Date: 10-18-2024

Case Style:

In re Marriage of Kathy Bremer and James Bremer

Case Number: 18-D-1073

Judge: Susan L. Alvarado

Court: 18th Judicial Circuit Court, DuPage County, Illinois

Plaintiff's Attorney:

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Defendant's Attorney:

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Wheaton, Illinois family law lawyers represented the husband and wife in a divorce.

¶ 4 The parties were married in July 1995. They began living separate and apart in November 2002. Kathy filed a verified petition for legal separation in Kane County in September 2003 (case No. 03-DK-1263). James failed to appear and was found in default. The court entered a judgment of legal separation on January 8, 2004. The judgment ordered that "Beginning January 15, 2004, [James] shall pay [Kathy] the sum of $605.00 as and for maintenance on or before the 15th day of every month. Said payments shall be made through the State Disbursement Unit pursuant to a Support Order and Notice of Withholding." James was also required to provide medical insurance for Kathy. The Order for Support provided that if James became delinquent in the payment of support that he must pay an additional $120 per month, in addition to the current support obligation, until the delinquency was paid in full. In September 2005, following a motion by Kathy, James was found to have an arrearage balance of $4623.

¶ 5 In September 2005, James filed a petition for dissolution of marriage in Du Page County (case No. 05-D-2081). Kathy filed a counter-petition for dissolution. In December 2006, the Kane County circuit court granted Kathy's motion to transfer the legal separation case (case No. 03-DK-1263) to Du Page County and join it with the dissolution matter (case No. 05-D-2081). The order stated that the Kane County orders "shall be able to be modified and or terminated by the Du Page Court." The dissolution matter was scheduled for trial on May 4, 2007. On that date, the court entered an order dismissing James's petition and Kathy's counter-petition and noting that Kathy failed to appear in court for the trial. In September 2007, Kathy filed a motion to establish spousal maintenance and health insurance in Du Page County, but that motion does not appear to have been heard by the court.

¶ 6 In June 2018, Kathy filed a verified petition for dissolution of marriage in the instant matter. The petition sought an award of permanent maintenance. Kathy then filed a petition to enroll the Kane County judgment of legal separation in Du Page County and motions to enforce and modify the maintenance provisions of the judgment of legal separation, which included a petition for rule to show cause regarding James's alleged failure to pay maintenance. The
petition alleged that James had not made any maintenance payments since September 2004. James filed a counter-petition for dissolution. He requested that no maintenance be awarded to either party. James filed a motion pursuant to section 2-619(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 2018)) to strike and dismiss Kathy's petition to enroll, motion to enforce maintenance/petition for rule to show cause, and motion to modify maintenance. He argued that the Kane County matter had already been transferred to Du Page County in case No. 05-D-2081. James further argued that there was no maintenance obligation, as any obligation was dismissed and terminated when the prior dissolution proceedings were dismissed in 2007. James also argued that the request to modify maintenance in a prior legal separation agreement is improper once a dissolution is filed because, per statute, the maintenance obligation was to be decided de novo in the dissolution proceedings. Kathy filed a response arguing that the enrollment petition should not be dismissed because there was no other pending action to enforce the maintenance obligation. She further argued that the maintenance obligation did not terminate upon the dismissal of the prior dissolution proceedings. During a hearing on James's section 2619 motion, Kathy argued that the motion was improper because section 2-619 motions can only be brought in regard to pleadings and Kathy's enrollment petition and motion to enforce and modify maintenance were motions, not pleadings. James argued that maintenance could not be modified because per statute, unless there was a separation agreement providing for non-modifiable permanent maintenance in the legal separation matter, maintenance issues are to be decided de novo in dissolution proceedings.

