text:
    IN RE MARRIAGE OF Cortnie M. HODGES, Petitioner-Appellant, and Todd Hodges, Respondent-Appellee.
    NO. 5-17-0164
    Appellate Court of Illinois, Fifth District.
    Rule 23 order filed March 22, 2018 Motion to publish granted April 24, 2018 Filed April 24, 2018
    Douglas C. Gruenke and J.D. Brandmeyer, of Bruckert, Gruenke & Long, P.C., of New Baden, for appellant.
    Timothy T. Raw, of Barkau & Unverfehrt, P.C., of Nashville, for appellee.
   JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Cortnie M. Hodges, appeals from an order of the circuit court of Clinton County that reduced the child support arrearage of her ex-husband, respondent, Todd Hodges, on the basis of equitable estoppel. The issue on appeal is whether the trial court erred in applying the principles of equitable estoppel to the facts and circumstances of this case. We affirm.

¶ 2 In this appeal, respondent filed a motion to strike petitioner's brief. While we agree that petitioner failed to include some pertinent facts, we deny the motion to strike.

¶ 3 BACKGROUND

¶ 4 The parties married on July 22, 1995. Two children were born during the marriage, a son born on January 16, 1996, and a daughter born on September 5, 1998. Petitioner filed a petition for dissolution on January 26, 2004. A marital settlement agreement was filed with the trial court and was incorporated into the judgment for dissolution entered on September 28, 2004. The parties agreed respondent would pay petitioner $788 per month in child support.

¶ 5 On August 23, 2006, the Illinois Department of Healthcare and Family Services (Department) notified the circuit clerk that it was providing child support enforcement services in conjunction with this case. On August 27, 2006, the Department filed a petition to intervene, which was granted. The Department, through an assistant attorney general, filed a petition for adjudication of indirect civil contempt, alleging that respondent was in arrears in the amount of $9483.60, of which $744.36 was interest as of September 30, 2006.

¶ 6 A hearing on the petition was scheduled for November 15, 2006. Both parties appeared and discussions ensued. The parties disagree as to what transpired; however , the record is clear that the assistant attorney general drafted a uniform order of support, which showed an arrearage of $8400 as of that date. The child support payment is filled in as $330 and payment on the arrearage was set at $50. It stated that both payments were to be made every other week beginning December 1, 2006. The order was never entered. The only order entered on that date was an order stating, "Based on [petitioner] opting out of the IV-D program and at her request, the Rule to Show Cause filed herein on Oct. 27, 2006 is hereby dismissed." Petitioner signed a letter on Department letterhead in which she stated that she no longer wanted the Department "to collect and enforce the payment of child support."

¶ 7 In December 2006, petitioner's private attorney filed a "Memorandum of Lien" against real estate owned by respondent, which stated, "That there is due and owing under the Order the sum of $10,446.00 to petitioner * * *." However, no court ever made a finding of arrearage and no order was entered to that effect. Respondent learned of the lien in 2008, when he was applying for a home equity loan. Respondent increased the amount of his loan by $10,446 to release the lien. On August 7, 2008, petitioner signed a release of lien. The release was recorded on August 11, 2008.

¶ 8 Sometime in 2008, petitioner admits she verbally agreed to accept respondent's payment of $165 per week in child support rather than the $788 per month originally ordered. According to petitioner, she made the concession only so respondent could catch up on his arrearage. In 2010, petitioner hand wrote a letter to respondent and included spreadsheets showing her accounting of respondent's child support payments made directly to her in 2007, 2008, 2009, and 2010. The spreadsheets indicate weekly payments of $165 per week by respondent to petitioner. The spreadsheets further indicate that there were times when respondent fell behind, but he would eventually catch up. Petitioner admitted she generated the accounting sheets.

¶ 9 In August of 2014, petitioner once again contacted the Department for help in collecting child support payments from respondent. Soon thereafter, the Department notified respondent he was approximately $22,000 or $23,000 behind in payments. Respondent denied that he owed that much and set about trying to disprove that he was in arrears by that amount by submitting a list of his payments, including dates, check numbers, and the amount of each check. In early 2015, the Department seized respondent's 2014 tax returns, and on July 7, 2015, the Department notified respondent that there was a lien on his home to enforce $17,583.11 in alleged past due child support and interest. Respondent appealed.

¶ 10 On July 17, 2015, respondent sent a letter and images of child support checks he sent to petitioner to the Department. Respondent later requested a hearing on the alleged balance in the case. The Department scheduled a hearing for November 4, 2015. A Department employee sent an e-mail to the administrative law judge handling the matter in which the employee explained that in response to respondent's appeal of the lien issue, the Department was preparing a petition to determine arrears in order to refer the case back to court. The employee believed it would be prudent to get a judicial determination as to what the balance actually was and asked the administrative law judge continue the appeal.

¶ 11 A petition to determine arrears was never filed. A new administrative hearing date was set for January 12, 2016, at which time respondent and his nonattorney representative appeared. A hearing was conducted, after which the Department informed respondent it was unable to enforce any other order than the original written order, which provided that respondent pay child support in the amount of $788 per month. The administrative law judge noted that respondent presented equitable arguments as to why he should not owe the amount the Department said he owed, but declined to answer those arguments. On February 17, 2016, the administrative law judge delivered his "final" decision upholding a past due balance of $17,896.90 as of September 30, 2015.

¶ 12 On March 23, 2016, respondent filed a petition for review of the Department's intervention for child support and a request for judicial review. On April 21, 2016, the Department filed a motion to dismiss on the basis that the court lacked jurisdiction to review the Department's "final" administrative decision in part because respondent failed to file a complaint and issue a summons within 35 days from the date of the decision. Petitioner also filed a motion to dismiss.

¶ 13 Respondent then filed an amended petition to determine the arrearage under section 511 of the Illinois Marriage and Dissolution of Marriage Act ( 750 ILCS 5/511 (West 2014) ). Respondent's five-count petition alleged inter alia : (1) the child support agreement was modified in 2006, (2) enforcement of the original order was precluded by equitable estoppel and laches , and (3) there can be no child support arrearages prior to the lien release on August 7, 2008. In response, the Department, on behalf of petitioner, asked the circuit court to dismiss the petition. In the motion, the Department claimed respondent's petition was actually a complaint under the Administrative Review Law ( 735 ILCS 5/3-101 et seq. (West 2014) ), and because respondent did not serve a summons, the circuit court was without jurisdiction. Petitioner later filed her own motion to dismiss and a petition to hold respondent in contempt for his willful failure to make child support payments under the court's order. Hearings were held on September 15, 2016, and November 29, 2016, during which several rulings were made from the bench. On December 21, 2016, the circuit court dismissed four of the five counts, leaving only the count dealing with the equitable estoppel and laches .

¶ 14 On January 19, 2017, respondent filed a second amended petition for determination of past due child support in which he requested petitioner be stopped from pursuing collection of past due child support. Petitioner filed a motion to strike. The circuit court dismissed the second amended petition and proceeded on count II of the first amended petition. On April 18, 2017, a hearing was held on count II, during which both parties testified.

¶ 15 Ultimately, the trial court found petitioner's explanations about why she accepted $165 per week confusing and determined that (1) equitable estoppel should apply to payments made from December 1, 2006, to September 30, 2014, in that the amount of support during that time should be $165 per week, or $715 per month; (2) respondent should pay child support in the amount of $788 per month from October 1, 2014, until May 31, 2017; and (3) the arrearage as of March 31, 2017, is $5770.79, which includes the statutory 9% interest on any amount not paid when due. Petitioner now appeals from that order. We note that respondent's child support obligation ended in May 2017, after the parties' youngest child graduated from high school.

¶ 16 ANALYSIS

¶ 17 The issue on appeal is whether the trial court erred in applying the principles of equitable estoppel to the facts and circumstances of this case. Petitioner argues equitable estoppel does not apply here. We disagree.

¶ 18 Equitable estoppel exists where a party, by his or her own statements or conduct, induces a second party to rely, to his or her detriment, on the statements or conduct of the first party. In re Marriage of Smith , 347 Ill. App. 3d 395, 399, 282 Ill.Dec. 430, 806 N.E.2d 727 (2004). The party who asserts estoppel must have relied upon the other party's acts or representations and not have any knowledge or convenient means of knowing the facts, and such reliance must have been reasonable. Id . A finding that equitable estoppel applies must be based upon clear and convincing evidence and will not be reversed unless the trial court abused its discretion. In re Marriage of Duerr , 250 Ill. App. 3d 232, 237, 190 Ill.Dec. 251, 621 N.E.2d 120 (1993).

¶ 19 Petitioner argues vehemently that because respondent failed to file a motion to modify and did not obtain judicial approval to reduce his child support obligation, any out-of-court agreement entered into between the parties cannot be enforceable. We agree with petitioner that the general rule is that courts have the exclusive authority to modify child support and are not bound by the parties' agreements concerning child support. Blisset v. Blisset , 123 Ill. 2d 161, 167, 121 Ill.Dec. 931, 526 N.E.2d 125 (1988). In Blisset , our supreme court held an agreement to waive child support in exchange for a waiver of visitation rights was not enforceable because the parties did not seek court approval of their agreement. See id. at 168, 121 Ill.Dec. 931, 526 N.E.2d 125. In this case, there was no waiver of child support in exchange for a waiver of visitation rights. There is an agreed order that received judicial approval at least from respondent's perspective.

¶ 20 The Department became involved in the parties' case in 2006 when petitioner sought its child support enforcement services. The Department filed a petition to intervene and an assistant attorney general filed a petition for adjudication for indirect civil contempt, alleging respondent was in arrears. A hearing was held at the Clinton County courthouse where the parties discussed the arrearage. Petitioner was also interested in pursuing an increase in child support. Respondent brought along documentation of his current income and, according to respondent, after reviewing the documents, the assistant attorney general handling the matter gave her opinion that respondent's child support obligation should actually be reduced based on his current pay.

¶ 21 The assistant attorney general drafted a uniform order of support, showing an alleged arrearage of $8400 as of November 15, 2006, and a notation stating petitioner was waiving interest. The child support payment line was filled in with the number $330, along with an arrearage payment of $50, and stated that both payments were to be paid every other week beginning on December 1, 2006. The parties disagree with how the meeting ended, but respondent testified the assistant attorney general told him and petitioner they could leave and she would get the order signed by the judge.

