In re Marriage of Ellinger

Opinion

No. 3--06--0940

_________________________________________________________________ Filed January 3, 2008 IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

In re MARRIAGE OF ) Appeal from the Circuit Court SANDRA ELLINGER, ) of the 12th Judicial Circuit, ) Will County, Illinois, Petitioner-Appellee, ) ) and ) No. 03--D--1190 ) GARY ELLINGER, ) Honorable ) Bobbi N. Petrungaro, Respondent-Appellant. ) Judge, Presiding. _________________________________________________________________

JUSTICE CARTER delivered the opinion of the court: _________________________________________________________________

Sandra Ellinger petitioned the trial court to dissolve her

marriage with the respondent, Gary Ellinger. In the court's

judgment granting the dissolution, it ordered Gary, among other

things, (1) to pay maintenance to Sandra; and (2) to maintain a

certain life insurance policy, with Sandra as sole beneficiary,

so long as Gary was statutorily obligated to pay maintenance. On

appeal, Gary argues that the trial court erred in its order

concerning the life insurance policy. We reverse and remand.

BACKGROUND

The court issued its written dissolution judgment on

March 10, 2006. The judgment consisted of 9 enumerated

paragraphs of findings (numbered 1 to 9), and 21 enumerated

paragraphs of orders (numbered 1 to 21). We will refer to these two kinds of enumerated paragraphs as "finding paragraphs" and

"order paragraphs," respectively.

In order paragraph 15, the court required Gary to pay Sandra

monthly maintenance. In this paragraph, the court also stated

that the "maintenance shall terminate on the first to occur of a

statutory termination event."

Finding paragraph 8 listed a Thrivent life insurance policy

among Gary's nonmarital assets. Gary had purchased the life

insurance policy in 1962. The couple was married in 1985. In

the court's oral pronouncement of its decision, it found that

during the marriage the premiums for the life insurance policy

were paid from marital assets. In order paragraph 8, the court

required Gary to "maintain [Sandra] as the sole beneficiary of

the Thrivent life insurance policy, free of loans, liens and

encumbrances, so long as he shall have an obligation to pay

maintenance to [Sandra]."

Gary filed a motion to reconsider the judgment in which he

argued, among other things, that the court erred by requiring him

to maintain Sandra as the sole beneficiary of the life insurance

policy, while he was obligated to pay maintenance to her. In its

ruling on Gary's motion, the court stated that it had ordered

Gary to designate Sandra as the beneficiary of the life insurance

policy as security for Gary's maintenance obligation. The court

cited In re Marriage of Vernon, 253 Ill. App. 3d 783, 625 N.E.2d

823 (1993), as precedential authority, and several cases from

other jurisdictions (Parley v. Parley, 72 Conn. App. 742, 807

2 A.2d 982 (2002) (Connecticut); Kushman v. Kushman, 297 A.D.2d

333, 746 N.Y.S.2d 319 (2002) (New York); In re Marriage of Sim,

939 P.2d 504 (1997) (Colorado); and Sheridan v. Sheridan, No. CX-

-94--520 (Minn. App. 1994) (an unpublished Minnesota case)), as

persuasive authority for its decision. The court also said that

the use of life insurance to secure maintenance payments was

analogous to the use of life insurance to secure child support

payments. The court denied Gary's motion to reconsider, and Gary

appealed.

ANALYSIS

Gary contends that the trial court erred by requiring him to

designate Sandra as the beneficiary of the life insurance policy

as security for his maintenance obligation.

The issue in this case concerns the statutory construction

of provisions in the Illinois Marriage and Dissolution of

Marriage Act (Act) (750 ILCS 5/101 et seq. (2006)). The primary

rule of statutory construction is to discern the intent of the

legislature. Ultsch v. Illinois Municipal Retirement Fund, 226

Ill. 2d 169, 874 N.E.2d 1 (2007). The best evidence of the

legislature's intent is the statutory language itself, which must

be given its plain and ordinary meaning. Ultsch, 226 Ill. 2d

169, 874 N.E.2d 1.

It is well established that when the legislature used

certain language in one part of an act, and different language in

another portion of the act, the legislature intended different

results. Collins v. Board of Trustees of the Firemen's Annuity &

3 Benefit Fund, 155 Ill. 2d 103, 610 N.E.2d 1250 (1993).

Additionally, when the legislature deleted certain language from

previous legislation, it is presumed that the legislature

intended to change the law. Forest City Erectors v. Industrial

Commission, 264 Ill. App. 3d 436, 636 N.E.2d 969 (1994). Our

construction of statutory provisions involves a question of law,

which we review de novo. In re Marriage of Thomsen, 371 Ill.

App. 3d 236, 872 N.E.2d 1 (2007).

Section 504 of the Act authorizes a trial court to order one

spouse to pay the other spouse maintenance. 750 ILCS 5/504

(2006). Neither section 504, nor any other section of the Act,

states that the court may order the spouse paying maintenance to

designate the spouse receiving maintenance as the beneficiary of

a life insurance policy as security for the maintenance payments.

See 750 ILCS 5/101 et seq. (2006).

