## 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 Bolte , 2012 IL App (3d) 110791

Appellate Court Caption In re MARRIAGE OF TERRY RAY BO L TE, Petitioner-Appellee
, and SUE EL L EN B OL TE, Respondent-A ppellant.

District & N o. Third District Docke t No. 3-11-0791

Filed September 12, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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 termi n at i on of responde nt’s maintenanc e awa rd based on the trial court’s err oneous conclusion that the parties’ settlement agree ment provided for reha

bilitative maintenanc e wa s re verse d, along with the order requiring petitioner to pay only one-ha lf of responde nt’s at t o rney fee s, and the cause was rema nded for a deter

mination of a proper awa

rd of attorney fee s afte r a revie w of maintenanc e acc ording to the statutory fac tors.

Dec ision Under
Review Appeal from the Circuit Court of Rock I sland County
, 97-D-4 6 2 ; t h e Hon. J ames G. Conwa

y , J r., Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Mark W. Schwieber t (ar gued), of Schwieber

t L aw, P.C., of Rock I sland, for a ppellant.

Da v i d W

. Andich (ar gued), of Andich & Andich, of Rock I sland, for appellee

.

Panel PRES I DI NG J USTI CE SCHMI DT delivere d the judgme nt of the court, with opinion.
J ustices Holdridg e and Wrig ht concur red in the judg ment and opinion.

OP INION

¶ 1 I n Ap ri l o f 1 9 9 8
, t h e circ uit court of Rock I sland County enter ed a j u d gm en t o f dissoluti on of marria g e awa rding the responde nt, Sue Bolte, maintenanc e. On Augu s t 2 8
, 2009, the petitioner, Terr y Bolte, filed a petition to terminate maintenance. S u e fi l ed a response and various motions, including a counter claim to Terr y ’s motion to terminate and

a petition for attorney fee s. Following a revie w hear ing on September 2, 2011, the trial court terminated Terr

y ’s maintenanc e obligation and order ed him to contribute to half of Sue’s attorney fee s. Sue appea ls, claiming the trial court abused its discretion in failing to consider the statutory fac tors of sections 504(a) and 510(a- 5) of the I llinois Marr iag e and Dissolution of Marr iag e Act (the Act) (750 I L CS 5/501 et seq. (West 2010)) in terminating the maintenanc e awa

rd, and abused its discretion in failing to awa rd all or substantially all of her attorney fee s. We rever se and r emand.

¶ 2 BA CKGROUND ¶ 3 Seven y ear s prior to the dissoluti on of the parties’ marria g e, the parties lear ned that Sue suffe red from myasthenia gravis, a prog ressive, disabling disease that cause s resp i ratory , circ ulatory and mot or ski ll problems. Following 27 y ear s of marr iag e, the pa rties obtained

a judgme nt for dissoluti on of m ar ri age on April 22, 1998, which incorporated a marital settlement agree ment. The a g ree ment provides, in re levant par t, as follows: “The Petitioner shall pay the s um of $2,000.00 per month to the Respondent as for rehabilitati ve maintenanc e, deductible as maintenanc e pay ment to the Petitioner and as income to the Respondent, as a nd for rehabilitati ve maintenanc e. Said sum shall beg in

on the 1st day of May
, 1998 and shall continue b i -w eekly there afte r eac h month following the entry of the judgment of Dissolution of Marr iag e, with said notice to the Petitioner’s employ er. Al l maintenanc e shall be terminated upon the death of either party , or t h e Respondent’s rema

rriag e and/or cohabitation with a person of the o p p o s i t e sex on a

-2-continuing conjug al basi s an d may be revie wable upon the Petitioner’s retirement .” (Emphase s added.) The a g ree ment also includes a w aiver , which states: “Except as otherwise s pecif ically provided herein, the parties he reto wa ive and a re fore ver barre d from asserting any claims ag ainst one another, or in the property of one another
, arising out of during t h ei r marria g e, whether by way of maintenanc e, dower
, pension homestead or

otherwise.” ¶ 4 In J une of 2010 at the ag e of 59, Terr y retire d early from his job. He testified that he took the ear ly retire m ent to secur e more favor able postretireme nt healthca re benef its. Subsequently
, he petitioned the court to terminate or reduc e his maintenanc e pay ments to Sue. ¶ 5 Terr

y filed hi s first petition to terminate maintenance in August 2009. In De ce m ber of that same y ear , Terr

y filed a motion to dismiss his petition beca use circ umstan ce s o f his

em p l oy ment wer e such that he believed he would not be retiring for another y ear

