2012 IL App (1st) 101876
Ill. App. Ct.2012Background
- Married in 1979; two children; dissolution judgment in 2005 incorporated the marital settlement agreement (MSA).
- MSA fixed unallocated maintenance and school support at $20,000/mo, later reduced to $14,500/mo in 2007 with reviewable terms for emancipation and five-year review; penalties for petitioning to modify were included in 3.7.
- Sa. D. emancipated in 2009, prompting N.D.’s petition to modify and S.D.’s petition to extend maintenance; hearings occurred Feb–Aug 2009, with vocational and lifestyle evidence presented.
- Trial court reduced S.D.’s maintenance to $6,875/mo and found S.D. could earn $37,500/yr as a licensed social worker, imputing that income and recognizing N.D.’s decreased income.
- The court deemed S.D.’s petition a general review of maintenance under the MSA, retroactively reduced N.D.’s obligation to Feb 9, 2009, and ordered S.D. and her counsel to pay $78,500 in ND’s attorney fees under the MSA; this decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition to extend is a general review, not a modification requiring substantial change. | S.D. argues the petition sought review, not modification, so substantial-change proof was unnecessary. | N.D. contends the petition fell within a general review under the MSA and the standard is non-substantial. | Petition allowed general review; no substantial-change proof required. |
| Whether the court properly decreased maintenance and set the amount at $6,875/month. | S.D. challenges the amount and the basis for reduction. | ND asserts decreased income and emancipation justify reduction. | Court did not abuse discretion; $6,875/month permanent maintenance affirmed. |
| Whether retroactive maintenance reduction to Feb 9, 2009 complied with the MSA and statute. | S.D. argues retroactivity violated the agreement. | ND asserts the retroactive date aligns with 510(a) and due notice. | Retroactive to Feb 9, 2009 upheld; consistent with due notice. |
| Whether the 3.7 attorney-fee penalty clause was correctly enforced. | S.D. argues clause was improperly applied given 2007 order. | ND maintains clause valid; S.D. sought increase, triggering 3.7. | Section 3.7 valid and enforceable; ND awarded fees. |
| Whether income averaging and imputation of $37,500 to S.D. were appropriate. | S.D. asserts improper imputation and reliance on lifestyle evidence. | Court credibly imputed 37,500 after vocational evidence and bad faith in seeking work. | Imputation and reliance on vocational evidence upheld; not an abuse of discretion. |
Key Cases Cited
- Blum v. Koster, 235 Ill. 2d 21 (Ill. 2009) (general review framework for maintenance existed under an MSAs)
- In re Marriage of Golden, 358 Ill. App. 3d 464 (Ill. App. 2005) (general review of maintenance does not require substantial change)
- In re Marriage of Elies, 248 Ill. App. 3d 1052 (Ill. App. 1993) (income averaging over three years appropriate for available income)
- In re Marriage of Schroeder, 215 Ill. App. 3d 156 (Ill. App. 1991) (discussed pattern of economic reversals for averaging)
- In re Marriage of Connors, 303 Ill. App. 3d 219 (Ill. App. 1999) (maintenance modification framework; res judicata considerations)
- In re Lasota, 125 Ill. App. 3d 37 (Ill. App. 1984) (standard for modifying maintenance confronting income changes)
- In re Ferraro, 211 Ill. App. 3d 797 (Ill. App. 1991) (pro rata vs. full reduction when determining maintenance post-emancipation)
- Shive v. Shive, 57 Ill. App. 3d 754 (Ill. App. 1978) (principles for evaluating maintenance adjustments)