In re Marriage of Ring

2020 IL App (1st) 191761-U

• Court: Appellate Court of Illinois
• Decided: December 9, 2020
• Docket: 1-19-1761
• Status: Unpublished

Opinion

2020 IL App (1st) 191761-U

THIRD DIVISION December 9, 2020

No. 1-19-1761

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

In re MARRIAGE OF CAROL RING, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Cook County. ) and ) No. 13 D 5580 ) BARRY RING, ) Honorable ) Dominque Ross, Respondent-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County is vacated and the cause remanded to determine spouse’s burden under parties’ marital settlement agreement to continue a trust established for the benefit of the minor children; the trial court erroneously excluded evidence of the parties’ intent as to that burden.

¶2 Petitioner, Carol Ring, filed a petition for dissolution of marriage against respondent,

Barry Ring, and the circuit court of Cook County entered a judgment for dissolution of marriage.

The judgment, in pertinent part, incorporated by reference the parties’ pretrial stipulations.

Those pretrial stipulations created by the agreement of the parties a trust pursuant to section

503(g) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS

5/503(g) (West 2014)) which would be funded by Barry and from which certain expenses of the 1-19-1761

minor children would be paid. The Dissolution Act allows the trial court to impose a trust if the

court makes a finding that it is necessary to protect the best interest of the children. The terms of

the trust in this case stated the trust would expire in March 2017 unless the parties agreed it

would continue or, if there was no agreement, Carol could file a petition to continue the trust and

she would have the burden to show why the trust should be continued. Under the terms of the

stipulation the trust would remain in place until the court ruled on Carol’s petition to continue the

trust. Carol timely filed a petition to continue the trust which the trial court granted. At issue is

the burden of proof required to continue the trust. The trial court entered an order extending the

trust, without hearing testimony or receiving documentary evidence, finding it was merely

continuing a trust Barry had already agreed to. Barry appeals the order continuing the trust. For

the following reasons, we vacate the trial court’s judgment and remand for further proceedings.

¶3 BACKGROUND

¶4 The parties married in January 2009. The marriage produced two children: O.R., born

July 2010, and A.R., born March 2013. The judgment for dissolution of marriage incorporated

the parties’ pretrial stipulations. The pretrial stipulations created a trust pursuant to section

503(g) of the Dissolution Act. The pretrial stipulations govern, inter alia, child-related expenses

and the creation of the trust. The stipulations state, in pertinent part, as follows:

“In addition to the $6,000 per month in child support Carol is to receive,

Carol shall be entitled to pay certain child-related expenses out of the 503(g)

Trust established in these Pre-Trial Stipulations, except Barry shall pay directly

the Beth El Nursery School costs, the summer camps tuition and enrollment fees

and costs, and the education and religious expenses.

All medical expenses that are not covered by insurance *** incurred for

the minor children shall be paid by Carol from the 503(g) Trust ***. -2- 1-19-1761

All activity/extracurricular expenses for the children, including, but not

limited to, all the cost of fees, dues, equipment, uniforms, needed clothing or

footwear, i.e. ballet shoes and leotards, goggles, swimsuits and any other

necessary items for the [extracurricular] activity shall be paid by Carol from the

503(g) Trust ***.

The parties stipulate that in the summer of 2014, O.R. shall attend

Tamarack Day Camp *** and A.R. shall attend the summer camp at the Beth El

Synagogue and Barry shall be solely responsible for the timely payment of the

expenses associated with the same. *** All items listed by the camps as needed

items shall be paid by Carol from the 503(g) Trust *** excluding regular clothing

and grooming items ***.

***

Carol shall pay all religious school/Hebrew school fees out of the 503(g)

Trust.

Non-tuition related educational expenses for the children, including

uniforms, registration expenses, books, recommended computers/tablets/books,

graduation expenses, and mandatory field trips shall be paid by Carol out of the

Barry shall be solely responsible for the payment of the tuition for such

preschool, and shall pay such tuition and preschool lunch fee directly to the

school. Barry shall make the payments for these expenses timely. ***

Upon entry of the Order incorporating the Pre-Trial Stipulations, Barry

shall deposit the sum of $35,000 into [the trust] account. *** Within seven (7) -3- 1-19-1761

days of the account balance falling below $10,000, Barry shall replenish the

account with an amount so that the balance equals $35,000. From this account,

Carol shall pay all expenses that are to be paid from the 503(g) Trust pursuant to

these Pre-Trial Stipulations. ***

Such 503(g) Trust shall remain in place until March 1, 2017, whereupon

the 503(g) Trust shall terminate unless one of the following conditions occur.

