application of the statute and the application of the law to the facts in this matter like i said the facts are not really in dispute by the parties we have a couple who was married for twenty five years and a judgment of dissolution was entered in november of and fourteen the judgment among other things divided the education that's between the parties and the particulars of this case awarded maintenance to mary and i believe that the language that the court used in the judgment was important in this case and that's why  go over it very quickly the language in the judgment said that maintenance would be awarded in the amount of five hundred dollars for two years at which time the maintenance would then be subject to review the judgment though went on to say that unless the respondent files a petition to extend maintenance the maintenance would automatically terminate it also said that the burden was on the respondent marian to establish that she had a continued need for the maid yes i have two points that i'd like to discuss with the court today and that i think are important for the court to consider the first point is whether or not the trial court should apply statutory guidelines for the duration of a maintenance award a review of maintenance when we're looking at a review that was originally decided before the maintenance statute went into effect the other point that i'd like the court to consider today is whether or not the trial court erred in this matter in finding that marianne had a continuing need for me i'd like to start with the statutory guideline issue because i believe that this is an important issue for the court and it's an issue that has caused some confusion among the illinois trial court as we all know in january of two thousand and fifteen we had a change to the maintenance statue and we had statutory guidelines that went into effect these stache tory guidelines applied to all cases that were decided after january  and we have guidelines that now dictate the amount of maintenance to be awarded and that the ration for the maintenance to go into effect so since two thousand and fifteen questions have arisen regarding how this statute applies to cases that were decided prior to two thousand and fifteen that are now coming up for either modification or review which is what we have in this case now recent case law suggests that there is actually maybe a circuit split between the different circuits in illinois on what we do with the duration part of the guidelines i believe that most of the circuits have decided that the amount part of the statutory guidelines is a place of all to review or modification actions but the duration part is a this issue i'm not aware of the supreme court has granted p l in any case your honor i know there are several cases that have dealt with this in different districts and i honestly don't know if the supreme court has going to be happy to look into that and get back to the they said was the fifth district case got into whether or not the guidelines really were in effect for entering the duration and then said that since they weren't in effect for the duration that the guidelines weren't going to apply at all i believe that most of the courts have been looking at this and saying if we're putting the guidelines into a fact and we leave it the amount should be considered and there should be a modification then we do use the amount crap that's  agreement right now on how these statutes and how the duration is applying to these new clues that are coming up that are dealing with prior to twenty fifteen so as you mentioned we have this history case which is harms first parker is that the case the court in this case specifically looked at whether or not the guidelines should be applied to that case in that case the court looked at the language of the statute particularly and to focus on the two different sections that we deal with which is five zero four and then also five ten five zero four deals with initial awards of maintenance and then five ten deals with modifications of maintenance there in harm's versus parker the court book the five ten and wall of modification what do we need to look at they said specifically that they could not find anywhere in five ten that five ten referred back to the duration guidelines and since it specifically was not in the statutory language they then weren't going to apply and they didn't believe that those guidelines were going to buy we have the second district case of marriage of  carson's which was decided in march of this year which took a slightly different view on the subject and they looked at this and said that in a review action once the court has decided that there has been a substantial change and they've applied the facts to the factors then the court should be able to look at the sasural guidelines and use the duration guidelines and come up with what they believe is appropriate now what i thought was interesting about the parson case is that actually added in some language about review actions as a suggests maintenance cap or modification actions and why i think that difference is important is because we're dealing with a review action here and not a modification i believe that a lot of these cases are going to be modifications that have come up and that's why more of the cases are focused on them so far but we do have cases like this that are of use in the second district persons case the who are looked at the language that's and five zero four eight which governs the view of modification actions and implied that they weren't finding any language in there that would refer this back to the duration guidelines but then the court went on to say that we're not going to make any findings about whether or not the guidelines should rethink we should go to review actions we're only going to deal with modification actions so it gave us a little bit of take time to look at here but government i believe that it governs cases that are pending but we have to look at how the statutes individually apply each other by looking at the specific language in the statutes i believe that we have that ada one section that is more of a general overall section that says anything that's pending at this time yes we look at the