In Re Marriage of Wiley

556 N.E.2d 788, 199 Ill. App. 3d 223, 145 Ill. Dec. 170, 1990 Ill. App. LEXIS 896
CourtAppellate Court of Illinois
DecidedJune 21, 1990
Docket4—89—0764, 4—89—0927 cons.
StatusPublished
Cited by5 cases

This text of 556 N.E.2d 788 (In Re Marriage of Wiley) 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 Wiley, 556 N.E.2d 788, 199 Ill. App. 3d 223, 145 Ill. Dec. 170, 1990 Ill. App. LEXIS 896 (Ill. Ct. App. 1990).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal involves the enforcement of a marital settlement agreement. Respondent, Gary W. Wiley, argues that the trial court erred in (1) denying both of his motions for discharge of contempt, (2) enforcing a marital settlement agreement and supplement thereto, (3) awarding attorney fees to petitioner, Barbara J. Wiley, and (4) denying respondent’s petition for reduction or abatement of support and maintenance.

We disagree and affirm.

On August 3, 1988, the Wileys were granted a dissolution of marriage. Also approved and incorporated into the dissolution order was a marital settlement agreement which had been executed by the parties on July 15, 1988. This settlement agreement required Gary to pay Barbara $200 per month for child support and $250 per month for maintenance over a five-year period. In addition, the agreement contained a provision concerning retirement, which stated the following:

“12. RETIREMENT PLANS
It is expressly agreed that the Profit Sharing Plan (401 K) through Gary’s employer in which Bankers Trust Company of New York is the Trustee and an IRA Program (Individual Retirement Account) in the Mercantile Trust & Savings Bank of Quincy in Gary’s name were funded by mutual contributions from the parties hereto. Each agrees that after sufficient information is secured concerning the penalties, the ability to switch beneficiaries, the income tax to be paid and any other information which would impact on the value of said accounts, a fair and equitable settlement will be reached which, in effect, insures to each of the parties hereto approximately the same retirement benefits.”

The agreement also provided for the payment of debts and attorney fees, the maintenance of life insurance, and the distribution of real estate, personal property, stocks, bonds, and vehicles. The last page of the agreement stated the following:

“This Agreement shall operate as a full, complete and final settlement, satisfaction, discharge and adjudication of any and all legal rights, claims or demands of either party against the other, for support, maintenance, attorney fees, distribution or division of the property of the parties, widow’s award, homestead, inheritance or any other interest or money demand which might otherwise than for this instrument be asserted by either party hereto against the other party or the property or estate of such other party.”

In March 1989, a petition to show cause was filed by Barbara alleging that Gary had failed to pay both child support and maintenance, and had failed to assign half of the profit-sharing plan and the IRA to Barbara. In her petition, Barbara also requested attorney fees. Attached to Barbara’s petition was an assignment made on September 7, 1988, to Barbara of half of Gary’s interests in the profit-sharing plan and half of the IRA. Also attached was a supplemental agreement dated September 14, 1988, which stated on its face that it was supplemental to the July 15, 1988, agreement. That supplemental agreement provided in part the following:

“2. Gary will pay from said funds received from Harsco to Barbara one-half of the said funds received from Harsco and one-half of the funds in the IRA account in the Mercantile Trust & Savings Bank of Quincy.
* * *
4. On the completion of distribution, each of the parties will have received one-half of the total of the two accounts, one in Mercantile Trust & Savings Bank of Quincy in an IRA account and one in Bankers Trust Company under a profit sharing plan (401 K) with Harsco, less the amount withheld by Harsco for income taxes and penalties, if any.
5. In the event that the Harsco funds are received but not distributed as herein provided, all of the funds in the Mercantile Trust & Savings Bank IRA account will be distributed to Barbara, but said distribution will in no way affect Barbara’s right to one-half of said funds, which right may be enforced by proceedings ***.”

Also on March 30, 1989, Barbara filed a supplemental petition to show cause, alleging that Gary failed to maintain life insurance. Barbara later filed a petition for an increase in child support and for payment of educational expenses.

The court set the hearing on all of these petitions for April 20, 1989. However, due to the late employment of counsel by Gary, it was rescheduled for April 27, 1989. Gary subsequently filed a motion for continuance. On April 28, 1989, the court granted the motion and reset the hearing for May 25, 1989. In its order, the court required Gary to provide opposing counsel within 10 days with all information concerning his 401(k) retirement program and the Mercantile Bank IRAs.

On May 2, 1989, Gary filed a petition for reduction or abatement of support and maintenance, alleging that there had been a substantial and material change in his financial circumstances. Specifically, Gary claimed that at the time of the dissolution of marriage, he was earning $25,000 a year at Harsco, with a bonus of $12,000. However, since then, he had left Harsco and now earned only $600 monthly.

On May 25, 1989, a hearing was held on all pending matters, and on June 16, 1989, the trial court made the following findings:

“1. The parties executed a valid Marital Settlement Agreement, the terms of which were incorporated into the Judgment Order entered August 3, 198[8]. In that Agreement, paragraph 12, the parties agreed to reach a future settlement as to marital retirement assets upon securing necessary additional information about those assets.
2. On September 14, 198[8], the parties entered into a supplemental Agreement regarding division and payment of the retirement assets. That supplemental Agreement was not filed or specifically incorporated into the Judgment Order, but the parties clearly intended that the second Agreement would be controlling as to their respective rights and obligations in the retirement assets and their distribution. Further, no objection has been raised to petitioner’s attempt to enforce the second Agreement by use of the contempt process, so it is presumed that the parties intended the second Agreement to supplement the Judgment Order. However, the Court is of the opinion that the contempt process is not available for enforcement of the supplemental Agreement because it was never made part of the Judgment Order, and thus its violation was not a violation of an order of court. The petitioner is, however, entitled to her contractual remedies for any breach of the supplemental Agreement occurring before such time as the Judgment Order may be modified by the supplemental Agreement. Alternatively, the petitioner is entitled to have the respondent ordered to perform the supplemental Agreement.
3.

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Cite This Page — Counsel Stack

Bluebook (online)
556 N.E.2d 788, 199 Ill. App. 3d 223, 145 Ill. Dec. 170, 1990 Ill. App. LEXIS 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-wiley-illappct-1990.