nature of this work,
     but the parties agree that it was not related to petitioner’s field of training). When the
     dissolution decree was entered in December 2007, petitioner was still working part time with
     LCA and earning $12,000 per year.
¶7        There is no dispute in this appeal that advances in the architectural industry have
     rendered petitioner’s 1982 associate’s degree obsolete. Petitioner testified that, when the
     divorce decree was entered, she lacked the means to seek further education. She filed a
     motion seeking funds from respondent for her education, but she was “denied” them (we are
     unsure which pleading petitioner was referring to here). At this point, petitioner made a
     calculated “judgment” and decided to take a part-time teller position at First National Bank
     (FNB), working Tuesdays, Thursdays, Fridays, and Saturdays. The position at FNB was in
     addition to petitioner’s part-time position at LCA. When she began at FNB, petitioner’s
     hourly wage was about $8.50 an hour. Between her two jobs, petitioner worked 50 to 55
     hours per week. In June 2008, petitioner quit her position at LCA and started full-time at
     FNB. She was so employed at the time of the June 2010 review hearing. Petitioner worked a
     “minimum” of 40 hours per week at FNB. Her current rate of pay was $10 per hour, or
     $17,000 per year–an increase from her salary at the time of the dissolution.
¶8        Petitioner recalled testifying at the divorce trial that she had considered seeking a degree
     in dental hygienistry. Petitioner ultimately did not pursue that degree. She noted that the
     education and training involved in becoming a dental hygienist would have required her to
     quit her employment. Based on her research, she determined that her yearly deficit for the

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       two-year degree would have been roughly $80,000, between tuition, health insurance, and
       loss of current income. Petitioner’s research also disclosed that the unemployment rate in
       Rockford was nearly 20% and that the dental industry in the area suffered a downturn in the
       recent poor economy.
¶9          Petitioner testified further about her financial state and ability to fund her education. As
       part of the property division, petitioner was awarded the marital home and the approximately
       $120,000 in equity that the parties had at the time. The dissolution judgment also made
       petitioner responsible for the two mortgages on the home. Petitioner had since paid off the
       second mortgage. She refinanced the primary mortgage, lowering the payment and using the
       equity to pay taxes on the property. She did not use any of the equity to seek further
       education. Petitioner estimated that her current equity was $100,000.
¶ 10        Petitioner also received from the property division $125,000 in an individual retirement
       account (IRA). Withdrawals from the IRA were subject to a 10% penalty and a 17% tax.
       Petitioner withdrew $4,000 from the IRA to pay bills as well as debts owed to family
       members. Between the withdrawals and market decreases, the present balance of the IRA
       was approximately $72,000. Petitioner had not used any money from the IRA to pay for
       further education. Petitioner claimed that her debts had been “mounting” since the
       dissolution and that she depended on loans from family members.
¶ 11        Petitioner testified that, based on a recent annual review, she was promoted to “Teller
       III.” She also applied recently for a supervisory position but was passed over for an applicant
       with more experience. Petitioner was not “content” with her current position and was seeking
       to advance within FNB by taking as many in-house courses that FNB offers “in computer
       knowledge or bank knowledge.” She had taken courses that did not relate to her current
       position, in the event that another type of position within FNB will arise. Petitioner
       acknowledged that she had not taken any classes outside FNB or explored the costs of any
       courses or degrees aside from a dental hygienistry degree. Petitioner added that she had no
       intention of looking further into education outside the bank.
¶ 12        The parties stipulated that respondent’s current yearly salary was $96,000, an increase
       from his salary of $91,000 at the time of the dissolution.
¶ 13        After petitioner finished her testimony, the court engaged the parties in a lengthy
       dialogue as to the proper course regarding maintenance. Counsel for respondent remarked
       that he wished to call respondent to testify. The court indicated that respondent’s testimony
       likely would make no difference, given the court’s present inclination on the issue.
       Elaborating, the court expressed its belief that petitioner had made a good-faith effort to
       become financially independent and that respondent’s maintenance obligation should not
       terminate until his retirement, barring a substantial change in circumstances:
                    “That you [petitioner] went to the bank, that you’re working full-time. Granted, it
                is an entry-level job, but at least you’re there. That you seem to be in a much better
                place than you were two years ago. You seem to be a person [who] is not going to be
                satisfied making $18,000 a year. And it’s not in your interest to do that, either.
                Because with the $18,000 and some of the maintenance that I feel is appropriate for
                [respondent] to pay you, you are not going to be living anywhere near the lifestyle
                that you lived [while] married. ***
                                                     ***