statutes that we have but then for the specific statutes  to review action it specifically mentions looking at the amount guidelines but there is nothing in there that says that we need to look at the duration guidelines and i think that's what the fifth district is really getting at here and that's what i think the court needs to carefully it's the it's the holding statute that is what we're under i believe that even if we didn't say specifically to be eight should apply the eight is the control of the statute here and that is what a lot so i don't believe that that is an argument that is waived in any way looking at the practical effect is what i think another thing that i would like the court to consider when we look at how these statutes interact with each other and how the statutes  going to affect these new modification and review cases that we have coming out as we discussed in the briefs your honor we're going to have a number of cases that are either going to be modified or reviewed so that it all occurred prior to any guidelines of any sort went into effect as we all know before the guidelines winter fact it was a complete judicial discretion essentially in the trial court where the judges centrally decided what they believed was best and set maintenance in that way so in those cases a number of times the judges thought very hard about what sort of order they were going to put in for maintenance how long maintenance was going to be what the amount was we now have a formula that could be coming in and completely changing what people have been relying on for several years i think the practical effect of this for individuals could be very important and very hard on individuals i mean you could go both way in these cases you could have a case that is similar to the case we have here in which we have a case where maintenance was awarded for two years sent to terminate unless there was a petition to extend filed and then it would be reviewed for the court that all of the sudden this award of maintenance has now been made permanent on the other hand you could also have an award of maintenance that could have been permanent or very long term in nature that a party could either come into the core asked for modification or for a view and then if the court is only to rely on the statutory guidelines come back and says well actually you have already passed the time that especially guidelines say you should have had made and so we're just ending it immediately and i don't use the word for twenty five years or for a lifetime modification would require substantial change so that is correct your honor so we do have that provision that i do think is a safeguard in believe that you're right in that that creates a safeguard for those cases but we do have these actions where if there is a substantial change and change in circumstances that may be necessary if changing the amount of the award or some other small aspect of the award does that then mean that just because we're changing a small amount of the award we automatically have to apply the duration guidelines as well and could bad changed like we said a permanent award to something that will already terminate because they have passed the time limit that the new guidelines would have given them i think these are important considerations for the court to think about in this case and how these practical implications are going to play and with these reviews and these modifications and that's why i believe that this is an important issue in this case specifically like we've talked about we do not believe that the duration guidelines should or should be applied in this case again we have to review action and we believe that it would be within the trial court's discretion if they wanted to say that there should be an extension of the maintenance award or different ways to make this award longer but you just court was more on point in that case and where they looked at whether or not the guidelines were a political ball and they looked at how the language in the statute did not look at the  was in the right direction on that case and that's more of what this case for this court should look at as well in fact case the court focused on the fact that five o four which gives us the i think that it's interesting because our a lot of the factors are listed in five or four but if we look at the modification statute five ten it also lists a number of factors for the court to consider so i believe that when the legislature was putting this up if we look at just the strict reading of the statutes we can look at how the legislature was careful to make sure that they included factors in five ten and didn't just say we're only referring you back to five zero four they were pretty specific about we're putting in factors this is what we want the court to look at when doing a modification and didn't specifically say we're using these guidelines i think that's interesting if we also benefit that to re review actions and be eight because if we look at the b eight for abuse it specifically has a part at the bottom of it that says you can look at the amount guidelines and where refers back up to the statute for the amount because when we go down the line i believe it's b b one b one a is how we get to that amount section and it specifically says we can look at the amount and finding and doing a review action nowhere problem i don't have an issue in that your are believe it is written in the statute that i want to review if the court decides that they're going to extend maintenance or they're going to modify maintenance for this review action the statute directs us back probably be my guess is maybe the court just was not aware of it wouldn't preclude them from certain knowledge that it was out there yeah i would normally expect that the court one of acknowledged it was out there and says this court found this but we're looking at this issue in another way the fact that carson's was decided in march of twenty eight and harms he parker came out and may have twenty eighteen we do have a pretty close gap in time there and so i wonder if the court just was not aware of carson's and living and i believe that standard of living is something that the court needs to look at here i also