. Fi v e months later, in May 2010, Terr y ag ain filed a petition to termi nate or reduc e the maintenanc e awa

rd. S u e filed her response and counter claim to Terr y ’s second petition, seeking a denial of Terr

y ’s motion to terminate and a petition for attorney fee s in defe nding the proce eding s. After a number of amende d pleading s wer e filed by both parties, Terr y filed

a motion to strike or dismiss Sue’s counter claim on the basis that the waiver provision of the settlement agree ment barr ed her from seeking perma nent mainten ance. After hear ing oral
arguments of the parties, the trial court issued an order on J uly 28, 2011, finding that Sue was barr ed fr om seekingperma nent maintenanc e, but g ranting her 10 day s’ leave to a mend her pleading s to state a ca use upon which proper relief could be grante d and prese rving the previously

schedule d evidentiar

y revie w hea

ringon September 2, 2011. ¶ 6 At the evidentiar y hear ing, Sue’s treating phy sician of 10 y ear s, Dr. Charles Br uy ntjens, testified to Sue’s condition over vigor ous objection from Terr y ’s counsel

. Br

uy ntjens

ex p l ai ned that my asthenia gr avis is a dis ease wher e S ue’s neuromuscular sy stem does n o t

connec t, resulting in a decr ease d or total inability to swallow or eat, and a lack of functioning of the fac ial and voluntary muscles, including respiratory muscles. A decr ease d functioning i n the respiratory muscles sometimes require s Sue to be hospitaliz ed and place d on life support. Br

uy ntjens further testified that any strenuous activity
, stress and infec tions can

cause her muscles to work harde r, and then g ive out entirely

. T h i s included any repe titive movement, including that of the ty pe require d at a doctor’s office

. In his medical opinion, Dr. Br uy ntjens stated that Sue was unable t o maintain any kind of g ainful employ ment at the time, a nd her condition and sy

mptoms would be ongoing for the rest of her life. Following the doctor’s testimony
, evidenc e was elicited from both Sue and Terr y as to their respe ctive incomes, assets and debts. The trial c ourt terminated Terr y ’s m aintenanc e obli g ation in its October 12, 2011, order

. ¶ 7 In rea ching its conclusion, the court n o t ed t h at S u e’ s d i agnosis and prog nosis were kn o wn t o b oth parties near ly seven y ear s befor e they enter ed into the marital settlement
ag ree ment. The cour t fo u nd that reha bilitative maintenanc e was nece ssarily temporar y in
nature , placing the bu rd en o n S u e, as payee, to “see k appropr iate employ ment and the

-3-capa bility to perf

orm employ

ment.” The court ref

ere nced Sue’s testimony
, indicating her only eff orts t o b ecome self-suf

ficient wer e in seeking employ ment within her previous profe ssion as a nurse, ignor ing the possibili ty of finding work she was capa ble of perf

orming in some other position. ¶ 8 The court interpre ted Sue’s pleading s as a reque st to ref orm the contra ct and chang e the
ag ree d upon reha

bilitative maintenanc e to perma nent maintenanc e nearly 13 y ear s afte r the fac t. The court declined such ref ormation, noting that in rea ching an agree ment specific ally for reha bilitative maintenanc e, the parties ostensibly believed that Sue had a rea listi c likelihood of being able to work and im p ro v e h er ear ning capa city befor e Terr y retire d. Moreove r, the court would not allow ref ormation wher e the valid and enf o rceable marital settlement ag ree ment contained a waiver provisi on prohibiting both parties from asserting additional claims for maintenanc e or proper ty

. I t conclude d that on the day the parties enter ed into the agree ment, Sue made a k n o w in g a n d voluntary relinquishment of all rema ining rig hts
ag ainst Terr

y for pe rmane nt maintenance or prope rty

. ¶ 9 The trial court ordere d Terr y to contribute to Sue’s attorne y fee s, but found t hat nearly half of the attorney fee s soug ht by Sue wer e for work that was unrea sonable. Sue’s counsel,

as of the date of the revie w hear ing on September 1, 2011, made a claim for $13,351.85. The trial court ordere d t h at T er ry s h o u ld bear his own l eg al fees and costs in their entirety and should contribute exactly half, $6,675.93, toward Sue’s leg al fee s and costs. The court acknow ledg ed that Terr

