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

1. 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.)
2. 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.
3. $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.