think that tithing comes under the needs stache worry factor the earning capacity and the standard of living and the different sources of income so there's a lot of different factors that i think all work together here and that the court needs to consider the tiding issue i think was one of the most important things for the core and for my client and looking at whether marianne has a continuing need for maintenance or not as we saw and was presented in the trial court mary and freely admitted she testified this to this and put on her financial affidavit that every month she donates five hundred dollars voluntarily to her church she also receives five hundred dollars per month in me so she has made the argument that she types to her church she also made the argument that this is something that was done during the marriage that she's always done it and this is important to her why we think this is an appropriate is for a couple reasons one if she has the money to voluntarily make a religious donation to her church every month we don't money for her own self sufficiency she is not using this money to take care of herself in any way this is money that she is giving to a religious organization by her own free will and the problem that this gets into is that this is then putting the burden on mark to essentially fund her ability to type to a church which he testified at least two there was no history of this being done it in the marriage there is no  basement i believe that it is in the agreed statement of fact i would be happy to look for that and just a quick second during counsel argument but it was testified to both parties testify to the income tax returns and how there is no evidence of tithing or religious donations on any in co ax returns during orange that's different that's correct your i think i agree that there's two separate things but there was testimony about their behavior he did not take that as a deduction correct but he did not did he say she never gave five hundred dollars a month to the church to his knowledge that was his testimony is that to his knowledge he was not aware of her ever g posing counsel spoke about there is an issue of whether mark agrees that this was on donated during the marriage however the trial court found that it was donated during the marriage it's  living like it was testified to this happened during the marriage these donations were made during the marriage the standard of living that the parties established during the marriage allowed them to make these donations the trial court is not requiring variant making these donations the trial court is not requiring any party to make any donations to a religious institution against their will the only thing the trial court is doing is requiring the ability to tare is there is hard for me to accept your i don't think it should be necessarily considered that they were contemplating the ability to tide i think it would be tied up and also other going nations other gifts that the parties could make and that their standard of living provided them with the ability to make those kind of guess and donation well if the party has enjoyed the standard of living during their marriage that allowed them to do that especially want to donation or a charitable gift isn't important to the party as tithing as to mary and it's something that she obviously felt very strongly about it consider what you're asking during the trial this was all brought up to the trial court during testimony and again as counsel said mark testified that he just didn't was not aware of it but i think this was all right up to the trial court i understand where you're coming from that it is now one person versus two but again i go back to the standard of living allow them to make these donations what about you know the the very practical reality which is half of the  parties split and are now maintain two separate households that this ability to try this is no longer practical you know you now have to look at mark standard of living here he is not on par with what it was during the course of the marriage how are we do account for that in this trial court system i think mark's standard of living is comparable to what it was at the time the trial court threw the testimony in the record found there not been a significant change in either party circumstances with the four hundred fifty dollars per month they've been into account what is  court not focus on the fact that this is a religious donation but again that is just a terrible start a charitable donation that marion feels very strongly about and that she was able to do during her marriage and she testified t or greenpeace or whoever whatever charitable organization that it's important to the person which is part of standard of living in know your honor just that i had been taking place during the marriage after the guidelines went into effect i understand opposing counsel's argument about the practical matters in the practical implications of this however i think we forget that a trial court does have the ability to deviate from the guidelines if it finds necessary in the record as long as it states why it's done so so not only is there the say five that we spoke about earlier as far as permanent maintenance not being reviewable there's another safeguard that a trial court can deviate it finds necessary it has that  decision here has to be reverse harms you parker specifically states that even when the guidelines are not applicable and a war that follows the guidelines will typically be a proper exercise of the court's discretion here the court found specific for each factor for the factors that it found relevant it was supported by the record because of her future income could lower future income making capacity a lower income her age the court has decided that it is appropriate for  permanent maintenance could have done this prior to the guidelines being put into effect if it had the proper there just wasn't a guideline saying specifically how long it had to do it within the course especially this could have been done prior to the guidelines but i think you even though your argument is correct there could have been something a court could have done but if the court was operating under possibly arose