y was the spouse with the g reater ab i l i ty to pay , but explained the billing b y S u e’ s counsel for duplicative pleading s with only slight modifications was excessive and unr easona

ble. ¶ 10 Fur

t h er m o re, the court took issue with counsel’s pursuit of information perta ining to Terr y ’s financ ial status. Specifica lly
, the court ruled on Terr y ’s motion to dismiss on J uly 28, 2011, finding that Sue was barr ed from pursuing perma nent maintenanc e due to the waiver provision in the ag ree ment. Howeve r, it held that Sue was still entitled to a revie w, and left the evidentiar

y hear ing on Terr

y ’s amende d motion to terminate on the docket for September 2, 2011, but emphatica lly stated that it would not consider an incre ase in the curr ent maintenanc e awa

rd. The court found that billings by Sue’s counsel afte r th e J uly 28 order ref lected continued rese arc h and work relating to Terr y ’s ability to pay an incre ased maintenanc e amount, which the court deemed irreleva nt and immaterial in lig ht of its J uly 28 ruling

. ¶ 11 This timely

appea l followed.

¶ 12 ANALYSI S ¶ 13 I . J urisdiction ¶ 14 As an initial matter, Terr y alleg es in a footnote that a threshold jurisdictional issue exis ts, insofar as Sue did not appea l the trial court’s order of J uly 28, 2011, which found, as a matter of law, that she could not ma ke any further claims for pe rmane nt ma intenance

. An order is final and appea lable if it terminates the litigation betwee n the p ar t i es o n the merits or disposes of the rig hts of the parties, either on the entire controve rsy or a separ ate part there of. In re M arriage of A’Hearn , 408 I ll. App. 3d 1091, 1094 (2011).

-4-¶ 15 W h i l e the J uly 28 order finds that the waiver provision of the m ar i t al s et t l em en t

ag r eeme nt “for ever barr ed” Sue from “see king perma nent maintenanc e,” the order also, inter alia
, allowed Sue “to fil e a Second Amende d Counterclaim with a proper remedy allowed by law.” The s u gges tion that the J uly 28 order in any way settled the entire controve rsy betwee n the parties is without merit. All issues betwee n the parties wer e conclude d by order dated October 12, 2011. Sue filed her notice of ap p ea l o n Oc t o b er 20, 2011. As such, t his
appea l is timely pursuant to Supreme Court Rule 303(a) (1). I ll. S. Ct. R. 303(a) (1) (ef f. May 30, 2008).

¶ 16 I I . Marital Settlement Agree ment ¶ 17 “Th e l aw i s we l l s et t l ed that parties to an action for divorce may adjust betwee n themselves the amount require d for the future support of a wife by a husband, and that they
may , if such a course is desired, voluntarily eff ect a settlement of their pr operty interests.” Jame s v. Jame s , 14 I ll. 2d 295, 305 (1958). When such agree ments are m ade a part of the divorce decr ee, they become merg ed in such decree and are re g arde d as contra cts betwe en the parties, whi ch
, i f fairly made and in g ood faith, will be acc epted and enfor ced by the
courts. See Adler v. Adler
, 373 I ll. 361 (1940). A marital settlement agree ment is construed

as any other contra ct; the court must asce rtain the parties’ intent from the language o f t h e ag ree ment. Blum v. Koster
, 235 I ll. 2d 21, 33 (2009). When the ter ms of the agree ment are unambi gu o u s , they must be g iven their plain and ordinary meaning

. In re Marriage of Sweders
, 296 I ll. App. 3d 919, 922 (1998). Howeve r, wher e the languag e is ambiguous, parol evidenc e may be used to decide what the parties intended. In re Marriage ofHulstrom
, 342 I ll. App. 3d 262, 269 (2003). We revie w de novo an interpre tation of a marital s ett lement
ag ree ment and a deter

mination of whether the agree ment’s terms ar e ambiguous. In re Marriage ofDundas
, 355 I ll. App. 3d 423, 426 (2005); In re Marriage of W assom , 352 I ll. App. 3d 327, 330 (2004). ¶ 18 Terr

y and Sue undoubtedly

contra cted f

or maintena

nce. Our analy sis, howeve r, hi ng es not on how the parties labeled the awa rd, but what they actua lly intended for it to be. “When the terms of a settlement ag ree ment are susceptible to two differ ent interpre tations, the court must apply the interpre tation that establishes the rational and probable agree ment.” Dundas
, 355 I ll. App. 3d at 426. ¶ 19 Her e, the trial court’s rec itation of the definition of “re habilitative” is unpersua sive. We

