## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption I n re: the Marr iag e of L AURI E MI CHEL L E STURM, PetitionerAppellant, and JEFF REY J AMES STURM, R espondent-A ppellee.

District & N o. Four th District Docke t No. 4-11-0559

Argued Filed Fe bruar y 7, 2012
J une 12, 2012

Held (Note : Thi s syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s deter mi n at ion that petitioner was not entitled to maintenanc e was not an abuse of discretion, notwithstanding the long duration of the marria g e, since the proper ty was fa i rl y divided, the parties’ needs wer e near ly the same, their ear ning capa cities wer e simil ar, albeit substantially less than those experience d during the marria g e from their sales of life i n s u ra n ce, and eac h was capa ble of returning to the highe r standar d of living the y enjoy ed duringthe marr iag e.

Dec ision Under Review Appea l from the Circuit Court of For d County
, No. 09-D-13; the Hon. Stephen R. Pacey , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas L

. Br ucker (ar g ued), of Weeks & Br ucker
, L td., of Fa irbury
, for appellant.

Robert S. Whit e (ar g ued), of Costigan & Woll rab, P.C., of Blooming ton, for a ppellee.

Panel J USTI CE COOK delivere d the judg ment of the c ourt, with opinion. Presiding Justice Turner

specia lly concur red, w ith opinion.
J ustice Steig mann dissented, with opinion.

OP INION

¶ 1 P et i t i o ner L aurie Sturm and responde nt J eff rey Sturm wer e marrie d in April 1 9 7 8

. I n Marc h 2009, L aurie filed a petition for dissoluti on of marria g e. On J anuar y 20, 2010, the trial
court enter ed a judgme nt of dissoluti on of marria g e in which it divided the parties’ assets and denied L aurie maintenanc e. L aurie filed a notice of ap p ea l

. On November 18, 2010, this
court enter ed an order ( In re Marriage of Sturm
, No. 4-10-0114 (Nov. 1 8
, 2 0 1 0) (unpublished order under Supreme Court Rule 23)) reve rsing the trial court’s judgme nt that the life-insura

nce proce eds L aurie rec eived wer e marital proper ty and rema

ndi n g with direc tions that the court rec onsider its awa rd of maintenanc e in acc ordanc e with the fac tors set o u t in section 504(a) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Dissolution Act) (750 I L CS 5/504(a) (West 2010)). The trial court considere d those fac tors in a hear ing on Marc h 23, 2011, during which it hear d the arguments of the parties. The court enter ed its orde r on May 31, 2011, ag ain deny ing ma intenance . L aurie appea ls. We aff irm.

¶ 2 I . ANALYSI S ¶ 3 The propr iety

of a ma intenance awa

rd i s within the di scre tion of t he trial court and the court’s decision will not be disturbed absent an abuse of discretion. I t is well established that an abuse of di scre tion will be found only wher e no re asonable person would take the view adopted by the trial court. In re Marriage of O’Brien
, 2011 I L 109039, ¶ 52, 958 N.E.2d 647; In re Marriage of

Schneide r , 214 I ll. 2d 152, 173, 824 N.E.2d 177, 189 (2005). When a party challeng es a trial court’s fac tual finding s reg arding a maintenanc e deter mination, this court will not reve rse a trial court’s finding s unless the finding s are ag ainst the manifest weig ht of the evidence. Findings are ag ainst the m anife st weig ht of t he ev i d en ce wher e the opposite conclusion is clea

rly evident or where the cour t’s finding s are unrea sonable, arbitrary
, and
not based on an y o f t h e ev i d en ce. In re Marriage of Nord
, 402 I ll. App. 3d 288, 294, 932 N.E.2d 543, 548-49 ( 2010).

