In Re Marriage of Barile

896 N.E.2d 1114, 385 Ill. App. 3d 752, 324 Ill. Dec. 895, 2008 Ill. App. LEXIS 1005
CourtAppellate Court of Illinois
DecidedOctober 8, 2008
Docket2-07-1081
StatusPublished
Cited by28 cases

This text of 896 N.E.2d 1114 (In Re Marriage of Barile) 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 Barile, 896 N.E.2d 1114, 385 Ill. App. 3d 752, 324 Ill. Dec. 895, 2008 Ill. App. LEXIS 1005 (Ill. Ct. App. 2008).

Opinion

PRESIDING JUSTICE ZENOFF

delivered the opinion of the court:

The marriage of petitioner, Paul A. Barile, and respondent, Carla Barile, was dissolved on November 16, 2004. In the dissolution judgment, the court ordered petitioner to pay respondent maintenance of $5,318 a month. The court then indicated that the amount of maintenance was nonmodifiable. On September 1, 2006, petitioner petitioned to terminate, modify, or abate maintenance. 750 ILCS 5/510(a) (West 2006). Respondent moved to dismiss petitioner’s petition (see 735 ILCS 5/2 — 619(a)(9) (West 2006)) and petitioned to hold petitioner in contempt for failing to pay maintenance as of September 2006. The trial court granted the motion to dismiss. Following a hearing on respondent’s petition, the court, which was not the same court that presided over the dissolution proceedings, declined to hold petitioner in contempt. However, the court ordered petitioner to pay respondent $69,134 in past-due maintenance and imposed interest of 9% on the arrearage, which interest was to run from the date the court entered judgment on the arrearage. Respondent appeals, contending that the court erred when it (1) found that petitioner should not be held in contempt and (2) gave her interest on the maintenance arrearage only from September 26, 2007, the date of judgment, and not from September 2006, when petitioner stopped paying maintenance. We reverse and remand.

The November 16, 2004, dissolution order awarded “[respondent] *** four years reviewable maintenance from [petitioner] in the amount of *** $5,318 *** per month.” During that four-year period, petitioner’s maintenance obligation was “non-modifiable in amount.” The amount was based on petitioner’s average gross annual income of $158,000. The dissolution order reserved the issue of whether respondent was required to pay petitioner child support, providing that petitioner shall support the parties’ two children and “shall pay and be responsible for all of the out of pocket uncovered medical and extracurricular expenses of the minor children.” Nowhere in the order was petitioner required to pay for the college education of the parties’ children.

At the hearing on respondent’s contempt petition, respondent testified that the last maintenance payment she received from petitioner was in August 2006. Thus, petitioner’s maintenance arrearage totaled $69,134. 1 Respondent worked 20 hours per week and earned $9.55 per hour. Respondent testified that her hours would soon increase to 40 hours per week. Although respondent worked to support herself, she had to borrow money to make ends meet. Respondent testified that petitioner paid her her share of the equity in the marital home, in which petitioner now resided. While petitioner owned his own home, respondent was currently renting her home.

Based on respondent’s testimony, the trial court found that a rule to show cause should issue and that the burden of proof shifted to petitioner to establish that his failure to pay maintenance was not willful.

Petitioner conceded that he stopped making maintenance payments to respondent on September 1, 2006. In 2006, petitioner’s gross income was $164,000. That gross income included $74,000 that petitioner received from Grubb & Ellis, a previous employer. On cross-examination, petitioner testified that he received a total of $235,000 from two employers in 2006 and got $300 per month from the Veteran’s Administration. In January 2007, petitioner started new employment, earning $8,332 per month within the first six months and receiving $1,500 when the company for which he worked was sold. Also in 2007, petitioner obtained a $21,347 tax refund.

In addition to presenting evidence about his income, petitioner also testified about his expenses. In January 2005, petitioner received a loan of $50,000 from a previous employer, and he was given $100,000 in draws, which are like loans. Although petitioner earned $60,000 within the first six months of 2007, he received a loan of $4,166.66 per month for the remainder of the year. Petitioner used the $50,000 loan and the $74,000 he was paid to pay back certain outstanding debts, such as health insurance costs and a $61,000 loan he received from his mother. After the parties’ marriage was dissolved, petitioner owed his attorney $220,000, and he owed almost $565,000 on the marital home, which he bought in 2004 for $610,000. Petitioner believed that the mortgage on the home would be foreclosed.