are of the view that if it walks like a duck and talks like a duck, it is a duck, notwithstanding the fac t that it is wea

ring a cap and sung lasses. In honing in on the word “re habilitative,” the trial court locked in on the cap and sung lasses while ref using to loo k an d s ee wh at was

wea ring them. Certainly
, neither the parties nor the court could have rea sonably believed that it would take Sue near ly 20 y ear s to reha bilitate. At the time the judgme nt of dissoluti on was ente re d
, Terr

y was 45 y ear s old and the maintenanc e awa rd was revie wable upon his retire ment. I f Terr

y had retire d at 65, that would be 20 y ear s of “re habilitative” maintenanc e. Even in taking an ear ly retire ment at 59, Terr y continued to pay Sue to “re habilitate” for 14
y ear s. I f actions speak louder than word s , th en Terr y ’s continued pay

ment until his retire ment

scre ams that he did not view this as reha bilitative maintenanc e. The trial court’s construction

-5-of this maintenance agreement flies in the fac e of the traditional understanding of

reha bilitative maintenanc e, wher e the underly ing policy is “to sever all financ ial ties betwee n the former couple in an expeditious
, but just, manner and make eac h spouse independe nt of the other as soon as prac ticable.” In re Marriage of Carpenter
, 286 I ll. App. 3d 969, 973 (1997) ( citing In re M

arriage of W

ard , 267 I ll. App. 3d 35, 42 (1994)). ¶ 20 We find In re Marriage of Dundas
, 355 I ll. App. 3d 423 (2005), and Blum v. Koster , 235 I l l

. 2 d 21, 33 (2009), illust rative. In Dundas
, the parties enter ed into a marital settlement
ag ree ment, wher eby the wife was to have sole possession of the 1999 Dodg e Dura ng o for which there was still a signific ant outstanding debt. The agree ment fur t h er provided that “ ‘Husband shall pay to Wife the amount o f $ 2 0 0 p er month as and for maintenanc e commencing Dec ember 2003 and continuing until the exis ting loan on her vehicle is paid in full

. ’ ” Dundas
, 355 I ll. App. 3d at 424. In g ranting the petition to dissolve the parties’ marria g e, the trial court incorporated the s et tlement agree ment and ref err ed to the $200 monthly pay

ments as m aintenanc e, but clarified that the pay ments wer e essentially paying off the wife’ s car loan. Two months afte r the dissoluti on, the husband petitioned to terminate

m ai n t enanc e on the basis that the wife was now living with her boy friend on a resid en t , continuing and conjug al basis. Id. at 4 2 5. The trial court denied the husband’s petition, stating that afte r revie wing the rec ord and examining the agree ment, it was clea r that it was the intent of the parti es for the $200 pay ments to be part of the distribution of the marital estate, not maintena

nce. Id

. ¶ 21 Whil e the fac ts of Dundas are distinguishable from those of the case at bar insofar as the issue was proper

ty distribution versus maintenanc e, as opposed to reha bil it a ti v e maintenance

versus p ermanent maintenanc e under the terms of a marital settlement agree ment, the premise rema ins the s am e. Al t houg h the parties in a divorce action might have labeled monthly pay

ments as mai n t en an ce, mere ly char acte rizing the pay ments as such does not mandate a conclusion that the pay ments wer e actually maintenanc e; a court must examine the substance of the ag ree ment to deter mine its nature

. Id. at 426. I t logic ally follows that by labeling a maintenanc e awa rd reha bilitative, it is not nece ssarily a fore g one conclusion that it is reha bilitative when it otherwise bear s all the hallmarks of traditio n al p er m anent maintenanc e. ¶ 22 Simi larly in Blum
, the parties agree d that t h e h u s b an d wa s t o p ay “ ‘una llocated maintenanc e an d s upport for her and the minor children *** the sum of Five Thousand Dollars ($5,000.00) per month for a total of six ty -one (61) consec utive months.’ ” Blum
, 235 I ll. 2d at 33. The marital settlement agree ment further stated that the wife’ s rig ht to rec eive maintenanc e and the husband’s obligation to pay maintenanc e wer e revie wable afte r the 61- month period. There
, our supreme court deter mined that “[ n ]onetheless, the marital

s e tt le me nt a gr e e ment provisions, when viewed toge ther, sug g est th a t Ju d y ’ s main te n a n c e w a s intended to be reha

bilitative, without calling it reha bilitative per se

. *** [T] he parties expressl y ag ree d to revie w maintenanc e afte r 61 months.” Id. at 35. In light of that, the
supreme court found that the parties had agree d to reha bilitative maintenanc e subject to g ener al revie w afte r 61 months; thus, the trial court “had discretion to continue maintenanc e without modification, to modify or terminate maintenan ce , o r to chang e the maintenanc e pay ment terms.” Id. at 36.