Prior to March 1, 2017, the parties shall discuss and attempt to agree upon the

continuation of the 503(g) Trust. If the parties agree in writing that the 503(g)

Trust shall remain in place, it shall continue for the time period agreed by the

parties in writing and the terms shall be in accordance with this Article, unless

otherwise agreed in writing. If the parties do not agree prior to March 1, 2017

that the 503(g) Trust shall continue beyond March 1, 2017, and Carol wishes for

the 503(g) Trust to continue beyond March 1, 2017, it shall be Carol’s

responsibility to file a petition with the court for a continuance of the 503(g)

Trust. If Carol fails to file a petition requesting same prior to March 1, 2017, the

503(g) Trust shall terminate on March 1, 2017 and any monies remaining in the

503(g) Trust shall be returned to Barry by Carol writing a check by March 10,

2017. If Carol files a petition requesting a continuation of the 503(g) Trust prior

to February 1, 2017, Carol shall have the burden of proof to show the Court why

the 503(g) Trust shall be continued. However, while such petition is pending, the

503(g) Trust *** shall continue until such time until the court rules on Carol’s

petition. ***

In the event the 503(g) Trust is terminated, Barry shall timely pay all of

the expenses set forth in this Article as follows: Carol shall present Barry with -4- 1-19-1761

true and accurate copies of receipts and invoices, for such expenses within

fourteen (14) days of receipt of same. Barry shall pay to Carol the amount of the

expenses within fourteen (14) days of receipt of said invoices. In the event Barry

does not timely pay invoices, it shall be a basis to reestablish the 503(g) Trust.”

¶5 In January 2017, Carol filed a petition to continue the trust. Carol’s petition to extend the

trust alleges Carol “does not earn a sufficient income to provide for the children’s needs without

the existence of a 503(g) Trust.” The petition alleges the minors have become involved in an

increased number of activities and will continue to become involved in more activities in

addition to accumulating medical expenses that are not covered under Carol’s insurance plan

“thereby necessitating the continued need for a 503(g) Trust.” The petition also asks the court to

modify the provisions of the trust to permit Carol “to utilize the trust to pay the minor children’s

additional expenses that [Barry] has been obligated to pay, including, but not limited to: (1) Beth

El Nursery School costs; (2) summer camp tuition and registration fees and costs; (3) education

expenses; and (4) religious expenses.”

¶6 Carol alleges Barry failed to timely pay those expenses. Specifically, Carol’s petition

alleges Barry “has repeatedly failed to timely pay the *** insurance premiums,” “failed to make

payments to the Beth El Nursery School accumulating an outstanding balance *** of $5,393.00,”

and “failed to timely pay the Tamarak camp deposits and fees on behalf of [O.R.] for the past

three (3) consecutive years.” Additionally, “despite initially receiving an invoice in August

2016, [Barry] has failed to pay membership, building fund, and religious school fees in the

amount of $1,735.00 to North Shore Congregation Israel.” The petition claims that Barry “has

displayed a repeated pattern of unwillingness to timely pay the minor children’s expenses

pursuant to *** the Pre-Trial Stipulations of the parties’ Marital Settlement Agreement. In fact,

each and every one of the expenses that [Barry] agreed to pay directly has either been paid late, -5- 1-19-1761

or not paid at all, through no fault of [Carol.]” Carol’s petition further alleges that Barry “is

already in violation” of the parties’ agreement because he failed to timely pay invoices as

required by the clause requiring Barry, after termination of the trust, to pay invoices for the

children’s enumerated expenses within fourteen days of receipt from Carol. Carol claims that for

these reasons it is in the “best interests of the minor children” to extend the trust until the

children are emancipated.

¶7 In March 2017 Barry filed a response to Carol’s petition to continue the trust. The trial

court ordered the parties to submit proposed replacement provisions in the trust and ordered that

if the parties did not reach an agreement the court would “rule on the appropriate language to

replace the 503(g) provisions of the parties’ [dissolution judgment] establishing a new vehicle to

pay the children’s extracurricular activities.” In June 2017 Carol filed her Petition for Finding of

Indirect Civil Contempt and for Other Relief; in November 2018 she filed a Motion to Enforce

Judgment; she also filed a petition for an adjudication of criminal contempt; a petition for

attorney fees; and her Motion for 604.10(b) Parenting Evaluation and for Other Relief. The June

2017 petition claimed that in January 2016 and again in May 2017 when the balance in the trust

fell below $10,000, Barry failed to replenish the trust so that the balance was $35,000, instead

depositing money to bring the balance to $28,429.87 and $8,228.97, respectively. In December

2018 the trial court entered an agreed order modifying the parties’ Agreed Judgment of

Allocation of Parental Responsibilities. The agreed order stated that with the entry of that order

Carol withdrew the aforementioned pleadings.

¶8 In January 2019 Carol filed a second petition for a finding of indirect civil contempt

against Barry stating that in December 2018 the trust account balance fell below $10,000 and

soon after Barry deposited only $2,000 into the account thereby failing to replenish the account

so that the balance equaled $35,000. In February 2019 Barry filed a petition to terminate the -6- 1-19-1761

trust, reallocate child-related costs, and for other relief. The petition alleged, in part, that Carol

continued to violate the pretrial stipulations “by enrolling the children in new activities without

Barry’s agreement, without properly notifying Barry in advance of such activities, and repeatedly

without providing adequate receipts.” Barry also claimed that Carol “inappropriately uses the

503(g) Trust for her own personal expenses” asserting that in 2018 her “personal, unauthorized,

or insufficiently documented expenditures” from the trust accounted for 65% of the money spent.

¶9 In June 2019 the trial court conducted a hearing on Carol’s petition to continue the trust.

