On June 30, 2015, the Illinois Appellate Court issued a long decision about permanent maintenance awards and valid reasons for its' modification. IRMO Shen also discusses payment of attorneys fees, child representative fees, who should pay, what assets may be used to satisfy those obligations and in what order. This post is limited to a discussion of the court's ruling on a post-decree request to modify maintenance.
During the marriage and for approximately one year after the divorce, the husband was employed earning $45,000 annually. Subsequent to the divorce, the wife was not employed, did not live in the marital home and worked only a few days for a temp agency. She lived in her car or a hotel and borrowed money from friends and family to survive. She was awarded permanent maintenance that ended on her 66th birthday when she would be eligible for social security benefits.
About a year after the divorce was final, the husband petitioned to modify the maintenance award. He claimed that due to lower back pain, he was forced to take a lower paying position at his company and ultimately, he quit his job. Subsequently he opened a therapeutic massage business, from which he claimed, he derived no income.
The trial court ruled that while a change of employment is a valid grounds to modify an award of maintenance, in this case the husband acted in bad faith. Specifically, the court noted that the voluntary change in employment" was in "bad faith" because it was an attempt to "evade (the) maintenance obligation".
The trial court specifically took notice that at no time during the long divorce proceedings, did the husband ever complain about his back. The husband testified that he demoted himself because 50-60% of his job duties involved heavy lifting. Yet, when the husband self demoted, he did not advise his employer that it was due to the lifting requirements of his position. Neither did he request accommodations at work or supply at written report from a physician limiting his ability to do the work as expected. Based on the husband's actions, the trial court found "bad faith".
While the husband was under a chiropractor's care, this too was viewed with skepticism by the trial court. The husband began seeing the chiropractor for lower back pain during the marriage and divorce. Manipulations were performed and exercises were prescribed. Three years later, and shortly before the husband petitioned to modify maintenance, the husband revisited the chiropractor who diagnosed a bulging disc. An xray was ordered, which failed to show the presence of a bulging disc. The husband declined to get a recommended MRI. The trial court gave "very little weight" to the testimony of the treating chiropractor because the complaints were based entirely on the husbands' "self reporting", Other reasons cited by the Court for to support its' decision not to allow a maintenance modification include that during the earlier treatment period when the husband was employed the chiropractor did not provide a note that the husband could not work, that the xray did not show a bulging disc and that there was a three (3) year gap in treatment.
The trial court went on to say that it was "irresponsible" for the husband to quit work when he had maintenance and child support obligations. Specifically, the Judge was annoyed that the husband allowed the health insurance to terminate (there were ongoing medical issues with the children). The trial court judge further questioned the wisdom of starting a speculative business yet having enough money to cover the expenses of running it. In short, she did not appear to believe that the husband did not derive income from the new business.
The Appellate court affirmed the decision. It went further by ruling that the trial court could not terminate an award on maintenance based on a future event. Here, maintenance ended when the wife turned age 66 and could begin receiving social security benefits. The appellate court stated that the Dissolution of Marriage Act sets forth three (3) circumstances under which maintenance can end: death of either party, remarriage or cohabitation of the spouse receiving maintenance. The court can not terminate maintenance based on a future unascertainable event. In these instances,"permanent" maintenance does not mean "everlasting"; more like "indefinite", which is subject to review.
This case is important because it shows that a trial court will examine the facts and circumstances surrounding a request to modify a maintenance award. It will also make a determination if the request is believable. In this case, the husband's claims of a bad back were not credible because he did not make it known to his employer. Even the visits to the chiropractor did not help because the husband did not get a note for his employer about his disability and only started seeing the chiropractor when he sought a modification of maintenance.