The opinion of the court was delivered by: Justice Miller
Paula B. Minear filed in the circuit court of Douglas County a petition for dissolution of her marriage to Robert E. Minear. In October 1994, the trial Judge found that grounds for dissolution existed. In July 1996, the Judge filed a memorandum opinion resolving issues of child custody and visitation, child support, maintenance, property distribution, and attorney fees.
Robert appealed and argued that the trial Judge abused his discretion in deciding issues relating to maintenance, child support, property distribution, and attorney fees. The appellate court, with one Judge dissenting, affirmed. 287 Ill. App. 3d 1073. We granted leave to appeal (166 Ill. 2d R. 315) and now affirm the Judgement of the appellate court.
Paula and Robert were married in 1975. The couple's daughter, Melissa, was born in 1978 and their son, Michael, was born in 1981. Paula and Robert own a home and a business. The business is a service station operated by Robert. Once the children reached school age, Paula returned to work as a medical receptionist.
In February 1994, Paula filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 1994)). In October 1994, the Judge found grounds for dissolution of the marriage. In December 1994, a hearing was held on Paula's petition for temporary relief. See 750 ILCS 5/501 (West 1994). Following the hearing, the Judge entered orders which: (1) granted temporary custody of the children to Robert, subject to visitation by Paula; (2) awarded temporary possession of the marital residence to Robert; (3) directed Robert to pay temporary maintenance to Paula in the amount of $300 per month; and (4) directed Robert to pay Paula $5,000 so that Paula could rent and furnish an apartment.
In November 1995, April 1996, and May 1996, hearings were held regarding marital property distribution, child custody and support, maintenance, and attorney fees. In order to divide the marital property, evidence was presented regarding the property owned by Paula and Robert. The marital residence was appraised at $95,000 subject to an outstanding indebtedness of $46,000. The service station was appraised at $165,000 with no outstanding indebtedness. No part of the station's value was attributed to goodwill. However, due to leaking underground storage tanks, the service station is subject to an estimated liability of $84,630 in future environmental cleanup costs. Evidence was also presented regarding the value of the furnishings found in the marital residence; the equipment found in the service station; the vehicles owned by Paula and Robert; and the checking, savings, investment, and retirement accounts held by Paula and Robert.
In addition, the Judge heard evidence regarding Paula's and Robert's earning capacity. Paula works as a medical receptionist and the Judge found that Paula's net monthly income is $1,086. The Judge calculated this amount from figures found on Paula's direct deposit payroll statement. Robert operates the service station and the Judge found that Robert's net monthly income is $3,063. The Judge calculated this amount from the service station's balance sheet and income statement prepared by Robert's accountant for the first nine months of 1995.
In order to find Robert's net monthly income, the Judge subtracted from total income ($688,162) the station's total cost of sales ($543,558) and total expenses ($121,617). The result ($22,987) represented Robert's income for the first nine months of 1995. The Judge added back Robert's depreciation expense ($10,874) because depreciation did not represent an out-of-pocket expense for Robert. The Judge then subtracted income taxes ($6,292) and divided by nine to arrive at Robert's net monthly income ($3,063).
The Judge heard further evidence on child custody, child support, and maintenance so that the previously entered temporary orders could be adjusted or made permanent. Following the Conclusion of these hearings, the Judge issued a memorandum opinion. The Judge granted custody of Michael to Robert. Because Melissa was 12 days away from majority at the time, the Judge did not enter a custody order as to Melissa. No issues regarding custody or visitation are raised in this appeal.
The Judge divided the marital property equally between Paula and Robert. The Judge awarded to Paula the marital residence (net value of $49,000), certain cash and investment accounts ($24,813), household furniture ($10,025), a note receivable ($4,000), an automobile (value undetermined), and an equalizing payment from Robert ($10,615) for a total marital property award of $98,453. The Judge awarded to Robert the service station (net value of $80,370), certain cash and investment accounts ($17,732), household furniture (value undetermined), and various other property ($10,965). After subtracting the equalizing payment made to Paula, Robert was left with a total marital property award of $98,453.
The Judge ordered Robert to pay Paula maintenance in the amount of $500 per month for an indefinite period of time. The Judge considered several statutory factors (see 750 ILCS 5/504 (West 1994)) as well as the relative incomes of Paula and Robert. The Judge found that Paula's earnings represent 26% of the couple's net monthly income and that Robert's earnings represent 74% of the income. Based on this disparity, the Judge found that Paula "cannot maintain herself anywhere near the standard of living enjoyed by the parties during the course of their marriage without indefinite maintenance from ." The Judge stated, however, that "said maintenance may be modified or terminated in accordance with the statutory factors."
The Judge did not award child support to Robert. In making this determination, the Judge referred to the net monthly incomes of Paula and Robert. The Judge then stated: "That considering the comparison of each of the party's income and taking into consideration the amount of maintenance is hereinafter ordered to pay unto , has a net income in excess of that of and is not in need of child support from ."
The Judge awarded Paula a portion of her attorney fees to be paid for by Robert. The Judge found that Paula incurred $3,700 in attorney fees and costs. In light of the relative financial positions of Paula and Robert, the Judge ordered Robert to pay 74% of Paula's attorney fees ($2,731). This percentage represents Robert's portion of the couple's net monthly income prior to any maintenance payments made to Paula.
Robert filed a notice of appeal. In response, Paula filed a motion requesting that Robert pay a portion of her appellate attorney fees. Paula's attorney estimated that it would cost $3,000 to defend an appeal. Paula requested that Robert pay $2,000 of her anticipated fees. The Judge noted that the Act provides for an award of attorney fees when fees are expected to be incurred in the defense of an appeal. See 750 ILCS 5/508(a)(3) (West 1994). Because of Paula's and Robert's relative ...