At the hearing, Carol’s attorney argued Carol brought the petition because “Barry refused to

follow orders of the Court.” Carol’s attorney argued Barry habitually paid the expenses he was

to pay directly late and questioned why a “mechanism that was established to aid Carol in paying

for expenses incurred on behalf of the minor children that was also found to be in their best

interests” should be removed. Counsel cautioned that if the 503(g) trust were not continued the

court would be “flooded with court dates on these issues as a result of Barry’s refusal to comply

with the orders of the Court.” Counsel claimed that without the trust Carol would be forced to

utilize the court to enforce the parties’ agreement. Carol’s attorney argued that continuing the

trust was “equitable as well as in the best interests of the minor children.”

¶ 10 The trial court inquired as to how many rules to show cause Carol had filed for Barry’s

failure to pay “that either resulted in some type of negotiated settlement or a ruling from the

Court?” Counsel responded “We believe 14, Judge. Pre-decree *** included.”

¶ 11 Carol’s attorney argued that “our goal is to keep the Rings out of court. By keeping and

expanding the 503(g) trust, I think we have a great chance of doing that.” In connection with the

request that the trial court expand the trust to permit Carol to pay from the trust those items Barry

was ordered to pay directly, counsel also claimed that Carol “would not have taken some of the

other deals that she took had it not been for this 503(g) trust being established.” -7- 1-19-1761

¶ 12 In response, Barry’s attorney argued, in pertinent part, as follows:

“So what really is the process here? *** [It] says *** that if Carol files a

petition requesting a continuation of 503(g) trust prior to February 1, 2017, Carol

shall have the burden of proof to show the Court why the 503(g) trust should

continue. Now, that doesn’t say why it was—why it should continue doesn’t

mean why it was in place in the first time. That was an agreement. So what has

really happened since that time?”

¶ 13 Counsel argued the imposition of a trust was an extreme remedy and that no case had

imposed a 503(g) trust on an obligor who had “timely paid $6,000 a month in child support for

*** over five years.” The trial court asked, “Then why did he agree to it?” and counsel

responded that fact was irrelevant. The court later said “[B]ut don’t make it seem as if it’s some

extreme remedy for the Court to continue it considering everything that’s gone on post-decree.”

Counsel agreed Carol had filed three petitions for rule to show cause against Barry but stated

they were unrelated to the 503(g) trust and none had resulted in a finding of contempt.

¶ 14 Barry’s attorney cited authority related to the issuance of a trust to which the trial court

responded, “This isn’t the creation of a 503(g) trust. This is the continuation of a 503(g) trust

that your client agreed to.” Barry’s attorney responded to the trial court’s comment as follows:

“The burden of proof is on them to establish the continuation. What is

that burden of proof? It isn’t that—if it’s just that he agreed to it, then we

wouldn’t be having a hearing. If it’s just that—there’s got to be a basis to

continue it and that they have that burden of proof, Judge, and that burden of

proof goes to what the law says you need to do to have a 503(g) trust; and the law

is not that it makes it easier for her to get paid, it secures the payment. There’s

-8- 1-19-1761

got—the cases are where people go out of the county, they’re incarcerated,

they’re found repeatedly in contempt of court.

* * * [T]here’s nothing that’s happened since then other than the disagreement as

to payment of certain expenses which have all been paid because she has

unilateral authority to write checks and thereby negating his ability under the

agreement to object.

*** [I]t is not necessary to have a 503(g) trust where two petitions for rule to

show cause *** were filed that led to nothing and where the parties at best are

disagreeing as to whether an expense is necessary ***.

This is not a legally sufficient basis under Illinois law for the imposition,

continuation, whatever you want to call it, of a 503(g) trust.”

Barry’s attorney argued the law did not permit the imposition of a trust so that Carol would not

have to talk to Barry and that the trust should not be continued because he has the ability to pay

and because there had been no demonstrated—in the form of hearings or rules to show cause—

unwillingness to pay the children’s expenses.

¶ 15 The trial court stated it wanted to see all of the orders it had entered in this case and

commented that “just the fact that there was a 503(g) and as you stated there is a very—that’s an

extreme remedy, there must have been some extreme circumstances going on for them to have

come back to such an agreement. So I want to see all the orders that have been entered by me.”

¶ 16 Carol’s attorney argued in reply that the reason for a lack of findings of contempt is that

Barry has paid after Carol’s attorneys have drafted and presented the petitions for rule, but “why

should our client have to pay us to do that?” Later, after the trial court again noted that “this is

not the establishment; it is the continuation. It’s already been done,” Barry’s attorney argued, -9- 1-19-1761

“But why would there be—you have to—why would there be language in the stipulation itself

that it’s their burden of proof to establish it continues? That has to mean something.” The court

responded as follows:

“That means that the person has to file a petition just like anybody.

Nobody says they just get it, but I just want to make it clear that it is not the

creation, it is the continuation. And there may not be a distinction, but I will find

out as I read these cases.”

¶ 17 Barry’s attorney continued to argue the language in the stipulation placing the burden on

Carol to show why the trust should continue “has to mean something. *** And what would

most logically they have to prove to have this continue? That there is a need for it. And,

therefore, what does the law tell you what the need is for it.” The trial court responded, “Which

is why I asked what was the need for it pre-decree ***.”

