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In re Marriage of Rocca Severino

July 21, 1998


The opinion of the court was delivered by: Justice Hutchinson delivered the opinion of the court:


Appeal from the Circuit Court of Du Page County.

No. 91--D--2965

Honorable Robert E. Byrne, Judge, Presiding.

Respondent, Victor Severino, appeals from a judgment of the trial court dissolving his marriage to petitioner, Rocca Severino. Respondent argues that the trial court erred in determining the awards of maintenance and child support. Specifically, respondent argues that the trial court erred in awarding petitioner maintenance in the amount of $6,500 per month, and in ordering respondent to pay $650 per week in child support for their one minor child. We affirm.

Before addressing the merits of respondent's appeal, we note that petitioner failed to file a brief. However, because we find the issues presented relatively straightforward, we may decide this case without an appellee's brief in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (holding that a reviewing court should decide the merits of an appeal where the record is simple and the claimed error is such that a decision can be made easily without the aid of an appellee's brief). See also Exline v. Exline, 277 Ill. App. 3d 10, 13 (1995).

Respondent first argues that the trial court erred by considering respondent's conduct during the marriage in determining the award of permanent maintenance to petitioner. An award of maintenance is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. In re Marriage of Klein, 231 Ill. App. 3d 901, 905 (1992). The reversal of an award of maintenance is only justified when it is obvious that the trial court acted arbitrarily and without conscientious judgment. In re Marriage of Schrimpf, 293 Ill. App. 3d 246 (1997). In determining the award of maintenance, "[m]arital misconduct and morality are not considered." In re Marriage of Hart, 194 Ill. App. 3d 839, 851 (1990). When a party claims that the trial court abused its discretion in awarding maintenance, that party bears the burden of showing such abuse. In re Marriage of Homann, 276 Ill. App. 3d 236 (1995).

Respondent argues that, when determining whether an award of maintenance was warranted, the trial court considered that he had allegedly physically abused petitioner during the marriage. Petitioner and her therapist had both testified to the long lasting effects of the physical abuse on petitioner and how this limited her ability to seek employment opportunities. Respondent asserts that the following language from the trial court's memorandum opinion evinces the improper use of this testimony:

"There was testimony from various sources as to violent and injurious conduct performed upon Mrs. Severino by Mr. Severino and Mrs. Severino and her current therapist related the present manifestations and sequelae of those events. The testimony of each party indicates that each of them came from humble beginnings and that all of their present assets were accumulated during the course of the marriage, that Mrs. Severino helped in the business of Video and Sound at its inception and that Mrs. Severino has not been employed outside the home for many years. Mrs. Severino and her therapist offered evidence of her present frail condition while Mr. Severino and his counsel argue that she is capable of some type of present employment which should lead toward full employment in the near future.

With regard to the issue of maintenance the court has considered all of the elements set out in 750 ILCS 5/505 and concludes that Mrs. Severino is a compelling candidate for permanent maintenance. The duration of the marriage, age and health condition of the parties, the apparent causal relationship between the present fragile condition of Mrs. Severino and her treatment by her husband during the marriage, the property of the parties, standard of living during the marriage and the individual needs of Mrs. Severino all indicate that she should receive maintenance from Mr. Severino."

Upon our review of the record, we determine that respondent has failed to meet his burden of proof. It is true that the trial court listed the abuse suffered by petitioner when listing the factors it considered in awarding maintenance. However, the record reveals that the trial court was very cognizant in making a distinction between punishing respondent for bad behavior and considering the emotional state of petitioner. The trial court reminded the parties during the maintenance hearing that it was not interested in who was a "bad person," but did need information that related to petitioner's ability to support herself. The trial court's finding that petitioner was a candidate for maintenance was based upon the proper factors, including the emotional condition of petitioner. Noting that this "frail" and "fragile" condition of petitioner was apparently caused by the abuse from respondent does not mean that the trial court considered the conduct of respondent in an effort to punish him. The record shows the opposite intention. Therefore, respondent failed to meet his burden in proving that the trial court abused its discretion.

Respondent's second issue on appeal is whether the trial court erred in awarding permanent maintenance in the amount of $8,000 per month, later reduced to $6,500 per month. A court may grant maintenance only when the party seeking maintenance lacks sufficient property to provide for her or his reasonable needs, is unable to support herself or himself through appropriate employment, or otherwise lacks sufficient income. 750 ILCS 5/504(a) (West 1996); In re Marriage of Flynn, 232 Ill. App. 3d 394, 400 (1992). The court may grant a temporary or permanent maintenance award as it deems just, after considering the relevant factors, which include:

"(1) the income and property of each party, including marital property apportioned and non-marital property assigned to ...

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