In re Marriage of Chapman

No. 3--96--0376
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D. 1996
_________________________________________________________________

IN RE THE MARRIAGE OF: ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
ROSALIND MARIE CHAPMAN, ) Henry County, Illinois
)
Petitioner-Appellant, )
)
v. ) No. 92--D--215
)
RICHARD EUGENE CHAPMAN, ) Honorable
) Jeffery W. O'Connor,
Respondent-Appellee. ) Judge Presiding.
_________________________________________________________________

JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________

The petitioner, Rosalind Chapman n/k/a Rosalind Vandersnick,
appeals from a judgment of dissolution of marriage. The judgment
dissolved her marriage to the respondent, Richard Chapman,
distributed the parties' property, ordered Richard to continue her
health insurance for a period of two years and awarded her no
maintenance.
On appeal, Rosalind argues that the trial court abused its
discretion: (1) when it failed to award maintenance, considering
her failing health and inability to work; and (2) when it failed to
order Richard to provide health insurance for longer than two years
and pay her uncovered medical expenses.
After carefully reviewing the record on appeal, we reverse the
trial court's determination. For reasons that follow, we remand
the case to the circuit court of Henry County for further
proceedings consistent with this opinion.
FACTS
Rosalind and Richard were married on August 20, 1988, and
separated on August 30, 1992. No children were born during the
marriage. Rosalind filed her petition for dissolution of marriage
on October 7, 1992. At that time, she was 35 years old, and
Richard was 39 years old. On February 19, 1993, the trial court
entered an order requiring Richard to pay Rosalind $400 per month
in temporary maintenance.
On August 24, 1994, after a hearing, an order was entered
finding grounds for the dissolution of the marriage. A hearing on
the remaining contested matters was held on January 23, 1995.
Richard's financial affidavit said he worked for John Deere and
earned about $3,400 gross per month. However, he testified that,
just prior to the hearing, he had changed jobs at John Deere to
obtain greater job security. He anticipated that his gross monthly
income would be about $2,586 in the new job. Evidence was
presented that it would cost him $187.68 per month to keep Rosalind
covered under his group health insurance after the dissolution of
marriage was final.
Rosalind testified that she was diagnosed with myotonic
dystrophy in September 1992. Evidence was presented that it is a
hereditary disease. Her deceased father had the disease, as well
as several other family members. She stated that her symptoms
include difficulty in walking, balance problems and weakness in her
hands which makes it difficult to write. She also needs a lot of
sleep. Rosalind testified that it is difficult for her to do daily
tasks such as brushing her teeth, using a blow dryer on her hair,
turning faucets on and off, opening and closing doors and going up
and down steps. She said that she cannot use a mop or run a vacuum
cleaner.
Rosalind previously worked as a teller at Farmers National
Bank for almost 18 years. Her gross pay was $1,024.97 per month,
and her net pay was $718.80 per month. She voluntarily left her
employment on December 31, 1994, because she was unable to
adequately perform her job responsibilities. Rosalind stated that
the stress and frustration associated with the job were too much
for her to continue. She testified that she had applied for social
security disability, but was not yet receiving any benefits. In
her financial affidavit, she claimed that her monthly living
expenses were $1,394.50.
Rosalind's mother, Rosella Vandersnick, testified that
Rosalind moved in with her in May 1994. She said Rosalind has
balance problems and problems with choking when she tries to take
medication. Rosella testified that Rosalind also is often very
tired and has limited ability to perform tasks, such as buttoning
clothing, because of weakness in her hands. Rosella testified that
she is 60 years old and works part time. She does the
housecleaning and laundry and also helps Rosalind with the many
tasks that Rosalind is unable to accomplish. Rosella stated that
Rosalind pays rent to help pay the bills.
Marsha Flemming, an operations manager at Farmers National
Bank, testified that she was one of Rosalind's supervisors. She
stated that Rosalind's condition deteriorated during the last six
months Rosalind worked at the bank. Rosalind had difficulty
walking because of balance problems and had difficulty writing
legibly.
Janet Cady, the head teller at the bank, testified that
Rosalind had been an excellent worker but became less and less
efficient because of her physical problems. Cady stated that
Rosalind had problems with vision and needed help lifting heavy
items such as bags of coins. Cady testified that Rosalind's speech
had become slurred and it was hard for her to speak clearly to bank
customers. Rosalind had trouble concentrating and sometimes needed
help to finish her transactions or to balance her cash drawer at
the end of the day. Also, Cady said it was hard for Rosalind to
write clearly enough so that coworkers could read her handwriting.
Cady testified that it was extremely difficult for Rosalind to
perform her job the last two weeks she was employed at the bank.
Cady specifically stated that, because of all the difficulties
Rosalind was having, she was not able to continue her employment at
the bank. Flemming testified that there was no part time position
available for Rosalind and that all of the jobs at the bank require
writing and verbal communication skills.