-2-¶ 4 The parties acquir ed signific ant assets during their 30-y ear marria g e, including a mar ital

residenc e valued at $130,000, Arka nsas rea l estate valued at $174,500, motor vehicles, and
persona l proper

ty

. J eff rey rec eived a $150,000 inheritanc e following the death of his fathe r in 2009. ¶ 5 I n rec ent y ear s, both L aurie and J eff rey wer e employ ed as life insurance salesper sons by Thrivent Financ ial for L

uthera ns, eac h ear

ning approximately $100,000 per y ear

. L aurie was

so employ ed for 25 y ear s. A son , De re k
, d ied unexpectedly in J uly 2008. After Der ek’s death, L aurie experience d mental and emotional health problems, and went on disability in J anuar y 2009, rec eiving $1,270 per month for 24 months. L aurie testified she did not believe she would b e ab l e to continue the require d productivity and would, in all probability
, be dismiss ed from her e mploy ment very soon, as a r esult of her

mental and emotional health. L auri e t es t i fi ed that while not actively selling insurance
, she still maintained an office
, service d clients and did not intend to quit her insurance business even though she had

rec ently g iven awa

y part of he r “book of

business.” ¶ 6 As a result of her mental and emotional health problems, L aurie beg an seeing a thera pist,

a licensed clinical profe ssional counselor, J ames Ba kaitis. Correspon d en ce from Ba kaitis descr ibed L aurie ’s condition a s a “chr onic mood disorde r associate d with periods of mood swing s.” The corr espondenc e stated t h at g iven L aurie ’s prese nt “prolong ed depre ssive episode,” it was doubtful t h at L aurie would be able to return to her “orig inal level of functioning within the next 12 m o n t h s , if ever .” The trial court did not find that

corr espondenc e, which it noted was hear say , persua sive. There was no evidenc e that L aurie

was under a doctor’s car e, other than the thera pist. I n its order on rema n d
, t h e t rial court stated the corr espondenc e “wa s not adequate to substantiate an awa rd of maintenanc e.” The
prese nt and future ear

ning capa city o f ea ch party is a fac tor to be considere d in awa rding maintenanc e. 750 I L CS 5/504(a)( 3) (We s t 2 0 1 0 ). However, the trial court was in the best position to deter

mine L aurie ’s future ear

ning capa city

. Questions of witness cre dibilit y and conflicting evidenc e are matters for the trial judge to resolve as the trier of fac t. Be cause he

sees a nd hear s the witnesses, he is in a position superior to a revie wing court for assessing their demeanor, judging their credibility
, and weighing the evidence. People v. DeW itt
, 66 I ll. App. 3d 146, 148-49, 383 N.E.2d 694, 696 (1978). W e cannot say that the t rial court’s finding was c ontrary

to the manifest we ight of the evidenc e. ¶ 7 J ef

fr ey h ad b ee n em p l o y ed as a car penter , but throug h L aurie ’s eff orts, obtained

em p loy ment with Thrivent Financ ial for Luthera ns as an insurance salesman, ear ning as much as L aurie

. I n J uly 2009, Thrivent terminated J eff rey ’s employ

ment b e cause he had used copied s igna

tures of clients on transac tions which require d an orig inal signa ture. J eff rey obtained new employ

ment with Pekin I nsuranc e, with a job descr iption essentially the same

as it was with Thrivent, althoug h he was now maki n g l ess than $30,000 a y ear

. J eff rey continued to rec eive commissions from Thrivent for a y ear afte r his termination. The trial
court rec og nized J eff

rey ’s argument that his conduct was not improper, that it was something he had be en doingand Thrive nt had neve r ra ised a que stion a bout it befor e. The trial court did view the termination as a voluntary chang e of employ ment, something J eff

rey had done
to violate the employ

ment contra ct, which did not prec lude an awa rd of maintenanc e based

on his previous income. Stil l, it does not appea r that J eff rey had any intent to chang e his

-3-em ploy ment, rec eive a lesser salary
, or avoid any maintenanc e obliga tions. See In r e Marriage of W

aldschmidt
, 241 I ll. App. 3d 7, 13, 608 N.E.2d 1299, 1303 (1993) (re tirement in good f aith). ¶ 8 During their marria g e, L aurie and J eff rey had paid t h e an n u al p re m i u m s on a life insurance polic y fo r their son, Der ek, which they continued to pay afte r he rea ched adulthood. Orig inally both L aurie and J eff rey wer e listed as beneficiar ies on the $175,000 policy
, but in J anuar

y 2008, Der ek desig nated L aurie as the sole primary benef iciary and his sister, Ashley
, as the sole conting ent benef iciary