¶ 7 The court found that the judgment for legal separation had already been transferred and enrolled in Du Page County. The court found that the judgment was therefore already before the court and granted James's motion to dismiss Kathy's enrollment petition. The court then denied James's motion with regard to the petition for rule to show cause. Last, the court found that pursuant to statute, any maintenance obligations established under a judgment of legal separation that had been merged into a dissolution matter are to be decided de novo. The court found that the maintenance obligation was not permanent and non-modifiable, and noted that Kathy herself had asked for modification. The court therefore granted James's motion to dismiss Kathy's motion to modify maintenance and stated "I don't mean to imply here there is no maintenance obligation. Everything is certainly subject to repleading." The court clarified that there was no language in the maintenance award that would prohibit the court from modifying maintenance and therefore, maintenance should be decided de novo in the divorce proceedings.

¶ 8 As the court did not dismiss Kathy's motion for rule to show cause, James filed a response, in which he alleged that any failure to pay maintenance was not willful. He also set forth the affirmative defenses of limitation on enforcement, equitable estoppel, and laches. Kathy filed a petition for interim attorney fees, seeking $17,141.48 in fees already charged and $10,000 in prospective fees. The court granted the motion and ordered James to pay Kathy's attorney $12,000 for fees incurred and an additional $10,000 for prospective fees.

¶ 9 On July 25, 2019, James filed a motion for order terminating maintenance. He argued that Kathy had cohabitated with Joseph W. Bonea on a resident and conjugal basis and that his obligation to pay maintenance terminated as of the date the cohabitation commenced. The allegations were based upon criminal complaints made by Kathy against Bonea and an order of protection she obtained against Bonea in 2004. Kathy filed a response arguing that it was absurd to conclude that she was living with Bonea on a resident and conjugal basis, based solely on the criminal complaint and order of protection indicating that she and Bonea shared a residence.

¶ 10 Kathy filed a motion to modify her petition to enroll the Kane County judgment of legal separation and motions to enforce and modify maintenance. She indicated there were scrivener's errors as to the amount of arrearage and interest. The court granted this motion and Kathy filed an amended motion. James filed a response and again set forth his affirmative defenses. Kathy filed two stand-alone motions to modify maintenance. In response, James filed motions to strike and dismiss the motions to modify maintenance, as the court had previously dismissed Kathy's request for modification.

¶ 11 The court held an evidentiary hearing regarding the petition for rule to show cause/motion to enforce the maintenance obligation. Initially, the court found that Kathy met her burden of a prima facie showing that James failed to comply with the maintenance obligation and obligation to provide health insurance contained in the judgment of legal separation. The court issued a rule to show cause against James. The matter proceeded to hearing on the rule to show cause.

¶ 12 Kathy testified that she and James were married in 1995 and the last time they resided together was November or December 2002. Kathy received government benefits, including Medicare and partial Medicaid, and she likely would not have qualified for the benefits if James had been paying his maintenance obligation. Kathy also received social security disability payments. Bonea was only in her residence one time and she never dated Bonea. The last maintenance payment she received through the State Disbursement Unit was in September 2004. In discussing payments that she received from James, her counsel asked if James paid her $500 and she replied, "I know about the 1811 because I had to collect it at the police station *** But I don't recall if the 500 went into my account or if he gave it to me." An exhibit entered into evidence showed that there was a Kane County order that indicated James paid Kathy $500 on
September 1, 2005, and $1811 on September 18, 2005. This order was dated October 13, 2005, and indicated that James's arrearage balance was $4623. Kathy, at one point, testified that she could not recall if she received payments by money order for $120 from James, but at another point denied receiving such payments. Kathy testified that James never provided her with medical insurance subsequent to the judgment of legal separation.