¶ 18 Barry’s attorney later pointed to section 4.1 of the pretrial stipulations as a demonstration

of the reason for the initial imposition of the trust. Section 4.1 reads, in pertinent part, as

follows:

“The parties acknowledge that the child support set forth in paragraph 4.0

is a deviation below the guidelines of statutory child support for two (2) children.

The parties agree that a deviation below guideline child support is appropriate in

this matter in consideration of the fact that Barry is a high income earner and has

earned a gross income in excess of $2 or $3 million per year during the parties’

marriage and takes into consideration the age and actual needs of the children, the

payment of child related expenses by Barry and the establishment of a 503(g)

Trust and the children’s lifestyle and the fact Carol will have up to $750,000 that

- 10 - 1-19-1761

she can use to buy a house, but there is no stipulation that she must use all

$750,000 or purchase the home.”

¶ 19 Barry’s attorney argued that language was the “best evidence and only evidence” of why

the trust was imposed, and that the language showed that a “give and take” as part of an entire

settlement was the reason for the initial imposition of the trust. Barry’s attorney offered to elicit

testimony from Barry and Carol but the trial court declined. The trial court reviewed the

language of the parties’ agreement and stated it “says if the parties don’t agree that there’s a trust

and Carol wishes for the 503(g) trust to continue, not that [the trust should continue because

Barry] failed to do something, but that [Carol] wishes.” The court continued, “So it doesn’t have

to be this extreme remedy you [(Barry’s attorney)] speak of.” Barry’s attorney disagreed arguing

Carol must prove something more than “she wants it;” “[s]he has to prove that it’s appropriate

under the law.”

¶ 20 Carol’s attorney added that it was his sense that the parties agreed to the trust “to simplify

things.”

¶ 21 Following the hearing, at which Carol called no witnesses or introduced any documentary

evidence, the trial court entered an order stating, in pertinent part, as follows: “The 503(g) Trust

established under the March 2014 Pre-trial stipulations shall continue in its current form based

on the court’s observations of the motions filed back and forth by both parties, their agreement to

establish the trust, and nothing has changed.”

¶ 22 This appeal followed.

¶ 23 ANALYSIS

¶ 24 The imposition of a trust for the support and maintenance of the minor children of a

dissolution is controlled by section 503(g) of the Dissolution Act and our supreme court’s

construction of that section in Atkinson v. Atkinson, 87 Ill. 2d 174 (1981). - 11 - 1-19-1761

“Section 503(g) of the Act provides:

‘[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,

maintenance, education, physical and mental health, and general

welfare of any minor, dependent or incompetent child of the

parties.’ 750 ILCS 5/503(g) (West 2012).

We review the decision to impose a trust under section 503(g) of the Act

under an abuse of discretion standard. [Citation.]” In re Marriage of Liszka,

2016 IL App (3d) 150238, ¶ 77.

¶ 25 In Atkinson, our supreme court found that in that case the trial court had “exceeded the

scope of its discretion in ordering the establishment of a trust fund for the benefit of the

children.” Atkinson, 87 Ill. 2d at 178. Our supreme court held that “the imposition of a section

503(d) trust is ‘inappropriate in the absence of evidence showing some need to protect the

interests of the children’ [citation] and therefore inappropriately applied to a responsible parent.”

(Emphasis added.) Id. at 179. Since Atkinson, courts have held that “[a] need for such

protection arises when the obligor spouse is either unwilling or unable to make child support

payments. [Citations.]” In re Marriage of Popa & Garcia, 2013 IL App (1st) 130818, ¶ 23,

citing In re Marriage of Steffen, 253 Ill. App. 3d 966, 969 (1993) (the court has the authority to

create a section 503(g) trust even in postdecree proceedings; authority to create such a trust is not

limited to the time of the original decree dividing the property). We have held that “[a]pplication

of section 503(g) *** demands evidence of a demonstrated unwillingness or inability by a parent

to make direct payments of child support.” (Emphasis added.) In re Marriage of Pickholtz, 178 - 12 - 1-19-1761

Ill. App. 3d 512, 517 (1988), citing Atkinson, 87 Ill. 2d at 179; In re Marriage of Rochford, 91

Ill. App. 3d 769, 782 (1980).

The “imposition of such an obligation is ‘ “inappropriate in the absence of

evidence showing some need to protect the interests of the children” [citation

omitted] and therefore inappropriately applied to a responsible parent’ [citation];

that is, there must be some demonstrated unwillingness or inability to provide for

the children [citation].” In re Marriage of Wilder, 122 Ill. App. 3d 338, 355

(1983), citing Atkinson, 87 Ill. 2d at 179; In re Marriage of Preston, 81 Ill. App.

3d 672 (1980).

