2023 IL App (4th) 220994-U 

NO. 4-22-0994 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re MARRIAGE OF

DIANE CHERRY,

Petitioner-Appellant and Cross-Appellee,

and

ANDREW CHERRY,

Respondent-Appellee and 

Cross-Appellant. 

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Appeal from the

Circuit Court of

Sangamon County 

No. 15D538

Honorable 

Matthew Maurer, 

Judge Presiding.

 

 JUSTICE HARRIS delivered the judgment of the court.

 Justices Zenoff and Lannerd concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, holding that (1) modification of respondent’s 

maintenance award was not required under the terms of the dissolution judgment 

and (2) the trial court did not err in denying respondent’s motion to modify 

maintenance after considering the requisite statutory factors.

¶ 2 Respondent, Andrew Cherry, cross-appeals the trial court’s order denying his 

motion to modify his maintenance obligation to petitioner and cross-appellee, Diane Cherry.

Respondent argues the court erred in ruling that modification of maintenance was not warranted 

where evidence was presented that petitioner had obtained employment and the parties’

judgment of dissolution of marriage stated that a change in petitioner’s employment would 

constitute a “substantial change in circumstances warranting a modification of [respondent’s] 

maintenance obligation.” Respondent also argues the court erred by ignoring evidence relating to 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

October 23, 2023

Carla Bender

4th District Appellate

Court, IL
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statutory factors it was required to consider in determining whether to modify the maintenance 

award. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On September 3, 2015, petitioner filed a petition for dissolution of the parties’ 

18-year marriage. On June 8, 2016, the trial court entered a judgment of dissolution of marriage 

pursuant to which respondent was to pay maintenance to petitioner in the amount of $1560 per 

month for a period of 14.62 years. In relevant part, the judgment stated: “The parties agree that 

[petitioner] must provide notice to [respondent] within seven (7) days of obtaining employment. 

A change in [petitioner’s] employment shall be considered a substantial change in circumstances 

warranting a modification of [respondent’s] maintenance obligation. [Petitioner] has an 

obligation to obtain employment.” 

¶ 5 On March 1, 2022, respondent filed a motion to modify maintenance, in which he 

asserted there had been substantial changes in the parties’ financial circumstances since the 

dissolution judgment was entered. Specifically, respondent alleged petitioner had obtained 

employment and respondent had been laid off from his job as a union ironworker due to an ankle 

injury and was receiving unemployment income. 

¶ 6 On August 5, 2022, and September 12, 2022, a hearing was held on respondent’s 

motion to modify maintenance, as well as several other pending motions that are not at issue in 

this appeal. Respondent was represented by counsel at the hearing, and petitioner was 

self-represented. Beverly Marshall, respondent’s wife, testified respondent injured his leg in 

November 2021 and had surgery as a result. Marshall indicated that respondent still had “pain 

surges” in his leg randomly and he walked “a little different” than before the injury. Marshall 

testified that she owned the house where she and respondent lived and she paid the mortgage and 
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bills related to the house. Marshall stated that respondent purchased a pickup truck in February 

2021 while he was laid off from work.

¶ 7 Respondent testified that he was 57 years old and was previously a union 

ironworker. In November 2021, he sustained a fracture to a bone in his lower leg near the ankle 

while he was at home. He described it as a “spiral fracture of the left fibula.” Respondent stated 

he had surgery to repair the fracture. Respondent identified an exhibit as photographs he had 

taken at his doctor’s office of X-rays displayed on computer monitors. Respondent indicated the 

X-rays showed his ankle after his surgery, which contained nine screws, a steel strap, a washer, 

and a posttensioning cable. The trial court sua sponte ruled it would not allow respondent to 

testify as to “specific medical things.” The court stated: “For him to say he broke it and those 

types of things, I understand. But to get into the specifics and leg straps and the bolts or the 

specific screws, I’m not going to allow that.” The court refused to admit the photographs of the 

X-rays. Respondent testified that, after the surgery, he used a walker and crutches for a few 

weeks. He indicated he had not used assistive devices to walk since the end of February 2022.

