In Re Marriage of Zeman

556 N.E.2d 767, 198 Ill. App. 3d 722, 145 Ill. Dec. 149, 1990 Ill. App. LEXIS 887
CourtAppellate Court of Illinois
DecidedJune 20, 1990
Docket2-89-1074
StatusPublished
Cited by20 cases

This text of 556 N.E.2d 767 (In Re Marriage of Zeman) 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 Zeman, 556 N.E.2d 767, 198 Ill. App. 3d 722, 145 Ill. Dec. 149, 1990 Ill. App. LEXIS 887 (Ill. Ct. App. 1990).

Opinion

JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Susan M. Zeman, appeals from an order of the circuit court which found that there had been a substantial change in circumstances warranting a reduction in maintenance payments by petitioner, Gregory O. Zeman, from $1,750 per month to $900 per month. On appeal, Susan raises four issues: (1) whether the trial court properly considered Susan’s inheritances; (2) whether the trial court erred in considering Gregory’s payment of college expenses for the couple’s youngest child; (3) whether the trial court erred in failing to consider the expenses incurred by Susan as legal guardian of their granddaughter; and (4) whether the trial court properly considered the aspects of Susan’s retirement benefits. Three additional issues are raised by the cross-appeal filed by Gregory: (1) whether the trial court erred in granting Susan summary judgment on Gregory’s petition to terminate maintenance; (2) whether the trial court erred in failing to reduce the maintenance payments to zero; and (3) whether the trial court erred in failing to grant Gregory retroactive reduction of his maintenance payments to the date his petition to modify was filed. We affirm.

Susan and Gregory Zeman were married on July 6, 1958. On October 13, 1981, Gregory filed a petition for dissolution of marriage. Susan was granted leave to file a counterpetition for dissolution on April 27, 1983. A marital settlement agreement was entered, and a hearing was conducted to prove up the agreement. Thereafter, a judgment of dissolution was entered on May 31, 1983, incorporating the settlement agreement. At the time of dissolution, five children had been born to the parties as a result of the marriage: Annette, age 23; Gregory, age 21; Daniel, age 20; Marguerite, age 16; and Peter, age 14. The parties agreed that they would have joint custody of the minor children and that Susan would have physical custody. To the extent of his financial ability, Gregory agreed to pay for the children’s college expenses and for Peter’s high school tuition. The parties acknowledged that their daughter, Marguerite, may suffer from a learning disability which would create future continued education and expenses and “[tjhat in the event that this is necessary, Gregory agree[d] to be responsible for the payment of this educational expense as well as a contribution to the support of the minor child, even after the child *** reach[es] her majority.”

At the time of the dissolution, Susan was employed as school nurse with the Chicago Board of Education earning $16,000 per year. Gregory was employed as a board-certified allergist in private practice earning $80,000 per year. Pursuant to the settlement, Gregory agreed to pay Susan the sum of $2,000 per month for unallocated maintenance and child support for 18 months. Thereafter, the sum was to be reduced to $1,750 per month. It was agreed that the payments would be deducted from Gregory’s taxes and would be included in Susan’s income. As for modification or termination of the payments, the parties agreed “that only when the second child reaches majority shall this present a change in circumstances for the purpose of any reduction in the maintenance, and each agrees that the maintenance shall not cease upon this event, but that maintenance shall only cease by operation of law.” The parties further agreed that because Susan has had “various health problems which have caused her to be unavailable for employment from time to time,” if she did become unemployed, “through no fault of her own, such as illness[,] other related medical problems, or the like, then this can be deemed to be a change in circumstances for the purpose of maintenance and support if need is shown.”

The settlement agreement further provided that Susan was to receive the marital home. Gregory was to retain his pension and profit sharing plan relative to his medical practice. He was, however, to sell various outside business interests and divide the proceeds with Susan as provided in the agreement.

No further court action was taken by either party until June 24, 1988, when Gregory filed a petition to terminate maintenance. Therein, Gregory alleged that a substantial change in circumstances had occurred. Specifically, Gregory alleged, in part, that the couple’s youngest child was 20 years old; that Gregory had contributed substantial monies toward the college and living expenses of all the children; that Susan has a master’s degree and is currently employed by the Board of Education as a school nurse earning $25,000 per year; that Susan recently sold the former marital residence for approximately $160,000 with a mortgage balance outstanding of $40,000; and that Susan inherited substantial lakefront property in Pistakee Lake. As relief, Gregory prayed for the trial court to order Susan’s maintenance terminated retroactive to the date the petition to terminate was filed.

In response, Susan filed a motion for summary judgment alleging that pursuant to the settlement agreement, the parties expressly precluded termination of maintenance except “by operation of law” and, under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(c)), this requires the death of either party, the remarriage of Susan, or the cohabitation of Susan with another person. The mere change of circumstances is not sufficient. See Rosche v. Rosche (1987), 163 Ill. App. 3d 308, 312-13.

A hearing was held on February 8, 1989, addressing the motion for summary judgment. After arguments of counsel were heard, the trial judge ruled in favor of Susan, granting her motion. The judge stated that the language of the settlement agreement provided that “maintenance *** shall only cease by operation of law,” specifically, death, remarriage, or cohabitation, and that a substantial change of circumstances is not sufficient to terminate maintenance under the express language of the agreement. While counsel for Susan stated on the record that he would prepare an order, we find no written order in the record granting summary judgment.

On February 28, 1989, Gregory filed a petition to modify maintenance. The allegations in this petition were substantially the same as those alleged in the petition to terminate maintenance. However, as for relief, Gregory merely prayed for the trial court to “reduce or abate the amount of maintenance in accordance with the facts set forth hereto.”

A hearing on Gregory’s petition to modify was held on August 24 and 25, 1989. Susan testified that she was 54 years of age. When asked whether she was in “relatively good health,” Susan responded that she was not. She explained that she had severe back problems, a left-sided pain, and bad feet. Susan admitted that prior to the divorce she was hospitalized several times for psychiatric treatment, but since the divorce she has only been hospitalized once and that was for a three-day weekend. She stated that she presently sees a psychiatrist approximately once a year and has to take lithium on a daily basis. However, her health has not caused her to cease or suspend her employment as a school nurse for the Chicago Board of Education. In 1982, she earned $16,000 in this capacity. By 1988, according to the parties’ stipulation, Susan’s income had increased to $26,505.84 (i.e., $2,208.82 monthly gross income).

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Cite This Page — Counsel Stack

Bluebook (online)
556 N.E.2d 767, 198 Ill. App. 3d 722, 145 Ill. Dec. 149, 1990 Ill. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-zeman-illappct-1990.