*1 WASSOM, Petitioner-Appellant, and GENE OF KELLY In re MARRIAGE WASSOM,Respondent-Appellee. RITA IRENE 4 — 03—1001 Fourth. District No. September
Opinion filed Tichenor, L. Hatch & Christopher Brian L. McPheters and both of McPheters, Champaign, for appellant. of Lerner, Kirchner, appellee. Champaign, A. Lerner of
Scott of & opinion court: JUSTICE MYERSCOUGH delivered Wassom, petition petitioner, Kelly On June Gene filed court entered marriage. August On the trial dissolution 21, 2003, Kelly filed a judgment. August petition a dissolution On modify judgment marriage. September On of dissolution of Wassom, response Kelly’s respondent, peti- Rita Irene filed a contempt civil modify adjudication tion to indirect recovery payments of health insurance and medical son, for their Jessie M. Wassom. On October the court found Kelly was not in indirect contempt judgment civil of court but entered Rita, in favor ordering Kelly 50% all health premiums paid by Rita. (1)
Kelly appeals, arguing the court improperly interpreted marital settlement agreement between the as whether he is *2 responsible for half premiums of the health insurance pays, that Rita (2) and correct, even if the court’s decision on this issue is Kelly entitled to a previous setoff based on child support payments made required excess of the amount. affirm. We
I. BACKGROUND 23, 1994, On Kelly December and Rita married each other for the second time. Kelly On June filed a for dissolution of marriage and for other relief. On October the trial court a judgment entered of marriage. judgment, dissolution In the the approved court agreement. marital settlement In Tolono, Illinois, summer Rita sold her home in and moved Urbana, August 21, 2003, to On Illinois. Kelly, worried for Jessie’s emotional and well-being high career, school athletic a petition filed modify judgment of marriage. it, dissolution In Kelly requested custody Jessie’s so Unity High that Jessie could continue to attend Tolono, Illinois. School in September
On response, Rita filed a stating despite her Urbana, move to Jessie would continue to attend Unity High School adjudication Tolono. Rita also filed a petition for of indirect civil contempt, Kelly alleging had failed to health and uncovered expenses pursuant medical to the marital settlement agreement. Rita, $25,416
According spent she on health insurance Rita, however, premiums. Kelly $11,426.11 that only concedes owes her payments since a few were made on the health insurance premiums prior marriage. to the dissolution of their She also claims that her paid owes medical bills Christie Clinic for $378.75 Jessie.
Kelly argues by actually paid that Rita, employer, therefore, responsible Rita’s and he be should not for them. claims even Rita paid premiums, further that if had Jessie, only premiums paid he should for 50% of the Finally, Kelly argues not for those he is paid Rita. entitled offset payments amounting $3,400 monthly child because of support July overpayments January between $120 2003. OF “SUPPORT on article centers appeal
The issue on MATTERS,” marital settlement of the RELATED AND CHILDREN as follows: agreement, which states upon ap- support based child pay to WIFE “1. HUSBANDwill employ- current net from his of his income percent proximately time is at current of said child The exact amount ment. acknowledge[s] per month. Wife the sum $200.00 of his net income percent than 20 agreed amount on is less great spend a deal contemplated that Jessie will reason that it is HUSBAND. time with the insurance, and the carry the on her health child WIFE medical, dental, or equally divide uncovered parties will can no In the event she on basis. expenses orthodontic a 50/50 through then employment, longer obtain health insurance In every effort to obtain health insurance. HUSBANDwill make III, [paragraph [a]rticle child addition percent for 50 reimburse the WIFE HUSBANDwill insurance premiums currently being paid by WIFE.” hearing Kelly’s the trial court conducted On October Dummit, superior, modify. Rita’s immediate testi- petition to Michael Rita and Dum- employer provides fied insurance to Jessie. that Rita’s paid directly money paid to health care explained mit cover negotiated benefit indirectly through employees’ union plan, monthly premium pay- packages. Under this *3 pay. from Rita ranging from are taken Rita’s $303.80 $512 ments for health insurance money has access to the deducted never that considered to be an amount premiums, premiums but the applied had she not the paycheck would have been added to in Rita’s pay, if there is a raise plan. example, $1 For health paycheck, pays in her the rest the 50 cents reflected while Dummit premiums. Rita