¶ 8 Respondent stated he had not worked since his injury. Two letters from 

respondent’s medical providers were admitted into evidence. One letter, dated February 2, 2022, 

stated respondent was permitted to return to work with the following restrictions: 30 minutes per 

hour of standing or walking, no lifting or carrying of more than 40 pounds, and no kneeling. The 

second letter, dated March 15, 2022, stated respondent was permitted to return to work with the 

following restrictions: 40 minutes per hour of standing or walking, no lifting of more than 50 

pounds, and limited kneeling. Respondent indicated he had not returned to his medical providers 

for further evaluation since March 2022.
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¶ 9 Respondent testified that as a union ironworker, he was required to climb ladders, 

traverse uneven ground, and wear an 80-pound harness. He had to be able to carry items 

weighing more than 50 pounds and was required to be on his feet all day. He stated that although 

he had been released to return to work with restrictions, he was unable to perform the job of a 

union ironworker with the restrictions imposed by his medical providers. Respondent stated he 

registered with his union hall as being available to work in spring 2022, but he did not receive 

any calls. He did not seek any work outside of his union hall. In addition to his ankle injury, 

respondent indicated he had chronic obstructive pulmonary disease, arthritis in his hands, and 

had undergone surgery in 2009 after he “broke [his] neck.” 

¶ 10 Respondent indicated he had considered applying for disability benefits but chose 

not to because he learned he would be better off financially if he retired instead. Respondent 

retired from the union hall in July 2022 and began receiving a pension of $2524 per month. He 

indicated his pension was currently his only source of income and it did not cover his monthly 

expenses. He stated he had a retirement annuity fund containing approximately $100,000, but he 

was not able to access it until he was 59.5 years old.

¶ 11 Respondent testified that he took out a loan in January 2022 to pay maintenance 

and child support because he was only receiving unemployment benefits at the time and had no 

other means of paying his support obligations. He stopped receiving unemployment benefits in 

May 2022, and he had no income until he started receiving pension payments in July. An exhibit 

in the form of a chart was admitted into evidence that purportedly showed that petitioner had 

received more income than respondent since November 2021 based on deposits made to their 

respective bank accounts. This exhibit also contained petitioner’s bank records from November 

2021 through May 2022 and respondent’s bank records from November 2021 through July 2022.
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Respondent testified he earned approximately $90,000 in 2017; $60,000 in 2018; $46,000 in 

2019; $68,000 in 2020; and $70,000 in 2021.

¶ 12 The trial court admitted into evidence two financial affidavits prepared by 

respondent. One of the affidavits, which was prepared in January 2022, included several of 

respondent’s income tax returns and bank statements. The more recent financial affidavit, which 

was prepared in August 2022, indicated respondent received pension payments in the amount of 

$2524 per month, had a life insurance policy with a face value of $9000, and had a retirement

annuity fund with a balance of approximately $100,000. It also reflected living expenses of 

$2939 per month, including $67 for phone expenses; $1350 for groceries, household supplies, 

and toiletries; $1049 for his car payment, insurance, gas, and other related expenses; $343 for 

personal expenses; and $130 for expenses related to his minor and dependent children. The 

affidavit indicated respondent owed $37,250 on an automobile loan, $2933 for attorney fees; 

$2500 for a credit card balance, and $2400 for a loan he had taken out to pay child support and 

maintenance. His monthly debt payments totaled $1187.

¶ 13 Petitioner, appearing pro se, testified that she was 56 years old and was not 

currently caring for any minor children. She indicated the parties’ daughter was 18 years old, 

attending college, and no longer living with her. Petitioner testified that she had applied for work

after the dissolution, but she had only been able to find part-time work as a brand ambassador for 

alcohol brands, including Bacardi, Flow Wine Group, and Samplers, Inc. She indicated she tried 

to “float” with as many companies as possible to get as many hours as she could. She worked 

two to seven hours per week and earned an average of approximately $1100 per month. In 

discussing her (presumably weekly) employment income, she stated: “I tried to average it out 

about approximately 275. It can be under 275 or it can be over.” She indicated her most recent 
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paycheck from Samplers was $76 because she had only one shift in two weeks. At other times, 

she could have three shifts in a day. She stated it was “very hard” to determine her average 

income because hours were sporadic, but she “did the best [she] could to guess.” She stated she 

had been working as a brand ambassador for approximately five years.

¶ 14 Petitioner’s previously admitted bank records showed, excluding support 

payments from respondent and deposits that were clearly not income from employment (e.g., tax 

refunds), her monthly deposits ranged from approximately $1000 to approximately $2600. Some 

of these deposits came from Samplers. The Samplers deposits ranged from approximately $230 

to $1730 per month. Many of the other deposits were marked only “deposit,” and their source 

was unclear. These deposits ranged from approximately $100 to approximately $2000 per month.

