In re MARRIAGE OF LYNN D. BERNAY, Petitioner-Appellant,
JERRY S. BERNAY, Respondent-Appellee.
from the Circuit Court of Lake County. No. 92-D-2420
Honorable Joseph V. Salvi, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Presiding Justice Hudson and Justice Birkett
concurred in the judgment and opinion.
1 Petitioner, Lynn D. Bernay, appeals from the judgment of
the trial court that terminated monthly maintenance payments
from Lynn's former husband, respondent, Jerry S. Bernay.
We reverse and remand.
2 The parties, who are now in their sixties, married in
Colorado in April 1978. Shortly after they married, the
parties moved from Colorado to Illinois so that Jerry could
join his family's business, Rosman Adjustment, a
debt-collection agency. With the birth of their first child,
the parties agreed that Lynn would be a stay-at-home mother
while Jerry would financially provide for the family through
his employment at Rosman. The parties intended to return to
Colorado upon retiring. Ultimately, the marriage resulted in
3 The parties separated in September 1992 and Lynn petitioned
to dissolve the marriage. At the time, the parties'
children were still minors. In January 1993, Lynn enrolled in
a nursing program at the College of Lake County. She
graduated with an associate's degree and was employed as
a nurse. Jerry meanwhile had done well in the family
business. During the last three years of the parties'
marriage-1992, 1993, and 1994-Jerry's gross income was
$118, 700, $129, 400, and $126, 100, respectively.
4 The parties' dissolution judgment was entered in
February 1995. It provided that Jerry would pay Lynn $4, 150
per month in unallocated maintenance and child support,
reviewable after 36 months.
5 In August 1999, the trial court, Judge Emilio B. Santi,
reviewed the maintenance award. The court noted that Lynn had
recently become employed as a registered nurse, earning
approximately $28, 000 annually. Jerry's income, however,
was considerably greater. His income from Rosman was $250,
000 in 1996, $340, 000 in 1997, and $383, 000 in 1998. The
court increased Lynn's unallocated maintenance and child
support to $6, 000 per month, reviewable after 60 months.
6 In 2003, Lynn moved to Colorado, where the parties'
youngest child would attend college. In 2004, Lynn petitioned
for an extension of maintenance. After a three-day trial
focused on the parties' finances, in March 2006, the
trial court, Judge Diane E. Winter, ordered Jerry to pay Lynn
permanent maintenance in the amount of $3, 600 per month.
7 The trial court found that Lynn was in her fifties and
employed as a nurse, earning approximately $42, 000 annually.
Lynn had $2, 100 in a retirement account and $24, 000 in a
money market account. The court found that Lynn "ha[d]
made good faith efforts toward financial independence"
but was "employed at an income insufficient to provide
for her own support consistent with the standard of living
established during the marriage." The court noted that,
during the marriage, "the parties enjoyed a comfortable
lifestyle, which included travel and vacations, Bulls, Cubs
and Blackhawk[s] games, concerts, weekly dinners out with
family and friends and owning and maintaining a horse."
Lynn's standard of living meanwhile, as a nurse in
Colorado, was not as comfortable and she was unable to make
8 Conversely, the court found that Jerry had substantial
income: his average annual salary was $225, 000, he earned
over $40, 000 annually from his investment income, and he
received $40, 000 in yearly economic benefits from his new
marriage. All told, Jerry's investment accounts were
worth some $1.6 million and Jerry had $328, 000 in his
retirement account. Jerry also owned a home in Buffalo Grove
worth $469, 000 with $181, 000 remaining on the mortgage. The
court found that Jerry had an increased ability to pay
maintenance, as Jerry's new wife paid for a number of
Jerry's expenses, including his mortgage.
9 With respect to Lynn, the court noted that her expenses
were reasonable and held as follows:
"Lynn was out of the job market for in excess of
seventeen (17) years, from 1978 to 1996, devoting her time to
domestic duties and foregoing her education. *** Since the
separation of the parties, from 1995 through 2003, Lynn
resumed completion of her education and re-entered the job
market through several part-time jobs and eventually a
full-time position in 2000. In 2005, Lynn has an impaired
earning capacity resulting from her prior devotion of time to
domestic duties, both pre- and post-judgment, due to child
rearing in the children's formative years and because of
the children's ages and grade levels at the time of the
entry of the Judgment for Dissolution. As such, Lynn delayed
her education, training, employment, and career
During the marriage Lynn made significant contributions to
Jerry's present earning capacity by devoting time to
rearing the [parties'] children while Jerry pursued his
career. *** Lynn is employed at an income
insufficient to provide for her own support consistent with
the standard of living established during the marriage. Lynn
is unable to meet her needs from her income ...