IN RE: MARRIAGE OF Donna TUKE (2015)

OPINION

¶ 1 Respondent-appellant, David F. Heroy (David), appeals from the judgment of the circuit court of Cook County granting modification of maintenance payments to petitioner-appellee, Donna Tuke (Donna), and granting her petition seeking contribution by David to her attorneys fees. On appeal, David contends that: (1) the trial court erred in awarding Donna continued permanent maintenance in failing to take into account Donna's failure make any effort to become self-supporting; (2) the trial court made a calculation error in its modification of the amount of maintenance reduction; and (3) the trial court erred in requiring David to contribute to Donna's attorneys fees for the underlying modification petition as well as awarding Donna prospective attorneys fees to defend this appeal. For the following reasons, we vacate the trial court's award of modified permanent maintenance, reverse the award of attorneys fees and remand the case to the trial court with directions to enter a maintenance order 25% of David's cash flow as voiced by the trial court expert testimony and the record.

¶ 2 On January 23, 2012, the trial court entered its order modifying permanent maintenance payments which had been awarded to Donna in 2006, pursuant to a judgment for dissolution of marriage. David filed his motion to reconsider the January 23, 2012 order, which the trial court denied on December 17, 2012. David filed a proper notice of appeal on January 15, 2013. On August 21, 2013, the trial court entered another order awarding prospective attorneys fees to Donna to defend the pending appeal. David's notice of appeal filed from that subsequent order was filed on September 20, 2013. This court has consolidated the two appeals. Accordingly, this court has jurisdiction to resolve both appeals pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments. Ill. S.Ct. R. 301 (eff.Feb.1, 1994); R. 303 (eff. May 30, 2008).

¶ 3 BACKGROUND

¶ 4 These parties come before this court for the second time on this consolidated appeal. Only those facts necessary to the resolution of the issues before us on this appeal will be recounted as an exhaustive recitation of the facts in the underlying dissolution case, can be found in our prior opinion; In re Marriage of Heroy, 385 Ill.App.3d 640 (2008). David and Donna were married on September 13, 1980. A judgment for dissolution of their marriage was entered by the circuit court of Cook County on November 21, 2006. The trial court in the 2006 dissolution proceedings found that the parties had enjoyed a lavish lifestyle during the marriage. Both parties were highly educated. David had an undergraduate and law degree. Donna held an undergraduate degree, a Master of Library Science degree, as well as, a law degree. David was employed as a partner at a large law firm at the time of the dissolution in 2006 and was employed as a partner at a different, large law firm, Baker & McKenzie, at the time of the maintenance modification proceeding in 2010. Donna had worked full time as the head law librarian at a Chicago law firm at the time of her marriage to David. Thereafter, she reduced her hours to part time, eventually electing to become a full time homemaker. Donna was not employed outside the home at the time of the dissolution of the marriage in 2006 and remained unemployed throughout the ensuing years since the divorce. David also owns a minority interest in a family business, Angola Wire Products, located in Indiana. He derives income from that business. Sometime in the 1980's, Donna started an in-home business called Alert Publications, in which she published newsletters for law and business libraries. At the time of the dissolution of the marriage and property division in 2006, the trial court ascribed a value of $0 to Alert Publications. David and Donna have three children, all of whom were emancipated as of the time of the trial court's order of modification on January 23, 2012. At the time of the dissolution in 2006, David was 55 years old and Donna was 56 years old.

¶ 5 Upon dissolution of the marriage, however, Donna sought $63,000 per month in permanent maintenance. The trial court awarded Donna $35,000 per month in permanent maintenance, plus $4,500 per month in retroactive temporary maintenance in addition to the $6,000 per month which she had been receiving prior to the entry of judgment. The trial court also distributed the couple's marital estate, awarding Donna 55% of the marital estate and David 45%. After addition and subtraction of various fees and addition of the parties' non-marital property, Donna received a net amount of $3.7 million which included her non-marital property. David received approximately $6.7 million which included his non-marital property. Donna sought $63,000 per month in permanent maintenance. After hearing extensive testimony and the opinions of various financial and other experts for each of the parties, in the 20906 dissolution proceeding, the trial court awarded Donna permanent maintenance as described above. Donna was also awarded ownership of Alert Publications. The trial court ordered each party to pay his own attorneys fees.

¶ 6 On appeal following the trial court's 2006 dissolution judgment, this court affirmed the trial court's permanent maintenance award of $35,000 per month to Donna. In re Marriage of Heroy, 385 Ill.App.3d 640, 657 (2008). However, although affirming the disproportionate award of the marital estate, this court found that David was not required to contribute to Donna's attorneys fees, as he had apparently, inadvertently, done. Additionally, this court made two other rulings which it directed the trial court to address on remand. We held that the retroactive maintenance payments made to Donna by David should have been taken from the marital estate prior to its division, rather than from David's sole share; further, David was entitled to receive a $25,296 credit for money that David had advanced to Donna. The trial court's award of non-marital property to each party was affirmed. We rejected David's argument that the trial court's award of permanent maintenance was an abuse of discretion.