                                                   -4-
                   All things considered, I can’t say this is a case where I would sanction you by
              stating you didn’t even try, you get nothing any more. Good luck. You did try, I
              think. You are where you are and I think you made good faith effort to be where you
              are and I would hope you advance. And I would hope before 17 years [are] up that
              you are the branch manager or something ***.
                   ***
                   *** [Y]ou’re in a good place. I think if you got a good evaluation, perhaps, maybe
              that–I can hope for it. I don’t know that I would necessarily expect it. But I think
              maintenance in the amount that’s currently set, it’s an appropriate amount. Her
              income has gone up a little bit, but so has yours. But I’m not going to make it
              permanent any more. *** I don’t think there’s any sense coming back in a couple of
              years, because I don’t know what more I can do now than tell you get a job, work 40
              hours a week, at the highest level you can. As best I can tell, you’re there now. I don’t
              think you’re going to be satisfied being there. Even if your maintenance is terminated,
              it’s not high enough for you just to sit back and rest on the [$]18,000 a year. It’s
              always going to be in your best interest to try and make as much money as you can
              for yourself, even if it may result in your maintenance being terminated[,] because it’s
              not enough for you to live on. And if you have the ability to make more money and
              be self-sufficient, I would think that you would do that, because the maintenance isn’t
              enough to live on Easy Street. So I don’t know that there’s anything to come back for
              me to review in the case. I would say, I guess, that you’re both eligible for retirement
              at age 65. ***
                   ***
                   *** I would think maintenance should terminate, in this case, at the age of 65,
              period. And I would think that it should be subject to modification under the terms of
              Section 510 [of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS
              5/510 (West 2012))]. ***
                                                    ***
                   *** You know, I guess the whole thing is your–the ability to rehabilitate yourself.
              We have a difficult economy right now. *** You know, [petitioner] did crafts at
              home. And the CAD [(computer-aided design)] market or the draftsman market
              moved her by. She does have an associate’s degree, but I don’t know it’s in anything
              that, you know, when you’re out of school for a period of time, the fact that you went
              to college–you don’t remember anything that you learned anyway other than you
              have the degree.
                   ***
                   *** You probably know a lot more now about banking rules and regulations. I
              think there’s enough of a safety net and she has enough incentive to try and become
              self-supporting. Retirement seems a logical cutoff date of 62, and I would hope that it
              would end before then.”
¶ 14       Based on the court’s remarks, respondent asked for a continuance to decide whether to
       present evidence on the issue. The court continued the matter to June 23, 2010, for a pretrial
       conference.



