In Re Marriage of Michaelson

834 N.E.2d 539, 359 Ill. App. 3d 706, 295 Ill. Dec. 958, 2005 Ill. App. LEXIS 802
CourtAppellate Court of Illinois
DecidedAugust 16, 2005
Docket1—04—3783, 1—05—0696 cons.
StatusPublished
Cited by38 cases

This text of 834 N.E.2d 539 (In Re Marriage of Michaelson) 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 Michaelson, 834 N.E.2d 539, 359 Ill. App. 3d 706, 295 Ill. Dec. 958, 2005 Ill. App. LEXIS 802 (Ill. Ct. App. 2005).

Opinion

JUSTICE WOLFSON

delivered the opinion of the court:

We are asked to determine the meaning of the maintenance provision in the parties’ marital settlement agreement. The husband, Robert L. Michaelson (Robert), agreed to pay maintenance to his wife, Anna Marie Michaelson (Anna), for eight years, totaling $360,000. The question is whether the provision provided for maintenance in gross, not subject to termination or modification on Robert’s motion. The trial court read the provision to prohibit Robert’s attempt to terminate or modify maintenance and ordered him to pay Anna’s attorney fees. We affirm the trial court.

FACTS

The parties were married on May 27, 1989. No children were born of the marriage or adopted by the parties. 1 The judgment for dissolution of marriage was entered on July 6, 1998. The judgment incorporated the parties’ written marital settlement agreement (Agreement). The following provisions of the Agreement are pertinent to this case:

“ARTICLE III
MAINTENANCE
3.1 Amount. Husband shall be obligated to pay to Wife, as and for spousal support, the sum of $45,000 per year, beginning at such time that Husband becomes an attending physician, post residency, for a period of eight (8) years, for a total of Three Hundred Sixty Thousand ($360,000) Dollars. Said spousal support shall be paid to Wife in ninety six (96) equal monthly installments of Three Thousand Seven Hundred Fifty ($3,750.00) Dollars.
Husband shall be allowed to deduct any and all such payments as maintenance, and Wife shall be required to claim such payments as income, for Internal Revenue and State tax purposes.
* * *
3.3 Termination of Maintenance. The maintenance payment(s)/ obligation provided for by this agreement shall terminate completely, only after the payment of all monies due to Wife are paid in full, regardless of any other changed circumstances of the parties.
$ $ ^
ARTICLE V
GENERAL
* * *
5.5 Modification. The provisions of this agreement may be modified or rescinded by the written consent of both parties; however, the parties agree that they will not petition the court for a modification unless there is a substantial change in circumstances of the parties.”

From September 2001 through December 2003, Robert made maintenance payments to Anna totaling $90,000. As of January 1, 2004, Robert stopped paying maintenance. According to Robert, from January 2004 through September 2004, he placed into escrow the sum of $3,750 per month in a separate bank account, not accessible by Anna.

On March 12, 2004, Robert filed his “Petition to Terminate Or, in the Alternative, Reduce Maintenance.” Robert argued his obligation to pay maintenance terminated on Anna’s alleged cohabitation with another man or, alternatively, upon her remarriage, pursuant to sections 510(c) and 510(a — 5) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/510 (West 2004)). Section 510(c) provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” 750 ILCS 5/510(c) (West 2002).

Section 510(a — 5) of the Act allows an order of maintenance to be modified or terminated on a showing of a substantial change in circumstances. 750 ILCS 5/510(a — 5) (West 2004). Robert argued Anna’s remarriage constituted a substantial change in circumstances warranting a reduction in maintenance. Robert later amended his petition to add paragraph 5.5 of the Agreement, contending the paragraph allowed maintenance to be modified.

On May 25, 2004, Anna filed a petition for rule to show cause why Robert should not be held in contempt of court, alleging he had stopped making required maintenance payments as of January 1, 2004. She also filed a motion to dismiss Robert’s petition to terminate or reduce maintenance. Anna contended maintenance was not modifiable, based on the language in paragraphs 3.1 and 3.3 of the Agreement, and because it was maintenance in gross.

On September 2, 2004, the trial court granted Anna’s motion to dismiss Robert’s petition. The court found Robert’s obligation was maintenance in gross because the sum of $360,000 was vested in Anna at the time the judgment was entered. The court found paragraphs 3.1 and 3.3 contained “clear and precise language” precluding any modification. Paragraph 5.5, the court said, was a “general catch-all provision” that did not override “the more detailed, specific and agreed to language of the maintenance provisions in paragraph 3.1 and 3.3.”

On September 7, 2004, the trial court entered a rule against Robert to show cause why he should not be held in indirect civil contempt of court for his failure to make past-due and prospective maintenance payments.

At the hearing on the return of the rule to show cause, the court found Robert in indirect civil contempt of court for his failure to pay maintenance. In an order entered September 22, 2004, the court found Robert had no good cause or justification for his refusal to pay maintenance and granted him seven days to pay $33,750 in past-due maintenance plus statutory interest. Robert paid the maintenance arrearage as ordered. The court subsequently entered an order finding Robert had purged himself of the finding of contempt by complying in full with the purge terms.

Robert filed a motion for reconsideration, which was denied by the trial court on November 16, 2004.

On October 13, 2004, Anna filed a “Petition for Attorneys’ Fees and Costs,” pursuant to section 508 of the Act (750 ILCS 5/508 (West 2002)), for fees incurred in her enforcement of a judgment. 2 Robert filed a written response to the petition. On November 17, 2004, the court ordered Robert to pay Anna’s attorney fees and costs of litigation incurred through October 1, 2004, in the amount of $9,640.

Robert filed a notice of appeal in this court appealing the orders entered on September 2, 2004, September 22, 2004, November 16, 2004, and November 17, 2004.

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Cite This Page — Counsel Stack

Bluebook (online)
834 N.E.2d 539, 359 Ill. App. 3d 706, 295 Ill. Dec. 958, 2005 Ill. App. LEXIS 802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-michaelson-illappct-2005.