In Re Marriage of Kolessar and Signore
964 N.E.2d 1166
Ill. App. Ct.2012Background
- Kolessar and Signore married in 1985, had three children, and were divorced in 1998; unallocated support of $2,000 per month was ordered based on Signore's income.
- From Sept 2008 to Apr 2009, Signore filed and pursued a modification petition alleging changed circumstances; he unilaterally reduced payments from December 2008 to March 2009 to $1,203.84.
- April 6, 2009 the parties entered an agreed order modifying support: Signore’s unallocated support terminated and he was to pay $1,300 per month for the minor child plus no explicit arrears/interest terms.
- In August 2009 Signore resigned from University of Chicago and filed a second modification petition seeking $421.14 monthly; he again unilaterally reduced payments to $421.14 from Aug 2009 through Feb 2010.
- April 2, 2010 the court issued two orders: (i) judgment for $3,184.64 past due on first modification; (ii) an agreed order requiring $1,300/month current support and $376.71/month past-due on second modification, with no statutory interest specified.
- Kolessar challenged both the lack of interest and the adequacy of findings on willfulness/without-cause justification, and sought reconsideration; Keeley testimony was excluded from trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory interest on past-due support should be awarded | Kolessar asserts interest is mandatory; agreed orders did not waive rights. | Signore contends interest is discretionary and agreed orders silence precludes interest. | Interest must be awarded; remanded to compute accrued interest on arrearages. |
| Whether Signore's first unilateral modification was willful or contumacious | Signore’s failure to pay was willful/contumacious. | First modification occurred due to changed circumstances and reduced income; not willful. | Not willful or contumacious; court did not find willful/noncompliance. |
| Whether Signore's second unilateral modification was without cause or justification | Modification without adequate cause; should be without justification. | Second modification was part of an agreed order; contract interpretation governs. | Agreed order silent on willfulness/without-cause; court did not find without-cause or justify reversal. |
Key Cases Cited
- Finley v. Finley, 81 Ill.2d 317 (Ill. 1980) (interest discretionary when no statute; equitable considerations for judgments in dissolution)
- Wiszowaty v. Wiszowaty, 239 Ill.2d 483 (Ill. 2011) (statutory interest on judgments arising from child support; amendments mandate interest)
- Tutor v. Tutor, 2011 IL App (2d) 100187 (Ill. App. 2d 2011) (agreed orders interpreted as contracts; waivers must be explicit)
- Haber v. Haber, 99 Ill.App.3d 306 (Ill. App. 1981) (agreed orders are conclusive unless fraud/coercion/etc.; waivers explicit)
- Dieter v. Dieter, 271 Ill.App.3d 181 (Ill. App. 1995) (willful vs. without cause; distinction in contempt context)
- Roach v. Roach, 245 Ill.App.3d 742 (Ill. App. 1993) (willfulness vs. without cause; noncontempt finding supports geographic distinction)
- Garelick v. Garelick, 168 Ill.App.3d 321 (Ill. App. 1988) (trial court may find not in contempt for unilateral reduction; without necessarily determining lack of cause)
- Dall v. Dall, 212 Ill.App.3d 85 (Ill. App. 1991) (indirect contempt considerations; burden on payer to show inability to pay)
- Harvey v. Harvey, 136 Ill.App.3d 116 (Ill. App. 1985) (noncompliance evidence; contempt requires willful disobedience)
- Anderson v. Anderson, 409 Ill.App.3d 191 (Ill. App. 2011) (noncompliance as willful is factual; abuse of discretion standard)
- Ferguson v. Ferguson, 313 Ill.App.3d 931 (Ill. App. 2000) (waiver of statutory rights in an agreement requires explicit terms)
- Bellwood v. American National Bank & Trust Co. of Chicago, 2011 IL App (1st) 093115 (Ill. App. 2011) (explicit waiver required to relinquish postjudgment interest rights)