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¶ 15       The record contains no report of any further proceedings on the motion. (The next
       hearing for which there is a report of proceedings occurred in June 2012.) On November 18,
       2010, the trial court entered a written order disposing of the motion. The trial court denied
       the motion, stating: “The Court directs [petitioner] to remain fully employed and to seek out
       promotions and better job opportunities so as to increase her income.” The court continued
       the matter to June 2012 for review of maintenance, at which time the court would “increase,
       decrease or leave the same amount.”
¶ 16       The matter was subsequently transferred to the Honorable Gwyn Gulley. In May 2012,
       respondent filed a motion to modify maintenance. Petitioner, for her part, filed a motion to
       increase maintenance. On September 7, 2012, the court entered an order terminating child
       support, as Trista had graduated from high school.
¶ 17       The motions regarding maintenance were heard on September 17, 2012. The parties
       represented to the court that they had agreed to an “expedited” hearing and would stand on
       the evidence presented at the June 2010 review as well as their recent financial affidavits.
       The parties did, however, make representations about events since the June 2010 review. The
       court appeared to regard these as stipulated facts for purposes of its decision, and the parties
       assume their truth for purposes of this appeal. Those facts were as follows. Petitioner’s
       current salary was $21,000 and respondent’s was $120,000–both having increased since the
       June 2010 review. Petitioner was still employed as a bank teller at FNB, and her salary in
       that position would “top[ ] out somewhere” around $22,000 to $23,000. Since the June 2010
       review, petitioner had taken no classes outside FNB. She had, however, continued to take
       in-house classes at FNB, including all the “word processing, all the accounting classes.”
       Petitioner was also participating in a three-year “training program” with the goal of
       becoming “more of a bank administrator,” such as a personal banker or branch manager.
       Petitioner was being “as active and as involved as [she] possibly [could] for any promotion
       that [would come] [her] way.”
¶ 18       Three months later, on December 13, 2012, the trial court issued a written order
       providing that petitioner’s maintenance would terminate in 18 months. The court recognized
       that, in a maintenance review proceeding, “there is no threshold requirement of *** a
       substantial change in circumstances.” See In re Marriage of Golden, 358 Ill. App. 3d 464,
       471-72 (2005) (in a maintenance review, there is no requirement of a change in
       circumstances). The court made the following findings in support of the termination of
       maintenance:
                   “6. *** Petitioner is now working, but the Court is not convinced that there was a
               good faith effort to become self supporting. The Court finds that Petitioner was
               unemployed and worked part time and failed to take college courses/training to
               improve her earning capacity from 2005 to 2012. The Court acknowledges that
               [petitioner] eventually became employed full-time from 2009-2012.
                   7. Petitioner is currently employed and is in training and has future potential for
               increased earnings as she has had an affirmative duty to seek to become financially
               independent.
                   8. Petitioner[‘s] needs are now less since she no longer has a minor child in the
               household.
                   9. Petitioner has financial business ability and had an opportunity to re-enroll in
               college and chose not to.

                                                  -6-
                  10. *** Petitioner has capacity for employment/financial business, and no minor
              children. She had the opportunity to re-enroll in school for additional training and did
              not do so.”
       The court also ordered that respondent contribute to Trista’s college costs.
¶ 19      Petitioner filed a motion to reconsider the termination of maintenance. The trial court
       denied the motion, and petitioner filed this appeal.

¶ 20                                            II. ANALYSIS
¶ 21       On appeal, petitioner advances several challenges to the termination of maintenance. One
       of her contentions is that, in conducting the maintenance review in September 2012, the trial
       court misunderstood the intended scope of that review. We agree. As this issue disposes of
       this appeal, we need not address petitioner’s remaining contentions.
¶ 22       Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
       5/504(a) (West 2012)) provides that the trial court “may grant a temporary or permanent
       maintenance award for either spouse in amounts and for periods of time as the court deems
       just *** in gross or for fixed or indefinite periods of time.” Section 504(a) sets forth several
       factors for the court’s consideration in granting a maintenance award. See id.
¶ 23       In the December 2007 dissolution judgment, petitioner was awarded rehabilitative
       maintenance. “Rehabilitative maintenance is appropriate if evidence shows a potential for
       future employability at an income that allows approximately the same standard of living
       established during the marriage.” In re Marriage of Brackett, 309 Ill. App. 3d 329, 340
       (1999). “Inherent in the concept of rehabilitative maintenance is the optimal goal that after a
       period of renewing or developing skills, or reentering the job market, the dependent former
       spouse will be able to become self-sufficient through his or her own income.” In re Marriage
       of Lenkner, 241 Ill. App. 3d 15, 20 (1993).
¶ 24       Concerning modification and termination of maintenance, section 510(a-5) of the Act
       (750 ILCS 5/510(a-5) (West 2012)) states:
                   “(a-5) An order for maintenance may be modified or terminated only upon a
               showing of a substantial change in circumstances. In all such proceedings, as well as
               in proceedings in which maintenance is being reviewed, the court shall consider the
               applicable factors set forth in subsection (a) of Section 504 and the following factors:
                       (1) any change in the employment status of either party and whether the
                   change has been made in good faith;
                       (2) the efforts, if any, made by the party receiving maintenance to become
                   self-supporting, and the reasonableness of the efforts where they are appropriate;
                       (3) any impairment of the present and future earning capacity of either party;
                       (4) the tax consequences of the maintenance payments upon the respective
                   economic circumstances of the parties;
                       (5) the duration of the maintenance payments previously paid (and remaining
                   to be paid) relative to the length of the marriage;
                       (6) the property, including retirement benefits, awarded to each party under
                   the judgment of dissolution of marriage, judgment of legal separation, or



