                                         2019 IL App (3d) 180094

                                Opinion filed April 17, 2019
     ____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2019

     In re MARRIAGE OF                      )      Appeal from the Circuit Court
                                            )      of the 13th Judicial Circuit,
     RITA KUPER,                            )      La Salle County, Illinois
                                            )
           Petitioner-Appellee,             )
                                            )      Appeal No. 3-18-0094
           and                              )      Circuit No. 11-D-41
                                            )
     LAVERN KUPER,                          )      Honorable
                                            )      Michelle Vescogni
           Respondent-Appellant.            )      Judge, Presiding
     ______________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justice Lytton concurred in the judgment and opinion.
           Presiding Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          The trial court denied ex-husband’s petition to modify or terminate maintenance and

     granted ex-wife’s motion to modify maintenance. The trial court increased ex-husband’s

     obligation based on its calculation of ex-husband’s income; although it should not have used the

     amended guidelines, the amount the court awarded in accord with the guidelines was appropriate

     based on the statutory factors. We affirm in part, reverse in part, and remand.

¶2                                                FACTS
¶3          Petitioner Rita Kuper and respondent LaVern Kuper were married on April 10, 1982, and

     had three children, all whom are now emancipated. Rita filed a petition for dissolution of the

     marriage in April 2011. A judgment of dissolution was entered on June 15, 2012, and a

     supplemental judgment of dissolution of marriage was entered on December 6, 2013, which

     incorporated the parties’ marital settlement agreement (MSA). The MSA stated that LaVern

     would provide Rita $225 per week in maintenance and that maintenance would be reviewable in

     July 2016.

¶4          In August 2016, LaVern filed a petition to modify or terminate maintenance, alleging a

     substantial change in circumstances in that he retired. Rita filed a petition to modify or extend

     maintenance. A hearing took place on the parties’ petitions. Rita testified that she lived in a

     house she bought for $83,000 in 2014, using assets she received in the dissolution for a $20,000

     down payment and $5000 in repairs. She maintained a mortgage on the house. Her two adult

     children, aged 27 and 24, lived with her and each contributed $100 per month. She has a high

     school diploma and had attended two years of college but did not receive any degree or

     certificate. She took time off from working during the marriage beginning in 1986 and returning

     to the workforce in 1999 as a bus and lunchroom monitor. Her other work experience included

     employment at a fence and pool business, the movie theater, a video store, and the cafeteria at a

     Walmart distribution center. She currently worked at Didoughs Pretzel and had been there for

     five years. She earned $10.25 per hour, which was an increase from her initial pay of $9.35 per

     hour. She worked 40 hours per week but did not have insurance. She was last insured in 2009.

     She had applied for other jobs but was not granted interviews.

¶5          Rita testified regarding her financial affidavit. The affidavit, dated August 30, 2017, was

     admitted into evidence and provided as follows. Her net monthly earnings were $2899, which



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     consisted of her earnings, maintenance payments and her portion of LaVern’s Caterpillar

     pension. Her monthly expenses amounted to $2079. She had a monthly surplus of $820, which

     she deposited in her savings account. The account had a balance of $4220. She had total assets of

     $530,553, including her investment and retirement accounts. At the time of trial, her accounts

     were valued more than $536,000.

¶6          LaVern testified that he had remarried and his wife had three children aged 25, 22 and 20

     years old. The 22-year-old was in college and lived with them on school breaks. LaVern owned

     and lived in the previous marital home. He maintained his wife’s prior home and also owned and

     maintained his mother’s house in Missouri, which he had inherited in 2013. LaVern retired from

     Caterpillar after 15 years in the maintenance department. He had started experiencing physical

     difficulties, received unsatisfactory performance reviews, and because he was planning to retire

     at the age of 60, he left. LaVern’s physical difficulties included hand and arm tingling, which

     negatively affected his fingers, high blood pressure, diabetes, cataracts and depression, all of

     which impacted his ability to work. He officially retired on July 14, 2016, and began receiving

     his pension and profit sharing on August 1, 2016. At the time of his retirement, he had been

     earning $56,000 per year, plus overtime and profit sharing.