¶ 7 On December 1, 2009, David filed a modification petition requesting the termination or modification of Donna's permanent maintenance award. In the petition, David cited three grounds supporting his request: (1) a decrease in his income; (2) a decrease in his net worth; and (3) Donna's failure to make any reasonable efforts to become self-sufficient since the dissolution judgment in 2006. The trial court conducted an extensive hearing on the petition.

¶ 8 The trial court noted that David had changed law firms since the 2006 dissolution judgment and now worked as an attorney at the law firm of Baker & McKenzie. He also continued to earn income from his family's business Angola Wire Products. Both parties presented expert witnesses to support their respective arguments as to their financial circumstances following the dissolution in 2006 and at the time of the modification proceedings. The parties differ as to the methodology used by their individual financial experts to determine David's assets and cash flow.

¶ 9 David presented evidence that he continues to work full time as a partner at the law firm of Baker & McKenzie. Following the dissolution of his marriage, he moved to a two bedroom rental apartment where he resided at the time of the modification proceedings. David retained ownership of the parties' Michigan vacation home having purchased Donna's interest from her following the 2006 dissolution. David presented evidence through testimony and expert witnesses regarding his reduction in income and cash flow. The evidence presented by David showed a reduction in his law firm income as well as a reduction in the income he receives from his family business, Angola Wire Products. According to David's expert, David's net income decreased by 54% between 2005 and 2009, those years being the year immediately prior to the dissolution judgment and immediately prior to the modification petition.

¶ 10 David testified regarding a wide range of lifestyle matters, including residence and living expenses since the 2006 dissolution judgment. He collects art and wine and has a weekly cleaning person. After changing law firms in 2007, David's income declined. David presented expert testimony from Jack Katz, a certified public accountant, who had prepared taxes for the parties during the marriage and individually since 2007. Katz presented detailed testimony that David's net income had declined by 54% between 2005 and 2009. The period of time that covered the last full year before the divorce and the full year before David's petition for modification or termination of Donna's maintenance. David presented a disclosure statement during the modification proceedings, declaring total assets of approximately $5.8 million and monthly living expenses of $18,619. He also owed $836,621 in outstanding business and personal loans.

¶ 11 Donna presented the expert financial testimony of Jeffrey Newman. Newman used a different methodology than that used by David's expert, Jack Katz to calculate David's income and cash flow. Newman concluded that David's income had decreased by 26% between 2005 and 2009.

¶ 12 Donna testified that in 2007 she purchased a vintage cooperative residence for herself for $1.2 million, with down payment and closing costs amounting to $328,639.83. Donna also made additional voluntary pre-payments on her mortgage in the amounts of $200,000 in 2009, $100,000 in May 2010, and $204,000 in July 2010. Donna also spent approximately $228,000 on furnishings, décor, repairs, and maintenance. At the time of the modification hearing, Donna employed three household helpers, including a cleaning person, a professional organizer and a personal assistant.

¶ 13 The trial court also heard testimony regarding Donna's efforts to become self-sufficient. Donna had applied for one position since the dissolution judgment in 2006, and at the time of the modification hearing, she did not have a current resume. Donna testified that as part of her effort to earn income, she tried to make Alert Publications a viable business, and that she had expended more than $160,000 in that effort. She testified that only shortly before the modification proceeding had she realized that Alert Publications would not be profitable and she was therefore considering selling it. Regarding her other efforts to earn income, Donna testified that she made inquiries with a temporary agency which places librarians. She also testified that she was told by someone in the field of library science, that she did not have the skills at present to work as a librarian. Donna also trained with H & R Block as a tax preparer and earned $9 per hour doing part-time, seasonal tax preparation work. In 2010, Donna earned $229.50, and in 2011, she earned $437.31 from that endeavor. At the time of the modification hearing, Donna's financial expert, offered an analysis of Donna's expenses which showed the following cash flow report for the period from 2007 through 2009; as $488,989.19 for household employees; $44,128.70 for furnishing; $19,006.93 for repairs and improvements; $25,599.34 for transportation; $173,190.50 for personal expenses, including $99,835. 20 for clothes, shoes and jewelry, and $7,419.86 for personal care; $431,211.39 for miscellaneous expenses, which included such categories as $24,226.98 for dining; $10,496.49 for entertainment; $60,208.05 for gifts to family and friends; $90,254.16 for travel, $51, 478.09 for unspecified cash; $14,166.14 for subscriptions, books, photographs and music; $50,115.70 for the Women's Athletic Club; and $535,149.50 for taxes and legal fees.

¶ 14 Additionally, evidence at the modification hearing established that Donna's spending had increased in certain areas in the years following entry of the dissolution judgment in 2006. Donnna increased her charitable giving from $6,520 per year to $10,674; and gifts to family and friends increased from $7,993 per year to $38,482.54. Donna's pre 2006 dissolution spending on clothing, jewelry and shoes increased from $26,397 per year to approximately $33,000 per year.

¶ 15 During the pendency of the modification proceedings, Donna submitted a balance sheet listing assets as follows: real estate: $855,499; cash and investments, were broken down $37,868 in cash and cash equivalents plus $269,859 in investments; $847,569 in retirement funds; $410,830 in personal property, (excluding post-judgment purchases); she also had made a $184,054 loan to Alert Publications and had liabilities of $52,562.

