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In re Marriage of Brunke

Court of Appeals of Illinois, Second District

December 24, 2019

In re MARRIAGE OF JUDITH E. BRUNKE, Petitioner-Appellee and Cross-Appellant, and JOHN W. BRUNKE, Respondent-Appellant and Cross-Appellee.

          Appeal from the Circuit Court of Kane County. No. 12-D-387 Honorable Joseph M. Grady, Judge, Presiding.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.



         ¶ 1 Respondent, John W. Brunke, appeals an order of the circuit court of Kane County extending maintenance awarded to petitioner, Judith E. Brunke. Judith cross-appeals that part of the same order denying her petition to increase maintenance. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The following facts are adequate for an understanding of the issues. Where necessary, the facts will be supplemented in the Analysis section of this opinion. The parties were married on February 1, 1986. No children were born to or adopted by the parties during the marriage. The judgment for dissolution of marriage (JDOM) was entered on April 30, 2012. Judith was 62 years of age and John was 53. During the divorce proceedings, Judith was pro se while John was represented by counsel. The parties entered into a marital settlement agreement that provided that John would pay Judith maintenance of $3000 per month for five years, after which maintenance was reviewable. That agreement was incorporated into the JDOM.

         ¶ 4 On January 5, 2017, Judith filed both a "Petition to Review/Extend Maintenance" and a "Petition to Modify (Increase) Maintenance." The petition to review/extend maintenance alleged that Judith was presently unemployed and that John, who was employed by American Airlines, received a promotion and earned substantially more income than he did when the JDOM was entered. The petition further alleged that (1) the original maintenance award was inequitable, (2) $3000 per month in maintenance was insufficient for Judith to support herself, (3) she had expended savings to meet her monthly expenses, and (4) she had made efforts to become self-supporting. Judith requested permanent maintenance. Judith's allegations in the petition to increase maintenance were substantially identical. Specifically, Judith alleged that John's promotion and increased income since the divorce were a substantial change in circumstances. John filed responses denying that Judith was entitled to the relief she requested.

         ¶ 5 On March 7, 2017, John filed a "Motion to Abate Maintenance Obligation," in which he requested that maintenance be abated pending trial.[1] John noticed that motion for hearing on March 16, 2017. John then filed a second, identical "Motion to Abate Maintenance Obligation" on March 15, 2017. That motion was also noticed for hearing on March 16 and was denied on May 17, 2017. On June 23, 2017, John filed a third motion to abate maintenance. The court continued that motion to the trial on Judith's petitions.

         ¶ 6 At trial, which occurred over four days in August and September 2018, the parties stipulated to the following facts. Judith was 68 years of age and John was 59. Judith was awarded the marital residence, which was worth $395, 000 when the JDOM was entered, as well as monetary assets totaling approximately $842, 000 at that time. Judith's brokerage accounts were worth $897, 030.34 as of December 31, 2017. Judith's real estate taxes and homeowner association fees totaled $9864 per year, she would receive $482 per month in Social Security benefits if she were to take them, she received $1761 per month from a certain "A" fund, she paid approximately $9000 in income taxes for the years 2016 and 2017, and she earned $5893.46 working at Target in 2017.

         ¶ 7 The parties then stipulated that John's income was $362, 000 per year, he had $120, 000 in a combined checking and savings account, his individual retirement account was worth $1, 276, 931.37, and his brokerage accounts totaled $188, 208.33. In addition, the equity in John's home was $108, 515, his vehicles were worth $39, 000, and his airplane and hangar were worth approximately $150, 000.

         ¶ 8 Judith testified as follows. After the divorce, she waited 2½ years to seek employment. She was "gobsmacked" by the divorce, and it took her "a very, very long time to work through" getting her life in order. Eventually, she applied for retail jobs but was turned down because she was too old. Then, in 2015, Target hired her.

         ¶ 9 Judith was currently employed at Target, making $12 per hour. She usually worked 16 to 20 hours per week. Her pay stubs for a certain period in 2017 reflected that she worked fewer hours. She did not seek additional employment to supplement her income. Judith paid Medicare $135 per month. She also paid $157.12 per month for a supplemental insurance policy and $24.10 per month for a drug prescription policy.

