                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                       In re Marriage of Sturm, 2012 IL App (4th) 110559




Appellate Court            In re: the Marriage of LAURIE MICHELLE STURM, Petitioner-
Caption                    Appellant, and JEFFREY JAMES STURM, Respondent-Appellee.



District & No.             Fourth District
                           Docket No. 4-11-0559


Argued                     February 7, 2012
Filed                      June 12, 2012


Held                       The trial court’s determination that petitioner was not entitled to
(Note: This syllabus       maintenance was not an abuse of discretion, notwithstanding the long
constitutes no part of     duration of the marriage, since the property was fairly divided, the
the opinion of the court   parties’ needs were nearly the same, their earning capacities were similar,
but has been prepared      albeit substantially less than those experienced during the marriage from
by the Reporter of         their sales of life insurance, and each was capable of returning to the
Decisions for the          higher standard of living they enjoyed during the marriage.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Ford County, No. 09-D-13; the Hon.
Review                     Stephen R. Pacey, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Thomas L. Brucker (argued), of Weeks & Brucker, Ltd., of Fairbury, for
Appeal                      appellant.

                            Robert S. White (argued), of Costigan & Wollrab, P.C., of Bloomington,
                            for appellee.


Panel                       JUSTICE COOK delivered the judgment of the court, with opinion.
                            Presiding Justice Turner specially concurred, with opinion.
                            Justice Steigmann dissented, with opinion.




                                              OPINION

¶1           Petitioner Laurie Sturm and respondent Jeffrey Sturm were married in April 1978. In
        March 2009, Laurie filed a petition for dissolution of marriage. On January 20, 2010, the trial
        court entered a judgment of dissolution of marriage in which it divided the parties’ assets and
        denied Laurie maintenance. Laurie filed a notice of appeal. On November 18, 2010, this
        court entered an order (In re Marriage of Sturm, No. 4-10-0114 (Nov. 18, 2010)
        (unpublished order under Supreme Court Rule 23)) reversing the trial court’s judgment that
        the life-insurance proceeds Laurie received were marital property and remanding with
        directions that the court reconsider its award of maintenance in accordance with the factors
        set out in section 504(a) of the Illinois Marriage and Dissolution of Marriage Act
        (Dissolution Act) (750 ILCS 5/504(a) (West 2010)). The trial court considered those factors
        in a hearing on March 23, 2011, during which it heard the arguments of the parties. The court
        entered its order on May 31, 2011, again denying maintenance. Laurie appeals. We affirm.

¶2                                            I. ANALYSIS
¶3          The propriety of a maintenance award is within the discretion of the trial court and the
        court’s decision will not be disturbed absent an abuse of discretion. It is well established that
        an abuse of discretion will be found only where no reasonable person would take the view
        adopted by the trial court. In re Marriage of O’Brien, 2011 IL 109039, ¶ 52, 958 N.E.2d 647;
        In re Marriage of Schneider, 214 Ill. 2d 152, 173, 824 N.E.2d 177, 189 (2005). When a party
        challenges a trial court’s factual findings regarding a maintenance determination, this court
        will not reverse a trial court’s findings unless the findings are against the manifest weight of
        the evidence. Findings are against the manifest weight of the evidence where the opposite
        conclusion is clearly evident or where the court’s findings are unreasonable, arbitrary, and
        not based on any of the evidence. In re Marriage of Nord, 402 Ill. App. 3d 288, 294, 932
        N.E.2d 543, 548-49 (2010).


