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07/06/89 In Re Marriage of James Mcgory

July 6, 1989



SANDRA McGORY, Respondent-Appellant

541 N.E.2d 801, 185 Ill. App. 3d 517, 133 Ill. Dec. 590 1989.IL.1077

Appeal from the Circuit Court of Rock Island County; the Hon. Robert W. Castendyck, Judge, presiding.


JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., and STOUDER, J., concur.


The marriage of James McGory and Sandra McGory was dissolved by judgment of dissolution of marriage on March 23, 1983. At that time, the parties had two children, namely Suzanne, born October 5, 1969, and Samantha, born November 24, 1970. The judgment awarded custody of the children to Sandra and required James to pay as unallocated support one-half of his unemployment compensation. At the date of dissolution, James' employment had been recently terminated but was roughly $40,000 per year prior thereto. Sandra was also awarded, among other things, one-half of James's severance pay of $3,540 and $10,400 as the net proceeds from the sale of the marital residence. James was further required to notify Sandra's attorney upon becoming reemployed.

In August of 1983, Sandra petitioned the court for additional support on the ground that James had returned to employment. After a hearing on October 20, 1983, the court entered an order, dated December 12, 1983, requiring unallocated support payment of $428 on the first and third Friday of each month based on James' net semi-monthly income of $1,070 so long as Sandra is enrolled as a full-time student in college level courses with a review of the award to be had in four years. A further order entered January 11, 1984, required Sandra to "report any change in her educational status or employment status to . . . [James]."

On October 28, 1987, James petitioned for modification alleging that the four-year period previously set by the court has expired. Sandra responded by denying the allegations and asked for increased support and attorney fees. Following discovery procedures, James amended his petition seeking termination of maintenance alleging that Sandra had not been a full-time student and she was able to take care of herself through assets accumulated as a result of the unallocated support payments.

At a hearing held on the petitions on July 27, 1988, the parties stipulated that Sandra was requesting an increase in support and maintenance. Sandra testified that since 1983, she and her two daughters had been living in Florida with Sandra's father. Recently, however, she and Samantha moved to her home State of Michigan for Sandra to obtain employment. Suzanne stayed in Florida with Sandra's father to attend her second year of college. Sandra stated that, as a result of moving to Michigan, her monthly cost of living increased from roughly $850 to $2,115 per month. Sandra attended a community college in Florida beginning in 1983. Her school records reveal she was last a full-time student during the spring term of 1984. She did enroll for additional classes in later years, particularly college algebra, but withdrew for credit purposes although she stated that she continued to attend the classes. Nonetheless, even if Sandra did attend the classes she withdrew from, she failed to enroll in enough classes from the fall of 1985 semester on to obtain full-time status.

Sandra further testified that since 1983, she has not worked except for a brief unsuccessful business venture in 1987 in which she earned $2,200. Otherwise, substantially all of Sandra's income came from the unallocated support payments. Sandra states that she has regularly attempted to find suitable employment, but could identify only eight individual businesses that she applied to during the five-year period she was in Florida. She indicated her move to Michigan would benefit her employment search, as she had more contacts in Michigan.

On the other hand, James remarried, obtained new employment, and the trial court found he is now earning a net income of roughly $1,410.12 semimonthly. He also has approximately $110,000 in assets. It is clear that James is now earning more money than he was in 1983 and is in a substantially better financial position than is Sandra.

By order dated August 4, 1988, the trial court terminated the unallocated support payments to be made by James and effectively barred further maintenance. The trial court also found Suzanne to be "of age" and disallowed support for her. As to Samantha, however, the court found the minimum support guidelines to be inadequate considering the relative financial position of the parties and the standard of living Samantha would have enjoyed but for the dissolution, and thus, awarded Sandra $325 bimonthly as support for Samantha. Attorney fees were ordered to be the responsibility of each respective party.

The first issue is whether the trial court abused its discretion in terminating maintenance payments. Sandra argues that the standard of living established during the marriage as well as the great disparity of earnings subsequent to the marriage warrant an award of maintenance to her. In disallowing maintenance pursuant to section 504 of the Illinois Marriage and Dissolution of Marriage Act (the Act), however, the trial court took into account, among other things, the length of time since the marriage was dissolved, Sandra's failure to notify James upon getting her degree and her lack of bona fide effort to find suitable employment. (Ill. Rev. Stat. 1987, ch. 40, par. 504.) In this case, Sandra received unallocated support for four years as well as receiving $5,200 at the time of dissolution as a lump sum maintenance award. She was given the opportunity to obtain a college diploma and become self-sufficient. During this period, however, Sandra ceased being a full-time student, thereby causing her own delay in obtaining a diploma. Moreover, the record is void of any bona fide attempt by Sandra to obtain self-sufficiency absent being a full-time student. Although a few resumes were sent and a business started, since spring of 1985 Sandra appears to have, for the most part, ...

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