In Re Marriage of Avery

622 N.E.2d 1231, 251 Ill. App. 3d 648, 190 Ill. Dec. 914, 1993 Ill. App. LEXIS 1644
CourtAppellate Court of Illinois
DecidedNovember 1, 1993
Docket5-92-0482
StatusPublished
Cited by7 cases

This text of 622 N.E.2d 1231 (In Re Marriage of Avery) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Avery, 622 N.E.2d 1231, 251 Ill. App. 3d 648, 190 Ill. Dec. 914, 1993 Ill. App. LEXIS 1644 (Ill. Ct. App. 1993).

Opinion

JUSTICE MAAG

delivered the opinion of the court:

Respondent, Virginia Avery, appeals from an order entered by the circuit court of Johnson County on June 26, 1992, denying her petition to enforce terms with respect to increasing child support as contained in a previous order of the court dated January 7, 1986. For the reasons that follow, we affirm in part and reverse and remand with directions.

A judgment of dissolution of marriage was entered on March 26, 1985, dissolving the bonds of matrimony between the parties. On July 19, 1985, the parties appeared before the circuit court on all remaining issues and entered into a marital settlement agreement. This agreement was reduced to writing by Danny’s attorney and entered as an order of the court on January 7,1986.

The order entered January 7, 1986, awarded Virginia the marital domicile of the parties and provided in pertinent part:

“C. Child Support:
(1) [Danny] shall pay to [Virginia] for the support of the child, Hope Amber Avery, the sum of $87.50 every two weeks. [Danny] shall commence his payment of child support beginning ■with his first pay period following July 19, 1985. Said child support of $87.50 every two weeks shall continue until the present mortgage on the marital home is paid.
* * *
(2) Once the said mortgage on the marital home has been paid then [Danny] shall pay to [Virginia] the folio-wing child support for Hope Amber Avery:
***
(B) In the event that John Avery ([Danny’s] son by a prior marriage) has attained the age of 18, the child support shall be 20% of [Danny’s] net pay as net pay is defined in the Illinois Marriage and Dissolution of Marriage Act.
* * *
(4) That the child support set forth above in this agreement, along with the mortgage payments to be paid by [Danny] to the Goreville State Bank on the marital home in which the minor child of the parties resides, meets the guidelines for child support set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act.” (Emphasis added.)

The following facts are not in dispute. At the time the court order of January 7, 1986, was entered, the payments being paid on the marital domicile to the Goreville State Bank were at the rate of $379.49 per month per the original mortgage signed by both parties on June 14, 1984. The original mortgage recites that the indebtedness is to be “paid in 86 monthly installments of $379.49 *** first installment due July 14, 1984 and each month thereafter until paid in full.” If Danny had made payments of $379.49 per month, the loan on the marital domicile would have been paid off in July 1991.

On January 1, 1988, Danny reduced the payments to the bank from $379.49 a month to $200 without informing Virginia. On June 26, 1991, Danny entered into an agreement entitled “Mortgage Extension and Modification Agreement” with the bank again without the knowledge of Virginia. The mortgage extension modification agreement provides that the indebtedness on the marital domicile is to be repaid in “96 bi-monthly payment [sic] of $109.01” and extended the date the marital domicile would be paid off to June 28,1995.

On February 20, 1992, Virginia filed a petition to enforce the order dated January 7, 1986, and in particular sought to enforce paragraph (cX2Xb) of that order increasing the cash amount of child support she receives to 20% of Danny’s net income. A hearing on the petition to enforce was held on May 15, 1992. The only explanation Danny offered for his unilateral reduction of the amount paid monthly on the mortgage was the fact that things were economically “tight” and he had remarried. Danny testified that his new wife was unemployed and that they both had bills that needed his attention thus necessitating the reduction.

The trial court orally ruled at the close of the hearing and stated:

“In regards to the child support, the Order says $87.50 every two weeks until the present mortgage is paid. Now in retrospect, obviously, it would have been better to have put a cut off date in there. I suppose the parties should have capitulated [sic] when the mortgage was anticipated to have been paid. The document entitled Defendant’s Exhibit 4, the mortgage extension, is an extension of the present mortgage, in my opinion, and the present mortgage is still pending. The note secured by the mortgage, I suppose, has been changed. The note executed by the mortgage itself is still in effect. This is not a petition to modify the child support, it’s a petition to enforce the original agreement, the original Order. And as I read the original Order, as long as the present mortgage or once the present mortgage is paid, until the present mortgage is paid the child support is $87.50 every two weeks ***.”

The order which is the subject of this appeal was entered on June 26,1992. The order of June 26,1992, provides in pertinent part:

“3. That paragraph ‘c’ of the order dated January 7, 1986 states as follows:
‘Said child support of $87.50 every two weeks shall continue until the present mortgage on the marital home is paid.’
4. [Danny] unilaterally decreased his payments to the bank starting January 1,1988.
5. That [Danny] entered into a mortgage extension agreement with the bank without [Virginia’s] knowledge or consent in June, 1991.
6. That such mortgage extension agreement is the same as the words present mortgage [sic] as contained in paragraph ‘c’ of the order dated January 7, 1986, therefore, [Danny] is not required to increase his child support payments to 20% of his net income.
* * *
B. That the mortgage extension agreement entered by [Danny] without the knowledge of [Virginia] is a continuation of the present mortgage as used in paragraph ‘c’ of the order dated January 7,1986.”

The sole issue presented for review is whether the trial court erred in finding that the mortgage extension and modification agreement is a continuation of the present mortgage as such term is used in paragraph (c) of the order of January 7,1986.

On appeal Virginia argues that allowing Danny to unilaterally reduce the monthly payments on the mortgage is unfair, and she further advocates that the instant case should be decided in accordance with principles as contained in In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 481 N.E.2d 765, and similar cases. In Chenoweth we prohibited the reduction of child support based upon the deliberate acts of the party seeking the reduction.

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Bluebook (online)
622 N.E.2d 1231, 251 Ill. App. 3d 648, 190 Ill. Dec. 914, 1993 Ill. App. LEXIS 1644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-avery-illappct-1993.