¶ 15 Petitioner indicated she had applied for numerous part-time and full-time jobs 

following the dissolution but only received offers for the brand ambassador positions. She stated 

she continued to apply for “better work.” She indicated she had recently applied for a full-time 

job at Helzberg Diamonds but had not received any response. Over the years, she had applied for 

jobs as a liquor manager at a grocery store, a court advocate supervisor, a 911 operator, and a 

building permit assistant. Petitioner indicated she had sales experience as a brand ambassador, 

had worked as a cashier, and was able to type.

¶ 16 Petitioner testified she also ran a small business selling items online. However, 

she did not have enough money to invest in the business to “really get it going,” and it operated 

at a loss. She acknowledged she had failed to tender the bank records for her business account to 

respondent in discovery but indicated there was “nothing in it.”

¶ 17 When asked by the trial court, petitioner indicated she did not possess an 

advanced degree. She stated she had not pursued higher education after the dissolution because 
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she could not afford to do so. She stated she lacked skills and had been a stay-at-home parent to 

the parties’ daughter during the marriage.

¶ 18 The trial court admitted into evidence petitioner’s financial affidavit, which was

dated May 16, 2022. The affidavit indicated petitioner’s gross monthly income was $2824, 

which included $1100 from employment, $1293 in maintenance payments, and $431 in child 

support payments. She reported monthly living expenses totaling $3032. According to the 

evidence, petitioner owned a residence valued at approximately $100,000 and owed about 

$71,000 on her mortgage. She stated there were also two liens placed on the residence: one by a 

credit card company in the amount of approximately $11,000 and one by her sister in the amount 

of $25,000. On her financial affidavit, petitioner reported other debts totaling approximately 

$36,000, including a car payment, taxes, unpaid utility bills, and credit card balances. She 

testified she did not have any savings or retirement funds. 

¶ 19 The parties submitted written closing arguments. In his written argument, 

respondent asserted his maintenance obligation should be reduced or terminated based on his 

injury and subsequent retirement, which he asserted constituted a substantial change in 

circumstances. Respondent also argued that, pursuant to the dissolution judgment, petitioner’s 

employment constituted a substantial change in circumstances and would be a “basis to modify.” 

¶ 20 On October 12, 2022, the trial court entered a written order denying respondent’s 

request for a modification of his maintenance obligation. The court found that, although there 

had been a substantial change in circumstances, modification was not warranted based on the 

evidence, statutory factors, and credibility of the witnesses. The court found respondent was not 

a credible witness and did not present “any credible evidence” that he was disabled or was no 

longer able to work due to his ankle injury. The court stated respondent provided “very limited 
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and selective medical evidence,” noting the most recent documentation he provided regarding his 

injury was a progress note from March 2022 allowing him to return to work with fewer 

restrictions than he had the month before. The court found this showed respondent’s condition 

was improving and he was able to work. The court noted respondent never sought disability 

benefits. The court found respondent’s retirement was voluntary and was an attempt to evade his 

maintenance obligation.

¶ 21 The trial court further found petitioner was a stay-at-home parent during the 

marriage and had no advanced degrees or marketable skills. The court noted petitioner had 

applied for jobs after the divorce but had only found part-time work. The court found petitioner’s 

efforts to obtain employment were in good faith and reasonable under the circumstances. The 

court noted petitioner’s debts had increased and found she was unable to meet her current needs. 

The court stated respondent was able to meet his needs, noting he lived with his wife in her home

and had purchased a pickup truck while unemployed. The court noted in its order that the parties’ 

daughter had recently turned 18 and was emancipated. The court’s order also decided several 

other pending motions, which are not at issue in this appeal.

¶ 22 Petitioner appealed, and respondent cross-appealed. Petitioner’s appeal was 

subsequently dismissed for failure to file a brief, but respondent’s cross-appeal remains at issue.

¶ 23 II. ANALYSIS

¶ 24 On appeal, respondent argues the trial court erred in ruling that modification of 

maintenance was not warranted where the dissolution judgment stated that a change in 

petitioner’s employment would constitute a “substantial change in circumstances warranting a 

modification of [respondent’s] maintenance obligation.” Respondent also argues the court erred
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by ignoring certain evidence and placing undue weight on other evidence relating to statutory 

factors it was required to consider in determining whether to modify the maintenance award.