insured under this coverage also stated was for this marriage, premium and the plan prior to dissolution dependents. coverage regardless remains the same number of money Relying testimony, the above the trial court found that the on compensation. The court pay premium part used to was Rita’s average number of premium was based on the then found that Rita’s premium payments and Rita’s cover participants plan, the entire parties’ that the and Jessie. The also determined both herself court respective responsibilities marital settlement controls their agreement requires Kelly to and the for the health insurance premiums pays. for half of the that she reimburse Rita against judgment the trial court entered On October $11,426.11 for health insurance Kelly in the amount of charges appeal from Christie Clinic. This followed. $378.75
II. ANALYSIS A. The Trial Correctly Court Ordered To Reimburse Rita
for Half of the Premiums appeal, On Kelly argues the trial improperly interpreted court the marital settlement pay money order health premiums. arguing, insurance In so Kelly maintains the court’s finding Rita, employer, paid that not her the health insurance premium was disagree. incorrect. We
As the Appellate Illinois Second District Court re stated In Mar- riage Turrell, (2002), “[w]hen a finding trial, trial court has directed a ain bench we review that decision under weight the manifest of the evidence standard.”
In the case, Dummit, instant Rita called representa- business tive for Carpenter’s Local 44 and Rita’s immediate as a wit- superior, ness. Dummit testified as to insurance are paid by Rita’s employer:
“Q. agree me, not, you You would with would of her package your well as as union package, member is that the contrac- tor pays directly the health give money rather than to the union member to health insurance? They yes,
A. money, handle our indirectly coming but it’s out of package. our
Q. Okay. you if I So said paying contractors are insurance, check, writing they’re coming it out of your members, pocket I would be accurate? Right.” A. hand,
Kelly, the other did not present evidence that would his claim employer paid that Rita’s the health premiums.
Based on testimony by Dummit, the uncontradicted the trial court found the evidence showed that Rita had the health insurance premium question. finding Such a against is not the manifest weight Kelly’s of the evidence. turn to argument We now second that the trial court incorrectly interpreted agree- marital settlement ment. pertinent agreement states, in the settlement “In [a]rticle
addition to the child [pjaragraph HUSBAND reimburse the WIFE for 50% the health insurance currently being paid by the WIFE.” The trial court found *4 ambiguity required Kelly no in this sentence and all to 50% of the premiums. law, a
Interpreting question a marital settlement Sweders, re Marriage App. we review de novo. In 3d which (1998). unambigu- “[W]here 695 N.E.2d 529 the terms are
331 language of the solely from the ous, intent is determined parties’ the added.) App. of Mulry, 314 Ill. Marriage In re (Emphasis instrument.” (2000). Further, is not “[ljanguage N.E.2d 671 3d 732 agree not on its parties do ambiguous simply because rendered meaning.” at Ill. 3d at 732 N.E.2d Mulry, App. 314 agreement clearly Here, language in the marital settlement any half of health insurance will Rita for Kelly states that reimburse ambiguous, and we language is not pays. Rita Such Accordingly, solely language. intent from that parties’ determine the settlement interpretation of marital agree we with the trial court’s affirm. and the dissent that our determination holding, disagree In with so “violates the rule that the intent of only focuses on one and sentence as reference to the contract a be determined with parties must phrases, whole, or isolated merely particular reference to words light other.” 352 Ill. 3d at 335. by viewing App. each in First, language intent is the “the best indication of conflicts with a contract, language prevail general must when it added.) World, Labor Inc. v. Just (Emphasis rule construction.” (2000). Parts, In Inc., Ill. 3d 152 App. case, language agreement clearly in the marital settlement this Kelly states that Rita for half of reimburse Second, as the pays, language prevail. Rita must such noted, particular indicates this correctly dissent the title of article III matters, and the sentence article deals with child and related Ill. support.” to child question “begins with reference references, however, ques provisions at 335. These do not limit only. to If we construe “support tion children” pay only question suggests, require Kelly as the which is dissent attributed to Jessie and not premium the half of the health insurance be article III should titled as pays, the half of the then OF CHILDREN OF CHILDREN” instead of “SUPPORT “SUPPORT RELATED MATTERS.” AND “[i]t is also dissent’s statement that disagree