¶ 22 Petitioner insists the trial court improperly considered and admitted hearsay evidence of statements made by the assistant attorney general. Petitioner asserts that all of these statements should be stricken, and without the statements of the assistant attorney general, respondent has no statements upon which he can rely to show that his child support obligation decreased, making equitable estoppel inapplicable . In support of her argument, petitioner cites People v. McDaniel , 164 Ill. 2d 173, 207 Ill.Dec. 304, 647 N.E.2d 266 (1995). But even petitioner admits that McDaniel is distinguishable from the instant case because the setting for which the out-of-court statements were made was in the context of a criminal case whereas this case involves child support enforcement. Thus, McDaniel is not controlling here.

¶ 23 The law is clear that any out-of-court statement offered to prove the truth of the matter asserted therein is hearsay and inadmissible. People v. Szudy , 262 Ill. App. 3d 695, 711, 200 Ill.Dec. 462, 635 N.E.2d 801 (1994). Nevertheless, an out-of-court statement offered to prove its effect on the listener's mind or to show why the listener later acted as he or she did is not hearsay and is admissible. Id. Here, the assistant attorney general's statements were not inadmissible hearsay because they were not offered to prove the truth of the matter asserted, but to explain why respondent acted as he did in making payments of $165 per week. The statements were relevant to show what respondent believed occurred at the November 15, 2006, hearing. Accordingly, we find no error in the admission of statements made by the assistant attorney general.

¶ 24 And even though the uniform order of support drafted by the assistant attorney general at the November 15, 2006, hearing was never entered, there is no doubt that both parties relied upon it. For example, petitioner used the negotiations that took place that day to collect an arrearage that was never adjudicated. Petitioner specifically testified she used the $8400 arrearage calculated for the draft uniform support order in filing a lien against respondent's real estate. Petitioner's attorney added interest, plus an additional month of child support to that amount in arriving at the lien amount. Respondent satisfied the lien by obtaining a home equity loan in August of 2008 and paid a lump sum of $10,446.

¶ 25 After the lien was released, petitioner continued to accept $165 per week as provided for in the uniform draft order ($330 biweekly equals $165 per week). Petitioner's spreadsheets, dating back to 2007, are clear and convincing evidence of the fact that the parties reached an agreement whereby respondent would pay $165 per week in child support rather than $788 per month. Respondent submitted cancelled checks showing he wrote 138 checks directly to petitioner for child support between January 2008 and December 2013. One hundred thirty-four of those 138 checks were in an amount of $165 or a multiple thereof.

¶ 26 Petitioner wrote respondent a letter in which she specifically discussed respondent's child support payments during 2008, 2009, and 2010, stating as follows:

"Thank you for giving me checks to help catch up the child support agreement. I updated my report w/ your checks to see where that put you and here is what I have. A few more checks for 08 & 09 are due to catch up. Please let me know how this compares to your list. As you can see in 09 and 10, I am no longer asking for medical support. 09 medical was $300 your cost. I'll ask for it again if it becomes too much for me. I show 8 checks are due for 08 & 09 to catch up. I do not expect it all at once. I don't want you to fall behind again, but please let me know what you are able to do to catch up. Thank you again for making this happen. Call me w/ questions."

This letter in particular shows that both parties were relying on the agreement they reached on November 15, 2006. Petitioner did not attempt to collect any more than the $165 per week until she once again contacted the Department in August 2014 to intervene on her behalf.

¶ 27 In reliance on petitioner's acquiescence and acceptance of $165 per week, respondent took no further action to obtain a modification of his child support obligation, believing the modification had already been approved by the court on November 15, 2006. By accepting respondent's payment of $165 per week, petitioner induced respondent to rely, to his detriment, on the assumption that he was satisfying his child support obligation. It is not practical to say that a person is not damaged when after relying on an agreement with his former spouse he uses money that would otherwise be applied to court-ordered support to pay for other obligations only to learn years later that his reliance on the agreement was misplaced. See Blisset , 123 Ill. 2d at 175, 121 Ill.Dec. 931, 526 N.E.2d 125 (Ryan, J., concurring in part and dissenting in part). This is especially true here where respondent was forced to increase his home equity loan by almost $10,500 in order to satisfy the lien placed on his home by petitioner's private attorney in 2006.

¶ 28 That it was necessary for respondent to increase his home equity loan by that amount indicates the difficulty respondent would have in raising an additional lump sum payment. And even though the difference between the original $788 per month and the agreed upon payment of $165 per week ($715 per month) is not huge, a 9% interest payment would amount to over an additional $5000 due and owing. Thus, we find that respondent has sufficiently shown that he reasonably relied to his detriment on the parties' November 15, 2006, agreement.

¶ 29 Petitioner also argues that the trial court did not make specific findings of each element necessary to apply the principle of equitable estoppel. However, it is not necessary for a trial court to make specific findings of fact, and its failure to do so is not grounds for reversal. Nemeth v. Banhalmi , 125 Ill. App. 3d 938, 959, 81 Ill.Dec. 175, 466 N.E.2d 977 (1984). The issue is not whether the circuit court made a specific finding, but whether its final determination is supported by the evidence in the record. Id. All the elements of estoppel are met here.

¶ 30 CONCLUSION

¶ 31 Petitioner induced respondent to rely to his detriment on an agreement to reduce child support to $165 per week. Respondent's reliance on the agreement was reasonable. There was no reason for respondent to question the agreement since it was reached at the courthouse on November 15, 2006, and all legal action against him ceased after that date. Respondent even paid a lien against his home in full based upon the November 15, 2006, agreement. Under these circumstances, we cannot say the trial court erred in finding petitioner equitably estopped from collecting delinquent support payments from respondent from the date of her verbal agreement with respondent until she initiated these enforcement proceedings in 2014.

¶ 32 For the foregoing reasons, we affirm the order of the circuit court of Clinton County in its entirety.

¶ 33 Affirmed.

Justices Welch and Moore concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    MEDICOS PAIN & SURGICAL SPECIALISTS, S.C., and Ambulatory Surgical Care Facilty, LLC, Plaintiffs-Appellees, v. TRAVELERS INDEMNITY COMPANY OF AMERICA, and Blackhawk Steel Corp., Defendants-Appellants.
    No. 1-16-2591
    Appellate Court of Illinois, First District, Fourth Division.
    April 26, 2018
    Peter H. Carlson, Richard B. Polony, and Robert J. Finley, of Hinshaw & Culbertson LLP, of Chicago, and William P. Hardy, of Hinshaw & Culbertson LLP, of Springfield, for appellants.
    Eugene E. Murphy Jr., John N. Hourihane Jr., and David F. Hyde, of Murphy & Hourihane, L.L.C., of Chicago, for appellees.
   JUSTICE McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Medicos Pain & Surgical Specialists, S.C. (Medicos), and Ambulatory Surgical Care Facility, LLC (Ambulatory), provided surgical care to a machine operator who was injured at work, Javier Mendoza, but had to wait several years for payment from Mendoza's employer, Blackhawk Steel Corporation (Blackhawk), and Blackhawk's workers' compensation insurer, Travelers Indemnity Company of America (Travelers). Medicos and Ambulatory filed suit in the circuit court and were awarded statutory interest pursuant to section 8.2(d) of the Workers' Compensation Act (Act). 820 ILCS 305/8.2(d) (West 2010). Section 8.2(d) states that late payments to a medical service provider "shall incur interest at a rate of 1% per month payable to the provider." 820 ILCS 305/8.2(d) (West 2010). In this appeal, Blackhawk and Travelers contend the interest award of $37,229 entered against them in 2016 is flawed for multiple reasons, including that while this appeal was pending, this court determined in 2017 that Medicos, Ambulatory , and other medical service providers who sued for statutory interest in Marque Medicos do not have a private right of action for the failure of an employer or insurer to comply with the interest provision of the Act. Marque Medicos Fullerton, LLC v. Zurich American Insurance Co. , 2017 IL App (1st) 160756, 416 Ill.Dec. 190, 83 N.E.3d 1027, pet. for leave to appeal denied , No. 122568, 419 Ill.Dec. 626, 93 N.E.3d 1043 (Ill. Nov. 22, 2017). Medicos and Ambulatory respond that in this instance, however, they successfully proved the elements of their promissory estoppel claim seeking statutory interest. Although they make no attempt to distinguish Marque Medicos , the appellees also contend there are no grounds for reversing the trial court's decision. Marque Medicos , 2017 IL App (1st) 160756, 416 Ill.Dec. 190, 83 N.E.3d 1027.

¶ 2 The pertinent facts and legal principles are as follows. Mendoza severely injured both of his shoulders and lacerated his nose while at work in mid-2010, when he fell off a truck from a height of approximately four feet and landed on his left side. Mendoza was treated in a hospital emergency room and put on work restrictions until cleared by a physician. Rest, physical therapy, and other conservative treatment did not improve Mendoza's mobility or decrease his pain. He underwent further diagnostic testing, which revealed the severity of his injuries, and came under the care of orthopedic surgeon Dr. Ellis Nam, who recommended immediate surgery on both shoulders. Medicos faxed a one-page surgery approval request form to Travelers and received its faxed response before Dr. Nam repaired Mendoza's left rotator cuff in late 2010. Ambulatory exchanged similar faxes with Travelers before Dr. Nam repaired Mendoza's right rotator cuff in early 2011. Medicos and Ambulatory share corporate offices and are owned by the same physician. The two one-page forms identified the procedures to be performed and contained a line for marking "Approved" or "Denied." Although Travelers ticked the approval line, the forms do not indicate the amounts that would be charged for the listed medical services.