¶ 25 A. Terms of the Dissolution Judgment 

¶ 26 Respondent argues the trial court erred because modification was required under 

the plain language of the dissolution judgment. Respondent notes the dissolution judgment 

provided that “[a] change in [petitioner’s] employment shall be considered a substantial change 

in circumstances warranting a modification of [respondent’s] maintenance obligation.” 

According to respondent, once a change in petitioner’s employment occurred, the language of 

the judgment made the modification of maintenance mandatory.

¶ 27 Under the typical statutory procedure for the modification of maintenance, the 

moving party must first establish that a substantial change in circumstances has occurred. 750 

ILCS 5/510(a-5) (West 2022). “When a court determines that there has been a substantial change 

in circumstances, it may modify the maintenance award, but it is not required to do so.” In re 

Marriage of Osseck, 2021 IL App (2d) 200268, ¶ 48. Rather, the trial court must then weigh the 

factors set forth in sections 504(a) and 510(a-5) of the Illinois Marriage and Dissolution of 

Marriage Act (Act) (750 ILCS 5/504(a), 510(a-5) (West 2022)) and determine whether to modify 

the award. Osseck, 2021 IL App (2d) 200268, ¶ 48.

¶ 28 However, “[w]here the parties agree to the terms under which maintenance may 

be modified or terminated, their terms (incorporated into the judgment) take precedence over the 

provisions for modification and termination as set forth in section 510 of the Act.” In re 

Marriage of Brent, 263 Ill. App. 3d 916, 922-23 (1994). “The provisions of marital settlement 

agreements and of dissolution judgments which incorporate such agreements are interpreted 

under the same rules governing the construction of contracts.” In re Marriage of Druss, 226 Ill. 
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App. 3d 470, 475 (1992). “A court is required to construe the provisions within dissolution 

judgments and settlement agreements so as to give effect to the intention of the parties, and 

where the terms are unambiguous, the parties’ intent must be determined solely from the 

language of the instrument itself.” Id.; see In re Marriage of Mulry, 314 Ill. App. 3d 756, 758 

(2000). Ambiguity in the terms of a dissolution judgment or marital settlement agreement exists 

“where the language is reasonably susceptible to more than one meaning.” Druss, 226 Ill. App. 

3d at 476. As the interpretation of a contract is a question of law, our review is de novo. Mulry, 

314 Ill. App. 3d at 758; In re Marriage of Wassom, 352 Ill. App. 3d 327, 330 (2004).

¶ 29 Here, we find the maintenance language of the dissolution judgment highlighted 

by respondent is ambiguous. It is not clear from the plain language of the judgment whether the 

parties intended that a change in petitioner’s employment would automatically necessitate a 

modification of maintenance, as respondent claims, or whether, as the trial court appears to have 

found, it would simply constitute a “substantial change in circumstances,” which would allow a 

movant to then argue the statutory factors favored a modification. Although either interpretation 

is arguable, thus making it ambiguous, we find the trial court’s interpretation of the dissolution 

judgment is the more reasonable one. If we were to construe the dissolution judgment as 

respondent does, it would mean that any “change in [petitioner’s] employment” would 

automatically necessitate a modification of maintenance, no matter whether an analysis of the 

many statutory factors would indicate otherwise. See Foxfield Realty, Inc. v. Kubala, 287 Ill. 

App. 3d 519, 524 (1997) (“Courts will construe a contract reasonably to avoid absurd results.”).

We also note that ambiguities in the terms of a contract or marital settlement agreement are 

typically construed against the drafter. In re Marriage of Kuyk, 2015 IL App (2d) 140733, ¶ 19. 
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Here, the judgment of dissolution was drafted by respondent’s counsel, while petitioner was 

self-represented.

¶ 30 In reaching our holding, we note that, in the proceedings below, respondent did 

not assert that the dissolution judgment required modification based simply on the change in 

petitioner’s employment. In his written closing argument, respondent argued that petitioner’s 

change in employment constituted a substantial change in circumstances. However, he did not go 

on to argue that this automatically necessitated a modification of his maintenance obligation. 

Instead, he asserted that modification was appropriate based on an application of the statutory 

factors. Accordingly, although we have addressed the issue on its merits, we note respondent 

also arguably forfeited the issue. See In re Marriage of Gabriel, 2020 IL App (1st) 182710, ¶ 72 

(“A party’s ‘[f]ailure to raise an issue before the trial court forfeits review of that issue on 

appeal.’ ” (quoting Finko v. City of Chicago Department of Administrative Hearings, 2016 IL 

App (1st) 152888, ¶ 24)).

