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In re Marriage of Dea

Court of Appeals of Illinois, First District, First Division

November 12, 2013

In re MARRIAGE OF DANA DEA, Petitioner-Appellant, and PAUL DEA, Respondent-Appellee.

Held [*]

Where the trial court abused its discretion in not considering respondent’s nontaxable social security disability payments in determining a maintenance award for him, the trial court’s judgment was reversed and the cause was remanded for further proceedings at which all of respondent's social security disability payments, taxable and nontaxable, should be considered along with petitioner’s income compared to her expenses in determining whether maintenance would be appropriate.

Appeal from the Circuit Court of Cook County, No. 08-D-8694; the Hon. Kathleen Kennedy, Judge, presiding.

Klein, Thorpe & Jenkins, Ltd., of Chicago (Allen Wall, of counsel), for appellant.

Tristano & Tristano, Ltd., of Hickory Hills (Michael T. Tristano, ofcounsel), for appellee.

Presiding Justice Connors and Justice Delort concurred in the judgment and opinion.

OPINION

CUNNINGHAM, JUSTICE

¶1 This appeal arises from an April 3, 2012 order entered by the circuit court of Cook County which granted a judgment of dissolution of marriage for petitioner-appellant Dana Dea (Dana) and respondent-appellee Paul Dea (Paul), and awarded Paul permanent maintenance in the amount of $1, 600 per month; and a June 19, 2012 order entered by the circuit court which denied Dana's petition for modification of judgment. On appeal, Dana argues that: (1) the trial court abused its discretion because it failed to consider Paul's nontaxable social security disability payments as part of his income for the purpose of determining the maintenance award; (2) the trial court's maintenance award was an abuse of discretion because it causes Dana's monthly expenses to significantly exceed her net monthly income; and (3) the trial court's maintenance award was an abuse of discretion considering the age of the parties and that Paul has significantly greater retirement assets than Dana. For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the matter for further proceedings.

¶2 BACKGROUND

¶3 On April 22, 1989, Dana and Paul were lawfully married. On September 10, 2008, Dana filed a petition for dissolution of marriage in the circuit court of Cook County. On September 19, 2008, Paul filed an answer and counter petition for dissolution of marriage. Subsequently, the court conducted a bench trial on the matters raised in the petition and counter petition. On April 3, 2012, the court entered an order which granted a judgment of dissolution of marriage. Additionally, the trial court awarded Paul permanent maintenance in the amount of $1, 600 per month.

¶4 The following facts were presented in the trial court's April 3, 2012 order. The parties had no biological children. However, the parties adopted two children, both of whom were emancipated at the time of the dissolution proceeding. Dana and Paul lived together as husband and wife from the time of their marriage until they separated in 2005. In 1990 or 1991, they purchased the marital residence from Dana's mother for $80, 000. At the time of the dissolution of the marriage, Dana was 58 years old. During the marriage, she worked as a waitress and cared for the parties' children. Around 2000, Dana began working in the field of information technology (IT). She has been working in IT full-time since 2001. In 2006, she began working in IT at a law firm. Dana was still employed at the law firm at the time the marriage was dissolved. In 2007, Dana paid off the second mortgage on the marital residence, and the parties paid off the first mortgage on the residence soon after. At the time of the trial court's order, there was no mortgage on the marital residence. Dana initially earned a $63, 000 base salary from her IT work, and earned a $78, 000 base salary at the time the marriage was dissolved. For the period ending December 31, 2010, Dana had gross year-to-date earnings of $83, 642.63. In October 2010, Dana purchased a condominium in which she currently resides for $185, 000. She had $23, 000 in non marital assets, as a result of an inheritance from her mother.

¶5 At the time the marriage was dissolved, Paul was 59 years old. He had worked as a truck driver for Amoco BP until 2005. Paul suffers from multiple sclerosis and clinical depression. He has been awarded disability benefits by the Social Security Administration. In 2010, documents submitted by Paul and relied upon by the circuit court showed Paul's adjusted gross income to be $20, 685. At the time of the circuit court's order, he resided in the marital residence in Worth, Illinois, and had exclusive possession of the residence pursuant to an agreed order entered in 2009. The 2009 order mandated that Dana pay the utilities, heat, electricity, water, sewer and trash for the residence. By the time of the order, out of which this appeal arose was entered, Paul had non marital assets of $128, 393 from premarital retirement contributions.

¶6 The trial court made numerous additional findings based on the parties' assets. The court found that Dana had an American Funds 401(k) profit-sharing plan in her name valued at $31, 422. Paul had a BP retirement accumulation plan in his name valued at $324, 286, of which $216, 191 was marital and $108, 095 was non marital. Paul also had a BP employee savings plan valued at $60, 897, of which $40, 599 was marital and $20, 298 was non marital. Also, the court charged Dana $12, 500 against her share of the marital assets for dissipation. Paul was charged $5, 000 against his share of the marital assets for dissipation.

ΒΆ7 The trial court then made findings regarding maintenance. The court found that Paul has no present or future ability to earn income and he cannot be rehabilitated so as to support himself through appropriate employment. The court determined that Dana had monthly living expenses of $4, 853.09, and Paul's monthly living expenses were $3, 800. Further, the trial court found that Dana's financial status had improved through her efforts of self-sufficiency, while Paul's financial status declined due to his disability. The trial court ruled that without a maintenance award, Paul would be unable to meet his needs considering the standard of ...


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