                                                  -7-
                   judgment of declaration of invalidity of marriage and the present status of the
                   property;
                       (7) the increase or decrease in each party’s income since the prior judgment or
                   order from which a review, modification, or termination is being sought;
                       (8) the property acquired and currently owned by each party after the entry of
                   the judgment of dissolution of marriage, judgment of legal separation, or
                   judgment of declaration of invalidity of marriage; and
                       (9) any other factor that the court expressly finds to be just and equitable.”
¶ 25        Courts have construed section 510(a-5) as distinguishing between review proceedings
       and modification proceedings. See Blum v. Koster, 235 Ill. 2d 21, 35-36 (2009); Golden, 358
       Ill. App. 3d at 469 (“[R]eview proceedings and modification proceedings are separate and
       distinct mechanisms by which reconsideration of maintenance can occur.”). A review
       proceeding occurs as a result of a prior court order for reconsideration of maintenance:
                   “The power of the court *** includes the authority to award time-limited
               maintenance with a provision for review. [Citation.] The purpose of a time limit on
               the award is generally intended to motivate the recipient spouse to take the steps
               necessary to attain self-sufficiency. [Citation.] At the end of the specified time period,
               the court determines whether the maintenance award should be extended. [Citation.]”
               In re Marriage of Rodriguez, 359 Ill. App. 3d 307, 312 (2005).
¶ 26        Where there is no such provision for review, a motion to reconsider maintenance initiates
       a modification proceeding rather than a review proceeding. See Golden, 358 Ill. App. 3d at
       469 (“Review proceedings *** are held pursuant to prior court orders while modification
       proceedings can be initiated by the parties without prior order of the court.”). As section
       510(a-5) provides, maintenance will not be altered in a modification proceeding absent proof
       by the movant of a substantial change in circumstances. This threshold of proof is not
       required, however, in review proceedings. Blum, 235 Ill. 2d at 35-36; Golden, 358 Ill. App.
       3d at 471-72.
¶ 27        Review proceedings can be general or limited. See Blum, 235 Ill. 2d at 32; Golden, 358
       Ill. App. 3d at 470 (“Review proceedings regarding maintenance can encompass various
       issues.”). A general review of maintenance will involve consideration of all factors in section
       510(a-5). See Blum, 235 Ill. 2d at 31-32. Limited review involving fewer statutory factors is
       possible. See id. at 32 (“The factors set forth in section 510(a-5) are inapplicable when the
       parties have otherwise agreed on the terms of modification and termination of maintenance in
       a written marital settlement agreement approved by the court, pursuant to section 502 [of the
       Act (750 ILCS 5/502 (West 2012))]); Golden, 358 Ill. App. 3d at 470 (“[T]he trial court can
       define the scope of the review, including limiting the review to certain issues.”). A trial court
       that orders a review proceeding is encouraged to notify the parties of any limitations the
       court intends to set on that review:
                   “When trial courts set review hearings, it would be preferable for the court to
               advise the parties who has the burden of going forward, who has the burden of proof,
               and what issues will be addressed. For example, if time-limited maintenance–whether
               temporary or rehabilitative–will continue only if the recipient shows good faith in
               seeking education or employment or proves the need for continued maintenance, then
               the parties should be so advised. Neither party should be required to guess what the


