ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

In re: the Marriage of LAURIE MICHELLE STURM, PetitionerAppellant, and JEFFREY JAMES STURM, Respondent-Appellee.

 District & No. Fourth District

Docket No. 4-11-0559

Argued

Filed

February 7, 2012

June 12, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The trial court’s determination that petitioner was not entitled to

maintenance was not an abuse of discretion, notwithstanding the long

duration of the marriage, since the property was fairly divided, the

parties’ needs were nearly the same, their earning capacities were similar,

albeit substantially less than those experienced during the marriage from

their sales of life insurance, and each was capable of returning to the

higher standard of living they enjoyed during the marriage.

Decision Under 

Review

Appeal from the Circuit Court of Ford County, No. 09-D-13; the Hon.

Stephen R. Pacey, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Thomas L. Brucker (argued), of Weeks & Brucker, Ltd., of Fairbury, for

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 January20, 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(unpublished order under Supreme Court Rule 23)) reversing the trial court’s judgment that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 July2009, 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 propertyassigned

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 partywas 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 ofJamesBakaitis, 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 admittedBakaitis’ 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 majorityerrs bynot so concluding.

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