¶ 3 About two years after Mendoza's accident, Medicos and Ambulatory attached the approval faxes and other exhibits to a complaint alleging they issued bills to Travelers and Blackhawk for $166,944, but received only $1714. The medical care providers claimed the insurer and employer were liable for the remaining balance under the equitable theory of promissory estoppel, as well as statutory interest under section 8.2(d) of the Act. 820 ILCS 305/8.2(d) (West 2010). Under the legal theory of promissory estoppel, " 'a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promisee to rely on the promise and if the promisee did actually rely on the promise to his or her detriment.' " Newton Tractor Sales, Inc. v. Kubota Tractor Corp. , 233 Ill. 2d 46, 51, 329 Ill.Dec. 322, 906 N.E.2d 520, 523 (2009) (quoting Black's Law Dictionary 591 (8th ed. 2004) ); Centro Medico Panamericano, Ltd. v. Laborers' Welfare Fund of the Health & Welfare Department of the Construction & General Laborers' District Council , 2015 IL App (1st) 141690, ¶ 12, 392 Ill.Dec. 890, 33 N.E.3d 691 (setting out the elements the plaintiff must prove). The defendant's promise must be unambiguous. Newton Tractor Sales , 233 Ill. 2d at 51, 329 Ill.Dec. 322, 906 N.E.2d 520 ; Centro Medico , 2015 IL App (1st) 141690, ¶ 12, 392 Ill.Dec. 890, 33 N.E.3d 691. According to Medicos and Ambulatory, the two approval faxes amounted to an unambiguous promise to pay Mendoza's surgical bills (even though the faxes did not specify an amount or percentage of any charges or refer to the Act's schedule of allowable medical fees). Although Medicos and Ambulatory sought the balance of the medical bills, the complaint suggests the purpose of their lawsuit was to collect statutory interest, not the underlying bills. Medicos and Ambulatory titled the first paragraph of their pleading "Nature of the Case," and stated: "1. This suit seeks to recover statutory interest that has accrued and is immediately due and payable as a result of medical services provided by Plaintiffs. In addition, Defendants have damaged Plaintiffs by approving certain surgical procedures in advance, to induce Plaintiffs to allow those procedures to be performed in their facility[,] and thereafter failing to pay for those procedures." Another indication that the lawsuit was about the statutory interest, not the underlying bills, is that it is well established by statute and precedent that compensation owed for an employee's accidental injuries, including "all the necessary first aid, medical and surgical services, and all necessary medical, surgical, and hospital services thereafter incurred" ( 820 ILCS 305/8(a) (West 2014) ), is an issue over which the Illinois Workers' Compensation Commission (Commission) has exclusive jurisdiction and that the role of the circuit court in compensation proceedings is limited to review only of the Commission's determinations. Marque Medicos , 2017 IL App (1st) 160756, ¶ 18, 416 Ill.Dec. 190, 83 N.E.3d 1027.

¶ 4 Amendments to the Act in 2005 limited the amount that providers could charge for covered medical services but added the interest provision of section 8.2(d) of the Act. Marque Medicos , 2017 IL App (1st) 160756, ¶¶ 19-20, 416 Ill.Dec. 190, 83 N.E.3d 1027 (discussing the history of section 8.2(d) ). The 2005 version of section 8.2(d) indicated, in relevant part, "In the case of nonpayment to a provider within 60 days of receipt of the bill which contained substantially all the required data elements necessary to adjudicate the bill or nonpayment * * * [in accordance with] the fee schedule established in this Section, the bill, or portion of the bill, shall incur interest at a rate of 1% per month payable to the provider." Marque Medicos , 2017 IL App (1st) 160756, ¶ 20, 416 Ill.Dec. 190, 83 N.E.3d 1027 (quoting Pub. Act 94-0277, § 10 (eff. July 20, 2005) ). Further amendments to the Act in 2011 reduced the maximum medical fees by 30% but shortened the 60-day grace period to 30 days and, for the first time, mandated " '[a]ny required interest payments shall be made within 30 days after payment.' " Marque Medicos , 2017 IL App (1st) 160756, 416 Ill.Dec. 190, 83 N.E.3d 1027 (quoting Pub. Act 97-0018, § 15 (eff. June 28, 2011) ).

¶ 5 Consistent with the Act, Medicos and Ambulatory's action in the circuit court was stayed pending arbitration of Mendoza's claim before the Commission. There was no dispute as to the necessity of Mendoza's two surgeries. The arbitration proceedings focused on the types of medical service charges and the amounts, whether penalties and attorney fees should be imposed, and whether Mendoza, who was 44 when the accident occurred, had been permanently injured. Mendoza did not seek interest on any of the medical service charges.

¶ 6 In February 2013, the arbitrator issued a ruling based on the testimony, the documentary evidence, and the medical fee schedule contained in the Act. Travelers had made interim payments for Mendoza's two surgeries and reduced the bills by roughly half. The arbitrator determined the remaining charges were "reasonable and necessary" and awarded Medico an additional $29,708 and Ambulatory an additional $38,554. The arbitrator rejected Mendoza's contention that, because the surgeries were preauthorized, all the bills should have been paid and that he was entitled to penalties pursuant to sections 19(k) and 19(l ) of the Act and attorney fees pursuant to section 16 of the Act ( 820 ILCS 305/16, 19(k), 19(l ) (West 2012). The arbitrator found that although the need for the surgeries had not been in contention, "there was clearly a disagreement as to whether all the charges stemming from those surgeries were reasonable and whether the outstanding fee schedule charges were accurately calculated [or had been double billed in error]." The arbitrator also found that Mendoza was entitled to permanent partial disability benefits. When Mendoza received the award payment, he remitted it to Medicos and Ambulatory.

¶ 7 The parties to the circuit court case (the employer, the insurer, and the two surgical care providers) returned to court and prepared for a bench trial limited to the issue of interest. Medicos and Ambulatory sought section 8.2(d) interest totaling $17,927 for the first surgery, section 8.2(d) interest totaling $19,303 for the second surgery, and $2208 in 5% prejudgment interest. 820 ILCS 305/8.2(d) (West 2010). During opening arguments, counsel for Medicos and Ambulatory made clear that his clients were asserting a statutory claim only:

"What remains here is purely a claim for interest under Section [8.2(d)(3) ] of the Illinois Workers' Compensation Act. There are very few factual matters that go into an analysis of what my clients [are] owed under that statute, and that's all that's at issue in this trial, Judge.
* * *
Judge, as a brief opening, a couple of remarks. [This is a] case about payment of interest on late paid medical bills. There's a provision of the Illinois Workers' Compensation Act that we've already mentioned, Section 8.2(d)(3)[,] that sets forth the circumstances under which a provider of medical services is entitled to the payment of interest at 1 percent per month on late paid medical bills.
Under Section 8.2(d)(3), the facts that are relevant are: Was there a medical bill, was that medical bill sent and received by the employer and the payor of the bill.
Was that bill accompanied by all of the necessary data elements for adjudication of the bill. Was that bill paid, in this case, within 60 days of receipt, and if not, was interest paid within 30 days after payment of the bill.
What you'll hear in this trial, Judge, is a series of dates. You'll hear about the date of services provided for two surgeries were performed in September 2010 and February 2011.
Shortly after those surgical procedures were performed at my client's facilities, facility bills were sent to Travelers, one of the defendants in this case. There's really no dispute about the fact that the bills were sent, that they were received. You will hear about the dates when those things happen because the dates are what really matter under the statute. When was something received, if it wasn't paid within 60 days after receipt, interest begins to accrue at 1 percent per month."

¶ 8 The only witnesses at the one-day bench trial were the sole owner of Medicos and Ambulatory (Dr. Derrick Wallery) and a Travelers claims case manager who was called as an adverse witness (Deborah Nerad). Their testimony established the billing dates, that the bills were presented in detail in an industry-standard format known as UB-04 and were accompanied by detailed medical records, and that the bills were not paid until required by the Commission. At no point in the trial did Medicos or Ambulatory attempt to introduce the approval faxes or argue that they were relevant.

¶ 9 After the witnesses testified, the parties filed written closing arguments. Travelers and Blackhawk also tendered Circuit Court Judge Rita M. Novak's ruling issued just six days prior in four consolidated proposed class actions known as Marque Medicos LLC v. Zurich American Insurance Co. , Nos. 2015 CH 1580, 15 CH 4946, 15 CH 4949, and 15 CH 4951, in which a group of medical service providers sued a group of workers' compensation insurers alleging they were in violation of section 8.2(d)(3). 820 ILCS 305/8.2(d)(3) (West 2014). Judge Novak had ruled that the medical service providers, which included Medicos and Ambulatory, could not pursue their statutory interest claims under theories of an implied-in-fact contract, an implied private right of action under the Act, or as third-party beneficiaries of various workers' compensation insurance policies, and she dismissed the proposed class actions with prejudice. Medicos and Ambulatory objected to the presentation, without leave of court, of Judge Novak's new ruling, and further contended that the promissory estoppel action they were asserting against Travelers and Blackhawk was factually and legally different from the issues that had been addressed by Judge Novak.

¶ 10 At a hearing on March 11, 2016, the trial judge acknowledged Judge Novak's ruling but awarded the full amount of interest claimed by Medicos and Ambulatory.

¶ 11 Travelers and Blackhawk sought reconsideration, arguing that the promissory estoppel claim as to underlying bills became moot once the Commission entered its award and that it was inappropriate for the court to proceed solely on the statutory interest claim. They also contended the award of prejudgment interest was unwarranted. The trial judge ruled that the elements of promissory estoppel had been satisfied, but she deducted the prejudgment interest from the award and entered an amended judgment for only section 8.2(d) interest. 820 ILCS 305/8.2(d)(3) (West 2010). That judgment is now on appeal.

¶ 12 Travelers and Blackhawk first argue that the award should be reversed because the medical service providers failed to prove promissory estoppel as alleged in their complaint, because they did not introduce into evidence or even mention the preauthorization faxes on which they purportedly relied to their detriment, and because they further failed to present any testimony regarding any of the elements of a promissory estoppel claim. The appellants contend Medicos and Ambulatory instead pursued a statutory interest claim based solely on their billing history and that a judgment on the unproven promissory estoppel allegations is reversible error. They point out that in the case that proceeded before Judge Novak, she rejected all of Medicos and Ambulatory's statutory interest claims and dismissed the case with prejudice. We add that while the current parties were briefing their arguments, another panel of this appellate court affirmed Judge Novak's judgment against the medical service providers and that the Illinois Supreme Court denied a petition for leave to appeal. Marque Medicos , 2017 IL App (1st) 160756, 416 Ill.Dec. 190, 83 N.E.3d 1027, pet. for leave to appeal denied , No. 122568, 419 Ill.Dec. 626, 93 N.E.3d 1043 (Ill. Nov. 22, 2017). In the alternative, Travelers and Blackhawk argue that the trial court lacked subject-matter jurisdiction to address the claim because all disputes regarding compensation and interest under the Act are within the exclusive jurisdiction of the Commission. Another alternative argument they make is that the arbitration proceedings operate as res judicata as to all forms of compensation and statutory interest because, although medical service providers do not have a right to appear before the Commission, these providers were in privity with Mendoza and Mendoza could have pursued the claim to section 8.2(d) interest. 820 ILCS 305/8.2(d) (West 2010). Travelers and Blackhawk conclude that we should reverse the interest award and remand the case with directions to the trial court to enter judgment against Medicos and Ambulatory.