At the hearing, several exhibits were admitted into evidence.
These included letters from two doctors concerning Rosalind's
condition, as well as the evidence deposition of Dr. Ionesescu.
The record indicates that all of the exhibits substantiated the
fact that Rosalind had been diagnosed as having myotonic dystrophy.
However, we note that none of the exhibits have been included in
the record on appeal.
After the hearing, the trial court took the matter under
advisement. Thereafter, the parties submitted written arguments.
On May 12, 1995, the parties submitted a stipulation that Rosalind
was found eligible for social security disability benefits and
would begin receiving $636 per month on July 3, 1995.
On August 4, 1995, the trial court entered a judgment of
dissolution resolving all issues. In the judgment, Rosalind was
given the right to resume using her maiden name of Vandersnick.
Also, the parties were awarded the personal property in their
possession. Each party was also awarded ownership of a motor
vehicle. Rosalind was awarded all rights to her 401(k) plan at the
bank, and Richard was awarded his 401(k) retirement plan at John
Deere. Richard was ordered to pay two outstanding debts, as well
as $2,238.15 of Rosalind's attorney fees. Richard was additionally
awarded five acres of real estate which was found to be his
nonmarital property.
The judgment ordered Richard to maintain health insurance
coverage for Rosalind for the next two years. The judgment further
stated that Rosalind would be responsible for all of her medical
expenses not covered by insurance. The judgment provided that
Rosalind was permanently barred from receiving maintenance from
Richard. The trial court said the decision not to award
maintenance was based upon its consideration of "the length of the
marriage and separation; the extent of rehabilitative maintenance
paid and the award of $636.00 per month of Social Security
Benefits."
Rosalind filed a motion to reconsider, contesting the trial
court's denial of maintenance and failure to make adequate
provision for health insurance and payment of medical expenses.
The trial court denied the motion to reconsider. Thereafter,
Rosalind filed a timely notice of appeal.
ANALYSIS
I. Omissions from the Record
We initially recognize that none of the exhibits admitted at
the hearing, including the evidence from Rosalind's doctors, are
contained in the record on appeal. Copies of these exhibits have
been attached to the parties' briefs. However, we note that all
matters reviewed on appeal must be made part of the official court
record. 155 Ill. 2d R. 321; Dopp v. Village of Northbrook, 257
Ill. App. 3d 820, 824, 630 N.E.2d 84, 86 (1993). Accordingly, a
copy of an item attached to a brief cannot be considered by this
court. See Dopp, 257 Ill. App. 3d at 824, 630 N.E.2d at 86.
It is well established that the appellant has the burden of
presenting a reviewing court with an adequate record concerning the
claimed error. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 546-
47, 662 N.E.2d 1248, 1258 (1996). However, an incomplete record
does not automatically preclude a reviewing court from determining
whether the trial court's findings or rulings are correct where
that determination can be made from the incomplete record presented
on appeal. Dubey v. Abam Building Corp., 266 Ill. App. 3d 44, 46,
639 N.E.2d 215, 217 (1994). After reading the record on appeal, we
conclude that it is adequate for purposes of our review.
II. Maintenance
A trial court's determination regarding maintenance will not
be disturbed on appeal absent an abuse of discretion. In re
Marriage of Uehlein, 265 Ill. App. 3d 1080, 1089, 638 N.E.2d 706,
714 (1994). An abuse of discretion occurs when no reasonable
person would take the view adopted by the trial court. In re
Marriage of Werries, 247 Ill. App. 3d 639, 652, 616 N.E.2d 1379,
1390 (1993). In deciding whether to award maintenance and the
amount of maintenance, the trial court should review and consider
the relevant statutory factors, including:
"(1) the income and property of each
party, including marital property apportioned
*** to the party seeking maintenance;
(2) the needs of each party;
(3) the present and future earning
capacity of each party;
* * *
(6) the standard of living established
during the marriage;
(7) the duration of the marriage;
(8) the age and the physical and
emotional condition of both parties." 750
ILCS 5/504(a) (West 1994).
No one statutory factor is dispositive of the determination
whether maintenance should be granted or denied. In re Marriage of
Harlow, 251 Ill. App. 3d 152, 157, 621 N.E.2d 929, 934 (1993).