¶ 16 During the hearing, David's counsel elicited testimony from Donna that she had not in fact applied for a job through the temporary librarian agency, but had instead only visited the website. She did not post her qualifications on any employment web site, and she did not seek the help or services of any career counselors or head hunters. Further, she did not have a current Illinois law license and was unfamiliar with the necessary criteria to activate her law license. In 2011, Donna applied for a position as a law librarian at a Chicago law firm, but she was not hired. David's counsel further elicited Donna's testimony that she had no plans to apply for any librarian positions in the future.

¶ 17 On January 23, 2012, after hearing the evidence related to David's petition for termination or modification of Donna's permanent maintenance, the trial court made its ruling. There was great disparity between the opinions of the financial experts for David and Donna. The trial court accepted the opinion of Donna's expert regarding David's current financial circumstances. The trial court determined that according to Donna's expert, David's cash flow had in fact decreased by 26% between 2005 and 2009. The court also stated that David “is entitled to maintain a semblance of the standard of living established during the marriage.” Therefore, the trial court found that David had met his burden of establishing a substantial change in circumstances as required by section 510 of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/510) (West 2013), entitling him to a modification of the permanent maintenance which he must pay to Donna. The trial court rejected David's request to terminate Donna's maintenance payments.

¶ 18 In determining a modified maintenance amount, the trial court noted that it was required to consider the factors set forth in sections 504 and 510 of the Act. At the time that the trial court found that David had established a substantial change in circumstances to warrant a reduction in maintenance, it determined that the new amount of maintenance which David would be required to pay to Donna would be $27,500 per month, retroactive to December 2010. The trial court acknowledged that it relied mainly on Donna's financial expert in reaching its conclusion that David's income from his law practice and his family business had declined by 26%. While acknowledging that David's income had declined, the court noted that it was factoring into its decision, certain intangible economic benefits which David enjoyed from his law firm practice.

¶ 19 The trial court also addressed Donna's petition for contribution by David to her attorneys fees to defend the modification petition. The parties stipulated that the reasonable and necessary amount of fees incurred by Donna for the protracted modification proceeding was $345,000. In considering Donna's request, the trial court found David's net worth to be approximately $5 million and his annual cash flow to be slightly less than $1 million. The record establishes that Donna had assets worth approximately $2.3 million and under the new maintenance order, Donna would receive $330,000 annually in permanent maintenance payments from David. David's retirement account was valued at $1,435,470, and Donna's retirement account was valued at $847,569. Donna's investment account contained $268,859, and David's investment account was valued at $932,175. The record shows that this is the financial information that was before the trial court when it determined that “David is in a much superior financial position to defray some of [Donna's] attorneys fees.” On February 22, 2012, the trial court opined that it was convinced by Donna's argument that payment of her own attorneys fees would undermine her financial stability. The trial court then went through another review of the parties assets, noting that at the time of the divorce in 2006, Donna received the lion's share of the couple's marital assets. However, the court noted that Donna's assets had declined somewhat during the years since the divorce and that Donna's attorney fees in the litigation would continue to deplete her assets. After further analysis of the depletion of Donna's assets by the attorneys fees, the court again concluded that David was in a stronger financial position than Donna, and should therefore contribute to her attorneys fees. The court ordered David to contribute $125,000 toward Donna's attorney fees incurred during the maintenance modification proceeding. That amount was to be paid within 45 days of the entry of the trial court's judgment. The trial court also made several other findings which it included in the order of January 23, 2012. David filed a motion to reconsider the trial court's modification order of January 23, 2012.

¶ 20 In his motion to reconsider, David sought: (1) a vacture of the award of attorneys fees to Donna; (2) a further reduction in his maintenance payments to Donna; (3) correction of certain claimed factual errors by the trial court; (4) modification of the court's order for production of income documents to make the obligation bilateral, rather than only binding on David; and (5) modification of the court's order so as to make income documents produced by the parties confidential.

¶ 21 On December 17, 2012, the trial court issued its final memorandum opinion and order in response to David's motion to reconsider the court's memorandum opinion and order entered on January 23, 2012. The court opined that it had reviewed the written submissions of the parties and had conducted limited oral argument on the motion to reconsider in August of 2012. The trial court then essentially reiterated its original order. The court also made an effort to explain its analysis with respect to its rulings on maintenance and attorneys fees. Of significance to this appeal, is the trial court's statements that the award of attorneys fees to Donna is based on the court's analysis of In re Marriage of Schneider, 214 Ill.2d 152 (2005). The trial court also stated that it based its award of modified maintenance to Donna on its analysis of the extensive financial data regarding David's changed financial circumstances as presented during the protracted modification proceedings. That data established that David's income had decreased by 26% according to Donna's expert. The court stated that it intended to award Donna approximately “25%” of David's cash flow as modified maintenance. The court also stated that it had considered all of the required statutory factors outlined in the Act in reaching its conclusion. The court then reiterated that the maintenance award would remain at $27,500 per month as earlier ordered in its January 23, 2012 order. The court made several other rulings pertaining to matters such as exchange of financial documents. None of those rulings are at issue in this appeal.