-6-¶ 23 The h o l d i n g i n Blum supports the proposition that the label attache d to a maintena nce

awa rd has to be viewed contempora neously with all other p r o v is io n s of the marital settlement
ag ree ment to deter

mine the part i es’ intent. Terr y and S ue essentially descr ibed and agree d
to a perma

nent maintenanc e awa

rd labeled as reha

bilitative maintenanc e. Placing the adjec tive “re habilitative” in front of the t erm “maintenanc e” does not nece ssarily rende r i t reha bilitative. This is espec ially true when it was to continue without l imitation for a contemplated period of 20 y ear s, at which p o i n t it could be revie wed to deter mine if an incre ase, reduc tion, or complete termination was war rante d. The parties kn ew t h at Sue’s condition would deter iorate and that her likelihood of returning to the workforce in any meaning ful capa city was sli m. Indeed, Sue was a l ready rec eiving social security disability benef its at the time of dissoluti on. In agree ing to such an awa rd, it is clea

r the parties rea liz ed Sue would never

be able to support herself or maintain the standa

rd of livi ng to which she had bec ome ac customed duringthe marr iag e. ¶ 24 Perhaps even more telling is the fac t that T err y and Sue did not agree on a fix ed period when the awa

rd would terminate or become revie wable. Rehabilitative main t en ance is
g ener ally paid for a fix ed period afte r which it terminates, there by presumably allowing the

rec ipient to become “re habilitated” and able to support herse lf. S ee In re Marriage of Phillips
, 244 I ll. App. 3d 577 (1993) (aff irming rehabilitative m ai n t en an ce awar d of $235
per month for three y ear s); In re Marriage of Cheger
, 213 I ll. App. 3d 371 (1991) (af firming reha bilitative maintenanc e of $2,500 per month for the first three year s, $1,500 per month for the next three y ear s, and $1,000 per month for the final four y ear s). This agree ment contained no such provision. I t did not state that afte r a cer tain amount had time lapsed, the parties would come back to court to deter mine if Sue had been diligently seeking appropr iate employ ment i n an eff

ort to become self-suf

ficient. I t did not state that Sue’s maintenanc e

awa rd would automatically terminate after a definite number of y ear s. Instead, the parties
ag ree d that upon Terr

y ’s retire ment (anticipated at the time to be near ly two deca des later)
, they could petition the court to revie w the awa rd and presumably make a deter mination about the parties’ relative financ ial needs. Comm on sense dictates that an award of maintenanc e that would terminate only upon death, rema rriag e, or cohabitation and first revie wable on a date anticipated to be 20 y ear s down the road is not, and was not, reha bilitative maintenanc e. This is espec ially true when the parties to the agree ment knew that the rec ipient of the awa rd has an inc urable , prog ressively debilitating disea se. ¶ 25 The trial court further based its decision to terminate Sue’s maintenanc e aw ar d on the waiver provision contained within the m arital settlement agree ment. Specifica l l y , it stated that based upon the re cord, the court ha d no choice but to find and conclude “[r]espondent that day made a knowing
, voluntary
, and intelligent relinquishment o f a n y p o s s ib le r e maining rig ht to cl ai m perma

nent maintenanc e from Petitioner.” Ag ain, interpre ting a marital settlement agree ment is a question of law, which this court re views de novo

. W assom , 352 I ll. App. 3d at 330. We find the tri al court’s char acte rization of the waiver provision

err oneous based on the prec eding analy sis of the maintenanc e awa rd an d t h e t erms of the
ag ree ment itself. The parties agree d to perma nent maintenanc e, and such aw ar d s ca n be revie wed, modified and terminated. See In re Marriage of Selinger
, 351 I ll. App. 3d 611, 617 (2004). The waiver provision provides, “ [e] xce pt as o t h er w is e provided herein *** the

