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In re Marriage of Bernay

Court of Appeals of Illinois, Second District

July 19, 2017

In re MARRIAGE OF LYNN D. BERNAY, Petitioner-Appellant,
v.
JERRY S. BERNAY, Respondent-Appellee.

         Appeal 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.

          OPINION

          JUSTICE HUTCHINSON

         ¶ 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 three children.

         ¶ 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 ends meet.

         ¶ 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 opportunities.
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 ...

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