¶ 22 On January 23, 2013, David filed a timely notice of appeal. Thereafter, on March 21, 2013, Donna filed a motion in the trial court seeking contribution from David for prospective attorneys fees related to the appeal. The trial court granted Donna's motion. The trial court noted that the parties' economic circumstances had remained the same since its December 2012 order. It noted that David's assets “predominated” over Donna's assets, and that she had a yearly income of approximately $330,000 per year from maintenance while David's income was slightly less than $1 million per year. The court also found that Donna's investment account contained $94,000, by the time of her petition for fees and David's investment account contained $1 million. Although David had an $850,000 loan to pay ongoing expenses, the trial court appeared to discount that liability, noting that the loan would be “made up” when David's law firm paid its distributions. The court determined that while Donna “has some ability to contribute to her own attorneys' fees,” her economic situation would be compromised if she had to pay all of her appellate fees herself. On August 21, 2013, the court ordered David to contribute $35,000 toward Donna's prospective appellate attorneys fees within 30 days of the court's order entered August 21, 2013. Subsequently, on September 20, 2013, David filed a timely notice of appeal from the trial court's August 21, 2013 order directing him to pay Donna's attorneys fees of $35,000. As noted, this court consolidated both appeals and has proper jurisdiction to resolve the issues.

¶ 23 ANALYSIS

¶ 24 On appeal David contends that: (1) Donna's permanent maintenance should have been terminated or reduced further based on Donna's failure to make any effort to become self supporting and the trial court's erred in failing to take that into account; (2) the trial court made a calculation error in its maintenance award; and (3) the trial court erred in ordering David to contribute to Donna's attorneys fees, when she has not shown an inability to pay her own fees.

¶ 25 First, David contends that the trial court erroneously refused to consider whether Donna has made reasonable efforts to become financially self-sufficient since the dissolution judgment in 2006. He argues that an ex-spouse's attempts at self-sufficiency are a statutory factor which trial courts must consider in determining whether to terminate or modify an order of maintenance. See 750 ILCS 5/510 (a–5)(2) (West 2012). David points out that the trial court in this case, refused to address the issue of Donna's efforts to become self sufficient, and that the court erroneously found that 2006 dissolution judgment was res judicata as to Donna's ability to become self sufficient. He points out that the trial court must consider all of the factors set out in section 510(a–5(2) of the Act, regarding the reasonableness of Donna's efforts to become self sufficient since the divorce. David asserts that this court should conduct a de novo review of this issue since it involves a statutory interpretation.

¶ 26 Donna argues that David's reliance on section 510(a–5)(2) of the Act, is misplaced. Her argument infers that the language of the statute is not applicable to this case because her maintenance award was permanent. Further, she asserts that the statutory language limits consideration of the reasonableness of a maintenance recipient's efforts at self sufficiency to circumstances “where they are appropriate.” Donna further points out that the trial court in the modification proceeding must consider the prior court's order regarding any impairment which prevents her from earning a significant enough salary to maintain the lavish lifestyle which she enjoyed during the marriage. Donna argues that because her award of maintenance was “permanent,” she has no affirmative duty to become self supporting. Donna further argues that this court must review this issue under the abuse of discretion standard.

¶ 27 We agree with Donna, that, generally, a court's determination regarding modification of a maintenance award is reviewed according to the abuse of discretion standard. In re Marriage of Dunseth, 260 Ill.App.3d 816, (4th Dist.1994). A court may modify a maintenance award upon a showing of a substantial change in circumstance. Section 510(2–5) of the Act lists factors for the trial court to consider in reviewing maintenance awards, one of which is the effort of the party receiving maintenance to become self supporting. 750 ILCS 5/510(a–5(2) (West 20132). David focuses strongly on this factor, pointing to the fact that Donna “did not have a current resume, had not posted her qualifications on any web site, had not met with any career counselors or head hunters, had not attended any career or job fairs, and had not maintained her standing as an Illinois attorney or researched what it would take to resume her law license.” However, David's argument overlooks the fact that “[n]o single factor is determinative when considering the duration and amount of a maintenance award.” Heroy, 385 Ill.App.3d at 651.

¶ 28 Although David argues that the statutory language of section 510(a05)(2) of the Act makes it clear that the trial court was required to consider Donna's efforts at becoming financially self sufficient, the Act does not require the trial court to elevate that factor above all others. David details Donna's efforts or lack thereof, at financial self sufficiency, describing them as woefully inadequate and minimal at best. He argues that after the entry of the 2006 judgment, Donna did not make any effort at becoming self sufficient, let alone anything that could remotely be characterized as a reasonable effort. David relies on In re Marriage of Koenigsknecht, 302 Ill.App.3d 474 (1998), in support of his argument that at a minimum, this court should remand the matter to the trial court for a further reduction in the monthly maintenance award since Donna failed to make any effort to achieve some level of self sufficiency. David also argues that In re Marriage of Cantrell, 314 Ill.App.3d 623 (2nd Dist.2000), also supports his argument that Donna's maintenance payments should be terminated or reduced further. In Cantrell, as in this case, the parties enjoyed a high standard of living before the divorce. Like the wife in Cantrell, Donna is educated, has no health issues, her children are emancipated and yet Donna has made little to no effort at becoming financially self sufficient.