¶ 13 James testified that he has not resided with Kathy since 2002. James was aware that the judgment of separation required him to provide medical insurance to Kathy, but he did not do so. James admitted on cross-examination that such failure would be a willful violation of the judgment. James acknowledged there was an order entered in the Kane County matter that found he owed certain monies to Kathy, and he testified he paid those monies to Kathy. James was shown an order transferring the Kane County case to Du Page County and joining case Nos. 03-D-1263 and 05-D-2081. His understanding of that order was that everything was then combined into one case in Du Page County. When his 2005 dissolution petition was dismissed, he was not represented by an attorney. He understood the dismissal order to mean that the separation and the divorce proceedings were dismissed and that he no longer had an obligation to pay Kathy maintenance or provide her with health insurance. He did believe he still owed the arrearage, and he continued to pay Kathy until the arrearage was satisfied. James's counsel showed him a notice of motion filed by Kathy, which stated the motion was to establish spousal maintenance and health insurance in Du Page County. James understood that to mean that there was no current spousal maintenance or obligation to provide insurance, and that Kathy was trying to establish such obligations. James testified that the last time he paid maintenance to Kathy was in 2007, but he did not know when in 2007. James made some payments directly to Kathy. James identified an exhibit shown to him by his counsel as receipts for money orders that were made out to Kathy to pay the arrearage he had owed. The receipts were dated from March 2006 through September 2007. The money orders were for $120, and he gave them to Kathy. James could not remember how he gave the money orders to Kathy. He did not know if he had all the receipts. The receipts did not indicate that the payments were made to Kathy or the State's Disbursement Unit.

¶ 14 Following testimony and setting forth a schedule for written closing arguments, the court heard argument as to James's motion to strike and dismiss Kathy's motion to modify maintenance. James argued that the court had already struck and dismissed Kathy's request to modify maintenance, and she was trying to file the same request again. He argued that the court previously dismissed the request because once the dissolution proceedings started, any maintenance obligation would be decided de novo in the dissolution proceedings, such that modification of the maintenance obligation contained in the judgment of legal separation was improper. Upon questioning by the court, Kathy's counsel confirmed that there was no substantive difference between her current motion to modify maintenance and her original one that the court struck and dismissed. The court could not recall its reasoning for granting a 2-619 dismissal of Kathy's original motion to modify maintenance but noted that it was the same motion to modify as the one before the court now. The court acknowledged that section 2-619 might not be the proper vehicle to dispose of the current motion but stated that once the court has ruled on something, a party cannot keep filing the same motion over and over again. The court declined to rule on James's pending section 2-619 motion to dismiss but instead found Kathy's motion to be improper and struck the motion. The court granted leave for Kathy to refile if there was a substantial change in circumstance since the court dismissed the original motion to modify. The court also noted that there were ways for Kathy to have the issue regarding the amount of maintenance heard without continuing to file motions to modify, as they were in the pre-decree stage of a dissolution proceeding.

¶ 15 Following submission of the parties' written closing arguments, the court filed its written opinion and order on August 12, 2021.[1] The court rejected James's affirmative defenses of laches and equitable estoppel. As to Kathy's alleged cohabitation with Bonea, the court found Kathy neither credible nor persuasive but determined that the evidence did not establish that there was an ongoing conjugal relationship between Kathy and Bonea. The court found James's testimony that he made the payment of $500 and monthly payments of $120 toward an arrearage to Kathy to be credible. The court noted that a reference in one of Kathy's pro se motions indicated she was receiving $120 per month directly from James, which supported the court's conclusion that James's testimony in this regard was credible. The court determined that James had paid his previously determined arrearage. The court noted James's testimony that he believed his maintenance obligation had been terminated when the 2005 dissolution petitions were dismissed. The court found that James was forthcoming and honest in his testimony, but that Kathy's testimony was often not credible. The court found that James's failure to provide medical insurance was willful but that since Kathy had government-provided medical insurance at that time, there was no appropriate purge provision to cure James's failure to provide medical insurance. It further found that James's belief that maintenance was terminated upon the 2007 dismissal of the 2005 dissolution proceedings was a good faith belief and that therefore, his failure to comply with the maintenance obligation was willful but not contumacious or without compelling cause or justification. The court also found that James satisfied his previously adjudicated arrearage via payments directly to Kathy. Additionally, the court found that James made his last maintenance payment to Kathy in 2007. The court ordered that the rule to show cause was dissolved, James owed an arrearage for unpaid maintenance installments in the amount of $605 commencing January 2008 through the present, and that in accordance with the judgment of legal separation, the arrearage was to be paid to Kathy in the amount of $120 per month in addition to any current maintenance obligation. Kathy filed a motion for reconsideration. The court struck the motion as violating local rules.