¶ 26 On appeal from the trial court’s order continuing the trust in its current form, Barry

argues (1) the trial court abused its discretion by imposing a 503(g) trust without finding Barry is

unwilling or unable to pay child support; (2) the trial court abused its discretion in relying on the

parties’ prior agreement to the trust to continue the trust, thereby ignoring and failing to give

effect to the language in the trust imposing the burden on Carol to show there is, according to

Barry, “cause for the trust to be imposed by Court order rather than agreement,” and effectively

shifting the burden to Barry “to show that something has changed to warrant the termination of

the agreement;” (3) the trial court exceeded its authority by finding that the parties’ post-decree

litigation history constituted grounds for imposing a 503(g) trust against him; (4) the trial court

erred in construing the pretrial stipulations to not require Carol to prove the necessity of the trust

under the Atkinson standard and Carol failed to satisfy her burden to prove the “legal and

factual” need for a 503(g) trust.

¶ 27 The parties dispute whether the trial court actually imposed a 503(g) trust or whether it

merely continued the existing trust. If the latter, then the trial court was required to construe and

apply the language of the parties’ pretrial stipulations incorporated into the marital settlement - 13 - 1-19-1761

agreement to hold that Carol satisfied her burden under the parties’ agreement “to show the

Court why the 503(g) Trust shall be continued.”

“We construe a [marital settlement agreement] in the same manner as a

contract. [Citation.] Our primary objective is ‘to give effect to the purpose and

intent of the parties at the time they entered into the agreement.’ [Citation.] If the

terms of the agreement are unambiguous, we must give effect to that language.

[Citation.] By contrast, if the agreement is ambiguous, i.e., where the language is

susceptible to more than one reasonable interpretation, a court may hear parol

evidence to determine the parties’ intent. [Citations.] We review a circuit court’s

interpretation of a marital settlement agreement de novo. [Citation.]” In re

Marriage of Shulga, 2019 IL App (1st) 182028, ¶ 23.

¶ 28 Barry argues that under the terms of the parties’ agreement, as stated in the pretrial

stipulations incorporated into the marital settlement agreement, the trust terminated on March 1,

2017 and thereafter, the “contract” required Carol to file a petition and establish the need for a

trust under the current law. Specifically, Barry argues the “trial court erred in interpreting the

terms of the Pretrial Stipulations to constitute a waiver of Carol’s obligation to prove that the

503(g) was necessary.” Barry argues that the trial court “ignore[d] the plain and ordinary

meaning of the 503(g) termination clause” and “essentially shifted the burden of proof to Barry

to show that something has changed.” According to Barry, the pretrial stipulations evince an

“intent to terminate absent proof of grounds for continuation [(under the Atkinson standard)];”

and the “plain and ordinary meaning interpretation of [the termination clause] is that the Trust

should terminate on March 1, 2017, unless there is a reason for it to be extended” under

Atkinson. Specifically, “[t]he trial court’s failure to enforce the agreed order and require Carol to

make an affirmative showing that the Trust was necessary pursuant to the standard set forth by - 14 - 1-19-1761

our supreme court in Atkinson, 87 Ill. 2d at 174 was an abuse of discretion.” Barry argues that

burden shifting is “not supported by a plain and ordinary meaning construction of the agreement,

nor is it supported by the law on of 503(g) Trusts.”

¶ 29 Carol responds that pursuant to the parties’ agreement she was not required to prove the

trust is necessary to protect the best interests of the children. Instead, “she would only have to

prove why the Trust should continue, not that it was established to protect the best interests of

the children.” Moreover, Carol argues that pursuant to the parties’ agreement the trust “never

terminated” because she “satisfied one of the termination exceptions” by filing her petition to

continue the trust. For that reason, Carol argues, Barry cannot argue the trial court’s order

constitutes a judicial imposition of a 503(g) trust under the requirements of the Dissolution Act

and Atkinson. Carol argues the pretrial stipulations included provisions regarding the burden of

proof to show the court why the trust should continue that Barry is now trying to ignore; but the

court should construe the trust not to require application of the “necessary to protect the best

interests of the children” standard. Carol argues the only standard she had the burden to meet

was to show why the trust should be continued which she contends she did. Specifically Carol

argues she showed that the trust should be continued because it is necessary to ensure timely

payment of the children’s expenses and that it is in the interest of judicial economy to continue

the trust.

¶ 30 First, we reject Barry’s argument the trust terminated on March 1, 2017.

“The language used in the agreement is usually the best indication of the

parties’ intent. [Citation.] When the terms of the agreement are unambiguous, we

determine the parties’ intent solely from the language of the agreement.

[Citation.] An ambiguity is not created simply because the parties disagree on the

- 15 - 1-19-1761

meaning of any provision.” In re Marriage of Lyman, 2015 IL App (1st) 132832,

¶ 76.

The terms of the agreement in this case are not susceptible to more than one reasonable

interpretation. The pretrial stipulations state the “Trust shall remain in place until March 1,

2017, whereupon the 503(g) Trust shall terminate unless one of the following conditions occur.”

One of those conditions was that Carol “file a petition with the court for a continuance of the

503(g) Trust” before March 1, 2017. The pretrial stipulations state that only if Carol “failed to

file a petition *** the 503(g) Trust shall terminate on March 1, 2017.” But “[i]f Carol files a

petition requesting a continuation” and “while such petition is pending, the 503(g) Trust ***

shall continue until such time until the court rules on Carol’s petition.” Carol filed her petition in

January 2017. Because the terms of the agreement are unambiguous we must look solely to the

language of the agreement itself and give effect to that language. In re Marriage of Lyman, 2015

IL App (1st) 132832, ¶ 76, In re Marriage of Shulga, 2019 IL App (1st) 182028, ¶ 23. Applying

these principles in this case, we hold that the trust did not terminate on March 1, 2017. Rather,

the trust continued until the trial court ruled on the petition.