¶ 13 Medicos and Ambulatory respond that the theory of promissory estoppel became irrelevant when the Commission upheld the arbitrator's award for medical service fees and the parties returned to the circuit court to address the issue of interest and that the trial evidence showed late payment, which, under the Act, entitled Medicos and Ambulatory to section 8.2(d) interest. 820 ILCS 305/8.2(d) (West 2010). Medicos and Ambulatory contend the appellants' main argument is an attempt to distract this court from the real issue at hand, which is that Medicos and Ambulatory were entitled to statutory interest, "not by [promissory estoppel or] quasi-contract, but by the plain language of the Act." Medicos and Ambulatory cite Marque Medicos , 2017 IL App (1st) 160756, ¶ 38, 416 Ill.Dec. 190, 83 N.E.3d 1027, but only for its conclusion that the trial court properly exercised subject-matter jurisdiction over common-law claims regarding section 8.2(d)(3) interest, and that the Commission is not authorized to resolve such common-law or statutory claims. Medicos and Ambulatory also contend that res judicata was not triggered by the Commission's final order, because the Commission has no authority over promissory estoppel or other common-law claims.

¶ 14 The appellees' contention that the common-law theory of promissory estoppel became irrelevant after the Commission awarded Mendoza compensation under the Act is a weak attempt to excuse the appellees' failure to prove the elements of their common-law claim. It cannot be seriously contended that the Commission's award to Mendoza, which was based entirely on his statutory right to compensation for a work-related injury, somehow established that (1) Traveler's presurgical faxes to Medicos and Ambulatory were an unambiguous promise to pay the surgical bills, (2) that Medicos and Ambulatory relied on that promise, (3) that the reliance was expected and foreseeable, and (4) that the reliance was detrimental to Medicos and Ambulatory. Newton Tractor Sales , 233 Ill. 2d at 51, 329 Ill.Dec. 322, 906 N.E.2d 520 (setting out the elements of promissory estoppel); Centro Medico , 2015 IL App (1st) 141690, ¶ 12, 392 Ill.Dec. 890, 33 N.E.3d 691 (same). The Commission's award had no effect on the promissory estoppel claim.

¶ 15 With or without the allegations that were intended to invoke the common-law theory of promissory estoppel, the plaintiffs' only basis for claiming interest was section 8.2(d) of the Act. The complaint made this limitation clear. This limitation was further confirmed by (1) counsel's introductory remarks at the one-day trial, (2) the fact that the trial evidence and testimony was limited to the bills and omitted even a mention of the approval faxes, (3) counsel's concluding remarks that interest should be awarded because "it took my client nearly four years to get paid," (4) and a posttrial brief in which the plaintiffs argued that by "prov[ing] all the elements required by 805 ILCS 305/8.2(d)(3) by a preponderance of the evidence," they became entitled to judgment.

¶ 16 We conclude that Marque Medicos is controlling. Before reaching the merits of the appeal, the Marque Medicos court held that the circuit court properly exercised subject-matter jurisdiction over a complaint that purported to rely on a common-law theory. Marque Medicos , 2017 IL App (1st) 160756, ¶ 38, 416 Ill.Dec. 190, 83 N.E.3d 1027. The reviewing court then held that the plaintiff medical service providers had no private right of action to be compensated for the purported failure of the defendant workers' compensation insurer and employer to comply with the interest provision of section 8.2(d)(3) of the Act. Marque Medicos , 2017 IL App (1st) 160756, ¶ 38, 416 Ill.Dec. 190, 83 N.E.3d 1027. As the court explained in Marque Medicos , a party may assert a right to be compensated for the violation of a statute only if a private right of action was authorized by the legislature. Marque Medicos , 2017 IL App (1st) 160756, ¶ 57, 416 Ill.Dec. 190, 83 N.E.3d 1027. There is no language in the statute that expressly authorizes a private right of action. A private right of action may be implied by statute only where "(1) the plaintiff is a member of the class for whose benefit the statute was enacted; (2) the plaintiff's injury is one the statute was designed to prevent; (3) a private right of action is consistent with the underlying purpose of the statute; and (4) implying a private right of action is necessary to provide an adequate remedy for violations of the statute." Marque Medicos , 2017 IL App (1st) 160756, ¶ 57, 416 Ill.Dec. 190, 83 N.E.3d 1027. The failure to satisfy any of the four factors is fatal to a claim. Marque Medicos , 2017 IL App (1st) 160756, ¶ 57, 416 Ill.Dec. 190, 83 N.E.3d 1027. In Marque Medicos , the court affirmed the circuit court's finding that medical service providers, which included Medicos and Ambulatory, could not satisfy the first factor. This court also rejected the medical service providers' argument that because the payment obligations of section 8.2(d) of the Act were to be made to medical service providers and no one else, medical service providers should be considered members of the class benefited by the Act and capable of satisfying the first factor. Marque Medicos , 2017 IL App (1st) 160756, ¶ 58, 416 Ill.Dec. 190, 83 N.E.3d 1027. The argument was rejected because it is well established that the fundamental purpose of the Act is to protect employees by providing them with prompt and fair compensation for work related injuries, regardless of fault. Marque Medicos , 2017 IL App (1st) 160756, ¶ 60, 416 Ill.Dec. 190, 83 N.E.3d 1027. Further,

"[the interest payment mandated] by section 8.2(d)(3) of the Act is but one of the many provisions in the Act designed to encourage the 'prompt' payment of compensation by an employer or insurer and to penalize any failure to make such prompt payment of compensation. [Citation.] While providers might receive some benefit from the specific interest provision contained in section 8.2(d)(3) of the Act, that benefit is at most incidental and was provided solely in an effort to serve the legislature's primary goal of compensating employees completely and promptly." (Emphases in original.) Marque Medicos , 2017 IL App (1st) 160756, ¶ 60, 416 Ill.Dec. 190, 83 N.E.3d 1027.

¶ 17 Accordingly, the court concluded that the medical service providers' claim for statutory interest failed as a matter of law, and it affirmed the circuit court's dismissal with prejudice. Marque Medicos , 2017 IL App (1st) 160756, ¶¶ 61, 75, 416 Ill.Dec. 190, 83 N.E.3d 1027.

¶ 18 Medicos and Ambulatory do not argue any grounds for reconsidering the analysis and holding in Marque Medicos .

¶ 19 We find that regardless of whether Medicos and Ambulatory intended to proceed under the promissory estoppel theory or purely on a statutory basis, ultimately their only basis for claiming interest was section 8.2(d) of the Act and that the claim failed because medical service providers are not members of the class for whose benefit the Act was enacted. Marque Medicos , 2017 IL App (1st) 160756, ¶ 61, 416 Ill.Dec. 190, 83 N.E.3d 1027. Consistent with Marque Medicos , we find that the plaintiff medical service providers failed to state a claim upon which relief could be granted and that the trial court erred in awarding the statutory interest, which the plaintiffs sought in their single count pleading. As a result of this conclusion, we need not address the appellants' other arguments. We vacate the amended judgment order at issue on appeal.

¶ 20 Vacated.

Justice Ellis concurred in the judgment and opinion.

Justice Gordon specially concurred, with opinion.

¶ 21 JUSTICE GORDON, specially concurring:

¶ 22 I agree with the majority that the circuit court of Cook County must be reversed because the plaintiffs had no private right of action, but I believe that finding is based solely on the rule that the Workers' Compensation Act (Act) is the exclusive remedy for all provisions of the Act unless the Act says otherwise. 820 ILCS 305/5(a) (West 2010). The legislature has vested exclusive original jurisdiction in the Workers' Compensation Commission over matters involving an injured worker's rights to benefits under the Act and an employer's defenses to claims under the Act. 820 ILCS 305/1 et seq. (West 2010). The role of the trial court in workers' compensation proceedings is to act in an appellate capacity only on a properly filed matter governing a decision of the Workers' Compensation Commission. 820 ILCS 305/5(a) (West 2010). Section 8.2(d) of the Act states that late payments to a medical service provider "shall incur interest at a rate of 1% per month payable to the provider." 820 ILCS 305/8.2(d) (West 2010). The injured worker did not request enforcement of section 8.2(d) in the proceedings before the Workers' Compensation Commission, and the plaintiffs were not parties in that proceeding. The circuit court of Cook County had no jurisdiction to decide the issue of interest and cannot decide any of the theories advanced by plaintiffs.

      The parties' arguments before the trial court and this court have included a mixture of references to section 8.2(d) and section 8.2(d)(3). Section 8.2(d)(3) was added by 2011 amendments to the Act, which reorganized that subsection and shortened the grace period for the accrual of interest. Pub. Act. 97-0018 (eff. June 28, 2011) (recodifying and amending 820 ILCS 305/8.2(d) into 820 ILCS 305/8.2(d)(1)-(3) ). Mendoza's injuries and the billing events at issue in this case occurred prior to the effective date of the 2011 amendments, but the amendment to section 8.2(d) makes no impact on our disposition of this appeal. Here, we refer to section 8.2(d) (820 ILCS 305/8.2(d) (West 2010) ).


text:
    IN RE M.S., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Marie H., Respondent-Appellant).
    No. 1-17-2659
    Appellate Court of Illinois, First District, Second Division.
    Opinion filed May 1, 2018
    Amy P. Campanelli, Public Defender, of Chicago (Suzanne A. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Nancy Kisicki, and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.
    Charles P. Golbert, Public Guardian, of Chicago (Kass A. Plain and Jean M. Agathen, of counsel), guardian ad litem.
   JUSTICE HYMAN delivered the judgment of the court, with opinion

¶ 1 M.S. and his older brother, J.S., were made wards of the court and have lived with foster parent Crystal B. since 2013. Caseworkers found that both boys were thriving, that Crystal's home was a safe and appropriate placement for them, and that it would be in the children's best interests to appoint Crystal as their guardian. The boys wanted to continue living with Crystal and did not want to return to their mother's home. After the trial court appointed Crystal as J.S.'s guardian ( In re J.S. , 2017 IL App (1st) 170506-U, 2017 WL 3623493 ), the court granted the State's petition for the appointment of Crystal as M.S.'s guardian. M.S.'s mother, Marie H., argues the trial court violated the Juvenile Court Act and her due process rights by having an off-the-record, ex parte conversation with M.S. before the guardianship hearing and relying on that conversation, in part, in deciding to appoint Crystal as guardian. Marie asks that we remand for a new guardianship hearing before a different judge.