¶7          LaVern testified as to his financial affidavit dated July 11, 2017. His gross income in

     2016 was $74,544.91, and it had dropped to $0 in 2017 due to his retirement. His monthly

     income was now $1613.37 and his expenses amounted to $4192.58, for a monthly deficit of

     $2579.21. His assets amounted to approximately $1,913,338. He inherited assets valued at

     $652,448.90 from his mother, who died in April 2013, and $293,693.17 from his uncle, who died

     in May 2013. He had to withdraw $25,000 from his accounts prior to trial to meet monthly

     expenses. He paid for his new wife’s expenses, including the maintenance of her prior home. He



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       also paid tuition and college expenses for her daughter and tuition for her son, despite these

       payments requiring him to utilize sums from his investment accounts and inheritances.

¶8            The trial court issued a ruling on January 22, 2018, denying LaVern’s petition, granting

       Rita’s petition, increasing the amount of maintenance and making the award permanent. In

       reaching its decision, the court calculated LaVern’s monthly income as $14,114.15 based on his

       pension payments and the amount he spent each month. The court considered the assets LaVern

       received from the inheritances from his mother and uncle provided additional assets from which

       he could afford to pay an increased amount in maintenance to Rita. Additionally, the court

       considered that LaVern was paying his new wife’s expenses and supporting her children. The

       trial court found that Rita was in need of maintenance, in that without an award her monthly

       surplus of $50 would not allow for her to meet her needs. The court calculated a monthly

       maintenance amount of $3767 and made the award retroactive to January 1, 2017. LaVern timely

       appealed.

¶9                                              ANALYSIS

¶ 10          LaVern raises several issues on appeal. First, LaVern argues the trial court erred in

       increasing his maintenance obligation and making it permanent. Next, LaVern argues that the

       court inappropriately considered his investment withdrawals to determine his income. Last, he

       argues the court erred by applying the new statutory guidelines to a postjudgment review of

       maintenance.

¶ 11          We begin by addressing LaVern’s claim that Rita does not need maintenance and the trial

       court erred in denying his motion to terminate it. He argues that the factors do not support a

       maintenance award, particularly in light of Rita’s substantial investment accounts and her

       monthly needs. We disagree and affirm the award of maintenance.



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¶ 12          In reviewing maintenance or considering a request to modify or terminate, the court

       should consider the following factors under section 510(a-5) of the Illinois Marriage and

       Dissolution of Marriage Act (Act):

                     “(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 *** 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 ***; and

                     (9) any other factor that the court expressly finds to be just and equitable.” 750

                 ILCS 5/510(a-5)(1)-(9) (West 2016).

¶ 13          The court must also consider the factors under section 504(a) of the Act, including:

       (1) the parties’ income and property, including apportioned marital property and nonmarital

       property assigned to the party seeking maintenance and the financial obligations imposed on the



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       parties resulting from their marriage dissolution; (2) each party’s needs; (3) each party’s realistic

       present and future earning capacity; (4) any impairment of the present and future earning

       capacity of the party seeking maintenance due to that party devoting his or her time to domestic

       duties or forgoing or delaying education, training, employment or career opportunities as a result

       of the marriage; (5) the impairment, if any, of the realistic present and future earning capacity of

       the party against whom maintenance is sought; (6) the time necessary to enable the party seeking

       maintenance to acquire appropriate education, training and employment and whether the party

       can support herself or himself through appropriate employment or parental responsibility

       arrangements, if any, and their effect on the party seeking employment; (7) the parties’ standard

       of living during the marriage; (8) the marriage’s duration; (9) each party’s age, health, station,

       occupation, amount and sources of income, vocational skills, employability, estate, liabilities and

       needs; (10) all sources of income, public and private, including, without limitation, retirement

       income; (11) the property division’s tax consequences on the parties’ respective economic

       circumstances; (12) any contributions and services of the party seeking maintenance to the other

       spouse’s education, training, career or career potential or license; (13) any valid agreement of the

       parties; and (14) any other factor expressly found just and equitable by the court. 750 ILCS

       5/504(a)(1)-(14) (West 2016). This court will not disturb a trial court’s decision to modify

       maintenance absent an abuse of discretion. In re Marriage of Bratcher, 383 Ill. App. 3d 388, 390

       (2008).

¶ 14             The trial court gave a detailed explanation of its application of the statutory factors. In

       considering the parties’ needs, the court calculated that without LaVern’s maintenance payment,

       Rita would have a monthly surplus of $50. While Rita still had substantial assets she received

       from the marital property distribution, without LaVern’s maintenance payment, Rita’s monthly



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       incoming resources would not leave her any room for emergency expenses or unexpected costs.