¶ 29 Nevertheless, the trial court noted that after David filed his petition for modification, Donna did make some effort to seek earnings. Donna's testimony as well as her brief on appeal confirms that Donna continued to try to make Alert Publications profitable. Further, Donna visited the website of C. Berger & Associates, a temporary librarian placement agency. In order to complete an application on the website there were questions regarding the applicant's skills in areas of competency related to library science. After determining that she did not have the required skills, Donna did not submit an application. In the fall of 2010, Donna enrolled in a class offered by H & R Block where she gained certification to prepare income taxes. She then procured temporary, seasonal, employment, which paid $9 per hour. Donna also submitted an application for a law librarian position, but was not interviewed for the job.

¶ 30 Donna points to those efforts in support of her argument that although she was not required to do so after having received an award of permanent maintenance in 2006, she made reasonable efforts at becoming financially self sufficient. Therefore, she argues that based on her efforts as described, any alleged statutory duty which required her to make efforts to become financially self sufficient has been met.

¶ 31 A reviewing court must not reweigh the statutory factors and substitute its judgment for that of the trial court, absent an abuse of discretion. In re Marriage of Virdi, 2014 IL App. (3d) 130561, ¶ 26. In this case, following the hearing on David's modification petition, the trial court found that David had met his burden of proving a substantial change in circumstances and was entitled to a modification reduction of his maintenance payments to Donna on that basis. The trial court also found that Donna's efforts to achieve financial self sufficiency since the entry of the divorce judgment were reasonable. Therefore, the trial court rejected David's argument that it should have terminated or reduced Donna's maintenance even more based on Donna's failure as David sees it, to meet her statutory obligation to seek financial self sufficiency. Although David characterizes Donna's efforts as non-existent and the record suggests that they were minimal, we cannot say that the trial court abused its discretion by not terminating or significantly reducing Donna's maintenance payments on that basis as David argues is appropriate. While David urges this court to consider Donna's efforts woefully inadequate to fulfill her statutory obligation to become financially self sufficient, we do not agree that the trial court was required to accept that as the basis for terminating or modifying Donna's maintenance award.

¶ 32 David devotes a significant portion of his argument in the trial court and in this court on appeal, challenging the finding that Donna is incapable of financial self sufficiency. We will not recount the arguments in detail, but they may be summarized as opining that Donna is highly educated, both as a lawyer and as a librarian, had previously enjoyed a highly successful career as a law librarian, and had no health problems or childcare responsibilities, which would hinder seeking employment. Yet, according to David's argument, Donna continues to spend lavishly, has refused to make any effort to achieve financial self sufficiency, while he is required to continue paying her large sums of money in the form of permanent maintenance.

¶ 33 Donna argues that the question of whether she is capable of achieving financial self sufficiency in light of the lifestyle which she enjoyed during the marriage was determined by the trial court in the 2006 dissolution judgment. Accordingly, Donna points out the issue of her ability to achieve financial self sufficiency in the context of her marital life style, res judicata. The trial court agreed that the question of whether Donna was in a position to earn a sufficient income to support herself in the marital style, was indeed res judicata.

¶ 34 “Res judicata bars the relitigation of an issue between the same parties after a final judgment on the merits has been rendered by a court of competent jurisdiction.” In re Marriage of Lehr, 317 Ill.App.3d 853, 860 (2000). A maintenance award is res judicata as to facts established and ruled upon by the trial court at the time the order was entered. Id.

¶ 35 In its 2006 order, the trial court in this case awarded Donna permanent maintenance pursuant to its authority under section 504(a) of the Act. The Act authorizes the trial court to order both permanent and rehabilitative maintenance. In re Marriage of Brackett, 309 Ill.App.3d 329, 340 (1999). “Rehabilitative maintenance may be granted if the receiving spouse has the present or future ability to become self sufficient or the ability to acquire skills that would allow employability at an appropriate income level, but to do so would require some time.” Id. On the other hand, permanent maintenance “is appropriate when the former spouse is unemployable or employable only at a low income in light of the standard of living established during marriage.” Id.

¶ 36 David appealed the 2006 order awarding Donna permanent maintenance, arguing that the trial court failed to give proper consideration to Donna's ability to generate income. In reviewing David's appeal from the 2006 judgment this court disagreed with him, finding that “in reviewing the propriety of the permanent nature of the award, the [trial] court carefully considered Donna's employment opportunities and ability to earn income.” This court affirmed the trial court's award of $35,000 per month in permanent maintenance to Donna. In re Marriage of Heroy, 285 Ill.App.3d 640, 658 (2008). Therefore, since the trial court in its 2006 order addressed Donna's self-sufficiency, and her ability to support herself in the lifestyle she enjoyed during her marriage, those issues are res judicata as of the time of entry of the 2006 judgment. Lehr, 317 Ill.App.3d at 860.

¶ 37 However, the Act also sets out factors which the trial court must consider in addressing a petition for modification of a maintenance award. Facts and issues which have arisen since the entry of the 2006 judgment are not res judicata. This presents a fine line which the trial court must walk because facts and circumstances arising since the judgment may be considered by the trial court in addressing a modification petition such as that brought by David. It is this narrow interpretation of the statutory requirement upon which David bases his argument.