-7-parties are fore ver barr ed from asser ting any claims ag ainst one another *** whether by way of maintenanc e.” (Emphasis added.) T h e p arties did, in fac t, “other wise provide” for maintenanc e within the marital settlement agree ment. The waiver provision is inapplicable. ¶ 26 Ac co rd i n gl y , we find that the rational and probable interpre tation of the agr ee m en t betwee n the parties was one for a perma nent mainten ance awa

rd revie wable upon Terr

y ’s retire ment. The trial court err ed in terminating Sue’s maintenanc e based upon the err oneous finding that the settlement contra ct provided only for reha bilitative maintenanc e. We reve rse and re mand for a

revie w of maintena

nce c onsideringall rele vant statutory provisions.

¶ 27 I I I . Attorney Fe es ¶ 28 We r eview a trial court’ s decision re g arding attorney fee s for an abuse of discretion. In

re Marriage ofPlotz
, 229 I ll. App. 3d 389, 392 (1992). Gene rally
, the party for whom leg al service s wer e rende red is responsible for those fee s. In re Marriage of Rushing
, 258 I ll. App. 3d 1057, 1064 (1993). Howeve r, section 508(a) of the Act (750 I L CS 5/508(a) (West 2010)) provides that a court may order an ex -spouse to p ay a reasonable amount for attorney fee s

nece ssarily incurre d by the ot her spouse in connec tion with the m aintenanc e o r d efe nse of
any proce eding under the Act. Id. A party seeking an awa rd must show a financ ial inability to pay the fe es and a

corr espondingability

of the e x -spouse to pay

the fe es. Id. ; see a lso In re Marriage of Mc

Farlane , 160 I ll. App. 3d 721 (1987). ¶ 29 Sue submitt ed a bill for leg al fee s totaling $13,351.85 for service s extending from ea rly 2009 throug h the evidentiar y hear ing on September 1, 2011. The trial court found that both parties filed repe titive pleading s with only slight chang es that resulted in unrea sonable fee s. Howeve r, at the hear

t of the trial court’s decision was the idea that Sue continued to pursue the theory that Terr

y should pay incre ased maintenanc e. It found that fee s related to this line of i nquiry wer e ex cessive give n that in its J uly 28, 2010, order
, it had clearly s t at ed t h at i t would not enterta in a claim for perma nent maintenanc e. ¶ 30 The trial court’s analy sis of the fac ts is misguided. The trial court’s relianc e on its earlier d etermination that Sue was barr ed from seeking perma nent maintenanc e is incorr ec t , as discussed above. Per the parties’ marital settlement agr ee m ent, Sue had been rec eiving
p er manent maintenanc e from Terr y for the past 13 y ear s. At the time of the evidentiary hear ing, Sue was defe nding ag ainst Terr y ’s motion to terminate and reque sting a modification based on a substantial chang e in circ umstances. Fur thermore
, the rese arc h and discovery conducte d by counsel i n reg ard to Terr y ’s financ ial status at the time of the September 1 hear ing was rele vant to a meaning ful revie w of both the m ai ntenanc e and attorney fee s issues. To find otherwise disr ega rd s the statutory direc tives of both sections 510(a- 5) and 504(a)
, which provide, in part, that the court shall consider any impairment of the prese nt and future ear ning capa city of either party ; the proper ty , including retire ment benef its, awa rded to eac h party under the judgme nt of dissoluti on of marria g e, judgme nt of leg al separ ation, or judgme nt of decla ration of invalidity of marria g e and the prese nt status of the proper

ty ; the incre ase or decr ease in eac h party ’s income since the prior judgme nt or order from which a revie w, modification, or termination is being soug ht; the property acquir ed and curr ently owned by eac h party afte r the entry of the judgme nt of dissoluti on of

-8-marria g e, judgme nt of leg al separ ation, or judgme nt of decla ration of invalidity of marria g e; the needs of eac h party ; and the ag e and the phy sical and emotional condition of both parties (750 I L C S 5 / 5 0 4(a)
, 510(a- 5) (West 2010)). Section 503(j)(2) provides that any awa rd of contribution for fee s and costs to one party from the other party shall be based on the criter ia for division of marital proper ty under this section 503 and, if maintenanc e has been awa rded,

on the criter ia for an awa

rd of maintenanc e under section 504 (750 I L CS 5/503(j)(2) (West 2010)). ¶ 31 The trial court can awa rd attorney fee s when the spouse seeking relief demonstrates: (1) financ ial inability to pay ; and (2) the ability of t h e o t h er spouse to pay