       The $200 she received from her sons each month was not guaranteed to continue, as eventually

       both children could likely move out and begin independent lives. The court noted that Rita lived

       modestly and within her means while LaVern “elected to support three households at a monthly

       cost of over $13,000, which is within his means.” The court found LaVern elected to retire, with

       no present or future earning capacity unless he returned to the workforce, and Rita was earning at

       a level consistent with her employment during the marriage and unlikely to earn much more in

       the future. The court noted that LaVern testified his health difficulties required him to retire but

       that he had not sought any other employment. The court rejected LaVern’s claim that Rita failed

       to seek more lucrative employment, finding she had sought other employment and that her job

       was aligned with her education, training and employment history.

¶ 15          The court found it unlikely that Rita would ever be able “to fully support herself through

       employment with the standard of living established during the marriage” but also found that no

       evidence had been presented as to the standard of living and that the factor did not apply. The

       court noted the marriage was long term and that it considered the parties’ circumstances and

       sources of income, including “the amount that LaVern effectively pays to himself each month

       from his investment accounts.” The court also discussed what it considered just and equitable

       under the circumstances. It pointed out that in addition to the assets LaVern received in the

       dissolution, he also had substantial assets inherited from his mother and uncle. LaVern

       complains the inheritances were considered by the court in the property distribution. However,

       LaVern’s financial affidavits do not include any reference to the stock, real estate, accounts and

       funds he inherited. Although both he and Rita received equal distributions of more than $500,000

       in marital assets, at the time of trial, LaVern’s investment accounts topped $1.9 million and were



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       supplemented by his substantial inheritances. In contrast to LaVern’s increasing wealth, Rita

       testified her accounts were valued at more than $536,000, with withdrawals only for a down

       payment for her house and home repairs.

¶ 16          The court considered that LaVern paid monthly expenses for which he was not obligated,

       finding it significant that LaVern paid all the expenses for his new wife, who earned only $500 to

       $700 annually, that he spent more than $13,000 monthly to support three households, paid

       college expenses for his stepchildren, and had significant monthly expenditures for vacations,

       entertainment, dining out and hobbies. The court also found important that Rita did not have

       health insurance and was unable to afford it even with the maintenance payments.

¶ 17          The trial court then considered the section 510(a-5) factors and found the following. The

       parties contemplated LaVern would retire in 2016 as evidenced by the provision that a

       maintenance review would take place in August 2016. LaVern was unlikely to find another job at

       the salary he was previously earning, given his age and work history, and Rita was unlikely to

       earn more income than she currently earned. Rita made reasonable efforts to become self-

       sustaining but was employed at an income that was not sufficient to provide for her support. Tax

       consequences were neutral, the marriage lasted 28 years and 10 months, and LaVern had paid

       maintenance for four years. The marital estate had been divided equally between the parties. The

       retirement portions from the distribution were relatively intact. No evidence was presented

       regarding Rita’s income when the judgment of dissolution was entered but the court found that

       LaVern, now retired and without a paycheck, was earning greater sums then when the judgment

       of dissolution was entered based on the court’s calculation of his income.

¶ 18          The court further found that LaVern had inherited $1.1 million and real property

       subsequent to the judgment of dissolution. LaVern, although no longer employed, had “an



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       increased ability to pay maintenance.” The trial court expressed that it did not consider LaVern’s

       regular withdrawals of significant sums from his investment accounts as additional income. It

       noted that he paid his credit card bill in full each month, supported his new wife and two

       stepchildren and maintained three houses. He paid $11,700 per year in maintenance and spent

       $36,000 on tuition payments for his stepchildren. Considering the factors, the trial court found

       that an award of maintenance was appropriate and LaVern’s obligation to Rita should continue.

¶ 19          We agree that a permanent award of maintenance to Rita is warranted under the factors as

       spelled out by the trial court. While LaVern complains that Rita has sufficient assets received in

       the dissolution to sustain her lifestyle and has not demonstrated a need for maintenance, she

       testified that even with the surplus she saves each month, she is not able to afford to purchase

       health insurance. A former spouse is not required to exhaust all of her assets in order to meet her

       basic needs. In re Marriage of Lichtenauer, 408 Ill. App. 3d 1075, 1087 (2011). LaVern’s assets

       and income have increased substantially since the dissolution due to the inheritances he received

       from his mother and uncle. The court considered that the inheritances gave LaVern the ability to

       pay an increased sum in maintenance to Rita. Therefore, the court’s ruling that continued

       maintenance was appropriate and that it should be permanent was not an abuse of discretion.