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¶4        The parties acquired significant assets during their 30-year marriage, including a marital
     residence valued at $130,000, Arkansas real estate valued at $174,500, motor vehicles, and
     personal property. Jeffrey received a $150,000 inheritance following the death of his father
     in 2009.
¶5        In recent years, both Laurie and Jeffrey were employed as life insurance salespersons by
     Thrivent Financial for Lutherans, each earning approximately $100,000 per year. Laurie was
     so employed for 25 years. A son, Derek, died unexpectedly in July 2008. After Derek’s
     death, Laurie experienced mental and emotional health problems, and went on disability in
     January 2009, receiving $1,270 per month for 24 months. Laurie testified she did not believe
     she would be able to continue the required productivity and would, in all probability, be
     dismissed from her employment very soon, as a result of her mental and emotional health.
     Laurie testified that while not actively selling insurance, she still maintained an office,
     serviced clients and did not intend to quit her insurance business even though she had
     recently given away part of her “book of business.”
¶6        As a result of her mental and emotional health problems, Laurie began seeing a therapist,
     a licensed clinical professional counselor, James Bakaitis. Correspondence from Bakaitis
     described Laurie’s condition as a “chronic mood disorder associated with periods of mood
     swings.” The correspondence stated that given Laurie’s present “prolonged depressive
     episode,” it was doubtful that Laurie would be able to return to her “original level of
     functioning within the next 12 months, if ever.” The trial court did not find that
     correspondence, which it noted was hearsay, persuasive. There was no evidence that Laurie
     was under a doctor’s care, other than the therapist. In its order on remand, the trial court
     stated the correspondence “was not adequate to substantiate an award of maintenance.” The
     present and future earning capacity of each party is a factor to be considered in awarding
     maintenance. 750 ILCS 5/504(a)(3) (West 2010). However, the trial court was in the best
     position to determine Laurie’s future earning capacity. Questions of witness credibility and
     conflicting evidence are matters for the trial judge to resolve as the trier of fact. Because he
     sees and hears the witnesses, he is in a position superior to a reviewing court for assessing
     their demeanor, judging their credibility, and weighing the evidence. People v. DeWitt, 66
     Ill. App. 3d 146, 148-49, 383 N.E.2d 694, 696 (1978). We cannot say that the trial court’s
     finding was contrary to the manifest weight of the evidence.
¶7        Jeffrey had been employed as a carpenter, but through Laurie’s efforts, obtained
     employment with Thrivent Financial for Lutherans as an insurance salesman, earning as
     much as Laurie. In July 2009, Thrivent terminated Jeffrey’s employment because he had used
     copied signatures of clients on transactions which required an original signature. Jeffrey
     obtained new employment with Pekin Insurance, with a job description essentially the same
     as it was with Thrivent, although he was now making less than $30,000 a year. Jeffrey
     continued to receive commissions from Thrivent for a year after his termination. The trial
     court recognized Jeffrey’s argument that his conduct was not improper, that it was something
     he had been doing and Thrivent had never raised a question about it before. The trial court
     did view the termination as a voluntary change of employment, something Jeffrey had done
     to violate the employment contract, which did not preclude an award of maintenance based
     on his previous income. Still, it does not appear that Jeffrey had any intent to change his

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       employment, receive a lesser salary, or avoid any maintenance obligations. See In re
       Marriage of Waldschmidt, 241 Ill. App. 3d 7, 13, 608 N.E.2d 1299, 1303 (1993) (retirement
       in good faith).
¶8          During their marriage, Laurie and Jeffrey had paid the annual premiums on a life
       insurance policy for their son, Derek, which they continued to pay after he reached
       adulthood. Originally both Laurie and Jeffrey were listed as beneficiaries on the $175,000
       policy, but in January 2008, Derek designated Laurie as the sole primary beneficiary and his
       sister, Ashley, as the sole contingent beneficiary. Laurie used the proceeds to pay Derek’s
       bills, Ashley’s tuition, rent, and credit-card balance, and the real estate taxes and
       homeowner’s insurance on the home she shared with Jeffrey. Laurie deposited the remaining
       $50,644 into an annuity account she held in her name only. In its original order, the trial
       court found the life insurance proceeds to be marital property and ordered “[t]hat the balance
       of the insurance proceeds (approximately $50,000) excluding $8,925, is awarded to [Laurie]
       in lieu of maintenance.” In our November 18, 2010, order we held that the life insurance
       proceeds were Laurie’s nonmarital property and, therefore, could not be the basis for an
       award “in lieu of maintenance.”
¶9          The trial court accepted our decision that the life insurance proceeds were Laurie’s
       nonmarital property, but it continued to believe that maintenance was not appropriate. In
       dividing property or awarding maintenance it makes little difference whether property is
       classified as marital or nonmarital; the ultimate question is who receives it. See In re
       Marriage of Mouschovias, 359 Ill. App. 3d 348, 354, 831 N.E.2d 1222, 1226-27 (2005). The
       court may award maintenance after consideration of all relevant factors, “including marital
       property apportioned and non-marital property assigned to the party seeking maintenance.”
       (Emphasis added.) 750 ILCS 5/504(a)(1) (West 2010). The court divides marital property in
       just proportions considering all relevant factors, including “the value of the property assigned
       to each spouse,” that is, nonmarital property. 750 ILCS 5/503(d)(3) (West 2010). The
       significance of a determination that property is marital or nonmarital is that marital property
       may be divided, but nonmarital property must be assigned to the owner. 750 ILCS 5/503(d)
       (West 2010). When the trial court said, in its original order, that it was awarding Laurie the
       life insurance proceeds “in lieu of maintenance,” it may have been saying that it was
       awarding her a larger share of the marital assets instead of maintenance. That is no longer
       the case, but the trial court apparently now sees maintenance as unnecessary because of
       Laurie’s nonmarital assets, a factor the trial court was entitled to consider under section
       504(a)(1). Again, the important consideration is the overall total of assets held by the party,
       not the label placed on those assets.