         ¶ 10 Judith had a bachelor's degree and a master's degree in education. She taught for 11 years in Virginia and Kentucky before moving to Illinois in 1985. Because Illinois did not recognize her teaching certificate from Kentucky, she would have had to complete another three years of education to be eligible to teach in Illinois. Rather than do that, she took a job as a college admissions counselor, making approximately $21, 000 per year. She stayed in that job for two years and then moved to another college, also for two years. She was terminated from that job and did not work again until she volunteered at a hospital in 2009 or 2010.

         ¶ 11 According to Judith, she and John traveled "all the time" during the marriage-to all 50 states, Europe, the Caribbean, and the Bahamas. Judith planned all the trips. She had no budget. She testified: "As long as the bills were paid and there was money in the bank, I had pretty much free rein." According to Judith, they also entertained "all the time." She testified that "we were known for our parties." She had no spending limits.

         ¶ 12 Judith thought that Matthew Williams, John's divorce attorney, represented them both, based on conversations that she had with John and Williams. John had sent Judith an e-mail stating that "we" had paid Williams a retainer. According to Judith, in March 2012, John told her that he would pay her more maintenance if he received a pay raise. Subsequently, when his pay was increased, John gave her an extra $120 per month. However, when his pay was increased again and she asked for more money, John said that Williams told him that he did not have to increase her maintenance.

         ¶ 13 Judith testified that her lifestyle after the divorce was "not even close" to what she enjoyed during the marriage. She could not afford to travel or give parties. She used to have her hair done every three weeks and now she had it done every five weeks. She dipped into capital to pay taxes and for home improvements. When John's maintenance payments were late, she used her retirement funds. Judith described her finances as "extremely finite." According to Judith, she depleted some of her assets to pay her current expenses, including attorney fees.

         ¶ 14 On cross-examination, Judith testified that she was "under duress" when she signed the marital settlement agreement. She disputed that her current assets were worth $1.4 million. She testified that she had $1.2 million in addition to the house. According to Judith's financial affidavit, dated July 2018, she had $2075 per month in income and $6700 per month in expenses. Those claimed expenses included $2000 per month for groceries for herself and $1200 per month for home repairs. Judith declared income of $79, 269 on her 2017 tax return. Judith testified that she was not aware that the maintenance award required her to search for a job immediately after the divorce. Judith also testified that she continued to travel after the divorce. She testified that she visits Florida and Washington D.C., although her expenses for travel to Washington are reimbursed by the person whom she visits there. Judith also traveled to England twice after the divorce. According to her financial affidavit, she spends $700 per month on vacations, dining out, and entertainment.

         ¶ 15 Next, John called Williams, who testified that he represented only John in the divorce. Williams believed that Judith was represented by counsel "early on." According to Williams, he never had a telephone conversation with Judith, nor did he ever exchange e-mails with her. Williams testified that his practice was not to communicate with pro se litigants. He stated that his contract with John clearly stated that he represented only John, and the marital settlement agreement also stated that he represented John and not Judith. Williams testified that John was "very clear" that "it was to be a 50/50 division of the estate."

         ¶ 16 Next, Judith called John as an adverse witness. John testified as follows. When the parties divorced, he was earning $182, 000 per year as an American Airlines pilot and Judith was unemployed outside the home, although she began an eBay business. After the divorce, John underwent additional training to fly the Boeing 787, and his pay substantially increased. In 1990, when Judith expressed interest in becoming a nurse, John offered to send her to school, but Judith did not follow through.

         ¶ 17 John denied that the parties traveled extensively during the marriage. He testified that they visited "quite a few" states and that they traveled to England 10 times and to Italy once. John agreed that they also traveled to Canada and the Bahamas. They visited his mother in New York and Judith's son in Colorado. He testified that the costs for those trips were "nominal" because of his position with the airline. John testified that he did not give Judith a household budget. The marital residence, where Judith still resided, was 2900 square feet and had four bedrooms and a three-car garage.

         ¶ 18 John testified that Judith requested $3000 per month in maintenance, "based on her needs." According to John, he had discussed with Judith increasing her maintenance if his salary increased, "while we were getting along quite well." They stopped communicating in 2013 or 2014, and John stopped paying extra maintenance in January 2017.

         ¶ 19 John testified that they did not spend $2000 per month on groceries while they were married. He described their parties as "comfortable" but not "lavish." In 2001, after September 11, his pay decreased. In 2011, American Airlines went bankrupt, and John lost $1 million in retirement savings. Around 2005, John had heart surgery and now must complete two yearly physicals to be ...

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