The trial court, in this case, said that the use of life

insurance to secure maintenance payments was analogous to the use

of life insurance to secure child support payments. We observe

that the language in the Act regarding child support is different

from the Act's language regarding maintenance. Section 510(c) of

the Act states that, with exceptions not applicable to this case,

"the obligation to pay future maintenance is terminated upon the

death of either party." 750 ILCS 5/510(c) (2006). However,

section 510(d) says that "provisions for the support of a child

are" not terminated "by the death of a parent obligated to

support *** the child." 750 ILCS 5/510(d) (2006).

4 Section 510(d) further provides that "[w]hen a parent

obligated to pay support *** dies, the amount of support *** may

be enforced, modified, revoked or commuted to a lump sum payment,

as equity may require, and that determination may be provided for

at the time of the dissolution of the marriage." 750 ILCS

5/510(d) (2006). The Act does not contain an analogous provision

concerning a spouse's maintenance obligation regarding this

latter provision in section 510(d).

Additionally, section 503(g) of the Act states that "[t]he

court if necessary to protect and promote the best interests of

the children may set aside a portion of the jointly or separately

held estates of the parties in a separate fund or trust for the

support *** of any *** child of the parties." 750 ILCS 5/503(g)

(2006). The Act does not contain a provision analogous to

section 503(g) regarding a spouse's maintenance obligation.

In the present case, we note that the language in the Act

concerning a spouse's obligation to pay maintenance after the

obligor's death is different from the language in the Act

concerning a parent's obligation to pay child support after the

obligor's death. Also, the Act contains language regarding the

court's discretion to designate assets as security for child

support obligations, whereas the Act does not contain language

giving the court discretion to designate assets as security for

maintenance obligations. We must presume that the legislature

intended different results by the different language in the Act

concerning child support compared with its language regarding

5 maintenance. See Collins, 155 Ill. 2d 103, 610 N.E.2d 1250.

Thus, we rule that the trial court erred as a matter of law by

stating that the use of life insurance to secure maintenance

payments was analogous to the use of life insurance to secure

child support payments.

Furthermore, as the court observed in In re Marriage of

Clarke, 125 Ill. App. 3d 432, 465 N.E.2d 975 (1984), when the Act

was enacted, it replaced earlier legislation that gave a trial

court discretion to designate life insurance as security for

maintenance obligations. The omission of such a provision in the

Act showed the intent of the legislature to change the law in

this regard. See Forest City Erectors, 264 Ill. App. 3d 436, 636

N.E.2d 969. For this additional reason, we hold that the trial

court erred as a matter of law by stating that it had discretion

to require Gary to maintain a life insurance policy as security

for his maintenance obligation.

The trial court in this case based its decision, in part, on

the ruling in Vernon, 253 Ill. App. 3d 783, 625 N.E.2d 823. In

Vernon, the court stated that it declined to address the

application of the holding of Clarke because the parties had not

raised Clarke in its briefs. Curiously, the Vernon court,

nonetheless, discussed why it disagreed with the ruling in

Clarke. Because the Vernon court's rejection of Clarke was

obiter dicta, we find Vernon to be inapplicable to the present

case. Moreover, unlike the parties in Vernon, in this case, Gary

argued the applicability of Clarke in his brief. Thus, the

6 holding of Vernon is factually distinguishable from the present

case.

The trial court in this case also based its ruling, in part,

on the persuasive authority of cases from other jurisdictions.

We observe that the cases from other jurisdictions also are

factually distinguishable from the instant case. These cases

concerned jurisdictions in which trial courts have statutory

authority to require life insurance as security for maintenance

obligations, whereas no such provisions exist in Illinois law, as

we discussed above. See Parley, 72 Conn. App. 742, 807 A.2d 982;

Kushman, 297 A.D.2d 333, 746 N.Y.S.2d 319; Sim, 939 P.2d 504;

Sheridan, No. CX--94--520. Therefore, the cases from other

jurisdictions are inapplicable to the present case as persuasive

authority.

In summary, we rule that the trial court erred as a matter

of law by requiring Gary to maintain the Thrivent life insurance

policy, with Sandra as sole beneficiary, so long as Gary was

statutorily obligated to pay maintenance. Thus, we reverse and

remand the cause for further proceedings.

We note that in its dissolution judgment, a trial court is

to consider maintenance, insurance, assets, debts, and other

factors, not in isolation, but rather, equitably and as a whole.

See 750 ILCS 5/503 (West 2006); In re Marriage of Leopando, 96

Ill. 2d 114, 449 N.E.2d 137 (1983). Because our ruling may have

disturbed the trial court's original equitable calculation, on

remand the court may reconsider the distribution of those factors

7 that may affect the financial future of the parties. See

Leopando, 96 Ill. 2d 114, 449 N.E.2d 137.

CONCLUSION

For the foregoing reasons, we reverse that portion of the

Will County circuit court's dissolution judgment requiring Gary

to maintain the Thrivent life insurance policy, with Sandra as

sole beneficiary, and remand the cause for further proceedings.

Reversed and remanded.

MCDADE, P.J. and HOLDRIDGE, J. concurring.