¶ 10                                    II. CONCLUSION
¶ 11       The trial court went through the factors set out in section 504. The court concluded that
       the property of each party, including marital property and nonmarital property, was fairly
       divided. The court concluded that the needs of each party were approximately the same. The
       court concluded that the present and future earning capacity of each party was approximately
       the same, given that each was making less than $30,000 per year–down from $100,000 per


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       year–and each was capable of rebuilding his or her respective insurance client base. Although
       the marriage was of significant duration, the standard of living established during the
       marriage was no longer being enjoyed by either party, and the fact that both parties were in
       their mid-fifties did not significantly hinder either party from seeking future similar
       employment. The trial court’s conclusion that Laurie was not entitled to maintenance was
       not an abuse of discretion.

¶ 12       Affirmed.

¶ 13       PRESIDING JUSTICE TURNER, specially concurring:
¶ 14       While I concur in this opinion, I write separately for two reasons. First, I choose to
       emphasize I took no part in this court’s November 18, 2010, order finding the life insurance
       proceeds were Laurie’s nonmarital property but accept that finding as the law of the case in
       this appeal. Second, in response to my colleague’s spirited dissent, I note the majority
       opinion simply concludes the trial court did not abuse its discretion. Thus, while Justice
       Cook and I may have awarded Laurie maintenance, we find a reasonable trial judge could
       have taken the opposite view.

¶ 15       JUSTICE STEIGMANN, dissenting:
¶ 16       This case involves a woman, Laurie, in her fifties, who, after 31 years of marriage, is no
       longer capable of working because of the mental and emotional health problems she
       experienced after her son died unexpectedly one year before her divorce. After earning
       approximately $100,000 a year for several years, she filed a disability claim with her
       employer and was granted disability of $1,270 per month for 24 months.
¶ 17       The only issue in this case is whether the trial court abused its discretion when it denied
       Laurie’s request for maintenance. The majority holds that it did not. I respectfully dissent.
¶ 18       In an effort to justify its decision, the majority attempts to diminish the evidence
       regarding Laurie’s mental and emotional health problems. That evidence was presented
       through the correspondence of James Bakaitis, a licensed clinical professional counselor. The
       majority notes that this correspondence, which stated, in part, that it was doubtful Laurie
       would be able to return to her “ ‘original level of functioning within the next 12 months, if
       ever,’ ” was deemed by the trial court as nonpersuasive hearsay and “ ‘not adequate to
       substantiate an award of maintenance.’ ” Supra ¶ 6. The majority’s analysis of this situation
       is questionable for several reasons.
¶ 19       First, the trial court admitted Bakaitis’ correspondence without objection, which no doubt
       is why Bakaitis himself never testified. Second, the record contains no evidence that in any
       way conflicts with the Bakaitis correspondence. Third, in the same paragraph of the majority
       opinion (supra ¶ 6) in which the majority writes that the trial court found the Bakaitis
       correspondence “ ‘not adequate to substantiate an award of maintenance’ ” (supra ¶ 6) the
       majority notes that questions of witness credibility and conflicting evidence are matters for
       the trial judge to resolve as the trier of fact, explaining that because the trial judge sees and


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       hears the witnesses, “he is in a position superior to a reviewing court for assessing their
       demeanor, judging their credibility, and weighing the evidence.” Supra ¶ 6. However, here,
       the trial court never saw Bakaitis, had no basis for assessing his demeanor or judging his
       credibility, and had no evidence to weigh that conflicted with the Bakaitis correspondence.
¶ 20       Thus, a more accurate description of what occurred in this case is that the trial court
       disregarded the Bakaitis correspondence (without providing any basis in the record as to
       why), and the majority has no trouble with the trial court’s doing so.
¶ 21       That the trial court deemed the Bakaitis correspondence unpersuasive hearsay and
       inadequate to support Laurie’s position is very troubling for another reason. In his
       correspondence, Bakaitis, a licensed clinical professional counselor, expressed an opinion
       based upon his expertise in a field that is essentially a medical specialty. Reports of a similar
       nature from other such experts are often offered and received into evidence at trial without
       objection. In addition to physicians, surgeons, psychiatrists, and psychologists, such experts
       may include nurses, physical therapists, medical technicians, and the like. Of course, their
       written reports in a given case will always–by definition–constitute hearsay, just as in the
       present case. But is the majority saying that such reports, when admitted without objection,
       may be disregarded as “unpersuasive hearsay”? Especially when, as here, there is no
       conflicting evidence? This would indeed be a radical holding.
¶ 22       In conclusion, I am not aware of any case within at least the last 15 years in which, after
       a 31-year marriage, a party’s request for maintenance was denied, much less denied under
       the compelling circumstances of Laurie’s situation in this case. The trial court’s decision
       denying maintenance to Laurie was unreasonable, and the majority errs by not so concluding.




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