                                                   -8-
                court will consider at the review hearing.” (Emphasis omitted.) In re Marriage of
                Culp, 341 Ill. App. 3d 390, 396-97 (2003).
       A common consideration for review of maintenance is the spouse’s efforts toward financial
       independence:
                    “Many Illinois courts *** reserve[ ] jurisdiction to encourage a spouse to become
                self-sufficient while providing the court with an opportunity to review the award at
                the end of a fixed period to determine what efforts the spouse has made toward
                achieving this objective and whether those efforts have been successful.” In re
                Marriage of Pearson, 236 Ill. App. 3d 337, 348 (1992).
¶ 28        The September 17, 2012, reconsideration of maintenance was a review proceeding, not a
       modification proceeding, because it was done pursuant to direction in the November 18,
       2010, order following the first review of maintenance. We consider how, if at all, the court
       intended to limit the scope of the second review. “Generally, the intention of the court is
       determined by the language in the order entered, but where the language of the order is
       ambiguous, it is subject to construction.” Twardowski v. Holiday Hospitality Franchising,
       Inc., 321 Ill. App. 3d 509, 512 (2001). An ambiguous order “should be interpreted in the
       context of the record and the situation that existed at the time of [its] rendition.” Id. The
       relevant sources include “pleadings, motions and issues before the court; the transcript of
       proceedings before the court; and arguments of counsel.” In re Marriage of Lehr, 317 Ill.
       App. 3d 853, 858 (2000).
¶ 29        The trial court’s November 18, 2010, order provided for review of maintenance in 18
       months. The court gave only the following guidance as to what would be its concern at the
       next review: “The Court directs [petitioner] to remain fully employed and to seek out
       promotions and better job opportunities so as to increase her income.” Petitioner could
       reasonably interpret this as the sole criterion by which the trial court, at the next review,
       would judge her efforts toward self-sufficiency. Respondent, we note, never appealed that
       order.
¶ 30        At the September 2012 review, the trial court specifically faulted petitioner for failing to
       pursue educational opportunities “from 2005 to 2012[, i.e., to the date of the second
       review].” Construing the November 18 order, we see no requirement that petitioner seek
       further education. Obviously, petitioner could, and did, “remain fully employed” without
       going back to school. Moreover, there was no question at the September 2012 review that
       petitioner had sought “promotions” within FNB. As for “better job opportunities,” this
       ambiguous phrase is clarified by the trial court’s remarks at the June 2010 review. The court
       found that petitioner had made good-faith efforts by obtaining and continuing full-time
       employment with FNB and seeking promotions. The court “hope[d]” that petitioner would
       advance at FNB and become “branch manager or something.” We see no suggestion in these
       remarks that the court expected petitioner to seek further schooling or job opportunities
       outside of FNB.
¶ 31        The decision to modify or terminate maintenance is within the sound discretion of the
       trial court and will not be disturbed on appeal absent an abuse of that discretion.
       In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 19. The trial court abuses its
       discretion when, inter alia, it applies an improper legal standard. Rockford Police Benevolent
       & Protective Ass’n v. Morrissey, 398 Ill. App. 3d 145, 154 (2010). Here, the court failed to
       recognize the limited scope of review authorized in the November 18, 2010, order.

                                                   -9-
¶ 32       Accordingly, we vacate the trial court’s judgment terminating maintenance and remand
       this matter for the court to conduct a review of maintenance consistent with the November
       18, 2010, order as we have construed it.

¶ 33                                     III. CONCLUSION
¶ 34      For the foregoing reasons, the judgment of the circuit court of Winnebago County is
       vacated and the cause is remanded for further proceedings consistent with this opinion.

¶ 35      Vacated and remanded with directions.




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