¶ 31 B. Application of Statutory Maintenance Factors

¶ 32 Respondent also argues the trial court erred in its application of the statutory 

factors set forth in sections 504(a) and 510(a-5) of the Act (750 ILCS 5/504(a), 510(a-5) (West 

2022)) because it “ignored evidence as to statutory factors it must consider” and gave undue 

weight to other evidence. Respondent discusses each factor individually, pointing out evidence

that he maintains the court afforded too much or too little weight and arguing the court’s analysis 

of the factors was flawed in various other ways.

¶ 33 As previously discussed, once the trial court has determined a substantial change 

in circumstances has occurred, the court must then weigh the factors set forth in sections 504(a) 

and 510(a-5) of the Act (id.) and determine whether to modify the maintenance award. Osseck, 
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2021 IL App (2d) 200268, ¶ 48. Specifically, the court must consider the following factors 

pursuant to section 510(a-5): 

“(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, judgment of legal separation, or 

judgment of declaration of invalidity 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, judgment of legal separation, or 

judgment of declaration of invalidity of marriage; and
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 (9) any other factor that the court expressly finds to be just and equitable.”

750 ILCS 5/510(a-5) (West 2022).

¶ 34 The trial court must also consider the following factors set forth in section 504(a):

“(1) the income and property of each party, including marital property 

apportioned and non-marital property assigned to the party seeking maintenance 

as well as all financial obligations imposed on the parties as a result of the 

dissolution of marriage;

 (2) the needs of each party;

 (3) the realistic present and future earning capacity of each party;

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

seeking maintenance due to that party devoting time to domestic duties or having 

forgone or delayed education, training, employment, or career opportunities due 

to the marriage;

 (5) any impairment of the realistic present or 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 that party is able to 

support himself or herself through appropriate employment; 

 (6.1) the effect of any parental responsibility arrangements and its effect 

on a party’s ability to seek or maintain employment;

 (7) the standard of living established during the marriage;

 (8) the duration of the marriage;
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 (9) the age, health, station, occupation, amount and sources of income, 

vocational skills, employability, estate, liabilities, and the needs of each of the 

parties;

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

disability and retirement income;

 (11) the tax consequences to each party;

 (12) contributions and services by the party seeking maintenance to the 

education, training, career or career potential, or license of the other spouse;

 (13) any valid agreement of the parties; and

 (14) any other factor that the court expressly finds to be just and 

equitable.” Id. § 504(a). 

¶ 35 A trial court’s decision as to modification of maintenance will not be disturbed 

absent an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d 266, 287 (1984). An abuse 

of discretion occurs when the court’s decision is “arbitrary, fanciful, unreasonable, or where no 

reasonable person would take the view adopted by the court. Osseck, 2021 IL App (2d) 200268, 

¶ 49.

¶ 36 Here, the trial court did not abuse its discretion in denying respondent’s motion to 

modify maintenance. The court’s written order indicates that it considered the requisite statutory 

factors and related evidence in making its determination. For the reasons that follow, we find the 

court’s analysis of the statutory factors was not unreasonable.

¶ 37 1. Respondent’s Retirement and Financial Situation

¶ 38 The trial court did not abuse its discretion in finding respondent’s retirement was 

not in good faith and that his earning capacity was not diminished. As the court noted, the only 
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evidence regarding respondent’s ankle injury other than his own testimony was two progress 

notes from his medical providers releasing him to return to work with restrictions. The most 

recent note was from March 2022, approximately five months prior to the hearing, and it 

contained fewer restrictions than the note from the month before. Respondent indicated he had 

not seen his medical providers concerning his ankle since his visit in March 2022 and had not 

applied for disability benefits. The court found this evidence indicated respondent’s condition 

was improving and he was able to work. The court’s interpretation of this evidence was not 

unreasonable or fanciful. While respondent testified that his ankle injury prevented him from 

working as an ironworker, the court found this testimony was not credible. In light of the lack of 

corroborating evidence that respondent’s ankle injury continued to prevent him from working, 

we defer to the court’s findings, including its finding as to respondent’s credibility. See id.

¶ 39 We reject respondent’s reliance on In re Marriage of Columbo, 197 Ill. App. 3d 

767 (1990), in support of his argument that the trial court “erred in imposing an artificial 

evidentiary burden” on him by finding that his testimony concerning his injuries was insufficient

evidence that he was unable to return to work and instead requiring additional medical evidence. 