However, a trial court is required to consider the parties' health
and economic circumstances as they exist when the court rules on
the maintenance award. In re Marriage of Brooks, 138 Ill. App. 3d
252, 265, 486 N.E.2d 267, 275-76 (1985). It is incumbent upon a
trial judge to take a spouse's physical condition into account as
a significant factor in determining whether an award of maintenance
is proper. See In re Marriage of Marcello, 247 Ill. App. 3d 304,
313, 617 N.E.2d 289, 295 (1993). Accordingly, maintenance is
generally appropriate where a spouse is not employable because of
a physical condition. See In re Marriage of Stam, 260 Ill. App. 3d
754, 756-57, 632 N.E.2d 1078, 1079-80 (1994); In re Marriage of
Morse, 240 Ill. App. 3d 296, 311, 607 N.E.2d 632, 643 (1993); In re
Marriage of Tietz, 238 Ill. App. 3d 965, 972, 605 N.E.2d 670, 676
(1992). A dependent former spouse is entitled to continue to live
in some approximation to the standard of living established during
the marriage, unless the payor spouse's financial situation
indicates otherwise. In re Marriage of Dunseth, 260 Ill. App. 3d
816, 833, 633 N.E.2d 82, 95 (1994).
In Stam, this court considered a situation remarkably similar
to the instant case. In the Stam case, the parties lived together
for only 2« years. Following the parties' separation, the wife was
diagnosed with multiple sclerosis and was unable to work. She
received $364 per month in social security benefits. The trial
court awarded maintenance in the amount of $621 per month,
reviewable after a period of three years. At the three-year
review, the trial court extended the maintenance award for an
additional four years, after which the award would again be
reviewed. Stam, 260 Ill. App. 3d at 755, 632 N.E.2d at 1079.
On appeal, this court affirmed the trial court's order
extending maintenance. In doing so, we rejected the husband's
argument that maintenance should have been terminated based upon
the relatively short duration of the marriage. Stam, 260 Ill. App.
3d at 756-57, 632 N.E.2d at 1079-80. We noted that the duration of
the marriage was just one of many factors to be considered by the
trial court. Stam, 260 Ill. App. 3d at 756, 632 N.E.2d at 1079-80.
We also stated that, while a spouse requesting maintenance has an
affirmative duty to seek gainful employment, this goal "must be
balanced against a realistic appraisal of the likelihood that the
spouse will be able to support herself in some reasonable
approximation of the standard of living established during the
marriage." Stam, 260 Ill. App. 3d at 757, 632 N.E.2d at 1080. We
concluded that, because nothing in the record indicated that the
wife would become self-sufficient in the future, "it was necessary
for the court to reserve jurisdiction on this issue to avoid
improper speculation." Stam, 260 Ill. App. 3d at 757, 632 N.E.2d
at 1080.
Here, the evidence is uncontradicted that Rosalind has been
diagnosed with a serious disease, myotonic dystrophy. Rosalind's
testimony, and that of her supervisors at the bank, showed that she
has difficulty performing tasks because of the symptoms of the
disease and is unable to continue her work at the bank. Her only
source of income is $636 per month from social security disability.
The only property that she received in the judgment of dissolution
of marriage were her 401(k) retirement plan, personal items of
limited value and a motor vehicle worth no more than $6,000.
On the other hand, the record clearly shows that Richard earns
an adequate income and is capable of providing maintenance for
Rosalind. He has few debts and no dependents. The parties also
had a significant combined income during the marriage. Rosalind's
small income and limited property do not enable her to live
anywhere near the standard of living established during the
parties' marriage. Her income leaves her unable to meet her
monthly needs without the assistance of her 60-year-old mother.
From our review of the record and applicable case law, we
conclude that the trial court gave too much consideration to one
factor, the short duration of the marriage. Moreover, the trial
court did not adequately consider the other relevant factors,
including Rosalind's needs, her present and future earning
capacity, and her physical condition at the time the maintenance
decision was made. Following our decision in Stam, we conclude
that the trial court's order barring Rosalind from receiving
maintenance from Richard was an abuse of discretion.
Accordingly, we remand this case to the trial court for a
determination of an appropriate amount of maintenance based upon
Rosalind's financial needs and Richard's ability to pay. Also, as
in Stam, we conclude that the trial court should reserve
jurisdiction on the maintenance issue so the circumstances of the
parties can be periodically reviewed. Consequently, the trial
court's judgment on remand should include a provision for periodic
review of the maintenance order. See Stam, 260 Ill. App. 3d at
757, 632 N.E.2d at 1080; Marcello, 247 Ill. App. 3d at 315, 617 N.E.2d at 296.
III. Health Insurance
We also agree with Rosalind that the trial court abused its
discretion when it ordered Richard to provide health insurance for
only two years. Following the two-year period, it is possible that
Rosalind will be unable to obtain any health insurance coverage.
As a result, we conclude that the trial court must review the cost
and the parties' ability to obtain health insurance prior to the
end of the two-year period.
CONCLUSION
For the reasons indicated, the judgment of the trial court is
reversed. The cause is remanded to the circuit court of Henry
County for further proceedings consistent with this opinion.
Reversed and remanded.
BRESLIN, P.J., and HOLDRIDGE, P.J., concur.