1. Constructive trust over a portion of ex-husband’s disability pension in favor of ex-wife upheld. The ex-wife of a former Evanston fire fighter filed a third party complaint against the surviving spouse of the firefighter alleging the second wife was unjustly enriched because she received 100% of the available benefits after the firefighter passed away. The first wife had been married to the fire fighter for over 20 years and received 50% of the marital portion of his City of Evanston pension plan in their divorce. The second wife had been married to the fire fighter for 9 months when he passed away. Before his death, the fire fighter applied for and was granted a disability pension benefit. Thereafter, the second wife applied for and received 100% of the available death benefits from the pension fund. The trial court found the second wife was unjustly enriched and ordered the imposition of a constructive trust in favor of the first wife for 50% of the gross monthly amount received by the second wife. When a pension recipient is eligible for retirement pay but is receiving disability income instead of retirement income, the petitioner should be paid the percentage of what would be the normal retirement benefits. Because the fire fighter was already eligible for retirement when he was awarded disability benefits, and he chose to receive disability benefits rather than retirement benefits, those benefits were retirement in substance. Therefore, the first wife was correctly entitled to 50% of those payments. In re Marriage of Shulga, 2019 IL App (1st) 182028.
2. Maintenance termination reversed and remanded for a new trial on the grounds of numerous evidentiary errors. An emergency room doctor brought a petition to terminate maintenance after he retired due to extreme stress. At trial, the court found that he had good faith reasons for retiring, he was not trying to evade paying maintenance and therefore, terminated the maintenance. At the hearing the trial court barred wife’s introduction of an expert report and testimony. Wife’s expert intended to introduce a report and testify regarding an evaluation of husband as an emergency room doctor and other potential employment opportunities available to him. An edited report was presented at trial rather than the report that was issued prior to trial, which was barred. The Appellate Court held that the subject matter and conclusions were the same as the report tendered prior to trial, and only the paragraphs had been reorganized and renamed. Husband was not prejudiced by its admission and it should have been admitted along with the expert’s testimony. The trial court also refused to allow wife to testify about her lifestyle regarding the marriage as irrelevant. The Appellate Court reversed based on the offer of proof which showed the parties had an affluent lifestyle during their 20 plus year marriage and noted the statutory requirement that the court consider the lifestyle the parties had lived during the marriage. In sum, the numerous evidentiary errors prejudiced wife and affected the trial court’s ultimate determination to terminate maintenance. In re Marriage of Sandovsky, 2019 IL App (3d) 180204.
3. Maintenance extension upon review upheld. Husband appealed the order granting wife’s petition to extend maintenance upon review. The parties had been married for over 20 years and the trial court found that due to the wife’s age (68), it was unlikely she would able to attain employment to earn an income which would approximate her standard of living during the marriage. The court extended the $3,000 per month maintenance award until husband retired which was anticipated to be when he turned 65 because of mandatory retirement at his company. Wife appealed the court’s failure to award permanent maintenance. The Appellate Court upheld on both issues. The trial court did not abuse its discretion in extending maintenance given wife’s age and her lack of employability; and because wife received substantial assets in the divorce totaling at least $1.2 million, permanent maintenance was not required under the facts. In re Marriage of Brunke, 2019 Il App (2d) 190201.
4. Review proceedings are not governed by the 2016 version of IMDMA where judgment was entered in 2012. In a maintenance review proceeding where the trial court granted wife’s petition to extend maintenance at the rate she was receiving the judgment (entered in 2012), wife appealed the trial court’s failure to apply the 2016 version of the IMDMA, under which she argues she would have received indefinite maintenance in an amount equal to approximately $5,000 more per month. The Second District held the language in Section 801(c), which refers specifically to modification proceedings, does not address review proceedings, and therefore, a maintenance review hearing does not fall within the parameters of Section 801(c) such that the guidelines should have been applied in this matter. Modification proceedings and review proceedings are distinguishable because a review considers a prior court order whereas a modification arises from a substantial change in circumstances. The Court noted that its opinion was contrary to the Fourth District case of In re Marriage of Kasprzyk, 2019 IL (4th) 170838. In re Marriage of Brunke, 2019 Il App (2d) 190201.
5. Increase in parenting time alone not a substantial change of circumstances warranting a modification of child support. The trial court granted a motion for directed finding submitted by wife after husband presented his case which was essentially that the change in parenting time from 82 overnights under the original agreement to between 130-148 overnights in the modified agreement was a substantial change in circumstances. No evidence was offered showing any change in the financial circumstances of either party or the child. The Appellate Court upheld. Further, the statute relating to the modification of parenting time requires entirely different considerations that the statute relating to a modification of child support. The Court noted that the record showed no discussion about how the change in parenting time impacted the parties’ respective finances or whether there were any changes in the child’s needs. Husband had only presented the court with a calendar showing the parenting time that he did exercise which was not enough to fulfill the burden of proving a substantial change. In re Marriage of Wengielnik, 2020 IL App (3d) 180533.