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In Re Marriage of Terry Ray Bolte

September 12, 2012

IN RE MARRIAGE OF TERRY RAY BOLTE, PETITIONER-APPELLEE, AND SUE ELLEN BOLTE, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois Circuit No. 97-D-462 Honorable James G. Conway, Jr., Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Schmidt

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion.

OPINION

¶ 1 In April of 1998, the circuit court of Rock Island County entered a judgment of dissolution of marriage awarding the respondent, Sue Bolte, maintenance. On August 28, 2009, the petitioner, Terry Bolte, filed a petition to terminate maintenance. Sue filed a response and various motions, including a counterclaim to Terry's motion to terminate and a petition for attorney fees. Following a review hearing on September 2, 2011, the trial court terminated Terry's maintenance obligation and ordered him to contribute to half of Sue's attorney fees. Sue appeals, claiming the trial court abused its discretion in failing to consider the statutory factors of sections 504(a) and 510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501 et seq. (West 2010)) in terminating the maintenance award, and abused its discretion in failing to award all or substantially all of her attorney fees. We reverse and remand.

¶ 2 BACKGROUND

¶ 3 Seven years prior to the dissolution of the parties' marriage, the parties learned that Sue suffered from myasthenia gravis, a progressive, disabling disease that causes respiratory, circulatory and motor skill problems. Following 27 years of marriage, the parties obtained a judgment for dissolution of marriage on April 22, 1998, which incorporated a marital settlement agreement. The agreement provides, in relevant part, as follows:

"The Petitioner shall pay the sum of $2,000.00 per month to the Respondent as for rehabilitative maintenance, deductible as maintenance payment to the Petitioner and as income to the Respondent, as and for rehabilitative maintenance. Said sum shall begin on the 1st day of May, 1998 and shall continue bi-weekly thereafter each month following the entry of the judgment of Dissolution of Marriage, with said notice to the Petitioner's employer.

All maintenance shall be terminated upon the death of either party, or the Respondent's remarriage and/or cohabitation with a person of the opposite sex on a continuing conjugal basis and may be reviewable upon the Petitioner's retirement." (Emphases added.) The agreement also includes a waiver, which states:

"Except as otherwise specifically provided herein, the parties hereto waive and are forever barred from asserting any claims against one another, or in the property of one another, arising out of during their marriage, whether by way of maintenance, dower, pension homestead or otherwise."

¶ 4 In June of 2010 at the age of 59, Terry retired early from his job. He testified that he took the early retirement to secure more favorable postretirement healthcare benefits. Subsequently, he petitioned the court to terminate or reduce his maintenance payments to Sue.

¶ 5 Terry filed his first petition to terminate maintenance in August 2009. In December of that same year, Terry filed a motion to dismiss his petition because circumstances of his employment were such that he believed he would not be retiring for another year. Five months later, in May 2010, Terry again filed a petition to terminate or reduce the maintenance award. Sue filed her response and counterclaim to Terry's second petition, seeking a denial of Terry's motion to terminate and a petition for attorney fees in defending the proceedings. After a number of amended pleadings were filed by both parties, Terry filed a motion to strike or dismiss Sue's counterclaim on the basis that the waiver provision of the settlement agreement barred her from seeking permanent maintenance. After hearing oral arguments of the parties, the trial court issued an order on July 28, 2011, finding that Sue was barred from seeking permanent maintenance, but granting her 10 days' leave to amend her pleadings to state a cause upon which proper relief could be granted and preserving the previously scheduled evidentiary review hearing on September 2, 2011.

¶ 6 At the evidentiary hearing, Sue's treating physician of 10 years, Dr. Charles Bruyntjens, testified to Sue's condition over vigorous objection from Terry's counsel. Bruyntjens explained that myasthenia gravis is a disease where Sue's neuromuscular system does not connect, resulting in a decreased or total inability to swallow or eat, and a lack of functioning of the facial and voluntary muscles, including respiratory muscles. A decreased functioning in the respiratory muscles sometimes requires Sue to be hospitalized and placed on life support. Bruyntjens further testified that any strenuous activity, stress and infections can cause her muscles to work harder, and then give out entirely. This included any repetitive movement, including that of the type required at a doctor's office. In his medical opinion, Dr. Bruyntjens stated that Sue was unable to maintain any kind of gainful employment at the time, and her condition and symptoms would be ongoing for the rest of her life. Following the doctor's testimony, evidence was elicited from both Sue and Terry as to their respective incomes, assets and debts. The trial court terminated Terry's maintenance obligation in its October 12, 2011, order.

¶ 7 In reaching its conclusion, the court noted that Sue's diagnosis and prognosis were known to both parties nearly seven years before they entered into the marital settlement agreement. The court found that rehabilitative maintenance was necessarily temporary in nature, placing the

burden on Sue, as payee, to "seek appropriate employment and the capability to perform employment." The court referenced Sue's testimony, indicating her only efforts to become self-sufficient were in seeking employment within her previous profession as a nurse, ignoring the possibility of finding work she was capable of performing in some other position.

¶ 8 The court interpreted Sue's pleadings as a request to reform the contract and change the agreed upon rehabilitative maintenance to permanent maintenance nearly 13 years after the fact. The court declined such reformation, noting that in reaching an agreement specifically for rehabilitative maintenance, the parties ostensibly believed that Sue had a realistic likelihood of being able to work and improve her earning capacity before Terry retired. Moreover, the court would not allow reformation where the valid and enforceable marital settlement agreement contained a waiver provision prohibiting both parties from asserting additional claims for maintenance or property. It concluded that on the day the parties entered into the agreement, Sue made a knowing and voluntary relinquishment of all remaining rights against Terry for permanent maintenance or property.

ΒΆ 9 The trial court ordered Terry to contribute to Sue's attorney fees, but found that nearly half of the attorney fees sought by Sue were for work that was unreasonable. Sue's counsel, as of the date of the review hearing on September 1, 2011, made a claim for $13,351.85. The trial court ordered that Terry should bear his own legal fees and costs in their entirety and should contribute exactly half, $6,675.93, toward Sue's legal fees and costs. ...


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