             NOTICE
                                     2016 IL App (5th) 150224
 Decision filed 08/15/16.   The
 text of this decision may be              NO. 5-15-0224
 changed or corrected prior to
 the filing of a Peti ion for
 Rehearing or the disposition of              IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
_______________________________________________________________________

In re MARRIAGE OF                           )     Appeal from the
                                            )     Circuit Court of
DONALD D. COLE,                             )     Montgomery County.
                                            )
      Petitioner-Appellant,                 )
                                            )
and                                         )     No. 13-D-30
                                            )
BRENDA J. COLE,                             )     Honorable
                                            )     Douglas L. Jarman,
      Respondent-Appellee.                  )     Judge, presiding.
________________________________________________________________________

      JUSTICE CATES delivered the judgment of the court, with opinion.
      Presiding Justice Schwarm and Justice Moore concurred in the judgment and
opinion.

                                           OPINION

¶1       Donald D. Cole (Husband) sought to dissolve his marriage to Brenda J. Cole

(Wife).        The circuit court of Montgomery County entered judgment granting the

dissolution of the parties’ marriage and awarded Wife maintenance. Husband appeals the

award of maintenance. We affirm.

¶2       The parties were married in May 1979 and separated in May 2009. No children

were born to or adopted into the marriage, although each party had children from

previous marriages. Husband is a disabled veteran, and his only income is social security
                                           1
retirement benefits and Veterans Affairs disability compensation. His gross monthly

income is $4951 plus $41 a month from a machinist’s union annuity established prior to

his marriage with Wife. Wife’s gross monthly income is $734 social security benefits.

Both parties estimated their monthly living expenses to be about $2800. Husband, age

67, has throat cancer. Wife, age 63, has tumors in her leg, foot-related issues, and a

thyroid condition. She has not worked in more than 10 years and has little present

earning capacity.

¶3    After 30 years of marriage, the parties secured a judgment of legal separation in

December 2009 in Franklin County, Missouri. This judgment incorporated a stipulation

and separation agreement dated October 26, 2009. Under the separation agreement,

Husband paid Wife maintenance of $2200 a month plus health insurance.               The

maintenance was labeled in the agreement as being contractual and nonmodifiable.

¶4    After Husband filed a petition for dissolution of marriage, Wife responded by

requesting that the terms of the judgment for legal separation be incorporated into the

judgment for dissolution of marriage.       The judgment for legal separation was

subsequently enrolled in Montgomery County and consolidated with the dissolution case.

The court heard the dissolution matter on October 24, 2014, but did not enter its

judgment of dissolution of marriage until February 24, 2015.       In the judgment of

dissolution, the court set aside the Missouri separation agreement. The court found that

the nonmodifiability of the agreement created an unconscionable economic situation for

Husband, given that the agreement did not provide for modification of the amount of

maintenance in the event of a decrease in Husband’s income or an increase in Wife’s
                                          2
income. At the time of the dissolution hearing, Wife’s income had increased when she

started collecting social security benefits. The court still awarded Wife maintenance but

reduced the amount to $2088 per month, terminable upon the death of either party or the

remarriage of Wife or her cohabitation with another person on a continuing conjugal

basis. Husband was also ordered to pay one half of Wife’s health insurance premium

until she became eligible for Medicare.

¶5     Husband filed a motion to reconsider contending that the court should have

applied the new maintenance guidelines contained within Public Act 98-961, which

amended section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750

ILCS 5/504), effective January 1, 2015. Based on his calculations under the new law,

Husband believes the award of Wife’s maintenance should have only been $1328.49 per

month.    Upon denying Husband’s motion, the court ruled that the new spousal

maintenance formula created by Public Act 98-961 (eff. Jan. 1, 2015) (adding 750 ILCS

5/504(b-1)) did not apply here. The court noted that the new law is silent about any

retroactive application. Therefore, the new law, which is substantive in nature, applies

prospectively only and not retroactively. In this instance, even though the court’s order

was not entered until after January 1, 2015, the hearing was held and the evidence was

closed on October 24, 2014, before the new law took effect.

¶6     On appeal, Husband contends the award of maintenance is against the manifest

weight of the evidence. He first asserts that all cases pending prior to the amendatory act,

but decided after the amendatory act took effect, should also apply the terms of the

amended statute. He points out that the new maintenance guidelines did not change the
                                          3
substantive nature of the maintenance statute. According to Husband, the substantive

issues apply only to whether or not a person is entitled to maintenance, and the factors

used to make such determinations were not changed pursuant to the amendment. Rather,

the changes contained within the amendment deal solely with how much maintenance is

to be paid and the time frame in which maintenance should be paid. Husband contends

the amended statute was designed to provide courts with guidelines to limit

inconsistencies in maintenance awards across the state, which, in the past, varied widely

in the amounts and durations of maintenance ordered for people with similar incomes and

similar periods of marriage. Husband points out the court’s order did not impose any

retroactive consequences on him as to maintenance payments he had made up until the

time of the order. The court’s order pertained only to maintenance payments that were to

be paid after the effective date of the new enactment. Husband asserts, relying on

Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023,

¶ 25, 25 N.E.3d 570, that the new statute does not operate retrospectively merely because

it is applied in a situation arising from conduct antedating the statute’s enactment.

Rather, according to Husband, the new statute applies to new maintenance orders

rendered after the amendment took effect. Alternatively, Husband contends, even under

the old statute, the court’s award of maintenance and the length of the maintenance

awarded are against the manifest weight of the evidence.

