In re The Marriage of Bernay

Overview

In this third appeal involving post-dissolution maintenance, the Second District affirmed the trial court's denial of respondent Jerry Bernay's petition to terminate $3,600/month permanent maintenance, denied his petition for discovery sanctions, and upheld a $55,000 contribution order toward petitioner Lynn Bernay's attorney fees. The court found Jerry failed to establish a prima facie case of substantial change in circumstances where his income and assets had actually *increased* since the prior appeal.

Key Facts

Parties married in 1978; dissolution judgment entered 1995; permanent maintenance of $3,600/month ordered in 2006

Both parties now in their 70s and retired; court found both retired in good faith

Jerry's monthly income: ~$15,200 (Social Security + IRA distributions); monthly expenses: ~$9,600; total assets: ~$5.7 million (including three unencumbered properties worth $1.8M combined)

Lynn's monthly income: ~$1,600 Social Security + ~$3,000 net maintenance; monthly expenses: ~$3,700; liquid assets: ~$8,000; primary asset is a mortgaged Boulder, CO home (value $920K, $189K owed)

Lynn received artwork insured at ~$125,000 from parents' estate and held a one-third interest in vacant Massachusetts land worth $22,000

Lynn quitclaimed interest in parents' Miami townhouse in 2021; no evidence she received sale proceeds

Lynn's standard of living remains significantly below the marital standard

Procedural History

Circuit Court of Lake County (Judge DeRue), Case No. 92-D-2420. This is the third appeal ( Bernay III ). Permanent maintenance was ordered in 2006 and affirmed in Bernay I (2007). A 2016 termination order was reversed in Bernay II , 2017 IL App (2d) 160583. Jerry filed a renewed termination petition in 2022; after a four-day hearing in summer 2024, the trial court denied termination, denied sanctions, and ordered $55,000 fee contribution in a December 2024 memorandum judgment.

Holdings

Maintenance termination denied — no abuse of discretion. The trial court properly found Jerry failed to make a prima facie case of substantial change in circumstances where his income and assets had increased since Bernay II , and Lynn's standard of living remained well below the marital standard. (Standard of review: abuse of discretion ; factual findings reviewed for manifest weight of the evidence .)

Discovery sanctions denied — no abuse of discretion. Jerry himself failed to disclose properties in his initial financial affidavits; sanctions are meant to coerce compliance, not punish, and Lynn had no undisclosed evidence to compel.

$55,000 fee contribution affirmed — no abuse of discretion. Financial disparity, Jerry's role as movant, and Lynn's inability to pay justified the order under 750 ILCS 5/508(a)(2), (b) .

Legal Principles

750 ILCS 5/510(a-5) : Maintenance modifiable only upon substantial change in circumstances since most recent award

Bernay II , 2017 IL App (2d) 160583: Permanent maintenance should not be "lightly terminated"; payor bears burden of proving substantial change

In re Marriage of Shen , 2015 IL App (1st) 130733, ¶ 87: Dependent spouse not required to lower marital standard of living while payor has sufficient assets

Court found no authority requiring a dependent spouse to sell her home, take a reverse mortgage, or liquidate inherited personal property before receiving permanent maintenance

Shimanovsky v. General Motors , 181 Ill. 2d 112: Discovery sanctions exist to coerce compliance, not punish

750 ILCS 5/508(a)(2), (b) and In re Marriage of Heroy , 2017 IL 120205: Fee contribution based on financial disparity and inability to pay

Practical Implications

Payor's increased wealth defeats termination: Practitioners cannot establish a substantial change in circumstances when the payor's income and assets have grown; the court found no authority for termination based solely on changes to the recipient's assets

No duty to liquidate home or personal property: A dependent spouse is not required to sell her residence, take a reverse mortgage, or sell inherited artwork to offset maintenance — a powerful argument for recipients

Marital standard of living remains the benchmark: Even decades post-dissolution, the gap between the recipient's current lifestyle and the marital standard supports continuation of permanent maintenance

Full financial disclosure cuts both ways: Jerry's sanctions petition was undermined by his own failure to disclose properties; practitioners should ensure their own client's disclosures are complete before seeking sanctions

Fee contribution follows the money: Courts will order contribution where the movant initiated unsuccessful litigation and significant financial disparity exists

Counterargument: A payor with genuinely diminished resources (25%+ income reduction per Osseck and Carpenter ) would present a distinguishable case

Limitations/Caveats

This is a Rule 23(b) unpublished order with limited precedential value under Rule 23(e)(1). The court's statement that no authority supports termination when the payor's resources have *increased* is a binding holding for this case but non-precedential generally. The discussion of whether a dependent spouse must sell assets or reverse-mortgage her home is persuasive dicta — no such argument was squarely presented with supporting authority. The published opinion in Bernay II , 2017 IL App (2d) 160583, remains the citable precedent from this litigation. The maintenance was governed by pre-2019 law (750 ILCS 5/510(a-5) (West 2018)); practitioners should note differences under current statutory provisions.