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In Re Marriage of Susan L. Digiovanni

November 13, 2012


Appeal from the Circuit Court of Cook County, County Department, Domestic Relations Division. No. 01 D 4139 The Honorable Mark Lopez, Judge Presiding.

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

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Connors concurred in the judgment and opinion.


¶ 1 Petitioner Susan DiGiovanni appeals the order of the circuit court denying her petition to extend maintenance and granting respondent Nick DiGiovanni's petition to modify maintenance. On appeal, Susan contends the trial court (1) erred in characterizing her petition as a petition to modify support instead of a petition to review support; (2) erroneously applied the substantial change in circumstances standard to her petition; (3) erred in granting Nick's petition to modify maintenance and in determining the amount of maintenance; (4) erred in making the decreased maintenance retroactive to February 9, 2009; (5) erroneously applied the penalty clause of the parties' marital settlement agreement (MSA), finding Susan and her attorneys liable for respondent's attorney fees; and (6) abused its discretion in awarding Nick $78,500 in attorney fees. For the following reasons, we affirm.


¶ 3 The trial court issued orders on June 3, 2010, August 10, 2010 and October 14, 2010. A final order disposing of petitioner's maintenance claim was entered on October 14, 2010. Notices of appeal were filed on July 2, 2010, September 7, 2010 and October 29, 2010. All appeals were consolidated into the present appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).


¶ 5 Susan and Nick were married on June 16, 1979. Two children were born during the parties' marriage: Jessica, born May 12, 1985, and Samuel, born February 17, 1990. On January 20, 2005, the trial court entered a judgment for dissolution of marriage and incorporated the MSA into the judgment. Article III of the MSA provides:

"3.1 Child Support. Both parties agree that application of the guidelines under Section 505 of the [Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/504(a) (West 2006))] would be inappropriate and not in the best interests of the children in light of the needs of each child and the financial resources of each party ***.

3.2 Emancipation. 'Emancipation' is deemed to have occurred upon the happening of one of the following, at which time NICK'S obligation for the child as detailed in this Agreement may be modified or terminated.

(a) The child reaching age 18, or the child's graduation from high school, whichever shall last occur;

(c) The child's having a permanent residence away from the permanent residence of SUSAN. A resident at boarding school *** is not deemed a residence away from the permanent residence of SUSAN[.]

3.4 Unallocated Support. NICK shall pay unallocated maintenance and child support to SUSAN as follows, which said amounts are based upon NICK'S gross income history for the tax years 2001, 2002, and 2003 (average gross income for the said tax years is $973,836.00 per year):

(a) Commencing on January 1, 2005, NICK shall pay to SUSAN Twenty Thousand Dollars ($20,000.00) per month[;] ***

(b) The unallocated maintenance and child support payments by NICK to SUSAN pursuant to paragraph 3.4(a) above shall be reviewable after five (5) years;

3.7 If NICK seeks a decrease in the support amount paid to SUSAN by NICK, whether it be the child support element or the maintenance element of the unallocated support, prior to the completion of five (5) years of payments, and if NICK's petition is unsuccessful, he shall be responsible for the payment of one hundred percent (100%) of SUSAN'S reasonable attorney's fees and costs.

If SUSAN seeks an increase in the support amount paid by NICK to SUSAN, whether it be the child support element or the maintenance element of the unallocated support, prior to the completion of five (5) years of payments, and if SUSAN's Petition is unsuccessful, she shall be responsible for the payment of one hundred percent (100%) of NICK'S reasonable attorney's fees and costs."

¶ 6 On February 27, 2007, Nick filed a petition to modify judgment. On July 19, 2007, the trial court issued an order finding a substantial change in circumstances meriting a decrease in unallocated support payments from $20,000 per month to $14, 500 per month. The judgment further provided that the unallocated payments "shall be reviewable provided Susan files a Petition within 30 days of the minor child's (Sam's) graduation from high school. Failure of Susan to file such a petition timely, shall terminate any further maintenance obligations of Nick to Susan." The order further modified terms so that Nick was responsible for 100% of Sam's boarding school expenses. Neither party appealed this order.

