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In Re Marriage of Karen M. Brankin

March 12, 2012

IN RE MARRIAGE OF KAREN M. BRANKIN,
PETITIONER-APPELLEE AND CROSS-APPELLANT, AND
GARY W. BRANKIN, RESPONDENT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Winnebago County. No. 07-D-984 Joseph J. Bruce, Honorable Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 The respondent, Gary Brankin, appeals from the order of the circuit court of Winnebago County awarding the petitioner, Karen Brankin, $3,000 a month in permanent maintenance. On appeal, Gary argues that the trial court's maintenance award was improper. Karen has filed a cross-appeal, arguing that the trial court's maintenance award was insufficient. She also argues that the trial court erred in denying her request that the maintenance award be secured by a life insurance policy. For the following reasons, we affirm in part, vacate in part, and remand for additional proceedings.

¶ 2 I. General Background

¶ 3 The parties were married on September 12, 1981. They had one child together, Allison, who was born in 1984 and is now emancipated. In 2010, Gary was a 58-year-old endodontist earning approximately $400,000 a year. Karen was a 55-year-old tenured school teacher for the Rockford school system, earning approximately $75,000.

¶ 4 Karen filed a petition for dissolution of marriage on August 10, 2007. On September 27, 2010, the parties entered into a marital settlement agreement (MSA) resolving all issues except maintenance and life insurance. The MSA provided that Karen was to receive assets with a value of between $605,340 and $800,100. This included $55,000 in cash, her Teachers Retirement System account (valued at between $330,840 and $526,900), $137,000 in a 403(b) account, $15,000 in an individual retirement account (IRA), and $67,500 from Gary's 401(k) account. Gary received assets that were valued at between $574,000 and $1.8 million. The discrepancy in that amount was based on the value of Gary's medical practice. Karen placed the value of the medical practice at $960,000, while Gary placed the value of the medical practice at $57,445. Gary also received the marital residence, which had a negative equity of between $234,000 and $334,000.

¶ 5 Beginning September 27, 2010, the trial court conducted a three-day hearing on the issue of maintenance and life insurance. At the close of the hearing, the trial court awarded Karen $3,000 per month in permanent maintenance. The trial court's decision indicates that it particularly considered (1) the parties' standard of living during the marriage; (2) Karen's need for maintenance; (3) Gary's current ability to pay maintenance; and (4) Gary's ability to pay maintenance in the future, based on his age and health in light of his recent heart attack. The trial court denied Karen's request that Gary be required to secure the maintenance award with a $1 million life insurance policy. The trial court explained that, based on this court's decision in In re Marriage of Feldman, 199 Ill. App. 3d 1002 (1990), it could not order Gary to purchase such life insurance. Following the trial court's ruling, Gary filed a timely notice of appeal and Karen filed a timely notice of cross-appeal.

¶ 6 II. Discussion

¶ 7 A. Maintenance

¶ 8 Gary's first contention on appeal is that the trial court erred in awarding Karen $3,000 per month in permanent maintenance. Gary contends that, based on the relevant statutory factors in setting maintenance, Karen should not have been awarded any maintenance. Karen's first contention on her cross-appeal is that the trial court's award of maintenance was insufficient. She insists that she should have received a monthly award of $7,000.

¶ 9 Maintenance is designed to be rehabilitative and to allow a dependent spouse to become financially independent. In re Marriage of Haas, 215 Ill. App. 3d 959, 964 (1991). "Permanent maintenance, on the other hand, is appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income that is substantially lower than the previous standard of living." In re Marriage of Murphy, 359 Ill. App. 3d 289, 303 (2005). Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (750 ILCS 5/504(a) (West 2010)) provides that a court is to award maintenance in an amount and of a duration as it deems just, after consideration of the following factors: the income and property of each party; the needs of each party; the present and future earning capacity of each party; any impairment of present and future earning capacity of the recipient spouse due to devoting time to domestic duties or forgoing opportunities because of the marriage; the time necessary to enable the party seeking maintenance to acquire appropriate education, training and employment; the standard of living established during the marriage; the duration of the marriage; the age and physical and emotional condition of both parties; the tax consequences of the property division; any contribution and services by the recipient spouse to the other spouse; any valid agreement of the parties; and any other factor that the trial court expressly finds to be just and equitable. 750 ILCS 5/504(a) (West 2010); In re Marriage of Stam, 260 Ill. App. 3d 754, 756 (1994).

¶ 10 "[I]n awarding maintenance, courts have wide latitude in considering what factors should be used in determining reasonable needs, and the trial court is not limited to the factors listed in the governing statute." In re Marriage of Mohr, 260 Ill. App. 3d 98, 106 (1994). "No one factor is determinative of the issue concerning the propriety of the maintenance award once it has been determined that an award is appropriate." Murphy, 359 Ill. App. 3d at 304. When determining the amount and duration of maintenance, the trial court must balance the ability of the spouse to support himself or herself in some approximation to the standard of living he or she enjoyed during the marriage. In re Marriage of Shinn, 313 Ill. App. 3d 317, 322 (2000). A trial court's determination as to an award of maintenance will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Dunlap, 294 Ill. App. 3d 768, 772 (1998).

ΒΆ 11 During the last years of the marriage, the parties had a combined annual income of approximately $500,000 and they had assets that, based on some valuations, were worth more than $2.5 million. This enabled the parties to enjoy a high standard of living. They lived in a home that originally ...


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