. In re Marriage of Edsey
, 199 I ll. App. 3d 39, 57 (1990). Sue, as the spouse seeking an awa rd of attorney fee s for defe nding ag ainst Terr y ’s motion to terminate, square ly had the burden of proving to the trial court the disparity in the parties’ ability to pay those fee s. Per Terr y ’s financ ial aff

idavit

an d testimony
, his household income for the y ear s 2009 and 2010 was $237,7 2 4 an d $275,000, respe ctively

. He rece ives three pensions, one totalingapproximately $4,900 per month with a social security option, a nother pension benef

it of $2,838.50 per month, and a third p en s i o n benef

it of $91 per month. In total, Terr y collects approximately $7,300 per month in pension benef

its. In addition, he has a 401(k) with a balanc e of $278,679 as of May 2011, and owns 24 acr es of far mland in Rockwood, Michig an, that he lease s for $1,000 per y ear

. Terr y has rema

rried and testified that his wife, Mary Olson, ear ns almost $74,000 per y ear and contributes to the hous eh old expenses. He estimated their total monthly living
expenses at $4,405. I t is worth noting that Terr y ’s financ ial disclosure statement, filed with
t h e ci rc uit court in J anuar y 1998 prior to the parties’ dissoluti on, stated a g ross monthly income of $5,837.83. Terr y ’s financ ial situation has g reatly improved, as he is now rec eiving close to $1,500 more per month and possesses signific antly more assets than he did at the time of the dissolution. ¶ 32 By co n trast, Sue rec eives $1,117 in social secur ity disability benef its and a p en s i o n benef it of $181 per month. Ex cluding maintenanc e pay ments of $2,000 per month, Sue’s net monthly income is roug hly $1,200. Her estimated monthly expenses are $3,431, a signific ant portion of which is for out-of-poc ket medical expenses and insurance

. Even i n cl u d ing maintenanc e, S ue’s monthl y living ex penses cannot be covere d by her income. Moreove r, the evidenc e elicited from Sue’s treating phy sician, Dr

. Charles Br uy ntjens, reg arding her condition was uncontrove rted–Sue is unable to mai nta in any kind of g ainful employ ment and her disea se will be an ong oing issue f or the re st of her life

. ¶ 33 A trial cour

t abuses its discretion in not awa rding attorney fee s under section 508(a) of the Act when the evidenc e reve als a g reat disparity in the parties’ actua l ear nings and ear

ning
capa city

. In re Marriage of Carpel
, 232 I ll. App. 3d 8 0 6
, 8 3 2 (1 9 9 2 ); In re Marriage of Gable
, 205 I ll. App. 3d 696, 700 (1990). The trial court acknow ledg ed the obvious g re at disparity betwee n Sue’s and Terr y ’s actua l ear

nings and their ear

ning capa citie s

. Su e d e p e nds solely on social secur ity disability benef its and maintenanc e pay

ments, and her ear

ning
capa city is virtually eliminated due to her disability

. A thoroug h revie w of the rec ord makes clea r that Sue has proven she lacks the ability to pay , and conver sely
, Terr y is more than able. Sue is not require d to show destitution in order for the trial court to awa rd her attorney fee s. See Gable
, 205 I ll. App. 3d at 700. The trial court, nonetheless, orde re d T er ry to pay only

-9-half of Sue’s fee s, predominate ly on the basis that her claim for incre ased maintenanc e was

“nonmer itorious.” To the contra ry , it was imperative for Sue’s counsel to pursue information
reg ar d i n g T er ry ’s financ es in order to have both a meaning ful revie w of the maintenanc e

awa rd and the peti t i o n for attorney fee s. The trial court abused its discretion in ruling on Sue’s re quest for attorney fee s. Acc ording ly
, we rever se and rema nd for a rede termination of the proper amount of an aw ar d fo r at t orney fee s afte r a meaning ful revie w of the maintenanc e pursua

nt to the releva

nt statutory

fac tors.

¶ 34 CONCLUSI ON ¶ 35 For the fore g oing re as o ns, the judgme nt of the circ uit court of Rock I sland County is

reve rsed and this matter remanded for further procee din gs co n s i s t ent wit h this opinion. In the interim, Sue’s main t en ance awa rd is reinstated and is retroa ctive to the date of termination by

the trial cour

t.

¶ 36 Reverse d and re manded.

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