In re Marriage of Jones, 2021 IL App (5th) 210104

Background

Kelly and Michael Jones divorced after lengthy proceedings; final dissolution (Mar. 20, 2015) set maintenance to Kelly and child support from Michael at $18,000/month.
On May 20 and Nov. 27, 2018, the parties entered agreed orders: the Nov. 27, 2018 order approved a parenting plan, allowed Kelly to relocate, reduced Michael's child support to $12,000/month (para. 3), and included restrictive clauses (para. 4) forbidding further child-support modifications except for narrow events and a penalty clause (para. 5) requiring repayment of the benefit if Michael sought a non‑permitted reduction; para. 6 lowered Kelly's 529 contributions.
On May 6, 2020 Michael filed an emergency petition to modify support and maintenance, alleging COVID-19 prevented him from performing elective surgeries and substantially reduced his income.
Kelly filed a rule to show cause alleging Michael breached paras. 4–5 by seeking modification and demanded payment of $6,000/month for the reduced-support months. Michael moved to dismiss, arguing paras. 4–5 were void as against public policy and alternatively that his COVID claims fit the agreed exceptions.
The trial court found paras. 4 and 5 void for public policy, severed paras. 3–6 from the agreed order, denied Michael's §2‑615 dismissal on the ground an evidentiary hearing was required, and dismissed Kelly's rule to show cause as moot; Michael appealed.
The appellate court affirmed denial of the motion to dismiss, affirmed severance of paras. 4 and 5 (void as contrary to public policy), but vacated the severance of paras. 3 and 6, leaving those provisions in place.

Issues

Issue	Plaintiff's Argument (Kelly)	Defendant's Argument (Michael)	Held
1) Whether the trial court erred in denying Michael's §2‑615 motion to dismiss the rule to show cause and requiring an evidentiary hearing	Kelly: petition sufficiently alleges a factual dispute (whether Michael actually suffered a substantial income reduction); facts cannot be judicially noticed so dismissal is premature	Michael: face of pleadings and judicial notice of pandemic/restrictions show his filing fit the agreed-order exception (loss of employment); dismissal appropriate	Affirmed: denial proper. Court cannot judicially notice a party's income loss; factual issues remain and require evidentiary proof.
2) Whether paras. 4 and 5 (barring future modification and imposing a penalty) are void as against public policy	Kelly: provisions are an agreed risk allocation and merely require repayment if Michael seeks modification; enforceable	Michael: clauses restrict statutory right to seek modification and penalize exercise of that right — void	Affirmed: paras. 4 and 5 void and properly severed as contrary to public policy.
3) Whether paras. 3 and 6 (the reduced child‑support figure and reduced 529 contribution) should have been severed after paras. 4–5 were invalidated	Kelly: remaining agreement addressed relocation, parenting, and financial resolution and would stand without paras. 4–5; 3 and 6 are not essential to the bargain	Michael/trial court: 3 and 6 are related to paras. 4–5 and the court may sever related provisions; trial court severed them	Partially reversed: appellate court vacated severance of paras. 3 and 6 — they should remain; trial court erred in relying on lack of an underlying pending pleading and in treating 3 & 6 as necessarily dependent.
4) Whether an agreed order addressing child‑support adjustments may be entered absent a pending petition to modify	Kelly: courts may enter agreed orders resolving issues even without a pending petition; public policy favors settlements	Michael: trial court erred to rely on absence of a pending pleading to invalidate provisions	Held: court rejected reliance on lack of pending pleading as a basis to strike; agreed orders may be entered and approved when in children's best interest.

Key Cases Cited

Kinkel v. Cingular Wireless, 223 Ill. 2d 1 (endorsing Restatement §184 severability approach)
Wakulich v. Mraz, 203 Ill. 2d 223 (standard of review for §2‑615 motions)
Murdy v. Edgar, 103 Ill. 2d 384 (scope of judicial notice)
In re Marriage of Nau, 355 Ill. App. 3d 1081 (trial court may enter agreed order absent underlying petition)
In re Marriage of Smith, 347 Ill. App. 3d 395 (best‑interest review for agreed parenting orders)
People ex rel. Gibbs v. Ketchum, 284 Ill. App. 3d 70 (policy encouraging stipulations and settlements)
Vole, Inc. v. Georgacopoulos, 181 Ill. App. 3d 1012 (using parties’ subsequent acts to interpret ambiguous contracts)