                                                                       Digitally signed by
                         Illinois Official Reports                     Reporter of Decisions
                                                                       Reason: I attest to the
                                                                       accuracy and integrity
                                                                       of this document
                                 Appellate Court                       Date: 2016.09.26
                                                                       12:57:11 -05'00'




                  In re Marriage of Cole, 2016 IL App (5th) 150224



Appellate Court     In re MARRIAGE OF DONALD D. COLE, Petitioner-Appellant, and
Caption             BRENDA J. COLE, Respondent-Appellee.



District & No.      Fifth District
                    Docket No. 5-15-0224



Filed               August 15, 2016



Decision Under      Appeal from the Circuit Court of Montgomery County, No. 13-D-30;
Review              the Hon. Douglas L. Jarman, Judge, presiding.



Judgment            Affirmed.



Counsel on          Alan Pretnar, of Taylor Springs, for appellant.
Appeal
                    Michelle L. Blackburn, of Sorling Northrup, of Springfield, for
                    appellee.



Panel               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 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 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 (West 2012)),
     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


                                                -2-
     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 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. 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


                                                 -3-
       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 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 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.


                                                    -4-