¶ 7 On June 17, 2008, Susan filed a "Petition to Extend Maintenance." In the petition she alleged that Sam was not attending high school, having withdrawn voluntarily "to avoid being expelled due to alleged misconduct." It further alleged that he was eligible to take the GED and could potentially earn his GED within 30 days of the filing of the petition. The petition sought an extension of maintenance "both temporarily and permanently." The petition also sought a modification of maintenance payments "so that Susan's after tax cash monthly flow is at least $35,000."

¶ 8 On August 29, 2008, Nick filed a petition to modify support based on a substantial change in circumstances since the July 19, 2007 order, including Sam's emancipation, a substantial reduction in Nick's income, and Susan's rehabilitation and ability to obtain gainful employment. Although the trial court initially determined that it would only allow evidence gathered from the July 19, 2007 order to the present to show a substantial change in circumstances, it allowed Susan to offer testimony and evidence relating to the standard of living she and Nick enjoyed during their marriage. At a hearing on February 9, 2009, Nick's counsel made a request for a temporary reduction in support due to Sam's emancipation. The trial court reduced the monthly support payment from $14,500 to $12,000 per month, subject to reconsideration at the close of proofs.

¶ 9 Over eight days of hearings, conducted from February 9, 2009, to August 24, 2009, the parties presented witnesses and testified. Susan presented vocational expert Deborah Gordon, who testified that the average income for all social workers in the area was $37,500 per year. She concluded, based on her research and the fact petitioner had a degree in social work from the University of Chicago, that Susan potentially could earn between $18,000 and $44,000 per year.

¶ 10 Susan also presented Cathy Belamonte Newman as a lifestyle expert. Belamonte testified that she gathered information and prepared a report showing "a numerical picture of *** what Susan's lifestyle would be like today had it remained the same as what she enjoyed during the marriage." She stated that she sought documentation from the current time period as well as from the period just preceding the divorce. Belamonte acknowledged that "the documentation that I was seeking to do that assignment the way that I would typically do it was not available. The records had been destroyed and *** I was not able to obtain them from [the attorneys'] office or from Susan." Instead, Belamonte interviewed petitioner and petitioner provided "a large amount of anecdotal information" including pictures from trips, travel documents, and invitations to social events.

¶ 11 Susan testified that as part of the MSA, she received almost $1 million as her share of the marital estate, including the marital residence at 2503 Brookwood Drive in Flossmoor, Illinois, 50% of Nick's 401(k) plus an additional $100,000 from the 401(k), 50% of Nick's Lord Bissell and Brook pension, 50% of Nick's Wachovia individual retirement account (IRA), a 2001 BMW X5, and personal property including artwork valued at over $200,000. At the time she filed her petition, she had assets worth over $1 million.

¶ 12 Susan also testified that she received a master's degree in social work from the University of Chicago in 2005 and was invited to join a practice in Frankfort, Illinois. She earned approximately $10,000 in income in 2007 and 2008 as an employee of Hoover Associates, a group practice. Her employment ended on December 31, 2008, because of the present litigation and the inability to meet her employer's quota of seeing 11 patients a week. She is not currently working because to practice independently she needs to pass the licensed clinical social worker (LCSW) examination. She testified that she is eligible to take the examination. She acknowledged that the penalty clause of the MSA was negotiated by the parties to reduce the chance of future litigation.

¶ 13 Susan testified to her health history, which includes having asthma and dealing with post-traumatic stress disorder as a result of a sexual assault. She also testified as to various physical ailments but admitted she did not take any prescription medications.

¶ 14 Nick testified that he is a partner at Lock Lord Bissell & Liddell, LLP. He stated that his average income for 2006, 2007, and 2008 was $685,700, a 29.59% decrease from the income used to calculate support in the MSA. He also testified that his income for 2009 from January 1through June 15 was $158,172 and he expected his total income for 2009 would further decrease. He confirmed that pursuant to the MSA he received a townhouse located at 205 Wysteria Drive in Flossmoor, Illinois, 50% of his Lord Bissell 401(k) minus $100,000, 50% of his Lord Bissell pension, 50% of his Wachovia IRA, and personal property. At the time he filed his petition, he had a net worth of approximately $220,000. His home had $50,000 of equity, and although he possessed retirement funds worth $470,000, he also carried $400,000 of debt. He disagreed with expenses included in Belamonte's cost analysis, arguing that almost all of the expenses listed were paid through his employment and not with marital funds.