. L aurie used the proce eds to pay Der ek’s bills, Ashley ’s tuition, rent, and cre dit-car d balanc e, and the rea l estate taxes and homeowner ’s insurance on the home she share d with J eff rey

. L aurie deposited the rema ining $50,644 into an annuity acc ount she held in her name only

. I n its ori gi n al order
, the trial
court found the life insurance proce eds to be marital proper ty and order ed “[t] hat the balanc e of the insurance proce eds (appr ox imately $50,000) excluding $8,925, is awa rded to [L aurie ] in lieu of maintenanc e.” I n our November 18, 2010, order we held that th e l i fe i n s uranc e proce eds wer e L au ri e’ s nonmarital proper ty and, there fore
, could not be the basis for an

awa rd “in lieu of ma intenance .” ¶ 9 T h e t ri al co u rt accepted our decision that the life insurance proce eds wer e L aurie ’s

n o n m arital proper

ty , but it continued to believe that maintenanc e was not appropr iate. I n dividing proper

ty or awa rding maintenanc e it makes littl e differ ence wh ether proper ty is classified as m ar i t al or nonmarital; the ultimate question is who rec eives it. See In re Marriage of

Mouschov ias
, 359 I ll. App. 3d 348, 354, 831 N.E.2d 1222, 1226-27 (2005). The
court may awa

rd maintenanc e afte r consideration of all rele vant fac tors, “including marital
proper ty apportioned and non-marital proper ty assig ned to the party seeking maintenanc e.” (Emphasis added.) 750 I L CS 5/504(a)( 1) (West 2010). The court divides marital proper ty in just proportions considering all rele vant fac tors, includin g “ th e v a lue of the proper ty assig ned
to eac h spouse,” that is, nonmarital proper ty

. 750 I L CS 5 / 5 0 3 (d )(3) (West 2010). The signific ance of a deter

mination that proper

ty is marital or nonmarital is that marital proper ty may be divided, but nonmarital proper ty must be assig ned to the owner

. 750 I L CS 5/503(d) (West 2010). When the trial court said, in its orig inal order
, that it was awa rding L aurie the life insurance proce eds “in lieu of maintenanc e,” i t m ay h ave been saying that it was

aw arding her a larg er share of the m arital assets instead of maintenanc e. That is no l o n ger t h e case, but the trial court appar ently now sees maintenanc e as unnece ssary becau s e o f L aurie ’s nonmarital assets, a fac tor the trial cou rt was entitled to consider under section 504(a) (1). Ag ain, the important considera tion is the overa ll total of assets held by the party , not the label plac ed on those a ssets.

¶ 10 I I . CONCL USI ON ¶ 11 The trial court went throug h the fac tors set out in section 504. The court conclude d that the proper

ty of eac h party , including marital proper ty and nonmarital propert y , was fairly divided. The court conclude d that the needs of eac h party wer e approximately the same. The
court conclude d that the prese nt and future ear ning capa city of eac h party was approximately the same, g iven that eac h was making less than $30,000 per y ear –down from $100,000 per

-4-y ear –and eac h w a s c a

pable of rebuilding his or her respe ctive insurance client base. Although the marria g e was of signific ant duration, the standard of li v ing established during the marria g e was no longe r being enjoy ed by either party , and the fac t that both parties wer e in their mid-fifties did not signific an t l y hinder either party from seeking future simil ar employ ment. The trial court’s conclusion that L aurie was not entitled to maintenanc e was not an abuse of discre tion.

¶ 12 Affir

med.

¶ 13 PRES I DI

NG JUS TI CE TURNER, specially concur ring : ¶ 14 Whil e I concur in this opinion, I write separ ately for two rea sons. Fi rs t , I ch o ose to emphasize I took no part in this court’s November 18, 2010, order finding the life insurance
proce eds wer e L aurie ’s nonmarital proper ty but acc ept that finding as the law of the case in this appea l. Second, in response to my colleague’s spirited dissent, I note th e m aj o ri t y opinion simply conclude s the trial co urt did not abuse its discretion. Thus, while J ustice Cook and I may have awar ded L aurie maintena n ce , we fi nd a reasonable trial judge could have taken the opposite view

.