In Columbo, the court held the trial court erred by granting the wife’s motion for judgment at the 

close of the husband’s case on his motion to modify maintenance. Id. at 768-69. The Columbo 

court found the husband presented a prima facie case for the modification of maintenance where 

he testified he retired on the advice of his physician for health reasons. Id. at 769. In the instant 

case, unlike in Columbo, we are not tasked with reviewing whether respondent presented a 

prima facie case for modification. We also note the trial court in the instant case did not indicate

that medical evidence was always required to establish that a party could no longer work; it 
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merely found respondent’s testimony that he could no longer work was not credible in light of 

the limited medical evidence he presented.

¶ 40 We reject respondent’s argument that the trial court erroneously minimized the 

nature of his injury by stating that he “broke his lower leg at the ankle which required surgery” 

rather than describing his injury as a “spiral fracture of the left fibula,” as he testified. We find 

the court’s description of respondent’s injury was accurate, even if less precise than the 

testimony respondent provided, and it did not minimize the injury.

¶ 41 We also reject respondent’s argument that, even if the trial court properly 

determined that he should not have retired, the court failed to consider the limitation his injury 

imposed on his earning capacity. Referencing the progress notes, respondent asserts: “Return to 

work doesn’t mean the employer has to pay full union scale, and typically has meant *** that he 

was then only employable on light duty at a reduced rate of pay.” However, respondent 

presented no evidence as to what the reduction in his pay would have been, if any, if he had 

returned to light duty. Moreover, respondent did not present any evidence that the restrictions his 

medical providers placed on his ability to work in March 2022 still applied.

¶ 42 Respondent also contends that the trial court should have considered his pension 

rather than his previous earnings as an ironworker to be his realistic present and future earning 

capacity. Respondent asserts that because he retired, he can no longer work for the union.

However, as respondent presented no evidence he could not exit retirement and return to work as

an ironworker, the court’s finding was not an abuse of discretion.

¶ 43 2. Petitioner’s Job Search and Financial Situation

¶ 44 We further find the trial court did not abuse its discretion in determining

petitioner had made a reasonable, good-faith effort to find employment, her average income of 
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$1100 per month from her part-time jobs was representative of her present and future earning 

capacity, and her income from her part-time employment was insufficient to meet her monthly 

needs. The court’s findings were supported by petitioner’s testimony that she earned on average 

$1100 per month, did not have an advanced degree, lacked skills, could not afford to pursue 

additional education, lacked employment experience due to being a stay-at-home parent during 

the parties’ marriage, and had applied for multiple jobs without success. There was also evidence 

that petitioner had attempted to start a business, but it was not profitable and petitioner did not 

have sufficient funds to invest “to really get it going.” Petitioner’s financial affidavit indicated 

that her monthly living expenses totaled $3032 and she also had significant debt.

¶ 45 Respondent argues that the trial court’s finding that petitioner had no marketable 

skills was not supported by the evidence because petitioner testified that she was able to type, 

had sales experience as a brand ambassador, and had prior experience a cashier. However, the 

“skills” identified by respondent are fairly basic. The court did not abuse its discretion in finding 

petitioner had no marketable skills based on petitioner’s testimony that she lacked skills, had no 

advanced degrees, and had a limited employment history.

¶ 46 Also, we reject respondent’s argument that petitioner’s financial affidavit 

indicating that she made $1100 per month from her part-time employment was contradicted by 

her testimony that she made, on average, $275 per shift and worked one to six shifts per week. 

Respondent’s account of petitioner’s testimony is inaccurate. Petitioner testified she earned, on 

average, $1100 per month. She did not testify that she made $275 per shift. She stated at one 

point: “I tried to average it out about approximately 275. It can be under 275 or it can be over.”

While petitioner did not specify what the number “275” referred to during her testimony, she 

indicated on her financial affidavit that she earned an average of $275 per week, or $1100 per 
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month. Also, petitioner testified that her most recent paycheck had been for $76 because she only 

worked one shift in two weeks, further indicating she did not earn $275 per shift.