¶7    Under the terms of the new maintenance statute, a court is to calculate 30% of the

payor’s gross income minus 20% of the payee’s gross income as maintenance. This

amount, however, cannot be more than 40% of the combined gross income of the parties.
                                        4
Here, 30% of Husband’s monthly income ($1473.09) minus 20% of Wife’s income

($144.60) leaves a balance of $1328.49, which is the amount Husband contends he

should have been ordered to pay Wife per month as maintenance for 36 years or

permanently, subject to the termination and modification provisions of section 510 of the

Act (750 ILCS 5/510 (West 2014)). We agree with the trial court that application of the

new amendments here would apply a substantive law retroactively.

¶8    If a new statute contains no express provision regarding its temporal reach, the

court must determine whether the new statute would have retroactive effect, “keeping in

mind the general principle that prospectivity is the appropriate default rule.” (Internal

quotation marks omitted.) People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,

¶ 29, 28 N.E.3d 758. Generally speaking, therefore, procedural aspects of a new law may

be applied retroactively while substantive provisions may not. Caveney v. Bower, 207 Ill.

2d 82, 92, 797 N.E.2d 596, 602 (2003). A procedural change in the law prescribes a

method of enforcing rights or involves pleadings, evidence, and practice, whereas a

substantive change in law establishes, creates, or defines rights. Schweickert v. AG

Services of America, Inc., 355 Ill. App. 3d 439, 442-43, 823 N.E.2d 213, 216 (2005).

The new maintenance guidelines are substantive in nature because they alter the method

for determining a maintenance award and address the rights underlying a dissolution

proceeding. Prior to January 1, 2015, courts calculated maintenance awards relying on a

list of factors within section 504 of the Act (750 ILCS 5/504 (West 2012)). The new

version creates a formula for calculating maintenance based on the gross income of the

parties and the length of the marriage, after considering the factors of the old statute to
                                             5
determine whether maintenance is appropriate. The new statute requires that the same

factors of the old statute are used for a different purpose, that is, to determine whether

maintenance should be awarded in the first place. Awards are no longer based on the

weight of the various factors.      The new statute redefines an individual’s right to

maintenance and, therefore, is substantive. The mere fact that payments will be made in

the future does not mean that a spouse’s rights are not being retroactively affected.

¶9     Here, the marriage, separation, and dissolution hearing all occurred in 2014,

before the statute took effect. All of the events that shaped the trial court’s opinion in

formulating its ruling occurred in 2014. The evidence was closed, and the matter had

been submitted to the court for the rendering of its decision, all in 2014. The mere fact

that the matter was taken under advisement but not ruled on until 2015, after the effective

date of the new statute, does not warrant retroactive application of the law. The order not

being handed down until after January 2015 has nothing to do with the facts of the case,

yet under Husband’s reasoning, this delay changes the entire maintenance determination.

Applying the new formula to maintenance awards entered before the effective date would

attach new legal consequences to events completed before the effective date. See Brian

A. Schroeder, The New Illinois Spousal Maintenance Law: Retroactive or Prospective?,

103 Ill. B.J. 32 (2015). We see no difference here given that the case was essentially

closed before the effective date of the new maintenance statute. The rights of the parties

should be determined by the facts of the case, not by the timing of the final order.

¶ 10   Turning our attention to the actual award of maintenance ordered in this instance,

we first note that the trial court has wide latitude in determining what needs are
                                         6
reasonable.    We also recognize that the court is to take into consideration the

circumstances of the parties, the standard of living established during the marriage, and

the duration of the marriage. In re Marriage of Krane, 288 Ill. App. 3d 608, 618, 681

N.E.2d 609, 616 (1997).         Determining the propriety, amount, and duration of a

maintenance award ultimately is within the trial court’s discretion, and the court’s

decision will not be disturbed on appeal absent an abuse of that discretion.        In re

Marriage of Shen, 2015 IL App (1st) 130733, ¶ 80, 35 N.E.3d 1178. Considering the

length of the marriage here, the gross monthly incomes of the parties, the various health

conditions of both parties, and the standard of living established during the marriage, we

cannot say the award of maintenance to Wife in the amount of $2088 per month

constitutes an abuse of the court’s discretion in this instance.

¶ 11   Husband also argues on appeal that there is no statutory authority for the court to

order one spouse to provide health insurance for another spouse. The trial court’s order

requiring Husband to obtain health insurance for Wife, however, was within the

legitimate exercise of the court’s power. See In re Marriage of Flory, 171 Ill. App. 3d

822, 830, 525 N.E.2d 1008, 1013 (1988). We, therefore, again find no abuse of the

court’s discretion in this instance.

¶ 12   For the aforementioned reasons, we affirm the judgment of the circuit court of

Montgomery County.



¶ 13   Affirmed.


                                              7
                               2016 IL App (5th) 150224

                                    NO. 5-15-0224

                                       IN THE

                         APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
________________________________________________________________________

In re MARRIAGE OF                           )     Appeal from the
                                            )     Circuit Court of
DONALD D. COLE,                             )     Montgomery County.
                                            )
      Petitioner-Appellant,                 )
                                            )
and                                         )     No. 13-D-30
                                            )
BRENDA J. COLE,                             )     Honorable
                                            )     Douglas L. Jarman,
      Respondent-Appellee.                  )     Judge, presiding.
________________________________________________________________________

Opinion Filed:       August 15, 2016
________________________________________________________________________

Justices:         Honorable Judy L. Cates, J.

                 Honorable S. Gene Schwarm, P.J., and
                 Honorable James R. Moore, J.,
                 Concur
________________________________________________________________________

Attorney         Alan Pretnar, 510 Hillsboro Street, P.O. Box 310, Taylor Springs,
for              IL 62089
Appellant
________________________________________________________________________

Attorney         Michelle L. Blackburn, Sorling Northrup, 1 N. Old State Capitol
for              Plaza, Suite 200, P.O. Box 5131, Springfield, IL 62705
Appellee
_______________________________________________________________________