¶ 2 The facts and law before us justify the trial court's order appointing Crystal the guardian of M.S. so we affirm. Marie's attorney did not object during the hearing when the trial judge said she had a conversation with M.S. If Marie had raised an issue about the conversation, the trial court could have addressed it. Thus, Marie forfeited the issue. And Marie has not shown she was prejudiced by the conversation as multiple witnesses testified that M.S. said he wanted to continue living with Crystal.

¶ 3 Background

¶ 4 M.S., now age 13, is the son of Marie H. and A.S. (A.S. is not party to this appeal). In July 2012, the State filed a petition in Kane County for adjudication of wardship for M.S., as well as his older brother, J.S., and his seven other siblings. The petition alleged neglect of M.S. due to an environment injurious to his welfare and that he was without care necessary for his well-being, including adequate food, clothing, and shelter. Specifically, the petition stated that M.S. resided in a home without electricity or sufficient food and that his mother's substance abuse issues and domestic violence in the home placed him at risk of harm.

¶ 5 In December 2012, the Kane County circuit court entered a dispositional order adjudicating M.S. neglected. He was made a ward of the court and placed in the guardianship of the Department of Children and Family Services (DCFS). The court found both parents unfit and unable to care for, protect, train, educate, or discipline M.S. for reasons other than financial circumstances alone. The court cited a history of domestic violence in the home and noted that services had begun but the parents needed to make more progress and establish an adequate care plan. The order stated that while reasonable efforts and appropriate services aimed at family reunification had been made to keep M.S. in the home, these actions have not eliminated the necessity for his removal, as the parents failed to cooperate with services in two previous intact cases. The permanency goal was set as return home in 12 months and supervised visitation was ordered.

¶ 6 When M.S.'s parents moved, the case was transferred to Cook County. In 2013, M.S. and his brother, J.S., were placed in the home of foster parent, Crystal B. In December 2013, after a permanency hearing, the trial court determined that M.S. was doing well in his foster home. M.S.'s parents were compliant with services but needed to make more progress. M.S.'s permanency goal was to return home within 12 months.

¶ 7 Ten months later, after a permanency hearing at which both parents were present, the permanency goal was changed to private guardianship, which remained the goal for the remainder of the case.

¶ 8 In 2016, a new trial judge held a permanency hearing for M.S. and J.S. By that time, Marie's other children had been successfully returned home, and M.S. and J.S. continued to live with Crystal. The caseworker testified that the boys had a planned visit home on Thanksgiving 2015. Before the visit, Marie called Crystal and told her M.S. and J.S. would be returning home and that she intended to sue DCFS. Then, J.S. received a text from his sister saying he was "breaking his mom's heart for not wanting to come home." J.S. responded by text that he and his brother were not supposed to discuss the case. Crystal brought the boys to Marie's home, but shortly after their arrival, J.S. and his sister got into an argument, and J.S. called Crystal and asked her to pick them up.

¶ 9 The caseworker testified that after Thanksgiving the brothers did not want further visitations. A visit was scheduled for February 2016, but Marie texted J.S., and the boys changed their minds. They told the caseworker that Marie always wants to "discuss the case and ask them why they are not returning home." Although they desired to see their siblings, the brothers considered the visits to their mother's home to be uncomfortable because of the conversations about the case.

¶ 10 According to the caseworker, M.S. did well in school and had an individualized education program (IEP), with Crystal monitoring his homework and M.S. receiving tutoring services. He participated in extracurricular activities and played on two basketball teams. M.S. told the caseworker he wanted to remain with his brother with guardianship as the goal; he does not wish to return to his parents due to the history in the home.

¶ 11 M.S.'s mother, Marie, told the trial court that she has nine children and she does not "think that it's right to separate the two, because it's hurting the whole home. My kids want their brothers home. We want our kids home." The trial judge told Marie, "it's evident you love your children," and praised Marie for completing services so that her other children could return home. But, the judge stated,

"The hard part of the conversation is that your other two children are getting to the age where they get to voice their opinions. And what I have to do is not only consider what you want, but I also have to consider what they want, and also what's in their best interests. The testimony I got was your two kids love you. They don't want their rights terminated; they want you to be their parents. *** And, you know, there is one side of the coin where I can say they are kids, they don't know what they want. On the flip side of that same coin, however, they have gone through quite a bit of experience for their young ages. And they've made a determination that they are settled, they are doing well, and they want to stay settled where they are. But that doesn't mean they don't want to visit. They want to have connections; they want to be a family but they don't want to live at home."

¶ 12 The trial judge advised the parents that they were not to discuss the case with M.S. and J.S. While the boys wanted to visit, the trial court said it would not force a visit as long as the parents continued to discuss the case with them. The court explained to the parents that should guardianship be granted, the boys continue to be their children and their parental rights would not be terminated. The court ordered supervised visitation and entered an order with the goal of guardianship.

¶ 13 In January 2017, the trial court held a combined permanency hearing for M.S. and J.S. Both boys were in court. Marie was not present. Addressing the judge in open court, J.S. said he did not want to return to Marie's home because he did not trust his mother. He said he had been living in Crystal's home for nearly four years and was "very, very comfortable" there. He did not feel obligated to return to his mother's home because she tells him things that are not true, and he's worried he "might just walk into a trap."

¶ 14 The caseworker testified she had no concerns about M.S.'s health or safety and no reported complaints or unusual incidents. Crystal involved herself in his schooling, and the agency worked with Crystal and M.S.'s school to make sure M.S. adhered to his IEP and received an appropriate education. M.S. wanted Crystal to be appointed his guardian, and it was still in his best interest.

¶ 15 Crystal testified that M.S. and J.S. live with her and that no one else lives in the home. She said she is supportive of a relationship between the boys and their parents.

¶ 16 At the end of the hearing, the trial court granted DCFS's motion to place J.S. in private guardianship with Crystal and closed his case. The court also set private guardianship as M.S.'s permanency goal. At a status hearing, the caseworker testified that the subsidy for M.S. had been approved by DCFS and that the case would go to legal screening that day to complete the guardianship goal.

¶ 17 In September 2017, DCFS filed a motion to vacate its guardianship of M.S., terminate wardship, and close the case. DCFS also filed a petition to appoint Crystal as M.S.'s guardian. At the hearing on DCFS's motions, Marie's attorney was present, but not Marie. At the start of the hearing, the trial judge said, "I can just briefly indicate that [M.S.] has indicated, just as a synopsis, that he really likes staying with [Crystal] and he wants to stay there and he feels that he has enriching activities and that she's supportive of his education, tutoring. And he enjoys basketball, et cetera ."

¶ 18 At the hearing, the caseworker testified that M.S. and J.S. had been living with Crystal for about 4½ years. M.S. and Crystal had a great bond and an emotional attachment, as it appeared that they loved each other. M.S. told the caseworker he wanted to stay in Crystal's home. Adoption was ruled out as Marie had successfully completed services. Returning to Marie's home also was ruled out as M.S. said he did not want to return to his mother's care. The agency recommended that Crystal be appointed M.S.'s guardian.

¶ 19 On cross-examination, the caseworker stated that Crystal, who is a teacher, has been a strong educational advocate for M.S. She was influential in getting his IEP modified to meet his needs and helped him transfer schools when he was being bullied. She supported his playing basketball, attended his games, and paid for him to play extra basketball on weekends. M.S.'s brother was thriving in Crystal's home as well. She would facilitate visits with M.S., J.S., and their siblings if the boys wanted to visit them.

¶ 20 Crystal testified she wants to be appointed M.S.'s guardian and is aware of all of the conditions of guardianship. She has been committed to M.S.'s education and his extracurricular activities. During the summers, she took the boys to Cincinnati, and they participate on travel basketball teams. M.S. is involved with her extended family. Indeed, her brother and father, who live nearby, consider M.S. and J.S. to be part of the family. She understood that M.S.'s parents would be entitled to reasonable visitation of at least one visit a month. And, she is willing to facilitate M.S.'s visits with them and to foster his relationships with his siblings.

¶ 21 After the parties rested, the DCFS attorney argued for Crystal as an appropriate caregiver for M.S. given that he was thriving in her home, and it was in his best interest that she be appointed his guardian. The assistant public guardian agreed, stating it is "a great home," and "he's always seemed happy and comfortable there and has a lot of enrichment activities." The State supported the guardianship motion too. Marie's attorney stated, "Natural mother opposes it. No other argument."

¶ 22 In issuing her ruling, the trial judge said she "had the lovely opportunity to speak to [M.S.] and I enjoyed our conversation. Everyone is really proud of [M.S.]" She noted that M.S. was thriving in Crystal's home and "has all of the support he needs." Also, Crystal agreed to facilitate visits between M.S. and his parents, if that is what M.S. wants. She then concluded that it was "definitely in [M.S.]'s best interest for [Crystal] to become his legal guardian." The trial court vacated DCFS's guardianship, terminated the court's wardship, appointed Crystal as M.S.'s guardian, and closed the case.

¶ 23 Analysis

¶ 24 Marie argues the trial court committed plain error and denied her due process rights by relying on an off-the-record, ex parte conversation with M.S. when deciding to appoint Crystal as M.S.'s guardian. Specifically, she points to the judge's comments before the hearing that "[M.S.] has indicated *** that he really likes staying with Crystal and he wants to stay there ***" and the judge's comment at the end of the hearing that "I had the lovely opportunity to speak to M.S.] and I enjoyed our conversation."

¶ 25 While the record does not indicate that M.S. testified or who was present for this conversation, arguably, at least, it appears the trial judge and M.S. had a substantive conversation outside the presence of her attorney. Marie acknowledges that in some circumstances, a trial judge can speak with a minor in chambers but asserts that the Juvenile Court Act and the due process clause of the Constitution require that those conversations take place in the presence of counsel or a court reporter, unless otherwise agreed. She argues that this conversation constitutes reversible error and asks us to remand for a hearing before a different judge.