¶ 47 We also reject respondent’s argument that the trial court erred in “considering and 

giving weight and deference” to petitioner’s financial affidavit in finding she was unable to meet 

her monthly needs. Respondent contends that petitioner failed to attach paystubs, tax returns, and 

other supporting documentation to her financial affidavit and she failed to provide any records 

showing her expenses and debts. However, respondent has cited no authority for the proposition 

that a court may not consider a financial affidavit that does not include supporting 

documentation. We also note that, while respondent attached documentation to his affidavit 

demonstrating his past income, the only documentation he attached concerning his monthly 

expenses and debts were his bank statements. Petitioner’s bank statements were also admitted 

into evidence during the trial. Accordingly, the court had comparable information from each 

party on which to assess the validity of the monthly expenses and debts reported in their 

respective financial affidavits. We note the parties reported having comparable monthly living 

expenses—approximately $3032 for petitioner and $2939 for respondent—despite the fact that 

respondent had no housing expenses.

¶ 48 Respondent also asserts: “The trial court’s finding that [petitioner] has only 

$1,100 a month from income is not consistent with the evidence, as her bank records show 

significant cash deposits that are not accounted for.” A review of petitioner’s bank records shows 

that she had monthly deposits that often exceeded $1100. However, the amounts of these 

deposits varied greatly from month to month, and it is not clear whether all of them were income 

from employment, as many of them were marked only “deposit.” While the bank records suggest 
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petitioner may have understated her monthly income, they do not indicate that she earned

significantly more than she suggested or earned enough to meet her monthly needs. 

¶ 49 We also reject respondent’s argument that, by noting that petitioner was a 

stay-at-home parent during the marriage, the trial court was finding this excused or prevented her 

from searching for employment after the dissolution. Petitioner’s history of being a stay-at-home 

parent during the parties’ marriage was relevant to her lack of marketable skills, her current and 

future employment prospects, her earning capacity after the judgment of dissolution, and the 

parties’ standard of living during the marriage. Accordingly, the court did not err in considering 

it for these purposes.

¶ 50 3. Failure to Make Specific Findings Concerning Each Factor

¶ 51 Respondent contends that, for several of the statutory factors the trial court 

identified in its written order, the court merely cited facts related to the factors but failed to state 

how they either weighed in favor of or against the modification of maintenance. However, the 

court did not commit error, as it was not required to make explicit findings with regard to each 

factor. See In re Marriage of Kocher, 282 Ill. App. 3d 655, 661 (1996) (“Although a trial court 

must consider all relevant statutory factors, it need not make specific findings as to the reasons 

for its decision.”).

¶ 52 4. Alleged Failure to Consider Effects of Parental Responsibility Arrangements

¶ 53 Respondent also contends the trial court committed reversible error by failing

consider section 504(a)(6.1) of the Act (750 ILCS 5/504(a)(6.1) (West 2022)), namely, “the 

effect of any parental responsibility arrangements and its effect on a party’s ability to seek or 

maintain employment.” The court did not explicitly identify this factor in its written order.

However, the written order reflects that the court considered evidence relating to this factor, as 
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the court noted that, although petitioner had been a stay-at-home parent during the marriage, the 

parties’ daughter had recently turned 18 and was now emancipated. No evidence was presented 

that either party’s ability to seek employment was currently affected by “parental responsibility 

arrangements,” and there is no indication the court found otherwise.

¶ 54 5. Allegedly Improper Consideration of Marital Misconduct

¶ 55 Respondent also argues the trial court improperly considered “marital 

misconduct” in applying the section 504(a) factors by finding respondent’s retirement was an 

attempt to evade his maintenance obligation. Respondent notes that section 504(a) provides that 

“the court may grant a maintenance award for either spouse in amounts and for periods of time 

as the court deems just, without regard to marital misconduct.” Id. § 504(a). Here, the question of 

whether respondent retired in good faith was not an issue of “marital misconduct,” as it did not 

occur during the marriage. The court did not err in considering respondent’s motivation for his 

retirement, as it was relevant to the question of whether his maintenance obligation should be 

modified. See In re Marriage of Waldschmidt, 241 Ill. App. 3d 7, 13 (1993) (“Employment 

changes that are voluntary must be made in good faith and not prompted by a desire to avoid 

maintenance obligations.”).

¶ 56 6. Alleged Failure to Consider the Dissolution Judgment

¶ 57 Respondent notes the trial court was required to consider whether there were any 

valid agreements between the parties as one of the statutory factors. See 750 ILCS 5/504(a)(13) 

(West 2022). Respondent asserts the court erred in finding no agreements existed because, he 

argues, the dissolution judgment contained an agreement that petitioner would obtain 

employment and that respondent’s maintenance would be modified if she obtained employment. 