¶ 15 Arlene Hirsch testified as a vocational expert for Nick. She stated that she prepared a report of her vocational assessment of Susan. She stated that Susan's goal was to have a part-time private practice in which she works out of her home and sees four or five clients. Hirsch discussed with her that this goal may be unrealistic given her lack of experience. She stated that Susan did not want to participate in work with insurance or managed-care clients. Hirsch suggested that she first gain experience through employment with a third party. She further testified that a recent search of current licensed clinical social work jobs in Illinois ranged from $38,000 to $81,000 and Susan was qualified for these positions. She concluded that Susan could earn a mid-$50,000-per-year salary.

¶ 16 On June 3, 2010, the trial court issued an order granting Nick's petition and denying Susan's petition. It found that the parties entered the MSA freely and voluntarily and that they were represented by legal counsel throughout the proceedings. It also found reasonable the inference that "the parties considered all the relevant statutory factors in determining the appropriate unallocated maintenance obligation agreed to between the parties." Although Susan filed a petition to extend maintenance, the trial court found that "[a] review of the record shows that not only is [she] seeking an extension of the current $14,500 per month unallocated support obligation, but [she] is requesting that Nick's obligation be increased by 175% of the $20,000" agreed to in the MSA and four times the $12,605 Susan claimed she needed to support her lifestyle in 2004 according to her affidavit dated August 5, 2004. It found that her request for this sum to support her alone "ignores the fact that the Court found $14,500 monthly unallocated maintenance *** was sufficient to meet the reasonable financial needs of both" Susan and her minor child. It noted that neither party appealed the prior order and further found that "there is no credible evidence contained in the record of this cause which would justify anything remotely near what Susan has requested." The court acknowledged that the July 19, 2007 order required petitioner to file a petition to review support upon Sam's graduation from high school, but the order did not condone a request to increase support "without having a factual basis for such a request."

¶ 17 The court also found that, regarding testimony about her lifestyle during the marriage, Susan did not provide actual costs or adequately explain whether payment for activities had been made with marital funds or through respondent's employment. The court noted that Susan "spent a considerable amount of trial time testifying as to the lifestyle the parties enjoyed during their marriage." However, most of her review regarding travel was limited to the year 1999. Also, some of her data included a planned trip to Paris that the parties never took. The trial court concluded that Susan's "testimony of her purported pre-decree lifestyle [was] not credible as it [was] based on incomplete, inaccurate and unreliable information. Additionally, her testimony is impeached by her representations pre-decree of her financial needs." The court also gave little weight to Belamonte's testimony since it was based on the same incomplete and unreliable information.

¶ 18 However, the court found vocational expert Gordon's testimony credible and concluded that based on her testimony Susan should be able to obtain employment as a licensed social worker with a potential income of $37,500 per year. It found her failure to obtain her license evinced bad faith and she also did not make a good-faith effort to obtain full-time employment as a social worker. The court also found Hirsch credible and concurred with her opinion. The trial court found it "appropriate to impute the sum of $37,500.00 of annual income to [petitioner]."

ΒΆ 19 The court also found that Sam was emancipated, which was a substantial change in circumstances. It found Nick's income average over 2006, 2007 and 2008 represented a 24% decrease since entry of the unallocated support award. This decrease also represented a substantial change in circumstances. Taking into consideration the factors outlined in sections 504 and 510(a-5) of the Act, the court found "that an award [of] permanent maintenance is appropriate." It further found that $10,000 per month would meet Susan's reasonable monthly needs and also imputed the annual sum of $37,500 (or $3,125 per month) as "a reasonable sum [petitioner] could generate being employed as a LCSW." Therefore, Nick's permanent monthly maintenance obligation to Susan would be $6,875 per month. The court applied the award retroactive to February 9, 2009. The court granted ...

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