¶ 26 Assuming a conversation outside the presence of the parties and their attorneys occurred, Marie failed to preserve the alleged error for appellate review by objecting at trial and filing a written posttrial motion addressing it. In re April C. , 326 Ill.App.3d 225, 242, 260 Ill.Dec. 6, 760 N.E.2d 85 (2001) ("Where a party fails to make an appropriate objection in the court below, he or she has failed to preserve the question for review and the issue is waived."). Marie did not object or seek clarification when, before hearing testimony at the guardianship hearing, the trial judge stated that M.S. indicated he wants to continue living with Crystal. The judge's comment at the end of the hearing that she "had the lovely opportunity to speak to [M.S.]" suggests she spoke to M.S. but not where or when. Although Marie was not in court that day, the record shows her attorney was there and her attorney had an opportunity to object. So she has forfeited the issue and cannot raise it for the first time on appeal. In re William H. , 407 Ill.App.3d 858, 869-70, 348 Ill.Dec. 774, 945 N.E.2d 81 (2011) (application to child custody cases).

¶ 27 Marie argues that forfeiture limits the parties and not the court, and we may relax the rules of forfeiture where an issue impacts the fundamental fairness of a proceeding and address it under the plain error rubric. See In re Tamera W. , 2012 IL App (2d) 111131, ¶ 30, 360 Ill.Dec. 214, 968 N.E.2d 707. Even if the trial court erred and held an improper ex parte conversation with M.S., for plain error to apply, the error must be prejudicial; that is, the case must be a close one. People v. Sebby , 2017 IL 119445, ¶ 68, 417 Ill.Dec. 756, 89 N.E.3d 675 (citing People v. Herron , 215 Ill.2d 167, 187, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) ). In civil cases, the plain error rule usually applies "only where an act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process." (Internal quotation marks omitted.) In re Marriage of Saheb , 377 Ill.App.3d 615, 627, 316 Ill.Dec. 801, 880 N.E.2d 537 (2007).

¶ 28 We cannot say that the trial judge's conversation, if it did occur outside the presence of the attorneys, was critical to the decision or potentially dispositive, as it was merely cumulative of the evidence presented by multiple witnesses. See Nassar v. County of Cook , 333 Ill.App.3d 289, 303-04, 266 Ill.Dec. 592, 775 N.E.2d 154 (2002) (finding no prejudice where allegedly inadmissible testimony elicited during adverse examination of defendant doctor was cumulative of previously introduced testimony); People v. Davidson , 160 Ill.App.3d 99, 119, 112 Ill.Dec. 621, 514 N.E.2d 17 (1987) (no plain error where evidence "cumulative of other evidence properly admitted").

¶ 29 In deciding that guardianship was in M.S.'s best interest, caseworkers relied on their determination that Crystal provided a stable home for M.S. and J.S. and that M.S. and Crystal bonded over more than four years and appeared to love each other. Also, M.S.'s educational needs were being met, and he engaged in extracurricular activities. Significantly, Crystal supported M.S.'s continued relationship with his parents.

¶ 30 Caseworkers testified on multiple occasions that M.S. consistently told them he felt happy in his current living situation, wanted to continue living with Crystal, and did not want to return to his mother's home. And, he wanted Crystal to be appointed as his guardian. As the trial judge advised Marie, she had to consider not only what the parents wanted but also what M.S. wanted, and multiple witnesses testified that M.S. wanted Crystal to be appointed his guardian.

¶ 31 To the extent that a purported off-the record conversation factored into the trial court's decision to appoint Crystal as M.S.'s guardian, the conversation was merely cumulative.

¶ 32 Affirmed.

Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.


text:
    IN RE MARRIAGE OF David R. HARMS, Petitioner-Appellant, and Ruth PARKER, f/k/a Ruth Harms, Respondent-Appellee.
    NO. 5-16-0472
    Appellate Court of Illinois, Fifth District.
    Opinion Filed May 3, 2018
    Anthony R. Garavalia and Brian D. Flynn, of Flynn, Guymon & Garavalia, of Belleville, for appellant.
    Charles W. Courtney Jr., Jayni A. Desai, and Alana I. Mejias, of Courtney, Clark & Mejias, P.C., of Belleville, for appellee.
   JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

¶ 1 This appeal involves an amendment to the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) that changes the way maintenance is calculated. Prior to 2015, the relevant statute provided a list of factors courts were to consider in determining the propriety, amount, and duration of maintenance. See In re Marriage of Johnson , 2016 IL App (5th) 140479, ¶ 94, 400 Ill.Dec. 96, 47 N.E.3d 1061(citing 750 ILCS 5/504(a) (West 2012) ). Under the version of the statute now in effect, however, the statutory factors are used to determine the propriety of maintenance, but the amount and duration of maintenance are calculated using guideline formulas unless the court finds that there is a reason to depart from those guidelines. 750 ILCS 5/504(a), (b-1), (b-2) (West 2016); In re Marriage of Cole , 2016 IL App (5th) 150224, ¶ 8, 405 Ill.Dec. 702, 58 N.E.3d 1286. At issue in this appeal is whether the new guidelines are applicable in proceedings to modify maintenance that was ordered before the amendment went into effect. We hold that they are not.

¶ 2 The petitioner, David Harms, filed his petition for dissolution in 2005, long before the amendment went into effect. At that time, the parties had been married for 19 years and 9 months. The 2007 order dissolving their marriage required David to pay maintenance to the respondent, Ruth Parker, formerly known as Ruth Harms. The order provided that maintenance could not be modified until Ruth reached the age of 65, after which time, either party could request review of the original maintenance award. Both parties later filed petitions to modify maintenance. The court found that the amended version of the statute was applicable and that there was no reason to depart from the guidelines for calculating maintenance. The court denied David's petition to terminate or reduce maintenance and granted Ruth's petition to increase maintenance. David appeals, arguing that (1) the court erred by awarding permanent maintenance without finding that there was a reason to depart from the guidelines, which provide that permanent maintenance may only be awarded in marriages lasting at least 20 years, and (2) both the amount and duration of maintenance constituted an abuse of the court's discretion. We affirm.

¶ 3 The parties married in Las Vegas on February 9, 1986. Their son was born in 1987. He was an adult when the dissolution proceedings were initiated. During the parties' marriage, they took out a home equity loan on their marital home. They used the proceeds of that loan to purchase a 20.5-acre parcel of land. David filed a petition for dissolution on November 28, 2005. At that time, as previously noted, the parties had been married for 19 years and 9 months.

¶ 4 In November 2006, Judge Laninya A. Cason presided over the hearing in the dissolution proceedings. At that time, Ruth was 61 years old and was no longer working at a regular full-time job. David would turn 44 the following month and was still working full time.

¶ 5 On January 10, 2007, Judge Cason entered an order dividing the parties' property and ordering David to pay maintenance in the amount of $1300 per month. In pertinent part, the court awarded the marital home to Ruth and assigned the debt remaining on the home equity loan to her. However, the court awarded the 20.5-acre parcel of land purchased with the loan to David. The order provided that the maintenance award was "reviewable when respondent reaches the age of 65 years."

¶ 6 Both parties filed motions to reconsider or clarify this order. Ruth asked the court to reconsider its decision to assign her the debt used to purchase the land that it awarded to David. She also requested that her maiden name be restored. David noted that the January 10 order did not dissolve the marriage. He further noted that the order did not make any findings as to Ruth's income and it did not state when his maintenance obligation was to begin. Finally, he asserted that the order was "ambiguous and/or vague" as to his maintenance obligation, and he requested "clarification of the Court's ruling as it pertains to Respondent when she reaches the age of 65 years."

¶ 7 On April 12, 2007, Judge Cason entered two additional orders. One order dissolved the parties' marriage, effective that date, and restored Ruth's maiden name of Parker. In the other order, Judge Cason attempted to clarify David's maintenance obligation, stating that the award of maintenance was "non-modifiable until Respondent's 65th birthday, July 8, 2011," and that it would be "reviewable" after that time. She denied both parties' motions in all other respects.

¶ 8 On August 28, 2007, Judge Cason entered a supplemental dissolution order, which contained findings of fact and provided some of the clarification sought by David in his earlier motion. Judge Cason found that David's net income at that time was $3750 per month, while Ruth's income was $390 per month. She further found that Ruth needed maintenance and David was able to pay maintenance. She ordered David to pay $1300 "in maintenance, commencing on January 15, 2007." The order provided that this maintenance would be nonmodifiable until July 8, 2011, when Ruth would turn 65, and that after that time, maintenance would be "subject to review upon [the] request of either party."

¶ 9 In July 2014, David filed a petition to terminate or reduce his maintenance obligation. In September 2014, Ruth filed a petition to modify maintenance, requesting an increase in maintenance. In June 2016, the matter came for a hearing before Judge Julia Gomric. Both parties testified at the hearing.

¶ 10 David testified that he was 52 years old at that time. He had remarried, and he lived with his wife and their six-year-old daughter in a home they built on the 20.5-acre parcel of land that was awarded to him in the dissolution. David was asked about the economic circumstances of the parties at the time they separated. He testified that he was then earning approximately $48,000 per year and had a retirement account that was valued at $3090. At that time, Ruth worked in a home business the couple owned called Cornfield Industries. David explained that the business sold decals and hitch covers and "that type of stuff." Asked about Ruth's earnings from the business, he testified that he did not "know really what the dollar amounts were" because they put all the proceeds from the business back into the business.

¶ 11 David then testified about his current economic circumstances. He testified that his retirement account was now worth $77,224. His wife, Erika, worked outside the home with an income of approximately $90,000 to $100,000 per year. David initially testified that his own income was approximately $82,000 per year, but he later acknowledged that his 2015 income was $82,786.72, which did not reflect a 2% raise he received in March 2016. David was also asked about Ruth's circumstances at the time of the hearing. He admitted that he did not expect Ruth, who would be 70 years old the following month, to return to work. He acknowledged that her only income was the maintenance he paid and approximately $800 per month in Social Security income. (We note that Ruth's Social Security was $820.90 per month before her $104.90 Medicare premium was deducted, leaving her with an actual payment of $716 per month.) Asked how Ruth would be able to support herself if the court granted his request to terminate her maintenance, David replied, "I don't know."

¶ 12 Ruth testified that the last time she worked at a full-time job outside the home was in 1996 or 1997. She was not working at the time of the parties' dissolution. She testified, however, that she worked at two part-time jobs on a temporary basis subsequent to the dissolution. One of those jobs was a part-time position cleaning trays at an elementary school cafeteria. The other job involved cleaning the offices of a used car dealership owned by her son-in-law. She worked at this job to "fill in" for her son-in-law while he was busy with litigation.

¶ 13 Ruth testified that her only income at the time of the hearing was $1300 per month in maintenance and her Social Security check, which was $716 per month after her Medicare premium was deducted. She began drawing Social Security benefits when she was 62 years old. She acknowledged at the hearing that her Social Security benefits would have been higher had she waited until age 65 to begin drawing them. She estimated that she would have received $400 or $500 more per month had she waited. Asked why she did not wait until she was 65, Ruth explained that she did not have sufficient income to pay all her bills and pay for necessary repairs to her home.