However, it is clear from the court’s written order that it was aware of the terms of the 
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dissolution judgment, including the requirement that petitioner seek employment, and that it 

considered them in making its modification determination. And while it is true the court 

specifically found there were no agreements between the parties, it may well have been referring 

to the fact that the parties had not agreed as to whether maintenance should be modified in the 

present proceedings, which would have been an accurate observation. 

¶ 58 7. Failure to Take a “Reserved-Jurisdiction Approach”

¶ 59 Respondent further argues the trial court erred in failing to take a 

“reserved-jurisdiction approach,” retaining jurisdiction to review respondent’s ability to pay 

maintenance. Courts have held that a reserved-jurisdiction approach may be appropriate in 

situations where the responsible party is currently unable to pay maintenance or where the court 

seeks to monitor the circumstances of the parties. In re Marriage of Scafuri, 203 Ill. App. 3d 385, 

395-96 (1990). For example, in In re Marriage of Marriott, 264 Ill. App. 3d 23, 41 (1994), the 

court held that a period of reserved jurisdiction was appropriate where the wife was eligible for 

maintenance but the husband was unable at the time to pay maintenance and meet his reasonable 

needs. Similarly, in In re Marriage of Wojcik, 362 Ill. App. 3d 144, 167-68 (2005), the court held 

that the trial court did not abuse its discretion in reserving a ruling on the wife’s request for 

maintenance where the wife was otherwise entitled to maintenance, the husband currently lacked 

the ability to pay maintenance because his only income was disability benefits, and there was 

evidence his disability might lessen in severity in the future such that he could return to work.

¶ 60 Here, the trial court did not abuse its discretion by failing to take a reservedjurisdiction approach to respondent’s motion to modify maintenance. We note respondent did not 

argue below that the court should take a reserved-jurisdiction approach and has forfeited his 

claim on appeal. See Gabriel, 2020 IL App (1st) 182710, ¶ 72. Forfeiture aside, respondent has 
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cited no authority suggesting a reserved-jurisdiction approach is appropriate in a modification 

setting, and even if it is, whether it would be mandatory as opposed to discretionary. See Wojcik, 

362 Ill. App. 3d at 168 (“As with other maintenance determinations, a trial court’s decision to 

reserve jurisdiction on the issue of maintenance will not be disturbed absent an abuse of 

discretion.”). Here, for the reasons already stated, we find the court’s decision to deny the motion 

to modify maintenance was an appropriate exercise of its discretion.

¶ 61 8. Exclusion of X-Rays and Testimony Concerning Respondent’s Injury

¶ 62 Respondent argues the trial court erred by refusing to admit photographs 

respondent had taken of a computer monitor in his doctor’s office displaying X-rays of his ankle 

after his surgery and respondent’s testimony that these X-rays showed nine screws, one steel 

strap, a washer, and a posttensioning cable in his leg. “The admissibility of evidence lies within 

the sound discretion of the trial court, and a reviewing court will not reverse the trial court's 

decision absent a clear abuse of discretion.” In re Marriage of Rudd, 293 Ill. App. 3d 367, 

371-72 (1997). Moreover, “a party is not entitled to a new trial unless a trial court’s erroneous 

evidentiary ruling was substantially prejudicial and affected the outcome of the trial.” DiCosolo 

v. Janssen Pharmaceuticals, Inc., 2011 IL App (1st) 093562, ¶ 40; see In re Marriage of Willis, 

234 Ill. App. 3d 156, 161 (1992) (“[E]rror in the admission of evidence does not require reversal 

if the evidence does not materially affect the outcome.”).

¶ 63 Even if we were to find that the trial court abused its discretion by refusing to 

admit the photographs of the X-rays and respondent’s testimony concerning what they depicted, 

respondent has not shown the court’s refusal to admit this evidence was substantially prejudicial 

or affected the outcome of the proceeding. The key issue for the court to determine concerning 

respondent’s injury was not the precise nature of the fracture. Rather, it was whether the injury 
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prevented respondent from continuing to work as an ironworker. The court permitted respondent 

to present evidence relevant to this issue—including his testimony about his ongoing inability to 

work, progress notes he received from his medical providers, and Marshall’s testimony about his 

condition. After considering this evidence, the court concluded there was no credible evidence 

respondent was unable to return to work. 

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated, we affirm the trial court’s judgment.

¶ 66 Affirmed.