HRK Prevails In Defense of Appeal Addressing Divorce Maintenance In Gross, Valuation Issues

Hurst, Robin & Kay, LLC, recently successfully defended a judgment it obtained at trial at the First District Appellate Court in the matter of In re Marriage of Edelberg and Slobodien, 2015 IL App (1st) 141940-U. The Appellate Court affirmed all of the trial court's rulings. At issue on appeal was an order of maintenance "in gross," valuation of the marital residence and interest in a business, the propriety of a nunc pro tunc order, and the award of attorney's fees to the husband for the defense of the appeal.

The Appellate Court agreed with the trial court that a lump sum, one-time maintenance payment was appropriate in a 21-year marriage, where the husband's earning capacity had decreased due to health issues, while the wife had failed to find employment commensurate with her education and experience. While periodic maintenance awards are judicially preferable, the Appellate Court found that in this instance, such an award was appropriate based on the evidence at trial that "[Wife] had been receiving unallocated maintenance from [husband] for the past year but had made little effort to use her advanced degree, skills, and professional network to obtain full time employment despite the family's severe reduction in income resulting from [Husband's] health problems." While this decision was issued on December 31, 2015, as of January 1, 2016, the concept of "maintenance in gross" is no longer available under the Illinois Marriage and Dissolution of Marriage Act and has been deleted from Section 503.

The Appellate Court also affirmed values attributed to both the marital residence and a closely held corporation in which the wife held a 3 percent share. As it related to the marital residence, while the husband's appraisal was over two years old, the wife had not offered a more recent value or any evidence to counter the husband's figure. Although the court acknowledged that generally property should be valued at the time of dissolution, the only available report was from 2012, so it was not error to rely on this amount. The court also upheld the amount attributed to wife's 3 percent interest in an online startup, where the only values offered at trial were from wife herself, as contained in her financial disclosure statement and her own testimony. An Appellate Court "will not remand for an evidentiary hearing on value when a party had ample opportunity to present valuation evidence and failed to do so."

The court also upheld the award of attorney's fees to the husband for having to defend against wife's appeal. The basis behind this ruling was that the trial court had properly weighed "the distribution of the income and availability of liquid assets," and these factors favored the wife.