¶ 20          We next consider whether the trial court’s calculation of LaVern’s income was an abuse

       of discretion. LaVern argues that the trial court improperly considered the withdrawals he made

       from his investment account as income, asserting that the funds do not qualify as income.

¶ 21          The maintenance provisions of the Act define gross income as “all income from all

       sources, within the scope of that phrase in Section 505” of the Act. 750 ILCS 5/504(b-3) (West

       2016). Section 505 defines net income as “the total of all income from all sources,” less

       enumerated deductions. 750 ILCS 5/505(a)(3)(a)-(i) (West 2016). In interpreting a statute, the



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       primary rule for a court is to ascertain and effectuate the legislative intent. In re Marriage of

       Lubbs & Dukes, 313 Ill. App. 3d 968, 969-70 (2000). The statute’s plain language is the best

       indicator of the legislature’s intent. Id. at 970. We review issues of statutory interpretation

       de novo. In re Marriage of Rogers, 213 Ill. 2d 129, 135-36 (2004).

¶ 22          In determining child support, income is considered as “simply ‘something that comes in

       as an increment or addition ***: a gain or recurrent benefit that is usu[ally] measured in money

       ***: the value of goods and services received by an individual in a given period of time.’ ” Id. at

       136-37 (quoting Webster’s Third New International Dictionary 1143 (1986)). Income is also

       defined as “ ‘[t]he money or other form of payment that one receives, usu[ally] periodically,

       from employment, business, investments, royalties, gifts and the like.’ ” Id. at 137 (quoting

       Black’s Law Dictionary 778 (8th ed. 2004)).

¶ 23          Illinois courts have interpreted what qualifies as income under the Act. The money a

       payor husband voluntarily contributed to his IRA was considered income. In re Marriage of

       Plotz, 229 Ill. App. 3d 389, 393 (1992). Withdrawals from a self-funded individual retirement

       account (IRA) do not constitute income but the interest and/or appreciation earnings from the

       IRA was considered income. In re Marriage of O’Daniel, 382 Ill. App. 3d 845, 850 (2008). A

       reverse stock split resulting in a capital loss was not considered income for child support

       purposes where payor husband used the proceeds from the involuntary stock sale to purchase a

       replacement asset. In re Marriage of Anderson & Murphy, 405 Ill. App. 3d 1129, 1136 (2010).

       Money withdrawn from a savings account during payor husband’s period of unemployment was

       not characterized as income for child support calculation. In re Marriage of McGrath, 2012 IL

       112792, ¶ 14. Stock that had vested was income for child support purposes. In re Marriage of

       Schlei, 2015 IL App (3d) 140592, ¶ 19.



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¶ 24          Obligations to a payor husband’s former wife take precedence over obligations arising

       from the ex-husband’s new marriage. Gregory v. Gregory, 52 Ill. App. 2d 262, 268 (1964). A

       paying spouse’s remarriage and expenses incurred in setting up a new household are not proper

       factors for the court’s consideration in determining whether to modify or terminate maintenance.

       Pierce v. Pierce, 69 Ill. App. 3d 42, 45 (1979). A payor’s voluntary acceptance of nonlegal

       obligations are not to be considered in deciding whether maintenance should be modified or

       terminated. In re Marriage of Rushing, 258 Ill. App. 3d 1057, 1062 (1993).

¶ 25          In calculating LaVern’s income, the trial court used the monthly expenditures LaVern

       listed on his financial affidavit to calculate his income. It found LaVern’s income as follows:

       $728.25 from his Caterpillar retirement benefits; $6605.90, the amount LaVern paid monthly to

       maintain three homes; $6770 in other monthly payments, including $1085 for entertainment,

       dining out and hobbies; $960 for gifts; $375 for donations; and $3025 for his stepchildren’s

       tuition and expenses for a total monthly income of $14,114.15. Using these figures, the court

       found LaVern’s annual income was $169,370. On his affidavit, LaVern listed his net monthly

       income at $1613.37 and his living expenses at $4192.58 for a monthly shortage of $2579.21.