¶ 14 On her financial statement, Ruth stated that she spent $300 per month for home maintenance and repairs. She was asked about this figure by David's attorney at the hearing. She explained that to arrive at this figure, she "took whatever it took to keep the home going, and divided it by 12." However, she could not recall much specific information about the home repairs she had paid for over the previous year. She testified that she had to have her air conditioner rewired and she had to have a plumber repair a broken water line under the house. She thought that the bill for the air conditioner was $300 and the plumbing bill was $250 or $260, but she was not certain of the precise amounts. Ruth testified that there were probably other repairs to the house during the previous 12 months, but those were the only two she could remember offhand. She also testified that she was putting off other necessary home repairs because she could not afford to pay for them, but she offered no specifics.

¶ 15 Ruth testified that she did not have a credit card and that she therefore used cash to pay for most of her necessities-gas, car repairs, groceries, and paper supplies-as well as any entertainment. She stated on her financial statement that she spent $50 per month on entertainment. At the hearing, David's attorney pointed out that records she provided showed cash withdrawals of approximately $700 per month in both April and May 2016. Ruth did not know whether those were typical months or not. She emphasized, however, that those cash withdrawals covered all of her expenses for the month.

¶ 16 David's attorney questioned Ruth at length about one of the expenses she pays for with cash-specifically, playing video gaming machines. Ruth testified that she goes out to play video gaming machines because it is something that gets her out of the house and gives her an opportunity to be around people. She acknowledged that this activity had become a major part of her social life. She testified, however, that the amount of time she spent on video gaming depended on whether she won. She explained that, if she won, she would use her winnings to continue to play but, if she did not win, she was "done quickly." Ruth testified that she did not know exactly how much she spent on video gaming each month. As noted earlier, Ruth stated on her financial statement that she spent $50 per month on entertainment. At the hearing, she explained that this amount included video gaming, buying newspapers, and any other type of entertainment.

¶ 17 David also offered into evidence a report prepared by a private investigator he hired to attempt to prove that Ruth had an addiction to video gaming. David paid the investigator $5900. The investigator's report describes two different occasions on which he observed Ruth using video gaming machines at a bowling alley. On the first occasion, he observed her for a period of two hours. During that time, he saw her leave the machine she was playing and withdraw cash from an ATM. She then went to the snack bar and had a conversation with someone before returning to play the machine. After two hours, the investigator returned to his vehicle and waited in the parking lot to see when Ruth left. She left 1 ½ hours later. On the second occasion, the investigator observed Ruth using the gaming machines at the bowling alley for a period of 2 ½ hours. He saw her put money into the machine four or five times during this period. One time she put $10 into the machine; the other times, she put in $5. On this occasion, he spoke to Ruth, who gave him tips on how to increase his odds of winning. The report also described other occasions on which the investigator attempted to find Ruth using the gaming machines at the bowling alley but did not find her there. The report was admitted into evidence with no objection.

¶ 18 The court took the matter under advisement and entered an order containing detailed findings on July 13, 2016. The court first noted that the statute governing maintenance had been recently amended and indicated that it would apply the amended version of the statute. In setting forth the procedural history of the case, Judge Gomric noted that Judge Cason previously "entered a permanent maintenance order requiring David to pay maintenance to Ruth in the amount of $1300 per month." Judge Gomric also noted that Judge Cason ordered Ruth to assume the debt remaining on the home equity loan but awarded the real estate purchased with the proceeds of that loan to David.

¶ 19 The court then made its findings of fact. The court found that Ruth was 70 years old and retired. Based on her age and the fact that she had not worked in a full-time job since 1997, the court found that Ruth retired in good faith. The court found that "no reasonable efforts at rehabilitation to become self-supporting by Ruth exist" and that there is no reason to believe that she will ever be able to support herself.

¶ 20 The court further found that Ruth's income from sources other than maintenance had increased from $390 per month to $890 per month (as noted previously, it was actually $820.90 per month), while David's income had increased from $48,000 per year to $85,000 per year. The court arrived at this figure by applying the 2% raise David received in 2016 to his 2015 earnings. The court found that Ruth's future earning capacity was impaired by her age and the fact that she was retired. The court found that while David's retirement account had increased in value from $3090 to over $77,000, Ruth had exhausted her retirement account and other savings to pay for home repairs and living expenses.

¶ 21 The court found that both parties' reasonable and necessary monthly expenses totaled $2800 per month. In calculating Ruth's expenses, the court discounted the $300 per month Ruth attributed to home repairs. The court also addressed David's efforts to show that Ruth had a gambling addiction. The court stated:

"Although David, through cross-examination and through the report of Kellermann Investigations, has denigrated Ruth's purported gambling addiction, the Court finds that based upon the limited income available to Ruth, and looking at the reasonable and necessary expenses she has indicated, her purported gambling does not constitute a reason for the court to disbelieve the other expenses she has contained in her financial statement."

¶ 22 The court stated that it was considering several statutory factors, including the reasonable needs of both parties (see 750 ILCS 5/504(a)(2) (West 2016) ); the standard of living established during the marriage (see id. § 504(a)(7) ); the income and property of each party and the debt obligations assigned to each party in the dissolution judgment (see id. §§ 504(a)(1), 510(a-5)(6) ); the duration of the marriage (see id. § 504(a)(8) ); the age, health, and employment capability of the parties (see id. § 504(a)(3), (5), (9) ); and the tax consequences of ordering maintenance (see id. § 510(a-5)(4) ). The court expressly found that "No facts have been presented to the Court in this matter that support a deviation from the guideline maintenance calculations contained in the statute." The court then determined that the guideline amount for maintenance was $1900 per month. The court did not address the provisions of section 504 governing the duration of maintenance under the new guidelines.

¶ 23 The court ordered David to pay $1900 per month in maintenance, retroactive to January 1, 2015, and to pay Ruth's attorney fees. David filed a posttrial motion, which the court denied. This appeal followed.

¶ 24 The propriety, amount, and duration of maintenance are matters within the sound discretion of the trial court. We will not reverse these determinations absent an abuse of the court's discretion. Johnson , 2016 IL App (5th) 140479, ¶ 93, 400 Ill.Dec. 96, 47 N.E.3d 1061. However, because statutory construction is a question of law, we will review de novo the court's interpretation of the pertinent statutes. In re Marriage of Brill , 2017 IL App (2d) 160604, ¶ 40, 417 Ill.Dec. 18, 87 N.E.3d 302.

¶ 25 David first argues that the court erred under the new guidelines in determining that permanent maintenance was appropriate. He correctly notes that the length of the marriage is determined by using the date the petition for dissolution is filed, not the date the dissolution becomes final. See 750 ILCS 5/504(b-1)(1)(B) (West 2016). He also correctly notes that under the new guidelines, permanent maintenance is only awarded in marriages of 20 years or longer. See id. Instead, as he points out, the guidelines provide that the duration of maintenance awarded after a marriage of at least 19 but less than 20 years is calculated by multiplying the length of the marriage by 0.80. See id. David acknowledges that the court has the discretion to depart from the guidelines with respect to the amount or duration of maintenance. However, he argues that the court must set forth its reasons for doing so. See id. § 504(b-2)(2). Here, not only did the court not set forth reasons to depart from the guideline for determining the duration of maintenance, it explicitly stated that it found no reason to depart from the guidelines. Thus, David contends, the court either misapplied the new guidelines or erroneously determined that the parties' marriage was a 20-year marriage.

¶ 26 In response, Ruth argues that trial courts have discretion to depart from the statutory guidelines. See id. § 504(b-1). She further argues that, under the facts of this case, the court would have abused its discretion if it had not ordered permanent maintenance.

¶ 27 We agree with David that the court misconstrued the new statutory guidelines. The statute includes guideline formulas for determining both the amount and duration of maintenance. See id. § 504(b-1)(1). The statute further provides that if a court orders maintenance that is not in accordance with these guidelines, the court "shall" make findings as to the amount or duration of maintenance that would have been ordered under the guidelines as well as its reasons for not using the guideline amount or duration. Id. § 504(b-2)(2). Thus, courts are required to make these findings if they depart from either aspect of the new guidelines. Here, the court found that there was no reason to depart from the guidelines, but it did not follow the guidelines with respect to the duration of maintenance and did not make the required findings.

¶ 28 More importantly, however, we believe the court erred in finding the guidelines to be applicable under these circumstances at all. We reach this conclusion after consideration of the language of two pertinent statutes-section 504 of the Dissolution Act, which governs initial awards of maintenance, and section 510, which governs petitions to modify maintenance or child support. See id. §§ 504, 510.

¶ 29 The primary rule in statutory construction is that we must ascertain and effectuate the intent of the legislature. In re Marriage of Lubbs , 313 Ill. App. 3d 968, 969-70, 246 Ill.Dec. 674, 730 N.E.2d 1139 (2000). The best indicator of legislative intent is the plain language of the statutes themselves. Id. at 970, 246 Ill.Dec. 674, 730 N.E.2d 1139. Where, as here, multiple statutes relate to the same subject, we must presume that the legislature intended those statutes to be "consistent and harmonious." DeLuna v. Burciaga , 223 Ill. 2d 49, 60, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006). We must also presume that the legislature "did not intend absurdity, inconvenience or injustice." Id.

¶ 30 The guidelines are found in section 504. By its express terms, the statute applies only in proceedings "for dissolution of marriage or legal separation," proceedings for a "declaration of invalidity of marriage," or in proceedings where one party seeks an award of maintenance "following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse." 750 ILCS 5/504(a) (West 2016). These are all proceedings involving initial maintenance orders. Section 504 is relevant in proceedings on petitions to modify maintenance only because it is referenced in section 510, which, as we noted, governs petitions to modify. See id. § 510. That statute provides that, in ruling on a petition to modify maintenance, courts must consider "the applicable factors set forth in subsection (a) of Section 504 " as well as several additional factors listed in subsection (a-5) of section 510. (Emphasis added.) Id. § 510(a-5). Section 510 does not refer to subsection (b-1) of section 504, which contains the new guidelines. See id.