a really nice assumption that had me twenty five years for permanent where that would seem to bolster or question councils argue the court error here i think even if the court was under that impression the record in this matter and the disagree with that proposition that the whole proposition of law or that the court has to actually actually exercise its discretion here i don't agree with that in general but i think here we can still go back to the fact that the  record shows that this was the correct terminations decision that permit mean it's correct here whether the court came to it under the impression that they had to because the guidelines the record you're still shows that it was the appropriate duration as far as continued need there is clearly continued need in this case i think that's again shown probably by the record mark argues that first the court should have gone through the modification statute and then started the ma relevant but factors it found a terminated of the terminator have and it goes on to specifically state that there is a continuing need here the parties situations have not changed they have changed it's not only  yes they will be able to contribute to their retirement accounts and this is often the judgment of dissolution and without the maintenance that she received she would not be able to continue to do that in terms of the standard of living  asking you to concede anything at this point i think it's more a question of i have a i'm not sure if that's what justice doris question or support would you now not conceded just in terms of addition and subtraction she's using maintenance and i know we can talk about the pot and she uses it how she chooses to the amount is almost the same as the amount she  so she didn't tie we're not going to tell her that i know cork should do that but if she did it would be corrected mathematically she does not have a need for that honor i think could be correct that mathematically she would have obviously more disposable income i don't think she would have the amount that would put her in the standard of living that they would still enjoy because of what other fa what we should not be able to do i think she would not be able to continue to maintain the modest lifestyle that she's living now i don't understand that mathematically i mean she's maintaining that modest lifestyle yet i would i would agree that she would then have excess money if she was not donating to her church monthly i think we have to then look at this in the fact that some other i think that we would be looking at any sort of voluntary donation to the same general way i think that we specifically look at it in this case because it is a religious donation  it was testified to that it was a religious donation and it's something that mark testified to that he was not aware of during the marriage and something that he does not support so it doesn't check the statement i didn't check the statement  honor and i wanted to bring that up with you that is not in the statement of facts that's so important and i agree this is absolutely something that's important and we wish had been in the statement of facts your honor but it was testified to by both parties that like i said earlier there's no evidence of tithing that we can actually find through different documents from the marriage so there's you know there was cash now if it was made if it was made that would have been his assumption that it was me through cash and he did not know about it he didn't testify that he went to church with her i cation only he testified he was not a often member it was not something that he often went to it was something that she usually did on her own so he was not aware of it not saying it did not happen he just did not know about it and it most likely it would have been cash because there's no cancelled checks there's no receipts that were presented and like we said there was nothing on the tax returns but i think that timing creates a unique issue here because it does create a situation where the court is putting mark in a situation where he knows that he is giving this five hundred dollars now for fifty but at the time of the trial five hundred dollars a month and that five hundred dollars is being directly going to marion's church it creates this sort of entanglement that's an interesting issue for the court to look at here but i think the court is right if we look at this is any sort of voluntary donation  there are couples when jury of a marriage you have essentially a double amount of income and i think that's what the court was someone bringing up with counsel here is that you're going to have a slightly different standard of marriage during the standard of living during the marriage because you have double the income when a party divorces just by the nature of divorce we're looking at splitting that income we use maintenance as a way of keeping the same standard of living and ensuring it wouldn't be an argument over here to reduce that would be an argument to reduce but we also have to look at do voluntary donations that are not required and that are not necessary for parties need for their disposable income for their everyday needs is that as far on my songs i take that once a month i'm doing a minute you know be considered serious here how would we consider that i believe that this is where the court has given direction and that no one factor is the determining factor in maintenance cases  are part of the standard of living for acts that spouses george and that's where i was going with that your honor is that standard of living is a factor for the court to consider and it's for something to take into consideration it is not the only factor it's not the determining factor we have to look at all the other factors that the court or the statutes give us which include like i said needs the ability of the parties to have income any other sources of income they have in their standard of living i believe there is a disparity in income your honor i believe that where the parties live and based on the life of her living if we look at their financial affidavits there is not a huge standard of living and or there's not a huge disparity i'm sorry in the standard of living and  is very typical