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In re Marriage of Drury

October 31, 2000

IN RE: THE MARRIAGE OF LAWRENCE P. DRURY, JR., PETITIONER-APPELLEE, AND PHYLLIS E. DRURY, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Sangamon County No. 98D795 Honorable Stuart H. Shiffman, Judge Presiding.

The opinion of the court was delivered by: Justice Garman

In November 1999, the trial court entered a judgment dissolving the marriage of petitioner, Lawrence Drury, Jr., and respondent, Phyllis Drury. In its judgment, the court ordered Lawrence to pay Phyllis $600 per month in rehabilitative maintenance for 36 months. In its property distribution, the court ordered the parties to be responsible for debts included in their respective affidavits. Phyllis filed a motion to reconsider in December 1999, which the court denied. Phyllis appeals the trial court's order, arguing that (1) she is entitled to permanent maintenance or, in the alternative, reviewable maintenance and (2) the trial court erred when it held her responsible for the entire third mortgage and Shell credit card debt. We affirm in part, reverse in part, and remand with directions.

I. BACKGROUND

Lawrence and Phyllis were married in August 1970. During their 29-year marriage, they had four children: Sara, born in March 1975; Lawrence, born in July 1976; Emily, born in February 1980; and Michael, born in March 1982. The family resided in Chatham, Illinois. At the time of the hearing, August 1999, the two eldest children were emancipated, Emily was entering her sophomore year of college, and Michael was to be a junior in high school.

In the first three years of their marriage, Phyllis taught high school physical education in Chatham. She became a substitute and part-time teacher in 1990. During the course of their marriage, Phyllis had primary responsibility for taking care of the marital home and raising the children. In 1998, Phyllis obtained her first full-time teaching position in 25 years with Springfield School District 186. Her non-tenured position was funded by a one-year grant for a salary of $30,357.08. At the time of the hearing, Phyllis had enrolled in graduate school at the University of Illinois. She planned on attending classes one evening per week throughout the school year and the summer to obtain her master's degree in special education.

Lawrence Drury filed a petition for dissolution of marriage on September 21, 1998. Both parties were 50 years old at the time of the petition. For 14 years, Lawrence worked as an executive director for Catholic Charities at a salary of $70,000 per year. When the Drurys separated, Lawrence moved to Kansas City, Missouri, and commenced employment with the National Federation of Interfaith and Volunteer Caregivers at an annual salary of $77,000. Lawrence provided approximately $2,000 per month to Phyllis for support until November 15, 1998. At that time, he substituted mortgage and insurance payments in lieu of support.

The marital residence, in which Phyllis and Lawrence resided for 14 years, is subject to three mortgages with an amount due in excess of $80,000. In their affidavits, both Phyllis and Lawrence claimed the mortgage payments in addition to various family insurance payments as part of their monthly living expenses. As stated, Lawrence had been making those payments prior to the trial court's judgment. Lawrence claimed a total net monthly income of $4,270.39 and a total monthly living expense of $4,111.48. Phyllis claimed $1,623.72 as total net monthly income and $3,362.50 as total monthly expenses.

In the trial court's judgment of dissolution it awarded custody of the youngest son, Michael, to Phyllis and awarded child support of $850 per month. The court ordered Lawrence to pay $600-per-month rehabilitative maintenance to Phyllis for 36 months. In addition, the court awarded Phyllis (1) the marital residence subject to the first and second mortgage indebtedness, (2) the cabin, (3) her teacher's retirement pension, and (4) $28,000 from Lawrence's present pension benefits. The court also ordered each party be responsible for the debts listed in their respective affidavits. In effect, this held Phyllis responsible for the Shell credit card; her attorney fees; and various loans, including a $6,321.94 debt to the Teacher's Retirement System and the first and second mortgages. Although not specifically stated in the judgment, the order apparently allocated responsibility for the third mortgage to Phyllis since her affidavit listed a car payment as a debt. The parties had used the third mortgage to finance family vehicles, including Phyllis' and Emily's cars. The trial court awarded Lawrence the remainder of his $88,414.64 pension. He did not list any mortgage or insurance payments as debt in his affidavit; only personal credit card bills and attorney fees.

On December 3, 1999, Phyllis filed a motion to reconsider the judgment and requested the trial court to address the third mortgage, allocate responsibility for the Shell credit card debt, and review the maintenance award after 36 months instead of terminating it. The trial court denied respondent's motion to reconsider.

This appeal followed.

II. ANALYSIS

Phyllis argues on appeal that she is entitled to permanent maintenance or, in the alternative, maintenance subject to review at a certain time. An award of maintenance is within the sound discretion of the trial court and should not be reversed unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Harlow, 251 Ill. App. 3d 152, 156, 621 N.E.2d 929, 933 (1993).

The Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503 et seq. (West Supp. 1999)) lists 12 factors to be considered by the trial court in its maintenance determination. These include (1) the income and property of each party; (2) the needs of each party; (3) the present and future earning capacity of each party; (4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to the marriage; (5) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment; (6) the standard of living established during the marriage; (7) the duration of the marriage; (8) the age and physical and emotional condition of both parties; (9) the tax consequences of the property division; (10) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse; (11) any valid agreement of the parties; and (12) any other factor that the court expressly finds to be just and equitable. 750 ILCS 5/504(a) (West Supp. 1999); In re Marriage of Koberlein, 281 Ill. App. 3d 880, 883, 667 N.E.2d 695, 698 (1996).

As described above, sections 504(a)(3) and (a)(4) of the Act (750 ILCS 5/504(a)(3), (a)(4) (West Supp. 1999)) require the trial court to take into consideration the present and future earning capacity of the parties and any impairment to the capacity of the party seeking maintenance due to that spouse's domestic ...


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