¶ 38 The record from the 2006 dissolution proceedings is replete with references to the lavish lifestyle enjoyed by the parties during the marriage. The testimony during the proceedings on David's modification petition suggests that even post divorce the parties individually continued to enjoy a high standard of living. However, notwithstanding the many references to the luxurious lifestyle which the parties enjoyed as a couple, while they were married David suggests that it is not beyond reason or possibility that after divorce circumstances change and there may not be enough money to maintain that same lavish level of living in two separate households. Consequently, under those circumstances, the spouse receiving maintenance has an obligation to make reasonable efforts to become self sufficient. David argues that such is the situation in this case.

¶ 39 The trial court, after an extensive hearing, found that David had met his burden of proving a significant change in his circumstances as required by the statute, thereby allowing the court to order the modification on that basis. See In re Marriage of Virdi, 2014 IL App (3rd) 130561. We find that the trial court's action was consistent with the evidence and it was not required to make its ruling as David suggests, based on Donna's efforts at financial self sufficiency. Accordingly, David's argument fails. The trial court did not err in refusing to terminate or further reduce Donna's maintenance based on David's preferred theory.

¶ 40 David next argues that the trial court made a calculation error in determining the amount of modified maintenance which it awarded to Donna following the modification hearing and the motion to reconsider. He points to the trial court's statement during its explanation upon fuling on the motion to reconsider that it wanted to award an amount “of about 25% of David's cash flow.” David also points to the conclusion section of the trial court's memorandum and order dated December 17, 2012, in which the court stated that it was the court's intention to make an award of “about 25% of David's cash flow.”

¶ 41 David also takes issue with the fact that much of Donna's substantive response to his argument that the trial court made a calculation error is contained in a footnote in her brief on appeal, in violation of Supreme Court Rules. David again reiterates that even using the figures provided by Donna's expert which the trial court accepted, 25% of his cash flow equals $25,745 per month, not $27,500. David further argues that in light of the retroactivity of the maintenance award to December 2010, the difference between the accurate award amount and the erroneous amount is significant. David explains by way of example that even if one accepted Donna's argument that the trial court was utilizing a range of years, the amount still does not equal $27,500. In his example, David calculates that 25% of the two year average of his cash flow, using Donna's expert's figures, equals $25,811, not the $27,500 ordered by the trial court.

¶ 42 Donna claims that David's assertion of a calculation error is based on a misreading of the trial court's decision. Donna does not explain how the court decided upon the $27,500 figure after opining that the maintenance award would be based upon “about 25%” of David's cash flow. Instead, Donna suggests that the 25% figure was simply illustrative of the court's reasoning. She further points out that the amount of $27,500 is reasonable based on the figures submitted by David in support of his motion to reconsider. Donna concludes by saying that the trial court was “thoroughly reasonable” in rejecting David's argument, thereby leaving intact the monthly maintenance award of $27,500 per month. Donna points out that the trial court could have determined that awarding one-third of David's income was appropriate although it did not do so. She acknowledges however, that an award of $27,500 per month constitutes 28.5% of David's income for the period in question, not 25% as the trial court voiced in its explanation of how it arrived at the $27,500 figure.

¶ 43 We note that maintenance by its very nature is reviewable by the trial court regardless of how it is characterized. See 750 ILCS 5/510(a–5); see also In re Marriage of Dunseth, 260 Ill.App.3d 816 (4th Dist 1994). Thus, the entry of an award of permanent maintenance does not preclude a petitioner from seeking modification of the maintenance which he is ordered to pay, if he can meet certain criteria, specifically, as in this case, a substantial change in circumstances. Therefore, the trial court has the authority to modify an order of maintenance upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a–5) (West 2012). The party seeking modification bears the burden of proving that a substantial change in circumstances has occurred. In re Marriage of Logston, 103 Ill.2d 266, 287 (1984). A reviewing court will not disturb the trial court's decision to modify maintenance absent an abuse of discretion. Blum v. Koster, 235 Ill.2d 21, 36 (2009). An abuse of discretion occurs when the trial court's determination is arbitrary or fanciful, or where no reasonable person would take the trial court's view. Id. at 36. Although David has established a significant change in circumstances to warrant modification as we will discuss, we cannot say that maintenance should have been terminated entirely and that the trial court abused its discretion in failing to do so.

¶ 44 We will not disturb the trial court's factual findings in determining a maintenance award unless they are against the manifest weight of the evidence. In re Marriage of Nord, 402 Ill.App.3d 288, 294 (2010). In the instant case, there is no reasonable basis to find that the trial court abused its discretion in continuing Donna's maintenance award. Thus, it is not the award of maintenance itself that we are scrutinizing, but rather the amount of the award, based upon the trial court's own statement regarding the percentage of David's cash flow upon which the court based the award. Donna's expert calculated David's cash flow to be $1,235,773 after taxes. David contends that 25% of $1,235,773 would result in a monthly maintenance amount of $25,745. Donna does not dispute this fact. The trial court, however, awarded Donna $27,500 per month. David argues credibly that the trial court explained that it used the 25% figure based on the opinion offered by Donna's expert that David's cash flow, after taxes was $1,235,773. Twenty-five percent of $1,235,773, would result in a maintenance payment of $25,745 per month, not $27,500 per month. Donna acknowledges in her brief on appeal that the amount awarded by the trial court is actually 28.5% of David's law firm income over the period in question.