¶ 15 J USTI CE STEI GMANN, dissenting : ¶ 16 This case involves a woman, L aurie
, in her fifties, who, afte r 31 y ear s of marria g e, is no longe r capa

b l e of working beca

use of the mental and emotional health problems she experience d afte r her son died unexpectedly one y ea r b ef o re her divorce

. After ear ning approximately $100,000 a y ear for sever al y ear s, she filed a disability claim wi t h her employ er a

nd was g rante d 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 L aurie ’s re quest for ma intenance . The majority holds that it di d not. I

respe ctfully

dissent. ¶ 18 I n an ef

fo rt t o j u s t i fy i t s d ec i s ion, the majority attempts to diminis h the evidenc e reg arding L aurie ’s mental and emotional health problems. That ev i d en ce was prese nted throug h the corr esp o n d e n c e o f Ja me s B a k a it is
, a licensed clinical profe ssional counselor. The majority notes that this corr espondenc e, which stated, in part, that it was doubtful L aurie would be able to r eturn to he r “ ‘orig inal level of f unctioning w ithin the nex t 12 months, if

ever ,’ ” was deeme d by the trial court as nonpersua sive hear say and “ ‘not adequate to substantiate an awa

rd of maintenanc e.’ ” Supra ¶ 6. The majority ’s analy sis of this situation is questionable for se vera l rea sons. ¶ 19 First, the tr ia l c o u r t a d mi tt e d B a k a itis’ corr espondenc e without objection, which no doubt is why Ba kaitis himself never testified. Second, the rec ord contains no evidenc e that in any way conflicts with the Ba

kaitis corr espondenc e. Third, in the same para g raph of the majority opinion ( supra ¶ 6) in which the majority writes that the t ri al court found the Ba kaitis

corr espondenc e “ ‘ not adequate to substantiate an a war d of m aintenanc e’ ” ( supra ¶ 6) the majority notes that questions of witness cre dibilit y and conflicting evidenc e are matters for the trial judge to r esolve as the trier of fac t, e x plaining that beca use the trial judge sees and

-5-hear s the witnesses, “he is in a position superio r t o a revie wing court for assessing their

demea nor, judging their cre dibilit y , and weig hing the evidenc e.” Supra ¶ 6. Howeve r, here
, the trial court never saw Ba kait i s , had no basis for assessing his demea nor or judging his

cre dibilit y , and had no evidenc e to weigh that conflicte d with the Ba kaitis corr espondenc e. ¶ 20 Thus, a more acc urate descr ip t i o n o f wh at o cc u rre d in this case is that the trial court disreg ard ed t h e Ba

kaitis corr espondenc e (without providing any basis in the rec ord as to why ), and the majority

has no trouble with the tria l court’s doingso. ¶ 21 T h at t he trial court deeme d the Ba kaitis corr espondenc e unpers u as i v e h ea rs ay an d inadequate to support L aurie ’s position is very troubling for anoth er re ason. I n his

corres p ondence
, Ba

kaitis, a li cense d clinical professional counselor, expressed an opinion based upon his expertise in a field that is essentially a medical specia lty

. Reports of a simil ar nature from other such experts a re often offe red and rec eived into e vidence at trial without objection. I n addition to phy sicians, surg eons, psy chiatrists, and psy cholog ists, such experts may include nurses, phy sical t hera pists, medical t echnic ians, and the like. Of course, their written repor

ts in a g iven case will alway s–by definition–constitute hear s ay , just as in the
prese nt case

. But is the majority saying that such repor ts, when admitted without objection,
may be disreg arde d as “unper suasive hear say”? E s p ecially when, as here
, there is no conflictingevidenc e? This would indeed be a radic al holding. ¶ 22 I n conclusion, I am not awa re of any case within at least the last 15 y ear s in which, afte r a 31-y ear marria g e, a party ’s reques t for maintenance was denied, much l ess denied under the compelling circ um stance s of L aurie ’s situation in this case

. The trial court’s decision denying maintenanc e to L aurie was unrea sonable, and the majority err s by not so concluding

.

-6-