¶ 31 Second, we hold that the trial court’s judgment did not impose a new trust but instead the

court’s judgment continued the existing trust pursuant to the parties’ agreement. “Under

ordinary circumstances, a settlement agreement incorporated into a judgment for dissolution of

marriage is a contract that is governed by principles of contract law because it is an agreement

between the parties and not a judicial determination of the parties’ rights.” In re Marriage of

Booth, 325 Ill. App. 3d 92, 94 (2001). “We will not construe the terms and provisions in a

manner that is contrary to or different from the language’s plain and obvious meaning.

[Citation.]” In re Marriage of Turrell, 335 Ill. App. 3d 297, 305 (2002). Agreements are

“construed with reference to the average, ordinary, normal, reasonable person.” West Bend - 16 - 1-19-1761

Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc., 2020 IL App (1st) 191834, ¶ 28. When

a “term is to be given its plain and ordinary meaning *** courts often refer to dictionaries in

making this determination.” Sanders v. Illinois Union Insurance Co., 2019 IL App (1st) 180158,

¶ 18, reversed on other grounds, 2019 IL 124565. Thus to ascertain the plain and obvious

meaning of a term we may look to the dictionary. See, e.g., In re Marriage of Talmadge, 179 Ill.

App. 3d 806, 813 (1989) (referencing dictionary definitions of “consult” and “advise” in

interpretation of marital settlement agreement), Laport v. MB Financial Bank, N.A., 2012 IL App

(1st) 113384, ¶ 15 (“an undefined term in a contract will be given its plain and ordinary meaning,

which is found in its standard dictionary definition”).

¶ 32 Again looking to the language of the agreement, which is “usually the best indication of

the parties’ intent” (In re Marriage of Lyman, 2015 IL App (1st) 132832, ¶ 76), the pretrial

stipulations contemplate a continuation of the existing trust and not the imposition of a new trust.

The agreement first states that if the parties agree the trust “shall continue for the time period

agreed by the parties.” In the absence of an agreement between the parties the trust gives Carol

the right to “file a petition with the court for a continuation of the 503(g) Trust.” (Emphasis

added.) Further, the agreement expressly imposes on Carol the burden to show why the trust

“shall be continued” and provides that the trust “shall continue” until the court rules on the

petition. To “continue” means “to maintain without interruption a condition, course, or action,”

“to remain in existence” or “endure.” https://www.merriam-webster.com/dictionary/continue

(visited October 8, 2020). The “plain and obvious” meaning of the agreement to an “ordinary,

normal, reasonable person” (In re Marriage of Turrell, 335 Ill. App. 3d at 305, Krishna

Schaumburg Tan, Inc., 2020 IL App (1st) 191834, ¶ 28) is that the issue before the trial court

upon the filing of a petition to continue the trust would be why the trust established by the

agreement should be maintained or remain in existence (In re Marriage of Talmadge, 179 Ill. - 17 - 1-19-1761

App. 3d at 813) not, expressly (although potentially), whether Carol proved the existence of a

“need to protect the interests of the children” because Barry “is either unwilling or unable” to

support the children. Barry’s arguments that the trial court imposed a 503(g) trust in this case

fail.

¶ 33 Nonetheless, the parties’ dispute raises the question of the parties’ intent as to the

meaning of “why the 503(g) Trust shall be continued” in the pretrial stipulations. The pretrial

stipulations do not state Carol’s burden of persuasion (what she must prove) 1 as to “why the

503(g) Trust shall be continued.” That is, the agreement provides no guidance as to what Carol

must show to establish “why” the trust “shall” continue. Therefore, we hold the contract is

ambiguous. “If *** the contract is susceptible to more than one meaning, then an ambiguity is

present.” Motorola Solutions, Inc. v. Zurich Insurance Co., 2015 IL App (1st) 131529, ¶ 115,

citing Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999). “An ambiguous

contract is one capable of being understood in more senses than one; an agreement obscure in

meaning, through indefiniteness of expression, or having a double meaning.’ [Citation.]”

Pioneer Trust & Savings Bank v. Lucky Stores, Inc., 91 Ill. App. 3d 573, 575 (1980).

“The issue of whether or not an ambiguity exists is a question of law to be

determined by the court. [Citations.] Since construction of a contract presents an

issue of law in the absence of any material questions of fact, the reviewing court

may independently construe the contract ([citation]), unrestrained by the trial

1 See, e.g., In re Marriage of Schwartz, 131 Ill. App. 3d 351, 354 (1985) (setting forth “the burden of persuasion” on a “party seeking the injunction”). See also City of Chicago v. Illinois Workers’ Compensation Comm’n, 373 Ill. App. 3d 1080, 1090 (2007) (“burden of persuasion, *** has been defined as ‘[a] party’s duty to convince the fact-finder to view the facts in a way that favors that party’ (Black’s Law Dictionary 190 (7th ed.1999))”); Gupta v. Austrian Airlines, 211 F. Supp. 2d 1078, 1085 (N.D. Ill. 2002) (setting forth two elements in forum non conveniens inquiry and stating “defendants bear the burden of persuasion as to all elements”); People v. Hall, 311 Ill. App. 3d 905, 913 (2000) (distinguishing burdens). - 18 - 1-19-1761

court’s judgment ([citation]).” Ancraft Products Co. v. Universal Oil Products

Co., Inc., 100 Ill. App. 3d 694, 697-98 (1981).