       LaVern testified he withdrew funds from his investment accounts to make up the shortfall and

       meet his monthly expenses. The trial court expressly stated it did not consider LaVern’s

       withdrawals as additional income and rejected Rita’s argument that LaVern’s income was

       $181,812, which represented all the withdrawals he took from his various investment accounts.

       The trial court relied on the inheritances LaVern received and the financial opportunities those

       assets provided him in calculating his income. We find it did not abuse its discretion in

       determining LaVern’s monthly income to be $14,114.15.




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¶ 26          Last, we examine whether the trial court erred in applying the new statutory guidelines to

       calculate a maintenance amount. LaVern argues that the calculation guidelines in section 504(b-

       1)(1) of the Act (750 ILCS 5/504(b-1)(1) (West 2016)) do not apply to review of postdissolution

       maintenance.

¶ 27          This issue was recently addressed in In re Marriage of Harms, 2018 IL App (5th)

       160472. There, like here, the maintenance order had been entered before the new guidelines

       became effective but the husband’s petition to modify or terminate was filed and decided after

       their effective date. Id. ¶ 2. The trial court found the amended guidelines applied. Id. The

       reviewing court disagreed, reasoning that section 510 references only section 504(a) and does not

       mention section 504(b), which the trial court there, like here, used to calculate the maintenance

       amount and duration. Id. ¶ 30. The court held that the guidelines do not apply to proceedings to

       modify preexisting maintenance orders. Id. ¶ 35. Nevertheless, the reviewing court affirmed the

       trial court’s maintenance modification, finding that an award consistent with the guidelines

       generally reflects a proper exercise of the court’s discretion. Id. ¶ 36.

¶ 28          Because this issue involves a matter of statutory construction, our review is de novo. In re

       Marriage of Brill, 2017 IL App (2d) 160604, ¶ 40. Based on the plain language of section 510 of

       the Act, we agree with LaVern and the Harms court that section 504(b-1)(1) does not apply to

       post-dissolution maintenance modification on review. The statute dictates that the statutory

       factors are to be considered to assist the court in fashioning an appropriate amount when it is

       modifying maintenance and the guideline formula applies to new maintenance orders. Had the

       legislature meant for the maintenance formula under section 504(b-1)(1) to be used to calculate

       modified maintenance amounts, it would have referred to the section 504(b-1)(1) formula in

       section 510(a-5) along with the direction to the section 504(a) factors. Here, the trial court



                                                         12
       incorrectly used the amended guidelines to determine a maintenance amount. The Harms court

       chose not to remand the matter to the trial court for a recalculation of the maintenance award

       using only the factors set forth in sections 510(a-5) and 504(a) because it determined it was

       within the court’s discretion to award maintenance that was consistent with the amended

       guidelines. We believe, however, the better approach is to remand this matter to the trial court

       for a determination of maintenance to Rita in an amount based on the factors set forth in section

       504(a) rather than the inapplicable formula set out in section 504(b-1)(1).

¶ 29                                            CONCLUSION

¶ 30          For the foregoing reasons, the judgment of the circuit court of La Salle County is

       affirmed in part, reversed in part, and remanded for further proceedings consistent with this

       opinion.

¶ 31          Affirmed in part and reversed in part.

¶ 32          Cause remanded.

¶ 33          PRESIDING JUSTICE SCHMIDT, dissenting:

¶ 34          The record shows that a supplemental judgment of dissolution of marriage was entered

       on December 6, 2013, which incorporated the parties’ MSA. The MSA provided for $225 per

       week in maintenance reviewable in July of 2016. Supra ¶ 3. LaVern’s mother and uncle died in

       April and May of 2013.

¶ 35          In determining LaVern’s monthly income, the trial court calculated LaVern’s income

       based on his “pension payments and the amount he spent each month.” (Emphasis added.) Supra

       ¶ 8. Taking judicial notice of the existence of the federal bankruptcy courts and the number of

       bankruptcy attorneys advertising on television, I conclude using the amount one spends to

       determine income is an irrational method.



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¶ 36          The method that the trial court used in determining LaVern’s monthly income is set forth

       by the majority. Supra ¶ 25. It determined income by looking at how much LaVern was

       spending.

¶ 37          I would reverse and remand with instructions to the trial court to use an acceptable

       accounting method of calculating LaVern’s monthly income for purposes of determining

       maintenance.




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