In re Marriage of Kolessar
2012 IL App (1st) 102448
Ill. App. Ct.2012Background
- Petitioner-appellant Kolessar appeals an order denying two motions for reconsideration of judgments on Signore's petitions for modification of unallocated support.
- Original dissolution (1998) ordered unallocated support of $2,000/month based on $70,000 gross, continuing until 6/2/2011.
- Signore petitioned to modify in 2008; he unilaterally reduced payments Dec 2008–Mar 2009 to $1,203.84/mo.
- April 6, 2009 agreed order reduced to $1,300/mo for the child, terminating unallocated support; arrears/interest not addressed.
- Signore resigned in August 2009; he petitioned for modification to $421.14/mo, citing unemployment; he again reduced payments Aug 2009–Feb 2010.
- April 2, 2010 two orders: (1) $3,184.64 past-due from first modification; (2) $1,300/mo current plus $376.71/mo past due from second modification; both orders silent on statutory interest; Keeley testimony barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory interest on arrearages must be awarded | Kolessar: silence does not waive statutory interest; interest mandatory on child-support judgments. | Signore: agreed orders are contracts and may waive rights; silence implies waiver. | Interest awarded; remand to determine exact amount. |
| Whether Signore's first unilateral modification was willful/contumacious | Kolessar contends modification was willful/contumacious due to unilateral change. | Signore argues modification not willful given changed circumstances. | Not willful or contumacious; affirmed. |
| Whether Signore's second unilateral modification was without cause or justification | Kolessar asserts second modification was without cause/justification. | Signore's second modification supported by agreement and changed circumstances. | Agreed order silent on willfulness; court did not find lack of cause; affirmed. |
| Whether the record supports findings on arrears and interest omission | arrears should include interest; trial court erred in silence on interest. | Agreed orders preclude consideration of interest. | Remanded for proper interest calculation; otherwise affirmed on modification rulings. |
Key Cases Cited
- Finley v. Finley, 81 Ill. 2d 317 (Ill. 1980) (interest discretionary where no controlling statute or judgment governs)
- Wiszowaty v. Wiszowaty, 239 Ill. 2d 483 (Ill. 2011) (post-1987 amendments make child-support judgments bear interest; statutory right)
- In re Marriage of Tutor, 2011 IL App (2d) 100187 (Ill. App. 2d 2011) (agreed orders must reflect explicit waiver of rights; silence not enough)
- Haber, 99 Ill. App. 3d 306 (Ill. App. 1st 1981) (agreed orders may be contracted; subject to contract interpretation)
- Gallagher v. Lenart, 226 Ill. 2d 208 (Ill. 2007) (interpretation of contract terms; ultimate intent of parties)