¶ 34 In this case, we find the contract is ambiguous as a matter of law. The contract is

indefinite in its expression of what exactly Carol had to prove and the language of the contract is

susceptible to more than one reasonable meaning in that regard. The agreement might mean that

Carol must show the need for a 503(g) trust under prevailing law which in this instance means

the Atkinson standard. Alternatively, the agreement might mean that Carol must show either that

conditions and/or agreements leading to the parties’ initial agreement to enter the trust (whatever

they may be) have not changed (as the trial court may have found in this case, see infra, ¶¶ 36-

37), or that there are other “reasons” for the continuation of the trust beyond Barry’s

unwillingness or inability to pay the children’s expenses covered by the trust, or Barry’s

unwillingness to fully replenish the trust and/or timely pay the children’s expenses he mut pay

directly (again, two of the facts on which the trial court may have relied in this case (id.)), or all

of the above or something different altogether.

¶ 35 “[T]he terms of the contract, and the intent of the parties are questions of fact to be

determined by the trier of fact, and this court will not reverse the trial court’s judgment unless it

is contrary to the manifest weight of the evidence.” In re Marriage of Haller, 2012 IL App (5th)

110478, ¶ 29. “[I]f the language contained in the contract is ambiguous or silent as to essential

terms then oral testimony may be properly admitted into evidence.” Farnsworth v. Lamb, 6 Ill.

App. 3d 785, 788 (1972). “[I]f the agreement is not complete or if the language of the

instrument is ambiguous or uncertain, then in either event extrinsic evidence may be introduced

to expand or interpret the document, as the case may be.” Weiland Tool & Manufacturing Co. v.

Whitney, 44 Ill. 2d 105, 114 (1969).

- 19 - 1-19-1761

“Parole evidence which does not vary or contradict the document under

consideration is admissible to establish a fact as to which the instrument is silent.

[Citation.]

‘The intention of the parties, it is true, must govern; but the

experience of human affairs teaches the courts that this intention is

not to be sought merely on the apparent meaning of the language

used, but this language may be enlarged or limited by reference to

the circumstances surrounding the parties and the object they

evidently had in view.’ [Citation.]” (Internal quotation marks

omitted.) New York Central Development Corp. v. Byczynski, 95

Ill. App. 2d 474, 476-77 (1968).

¶ 36 The issue of what Carol had to “show” to continue the trust was raised at the hearing on

the petition. Barry’s attorney directed the trial court’s attention to section 4.1 of the pretrial

stipulations (quoted above). To adopt Barry’s argument we would have to find that when the

parties entered the agreement the parties’ intended that Carol’s burden to obtain a continuation of

the trust is to show that a trust was needed “protect the interests of the children” because he was

“either unwilling or unable” to support the children.

¶ 37 The trial court did not expressly articulate its interpretation of the parties’ intent as to

what Carol had the burden to “show” to continue the trust. The trial court’s written judgment

held that Carol had satisfied her burden, whatever it was, based on the court’s “observations of

the motions filed back and forth by both parties, their initial agreement to establish the trust, and

nothing has changed.” From the trial court’s judgment, we can glean that the trial court may

have considered that Carol had to come to court to at minimum coerce Barry to pay expenses he

was to pay directly and to replenish the trust to the levels required by the agreement, that the - 20 - 1-19-1761

parties at one point felt a trust necessary to alleviate whatever concerns they had about other

expenses, and that nothing in the record indicated to the court that those circumstances had

changed. However, Barry’s attorney posited that the trust resulted from negotiations on several

other matters as evidenced by section 4.1 of the parties’ agreement (supra, ¶ 18). Section 4.1 of

the parties’ agreement suggests the parties’ intent behind creation of the trust (or why Carol

“wanted” it, if that is indeed how the trial court construed the agreement’s termination clause)

was more than convenience but at least included a compromise away from statutory support and

the children’s activities at that time, among other possible considerations.

¶ 38 If, as strongly suggested by the trial court’s judgment, the trial court found that the

parties’ intended that the trust should continue if the circumstances that generated the parties’

intent behind initially creating the trust had not changed, then parol evidence on that intent was

clearly admissible. Normally, we will not reverse the trial court’s determination of the intent of

the parties unless it against the manifest weight of the evidence. Here, however, we note that

Barry’s attorney offered (perhaps facetiously, perhaps not) to elicit testimony as to the parties’

reasons and intent in creating the trust, but the trial court refused. Additionally, during the

hearing, the trial court noted that the language of the agreement implied that the trust should

continue “if Carol wants it” which itself might imply “if Carol [still] wants it” for whatever

reason she originally wanted it, which we do not know beyond her attorney’s representation that

it was “to simplify things.” Whether or not that representation is enough, in assessing the

evidence we cannot ignore the parties’ express language in section 4.1 of the agreement in

determining the parties’ intent with regard to the termination clause in the agreement. When

construing a marital settlement agreement, “[w]e consider the instrument as a whole and presume

that the parties included each provision deliberately and for a purpose. [Citation.]” In re

- 21 - 1-19-1761

Marriage of Turrell, 335 Ill. App. 3d at 305. “The language used in the agreement is usually the

best indication of the parties’ intent.” In re Marriage of Lyman, 2015 IL App (1st) 132832, ¶ 76.