¶ 45 Upon the hearing on David's motion for reconsideration, the trial court refused to reduce the maintenance award notwithstanding the court's statement that it had intended to make an award of about “25% of David's cash flow.” A careful review of the record on appeal, yields no other percentage amount voiced by the trial court at the time that the court ruled that the reduced amount would be about 25% of David's cash flow. However, the record provides considerable support for the trial court's conclusion that 25% of David's cash flow was an appropriate modification given his substantial change in circumstances. Yet, there is no reasonable explanation in the record regarding how the trial court reached the $27,500 figure in the context of 25% of David's cash flow. Thus, we agree with David's argument that a reasonable conclusion is that the trial court made a calculation error. The difference in the actual dollar amount of the award ($27,500) and the intended amount of the award is significant. This is especially so given the permanent nature of the award and the fact that the award is retroactive to December 2010. Thus, we cannot agree as Donna argues that the trial court's comments that it intended to award about “25%” of David's cash flow was of no moment since the award is actually only “28.5%” of David's law firm income for the period in question. A difference of 3.5% is significant for the reasons already discussed. Donna's argument taken to its logical extreme would suggest that it would have been satisfactory to her for the trial court to award an amount that is 3.5% less than 25% or 21.5% of David's cash flow, suggesting that 3.5% on either side of 25% is acceptable. We do not agree. Based on the history of this case and the arguments advanced by Donna, we believe that she would find such a result untenable. Similarly, we believe that the result actually reached by the trial court in which David is ordered to pay $27,5000 monthly maintenance is equally untenable in that it is 3.5% more than the only percentage identified by the court as the underpinning of the modified maintenance amount.

¶ 46 Donna does not dispute in her brief on appeal, David's contention that 25% of his cash flow would equal $25,745 per month. Rather, she argues that the trial court could have found that a third of David's law firm income was appropriate and that the court did a “thorough” analysis. However, the record is clear that the court specifically cited 25% as the basis for the maintenance award. No other percentage was mentioned by the trial court in arriving at the dollar amount. In our view, and for the reasons already discussed the difference between $27,500 per month and $25,745 constitutes a significant sum over time. Accordingly, we find that the trial court made a calculation error in awarding Donna $27,500 in monthly maintenance after opining that it was basing the award on 25% of David's cash flow. We also find that the record supports the trial court's award of 25% of David's cash flow based on the figures provided by Donna's expert. Thus the proper remedy is to vacate the $27,500 monthly maintenance award and remand this case to the trial court to enter an award of monthly maintenance equal to 25% of David's cash flow or $25,745, consistent with the opinion of Donna's expert's figures, which the trial court has accepted previously.

¶ 47 David next argues that the trial court committed reversible error in ordering him to contribute $125,000 to Donna's attorneys fees for the modification proceeding as well as ordering him to pay prospective attorneys fees of $35 to Donna to defend this appeal. A trial court's decision to award attorneys fees in a modification proceeding will not be reversed absent an abuse of discretion. In re Marriage of Kennedy, 214 Ill.App.3d 849, 862 (1991); In re Marriage of Hasabnis, 322 Ill.App.3d 582, 598–99 (2001).

¶ 48 David contends on appeal that in awarding Donna attorneys fees, the trial court failed to take into account Donna's net worth of approximately $2.5 million, “including $307,727 of cash, cash equivalents, and investments,” and that she has paid all but $80,987 of her outstanding attorneys' and expert's fees, and that she “had converted $504,000 of liquid assets into an illiquid asset by voluntarily and unnecessarily prepaying her mortgage and loaning * * * an additional $157,199 to Alert.” David further argues that notwithstanding the trial court's statement that it based its ruling on In re Marriage of Schneider, the trial court used the inappropriate “comparable ability to pay” standard rather than the inability to pay standard expressed in Schneider and recognized as the appropriate standard by Illinois law. David also contends that Donna “manipulate[d] cash liquidity” in order to obtain a fee contribution award, by making it appear that her assets were diminished or less than they actually are. He specifically points to the $157,199, which she loaned to Alert Publications, as well as, the voluntary prepayment of more than $504,000 on her mortgage.

¶ 49 David also argues that Donna has the ability to pay her fees because she has paid all but $80,987 as of her March 2013 petition. David first raised this issue in his initial brief, but did not elaborate or cite to supporting cases in violation of Illinois Supreme Court Rule 341(h)(7) (eff.Feb.6, 2013). In his reply brief, David briefly addressed the issue citing to In re Marriage of Mantei, 222 Ill.App.3d 933 (1991).

¶ 50 Donna argues that the award of fees was appropriate as her assets are dwindling. She points to the reduced maintenance which she receives in the amount of $27,500 per month instead of $35,000 per month. Donna claims that in order to pay her attorneys fees she would have to liquidate her retirement funds and obtain a second mortgage on her home. She argues that she is not required to show that she is destitute in order for the trial court to order David to contribute to her attorneys fees. She characterizes the payment ordered by the trial court as egregiously low and claims that she should not be responsible for her own attorneys fees since the fees were brought about “through no fault of her own.” Donna argues the inferiority of her financial position when compared to David's. Donna essentially disagrees with all of David's arguments and denies that the trial court employed a comparable ability to pay standard in violation of Schneider and established Illinois case law. She points to the trial court's pronouncement that it was basing its award of fees specifically on Schneider. In summary, Donna's argument suggests that the trial court acted within its discretion in light of the financial evidence in record, reliance on Schneider and the many factors which the court considered in accordance with established Illinois law.