Petitioner estimated that his living expenses exceeded $12,000 per month. In fact, petitioner testified that his living expenses in October 2006 totaled $15,000, which did not include any maintenance petitioner should have paid respondent. Petitioner’s living expenses included many of the parties’ children’s expenses, which the dissolution order required him to pay. Specifically, petitioner’s living expenses included the college tuition of the parties’ daughter, Erica; health insurance; his mortgage; real estate taxes; car payments for himself, which totaled $598 per month; car payments for Erica; automobile insurance for himself; automobile insurance for Erica, which totaled $343 per month; cell phones for the parties’ children; utilities; blood pressure medication; clothing for the parties’ children; work expenses, including parking costs of $400 per month and gas; a three-day trip to California in the summer of 2006; golfing with the parties’ son, Blake, almost every weekend; and food for himself and Blake.

During various parts of the proceedings on the contempt petition, the trial court interjected several concerns it had with the maintenance provision of the parties’ dissolution order. Specifically, the court seriously questioned whether Illinois law permitted a court to enter an order for maintenance that provided that the amount of maintenance was nonmodifiable. Because of this concern, the court asked the parties to present arguments on whether, because of the unauthorized order, the court had jurisdiction over the case. The court finally determined that the maintenance provision in the dissolution order was voidable, not void, and, thus, the court had jurisdiction over the case.

When the cause continued, petitioner stated that he had filed the petition to abate, terminate, or modify maintenance based on the fact that the maintenance provision in the dissolution order was void. The court advised petitioner that it had found that the order was voidable. Petitioner’s petition to modify maintenance was dismissed, as the dissolution order provided that maintenance was nonmodifiable.

Petitioner then testified on cross-examination that he quit Grubb & Ellis in December 2005, after having worked there for six years. Petitioner quit because his insurance was eliminated. When petitioner left, he owed his employer $6,300 in unpaid health insurance expenses, which was ultimately taken out of his pay. Also in 2005, petitioner lent $10,000 to a friend, which had never been repaid. Petitioner testified that he had tried to collect payment on the loan, but his friend had not been able to repay the debt.

When asked about the money he spent on the parties’ children, petitioner testified that Erica went to the College of Du Page (COD) until 2005.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Marriage of Sunghay
2025 IL App (1st) 251029-U (Appellate Court of Illinois, 2025)
In re Marriage of Groh
2025 IL App (2d) 250319-U (Appellate Court of Illinois, 2025)
In re Marriage of Zisook
2025 IL App (1st) 221834-U (Appellate Court of Illinois, 2025)
In re Marriage of Moehring
2025 IL App (2d) 240071-U (Appellate Court of Illinois, 2025)
In re Marriage of Salbi
2024 IL App (2d) 240322-U (Appellate Court of Illinois, 2024)
In re Marriage of Cholach
2024 IL App (1st) 221927-U (Appellate Court of Illinois, 2024)
Moscov v. Addo
2023 IL App (1st) 220619-U (Appellate Court of Illinois, 2023)
Portfolio Recovery Associates, LLC v. Moore
2023 IL App (1st) 220133-U (Appellate Court of Illinois, 2023)
Minor v. Department of Employment Security
2022 IL App (1st) 220262-U (Appellate Court of Illinois, 2022)
In re Marriage of Beaton
2022 IL App (2d) 200556-U (Appellate Court of Illinois, 2022)
People v. Soskin
2021 IL App (2d) 191017 (Appellate Court of Illinois, 2021)
Van Luvender v. Gwaltney
2021 IL App (5th) 180400-U (Appellate Court of Illinois, 2021)
In re Marriage of Paris
2020 IL App (1st) 181116 (Appellate Court of Illinois, 2021)
Shamrock Chicago Corp. v. Wroblewski
2019 IL App (1st) 182354 (Appellate Court of Illinois, 2021)
Storey v. City of Alton
2020 IL App (5th) 200065-U (Appellate Court of Illinois, 2020)
In re Marriage of Paul J.N.
2020 IL App (2d) 190839-U (Appellate Court of Illinois, 2020)
In re Marriage of Montgomery
2020 IL App (2d) 180726-U (Appellate Court of Illinois, 2020)
People v. Johnson
2017 IL App (1st) 162876 (Appellate Court of Illinois, 2018)
Lewis v. Heartland Food Corp.
2014 IL App (1st) 123303 (Appellate Court of Illinois, 2014)
Lewis v. Heartland Food Corporation
2014 IL App (1st) 123303 (Appellate Court of Illinois, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
896 N.E.2d 1114, 385 Ill. App. 3d 752, 324 Ill. Dec. 895, 2008 Ill. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-barile-illappct-2008.