¶ 39 The parties’ elicited no evidence of intent beyond the language in the agreement (which

we have determined to be ambiguous) and Carol’s attorney’s argument. “Where ambiguity in a

contract exists, ‘the trial court’s determination of the intent of the parties must not be disturbed

on review unless it is contrary to the manifest weight of the evidence.’ [Citation.] ‘A factual

finding is against the manifest weight of the evidence if the opposite conclusion is plainly

evident, or where the decision is unreasonable, arbitrary or without a basis in the evidence.’

[Citation.]” Motorola Solutions., Inc., 2015 IL App (1st) 131529, ¶ 117. We find that the trial

court’s determination of the parties’ intent is without a sufficient basis in the record because the

evidence of the parties’ intent that is in the record is at best conflicting and the trial court

erroneously excluded evidence to shed light on the evidence that does exist. As Carol herself

noted, the children have become involved and will continue to become involved in more

activities; thus, at minimum, if those elements formed part of the parties’ intent in creating the

trust, then the trial court’s finding that “nothing has changed” is against the manifest weight of

the evidence. See In re Nicholas L., 407 Ill. App. 3d 1061, 1073-75, In re Marriage of Lundahl,

396 Ill. App. 3d 495, 506 (2009) (applying manifest weigh of the evidence standard where there

is a lack of sufficient evidence). We also note the trial court was keenly interested in why Barry

agreed to the trust but then took no evidence on the question. The court stated the issue was not

“creation, it is the continuation. And there may not be a distinction, but I will find out as I read

these cases;” but then never stated what it found.

¶ 40 As noted above, the trial court did not expressly rule as to what exactly Carol had to

prove as to “why” the trust should “continue;” and Barry’s and Carol’s testimony may have shed

light on these questions but none was taken. “A trial court’s evidentiary ruling is a matter of - 22 - 1-19-1761

discretion and will not be reversed absent a clear abuse of discretion.” In re Estate of Hoover,

155 Ill. 2d 402, 420 (1993).

“ ‘It is well settled that a judgment should be reversed because of error

only when it appears that the error affected the result of the trial. [Citations.] In

reviewing a jury’s verdict, an appeals court need not determine that the record is

free from error [citation]; rather, the court need only determine whether any error

occurred which operated to the prejudice of a party or which unduly affected the

outcome [citations].’ [Citation.]” Elder on Behalf of Finney v. Finney, 256 Ill.

App. 3d 424, 428 (1993).

¶ 41 We find the trial court abused its discretion in refusing Barry’s attorney’s proffered

evidence because it may have made a difference in the outcome of the hearing. See, e.g., Cross

v. Cross, 2 Ill. 2d 104, 110-11 (1954) (holding trial court erred in refusing to hear proof of

equitable interest in property in dissolution proceeding), cf. Baker v. Baker, 412 Ill. 511, 518-19

(1952) (“It is difficult to see how receiving the plaintiff’s statement of his intent in making the

conveyance could reasonably have affected the determination reached by the trial court, in the

light of this record. A judgment will not be reversed for error unless it appears such error

affected the outcome below.”). A lack of evidence and express findings by the trial court hinders

our review. See, e.g., Decker v. Union Pacific Railroad Co., 2016 IL App (5th) 150116, ¶¶ 49-

50 (discussing remand for more definite findings even though trial court generally not required to

make them).

¶ 42 Finally, we reject Barry’s argument that “as the party without the burden of proof, [he]

should be entitled to judgment in his favor” because Carol failed to meet her burden. Barry

argues “Carol does not cite to any evidence to show why a trust should be continued, even if

there is a difference [between imposing a trust and continuing a trust.]” (Emphasis omitted.) We - 23 - 1-19-1761

reject Barry’s arguments because, as explained above, there was some evidence of the meaning

of “why the 503(g) Trust shall be continued” in the language of the agreement, which is

normally the best indication of the parties’ intent. In this case, however, the trial court’s

judgment in favor of Carol is vacated because it barred testimony which could clarify the intent

of the parties.

¶ 43 For the foregoing reasons, we vacate the trial court’s judgment and remand for further

proceedings. We instruct the trial court to accept testimony regarding the formation of the

parties’ agreement if offered and to make express findings as to Carol’s burden of persuasion

under the termination and continuation clause of the parties’ agreement.

¶ 44 CONCLUSION

¶ 45 For the foregoing reasons, the judgment of the circuit court of Cook County is vacated

and the cause remanded for further proceedings not inconsistent with this order.

¶ 46 Vacated and remanded, with instructions.

- 24 -