¶ 51 Section 508 of the Act permits the trial court to award attorneys fees where one party lacks the financial resources and the other party has the ability to pay. 705 ILCS 5/508 (West 2008). The party seeking payment of attorneys fees by an ex-spouse must establish her inability to pay and the ex-spouse's ability to do so. In re Marriage of Schneider, 214 Ill.2d 152 (2005), quoting In re Marriage of Puls, 268 Ill.App.3d 882, 889 (1994). In Schneider, our supreme court went on to explain what financial inability really means in the context of seeking an award of attorneys fees. The court made it clear that: “financial inability exists where requiring payment of fees would strip the party seeking the award of her means of support or undermine her financial stability.” Schneider, quoting Puls. In Schneider, our supreme court rejected the wife's argument, noting that the record did not indicate the wife's inability to pay her own fees, nor that requiring her to do so would strip her of her means of support and undermine her financial stability. Illinois law has long established that it is the responsibility of each party to litigation to pay his or her own fees. However, in dissolution proceedings, the Act provides an alternative. That alternative however, has been interpreted by our courts to place the burden upon the party petitioning for fees to meet the standard discussed above. Specifically, the real question in this case, is not whether David has more financial resources than Donna. The question is whether Donna has the ability to pay her own fees without depleting her assets to such an extent as to undermine her financial stability. Notwithstanding Donna's argument to the contrary, we agree with David that the record is devoid of any evidence that payment of her attorneys fees would undermine Donna's financial stability. In this case, a review of the record does not support the award of attorneys fees under the principles outlined in Schneider. David points out that Donna has millions in assets and enjoys a permanent maintenance award of $27,500 per month or $330,000 per year. The trial court found that as of December 31, 2010, the total value of Donna's assets was $1,545,683. Of that amount, $442,949 consisted of the net equity in her residence, $847,569 consisted of the value of her retirement accounts, with the remaining $269,859 as liquid assets. The trial court's statement that “David is in a much superior position to help Donna defray some of the attorneys fees, underscores the court's use of the incorrect “comparable ability to pay” standard. This is inconsistent with our supreme court's ruling in Schneider. The principles enunciated in Schneider have their origin in earlier Illinois cases and our supreme court used Schneider to outline those principles with clarity. It is now well established that merely showing that the other spouse has a greater ability to pay the attorney fees is not sufficient. The petitioning spouse must also establish her own inability to pay her own fees.

¶ 52 Therefore, as stated above, the question is not whether David has more resources and is in a better position to “help Donna defray some of her legal expenses,” but whether Donna can pay her own legal fees. We answer that question in the affirmative, as she clearly is able to pay her own attorneys fees. The record shows that Donna has substantial assets; having received 55% of the considerable marital estate. She currently receives $27,500 in monthly maintenance and has other significant assets as well. Further, the legal fees which remain outstanding can hardly be said to be such that payment would undermine Donna's financial stability. David points out that Donna's assets are in the millions of dollars. The additional legal fees which the trial court has ordered David to pay for Donna's representation total approximately $160,000. Nothing in the record supports the conclusion that payment of an additional $160,000 by Donna to satisfy her own legal fee obligations would undermine her financial stability. Additionally, it is highly likely that the amount of attorneys fees actually owed by Donna is considerably less. However, even without accepting David's argument on that point, Donna has not met her burden of establishing her own inability to pay her attorneys fees. We also note that in the appeal of the dissolution proceeding, which came before this court following the 2006 judgment, we affirmed the trial court's order that each party was responsible for their own attorney fees. Nothing in the record suggests that we should depart from that ruling now especially considering David's showing of a substantial change in his circumstances. We reiterate that the question is not whether David has more resources than Donna, but whether Donna has the ability to pay her own fees without undermining her financial stability. The record shows that she clearly has the ability to pay her own attorneys fees. Therefore, it was error for the trial court to award Donna attorneys fees.

¶ 53 We hold that the trial court did not abuse its discretion in finding that David had met his burden of proof regarding a substantial change in circumstances and therefore modifying his maintenance obligations on that basis, rather than on Donna's lack of effort at attaining financial self sufficiency. We further hold that the record supports a finding of a modified award to Donna in the amount of 25% of David's cash flow for the period in question based on the findings of her expert witness. However, for the reasons discussed above, we hold the trial court committed a calculation error in awarding $27,500 per month as modified maintenance. Accordingly, we vacate that award and remand the matter to the trial court to enter an award consistent with 25% of David's cash flow as identified by Donna's expert, specifically $25,745 per month.

¶ 54 On the issue of payment of Donna's attorneys fees by David, we hold that Donna has failed to meet her burden of establishing her inability to pay her own attorney fees. Accordingly, it was error for the trial court to order David to contribute $160,000 toward Donna's attorneys fees. Therefore, we reverse the trial court's ruling on the issue of Donna's attorneys fees.

¶ 55 Reversed and remanded to the trial court to enter a modified maintenance award consistent with this opinion.

Justice CUNNINGHAM delivered the judgment of the court, with opinion:

Justice CONNORS concurred in the judgment and opinion. Justice HARRIS dissented with the opinion.