¶ 16 James filed a supplemental petition to terminate maintenance and for other relief on February 24, 2022. He argued that the maintenance that was awarded was not permanent and that there was a substantial change in circumstances, as Kathy demonstrated she had been selfsupporting in excess of 11 years. Kathy filed a section 2-619 motion to dismiss and a response.

¶ 17 Kathy filed a motion for entry of judgment on the amount of James's arrearage and demand for immediate payment of maintenance arrearage. She also filed a motion for modification of maintenance and petition for rule to show cause for failure to pay post 2007 maintenance. Kathy provided a calculation for the amount of arrearage, plus interest she believed was owed per the court's August 12, 2021, order.

¶ 18 The matter ultimately went to trial in front of Judge McGimpsey on the dissolution petitions at the end of 2022 and beginning of 2023. The record does not contain transcripts of the trial.

¶ 19 On January 17, 2023, Kathy filed a final fee petition seeking an order requiring James to pay $99,022.83 in attorney fees. James filed a response arguing the fees were exorbitant and not necessary or reasonable in light of the minimal issues in the case. The court held a hearing on the petition. It noted that the factors it found most applicable were the relative assets, income, and needs of the parties, as it relates to the issue of whether or not contribution of attorney fees would be appropriate. The court noted that the trial was a very limited issue, whether or not maintenance should continue. The court did not believe the limited issue justified the nearly $100,000 in attorney fees incurred. The court further noted that there had already been an order for contribution by James regarding Kathy's attorney fees in an amount in excess of $20,000. The court noted that Kathy's needs were significant and that it did not deny she was suffering from various ailments and receiving social security disability. It further noted that when maintenance was not being paid, Kathy was receiving government assistance. The court acknowledged that pursuant to its oral ruling following trial, Kathy would continue to receive $725 a month from James as payment of his arrearage and that would likely continue ad infinitum to satisfy the arrearage. The court stated that Kathy receives approximately $2300 per month and that James earned approximately $107,000 a year. The court believed that the most important factor in this matter was the assets of the parties, which it noted were not significant. The court noted that James had a $95,000 house, two very old vehicles with no indication of value, and a very modest retirement fund. The court did not believe the retirement fund was an appropriate asset to look to in terms of contribution of attorney fees. The court also did not believe there were significant assets from which to award any additional contribution to attorney fees. The court noted that it considered all of the factors under sections 503 and 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503, 504 (West 2022)) and that neither party had any appreciable assets from which to provide contribution. The court determined that no further contribution to attorney fees would be appropriate. The court denied Kathy's petition. Kathy filed a motion for reconsideration, which the court later denied following a hearing. In doing so, the court noted that it considered the factors under section 503(d) of the Act, the income of the parties, the relative assets and liabilities of the parties, the needs of the parties and the economic circumstances of the parties. The court further noted it had considered the limited issues at trial, the prior contribution award, and that James's arrearage payments will continue for a long time. The court found that it looked heavily at the income, and particularly the assets of the parties, in denying the motion for attorney fees and the court determined that its original ruling was supported by the factors.