¶ 31 It is worth noting that section 510 has been amended four times since the guidelines went into effect. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016); Pub. Act 99-764, § 5 (eff. July 1, 2017); Pub. Act 100-15, § 5 (eff. July 1, 2017); Pub. Act 100-201, § 705 (eff. Aug. 18, 2017). None of these amendments added language directing courts to apply the guidelines in proceedings to modify maintenance. Had the legislature intended to make the guidelines applicable in proceedings to modify maintenance, it easily could have added language to section 510 to achieve this result. Thus, under the express terms of the two statutes, the guidelines are not applicable in such proceedings.

¶ 32 Although we need not look beyond the express statutory language, we find further support for our interpretation from the fact that applying the guideline formula for duration to a preexisting maintenance award will often lead to results that are absurd or unjust. This case provides a perfect illustration.

¶ 33 The instant case involves an award of indefinite or permanent maintenance. Although we note that none of Judge Cason's orders expressly labeled the maintenance as either "permanent" or "rehabilitative," as we mentioned earlier, Judge Gomric characterized the original award of maintenance as "permanent maintenance," and we agree with this characterization.

¶ 34 If an award of maintenance "bears all the hallmarks of traditional permanent maintenance," it will be deemed to be permanent regardless of whether it is labeled as such. In re Marriage of Bolte , 2012 IL App (3d) 110791, ¶ 21, 363 Ill.Dec. 948, 975 N.E.2d 1257. The purpose of rehabilitative maintenance is to provide the recipient spouse an incentive to develop the job qualifications necessary to become self-sufficient after a period of time. In re Marriage of Carpenter , 286 Ill. App. 3d 969, 972, 222 Ill.Dec. 260, 677 N.E.2d 463 (1997). Thus, awards of rehabilitative maintenance generally require maintenance to be paid for a specified period of time, "thereby presumably allowing the recipient to become 'rehabilitated' and able to support herself." Bolte , 2012 IL App (3d) 110791, ¶ 24, 363 Ill.Dec. 948, 975 N.E.2d 1257.

¶ 35 Here, the 2007 orders did not provide that maintenance would automatically terminate after a fixed period of time. The orders also did not provide that, after a fixed period of time, Ruth would have to demonstrate that she had made reasonable efforts to become self-sufficient, although they did provide that the maintenance could be reviewed after Ruth turned 65 at the request of either party-presumably to allow the court to reassess the financial positions of the parties once Ruth began collecting Social Security. See id. The 2007 dissolution orders thus gave Ruth a right to receive permanent maintenance. It would be unjust and absurd to alter this right years later because of a statutory amendment. As stated previously, we must presume that the legislature did not intend such a result. See DeLuna , 223 Ill. 2d at 60, 306 Ill.Dec. 136, 857 N.E.2d 229. We therefore hold that the guidelines are not applicable in proceedings to modify preexisting maintenance orders. The court erred in reaching the opposite conclusion.

¶ 36 Although we have concluded that the court's interpretation of the relevant statutory provisions was not correct, we do not believe the court's use of the new guidelines to calculate the amount of maintenance necessarily requires reversal. This court has previously recognized that even where the guidelines are not applicable, an award of maintenance that is consistent with the guideline amount will typically be a proper exercise of the court's discretion. See Johnson , 2016 IL App (5th) 140479, ¶¶ 108, 110, 400 Ill.Dec. 96, 47 N.E.3d 1061 (recognizing that the new guidelines were not applicable but finding additional support for its conclusion that the amount of maintenance awarded was an abuse of discretion because there was a significant disparity between the amount awarded and the amount that would have been awarded under the guidelines). Here, the court expressly stated that it considered the relevant factors in both section 504 and section 510 ( 750 ILCS 5/504(a), 510(a-5) (West 2016) ), as it was required to do. After consideration of these factors, the court determined that guideline amount of maintenance was appropriate. We may affirm the court's ruling on any basis appearing in the record, even if it was not the basis relied upon by the court. In re Marriage of Fortner , 2016 IL App (5th) 150246, ¶ 15, 402 Ill.Dec. 761, 52 N.E.3d 682. Thus, as long as the court considers the required factors and does not abuse its discretion in determining the amount or duration of maintenance, we may affirm its ruling.

¶ 37 This brings us to David's next argument. He argues that the court abused its discretion both by increasing his maintenance obligation and by making maintenance permanent. He argues that the court overlooked various factors, including an increase in Ruth's income and the lack of any evidence that Ruth had attempted to become self-sufficient. He complains that Ruth "overstated" the amount of money she spent for home maintenance and repairs. Finally, he emphasizes the evidence he presented to attempt to show that Ruth had a gambling addiction and the evidence that she had not paid off the home equity loan assigned to her. We are not persuaded.

¶ 38 Contrary to David's assertion, the court did in fact consider the factors he claims it overlooked. The court expressly found that Ruth's income had increased when she began receiving Social Security benefits, and the court took that amount of income into consideration when determining the amount of maintenance to award. The court also expressly found that there was no reason to believe that Ruth, a 70-year-old retiree, had any realistic avenue to become self-sufficient. This finding was amply supported by the record, and David acknowledged as much in his testimony when he admitted he did not expect Ruth to go back to work and that he had no idea how she would support herself if maintenance were terminated.

¶ 39 We find David's argument that Ruth "overstated" her expenses for home maintenance and repair particularly unavailing. If anything, it appears that she likely underestimated these expenses. She testified at the hearing that she was required to pay for two major repairs to her home during the 12 months before the hearing-one was a repair to a broken pipe underneath the house, and the other was a rewiring of her air conditioner. She could not remember precisely how much she paid for either repair, and she could not remember what other repairs were needed. It is likely that it cost more than $260 to repair a pipe under the house. However, it was Ruth's burden to establish these expenses, and the court discounted the $300 per month Ruth claimed she spent on home maintenance and repair when it found that her reasonable monthly expenses were $2800 per month.

¶ 40 The court also addressed David's evidence that Ruth spent time playing video gaming machines. The court referred to this evidence as evidence of a "purported gambling addiction," implying that the court did not find the evidence particularly persuasive, but the court did not make any express credibility determinations. The court did, however, find that $2800 of the expenses listed by Ruth in her financial statement were reasonable, a determination that was supported by the evidence. Thus, even assuming Ruth understated the amount of money she spent on video gaming, as David asserts, the court's maintenance award was properly based on its finding that her other expenses were reasonable.

¶ 41 It is also worth noting that the investigator's report only revealed that Ruth spent a few hours playing video gaming machines on two different occasions and that on one of those occasions, she spent approximately $30. Although the precise nature and extent of the surveillance leading to these two observations is not clear, it appears that the investigator spent a significant amount of time following Ruth attempting to find evidence of a gambling addiction. His reports indicated that on at least three other occasions, he went to the parking lots of two different bowling alleys looking for Ruth's car and that on one other occasion, she noticed him following her car and took evasive action. During the hearing, Ruth's attorney attempted to ask Ruth if she wanted the court to order David's private investigator and members of David's family to stop following her, but the court noted that she did not request this relief in any pleadings. We find nothing in this evidence that renders the court's decision an abuse of discretion.

¶ 42 Finally, David complains that Ruth was "completely derelict in her duty" to pay the home equity loan that was assigned to her in the dissolution. As we have discussed, the loan was taken out by David and Ruth during their marriage and used to purchase a piece of land that was awarded to David in the dissolution, free and clear of any claim by Ruth. David acknowledged at the hearing that Ruth made the required payments under the loan. He complained, however, that she took an additional loan without his consent, thereby adding to the debt, and that she did not refinance the loan to remove his name from it. Although David claims that the continued existence of the loan has impacted his own ability to borrow money, he has not provided any explanation or examples. Ruth testified that the bank would not allow her to refinance the loan to remove David's name. She acknowledged that she added to the debt. She explained that she borrowed additional money on the line of credit because she needed that money to make the monthly payments.

¶ 43 We are not convinced by David's argument that this additional loan required the court to terminate or reduce Ruth's maintenance. A former spouse receiving maintenance is not required to exhaust all of her assets in order to meet her basic needs. In re Marriage of Nord , 402 Ill. App. 3d 288, 304, 342 Ill.Dec. 416, 932 N.E.2d 543 (2010). By the time of the hearing in this matter, Ruth had already exhausted her retirement account and other savings in order to provide for her basic needs and to pay the debt assigned to her. The court did not abuse its discretion by increasing the amount of her maintenance under these circumstances, and the evidence that she felt compelled to take on additional debt in order to pay a loan used to purchase property now owned and enjoyed by David does not alter this conclusion.

¶ 44 As stated previously, an award of maintenance consistent with the guideline amount will ordinarily not be found to be an abuse of the court's discretion even in cases where the guidelines are not applicable. The maintenance awarded in this case represents an increase of $600 per month. This is hardly excessive in light of the fact that David's income nearly doubled in the years since the dissolution. As Ruth points out, the maintenance award still leaves her with slightly less than she needs to meet the $2800 per month in expenses the court found reasonable. We find no abuse of discretion in the amount of maintenance ordered by the court.

¶ 45 We likewise find no abuse of discretion in the court's decision to award permanent maintenance. As previously discussed, the original 2007 maintenance order was, in substance, an award of permanent maintenance despite the lack of clarity in Judge Cason's order. Moreover, regardless of how the original order is characterized, we agree with Ruth that the court would have abused its discretion had it not awarded permanent maintenance. Rehabilitative maintenance is only appropriate if the recipient spouse is employable at an income level sufficient to allow her to live at the standard of living established during the marriage.

Nord , 402 Ill. App. 3d at 305, 342 Ill.Dec. 416, 932 N.E.2d 543. Permanent maintenance is appropriate in cases where the recipient spouse is not employable at that level or not employable at all. Johnson , 2016 IL App (5th) 140479, ¶ 93, 400 Ill.Dec. 96, 47 N.E.3d 1061. In such cases, an award of rehabilitative maintenance is an abuse of discretion. Carpenter , 286 Ill. App. 3d at 973, 222 Ill.Dec. 260, 677 N.E.2d 463. At the time of the hearing in this matter, Ruth was about to turn 70 and had long ago retired. David admitted that he did not expect her to return to work. Under these circumstances, the court would have abused its discretion if it had awarded anything other than permanent maintenance.

¶ 46 We find no abuse of discretion in either the amount or duration of maintenance, and we find that the court considered the factors it was required to consider. We therefore affirm the court's order increasing David's maintenance obligation to $1900 per month and denying David's petition to terminate maintenance.

¶ 47 Affirmed.

Justices Cates and Overstreet concurred in the judgment and opinion.