¶ 20 On June 7, 2023, the court issued a written judgment of dissolution of marriage. The court found that Kathy was 61 and James was 59. The parties were married on July 1, 1995, and had lived separate and apart since November 2002. After equally splitting the only marital property-one or more shares of stock, the court set forth that the only remaining issue was "that of maintenance, being whether, and to what degree, maintenance is appropriate under the circumstances of this case. More specifically, the question under the unique circumstances of this case, given the prior maintenance order in the Kane County Judgment of Legal Separation and this Court's Order of 8/12/21 reaffirming the validity of that maintenance obligation, is whether maintenance should continue to be ordered and, if so, in what amount." The court noted that it considered the factors in section 504(a) of the Act and found that factors 1, 2, 3, 7, 8, 9 and 14 were particularly relevant. The court set forth that Kathy's income consisted of $1543 per month in social security disability payments and $725 per month in the previously ordered maintenance and arrearage payments. Kathy had no assets. James's income at the time of legal separation in 2004 was $35,000 per year but was currently $107,000 per year. James's assets consisted of a home purchased for $95,000, two older vehicles and a 401(k) account worth $31,000. The court considered James's assets to be of modest financial value. As to the needs of the parties, the court noted that Kathy presented testimony that she was permanently disabled and receiving social security disability payments which she had been receiving even prior to her separation from James. Kathy also received SNAP benefits and housing assistance through HUD, but that SNAP was discontinued after receiving the $725 monthly payments from James and HUD was terminated following a dispute about rule compliance. The court noted that James had a minimal estate of assets while approaching retirement age. The court stated it considered the needs of the parties, including that Kathy was able to live and provide for herself during the substantial period of time when James was not paying maintenance.

¶ 21 As to the parties' earning capacities, the court found that Kathy was unemployed with no prospect for future employment given her disability status. It also found that James was able to provide for himself currently but will likely be required to pay the $725 monthly maintenance arrearage for a substantial, possibly indefinite, period even though he had minimal assets and was approaching retirement age. The court found that the parties were married less than nine years before legally separating. At the time of separation Kathy had no income and James was earning $35,000 a year. The court determined that the marital standard of living was modest if not minimal. The court then considered other relevant factors inherent in the case and noted that the case presented unique facts and circumstances related to maintenance. Specifically, the court noted that the parties separated 19 years prior and maintenance had been ordered in 2004. The court noted the prior order dated August 12, 2021, finding that James was in arrears for maintenance from January 2008 to the present. The court found that the maintenance obligation far exceeded the length of the marriage up to separation, which was a result of neither party taking action to clarify or enforce the maintenance obligation between 2008 and 2018. The court determined that from a practical standpoint, James's responsibility for the maintenance arrearage will require an indefinite or permanent monthly payment of $725 due to the interest accrual.

¶ 22 Based upon its consideration of the factors and the evidence presented at trial, the court found that continuing maintenance would not be appropriate under the law or the facts of the case and that the obligation would be terminated as of July 25, 2019, the date James filed his motion to terminate maintenance. The court continued that the judgment did not alter the prior ruling of August 12, 2021, which required James to continue paying $725 per month to Kathy to satisfy the maintenance arrearage and interest. The court ordered that the payments of $725 per month were to continue until the arrearage from January 2008 until July 19, 2019,[2] was satisfied. The court also reaffirmed its prior ruling denying any further contribution of attorney fees. The court granted dissolution.

¶ 23 On July 5, 2023, Kathy filed a motion for reconsideration of the court's judgment of dissolution. Kathy challenged the court's denial of maintenance and termination of the previously ordered maintenance obligation as of July 25, 2019. Kathy also challenged the court's denial of her petition for contribution of attorney fees. James filed a response. The court held a hearing and heard argument on the matter on August 18, 2023. Judge Leah Setzen advised that, based upon some of the allegations in the motion, review of the transcripts would be helpful as she was not the judge who conducted the prior proceedings. Specifically, the court indicated that there were a lot of factual allegations and that she was unable to determine if they were being made for the first time or if they had been made at trial. The court gave Kathy an opportunity to supplement the motion for reconsideration with the transcripts. Ultimately, Kathy filed a document entitled Response to the Court's Request for Transcripts in which she alleged transcripts were unnecessary. The court provided a ruling on the motion for reconsideration during a hearing on October 3, 2023. The court first held that a de novo decision on maintenance was properly made in the judgment for dissolution and the court properly applied section 504 of the Act. The court found no error in the termination of maintenance or the order for continuing payments of $725 per month until the arrearage was satisfied. The court rejected all of Kathy's arguments and requests, except her request to resume using her former name. Kathy appeals.

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In re Marriage of Bremer, 2024 IL App (3d) 230579U, 3-23-0579 (Ill. App. Oct 18, 2024)

Outcome: Affirmed in part and reversed in part.

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