We further with the years, five until argument never raised this significant that Rita request custody,” and Rita’s failure Kelly requested change parties did not an indication that the reimbursement from that Rita for half of the intend for be of Illinois stated: paid. Supreme Ill. As Court 3d at 335. in Illinois interpretation principles “Traditional contract that: presumed agreement, writing, reduced must
‘[a]n when signed speaks it. It speak the intention of the who *5 332 itself,
for and the intention with it which was executed must changed be determined from the It used. is not to be by Safety, extrinsic evidence.’ Air [Citation.]” Inc. v. Teachers (1999). Realty Corp., Ill. 185 2d 884 speculation dissent’s as to the intent based on Rita’s inac- tion Further, violates this well-established “four corners” rule. if even indulge in the same kind of speculation does, that the dissent fact that “Rita never argument raised this for five years, Kelly until requested change custody,” necessarily does not mean that the parties did not intend for Kelly for half of the premium that Rita paid. example, For Rita may have chosen not enforce Kelly’s obligation they so that could maintain a civil relation- ship or because the litigation high cost of was too for the amount addition, involved. In Kelly’s voluntary premium initial payments for granted Kelly which credit Kelly’s show awareness of what current he owed was and that he intended be responsible premium. for half Rita’s health
Last, we note that the dissent states our decision “does a real dis- policy, service a fundamental that dissolution-of-marriage cases are best resolved when the are able to work out an resolving their differences. Litigants encouraged will not be to enter agreements into if agreements their are so easily apart.” torn 352 Ill. App. at dissent, however, 3d 336. The question asks the “is there logical reason to require husband to for wife’s health insurance coverage,” and “[ejquity then states does not Kelly pay for a portion coverage.” Rita’s health 3d at 335. The dissent’s effort to make the provisions question “logical” or “equitable” Kelly long-established for violates the “a principle that court of has right erroneously law no construe the intention of the parties, clearly expressed, when in the make endeavor to better contracts for them than made they have for themselves.” Sun Print- ing Moore, & Publishing Ass’n v. 183 U.S. 46 L. Ed. (1902). We, therefore, 22 disagree S. Ct. 253 with the dis- sent’s interpretation agreement language of the settlement even if it “logical” leads a more or “equitable” agreement Kelly. B. Correctly The Trial Court Denied an on Kelly Offset
the Health Insurance Premiums Owed if Kelly argues correctly that even the trial court found that he by Rita, owes 50% of the amount overpaid, owed should be reduced the amount of child he $3,400. Kelly’s argument which totals Rita claims that is forfeited Kelly authority supporting argument required because cited no as
333 341(e)(7)). (177 341(e)(7) agree 2d R. We Ill. Rule by Supreme Court with Rita. 341(e)(7) are states, argued not “[ploints
Supreme Court Rule argument, or brief, in oral reply in the not be raised and shall waived 341(e)(7). Ill. R. Counsel rehearing.” 2d “This argument. legal authority to cite neglected argu- in the legal authority cite has the failure to court often stated re Mar- for review.” In brief forfeits issue party’s ment section of a (2003). 393, 401 N.E.2d Parr, Ill. riage therefore, has, this issue. forfeited merits, grant Moreover, we would we to address the an offset was not abuse the trial court’s denial of reduction because Slagel See v. against weight of the evidence. discretion or the manifest *6 (which (2000) 720, 721 Wessels, Ill. N.E.2d 314 3d 732 child award is support of review for a current “[t]he states: standard predicate of or the factual award is an abuse discretion whether the evidence”). against weight for the decision is the manifest in In Mar- Court stated re Appellate As the Illinois First District (2000), 417, 424 Lehr, Ill. 740 N.E.2d riage 317 3d of voluntary overpayments no general given “the rule is that credit is they of under the mistaken belief that support, child even if are made Here, they legally required.” Kelly voluntarily paid sup- are Rita child monthly amount, cor- port beyond required trial court Kelly’s voluntary support pay- child rectly determined that additional health-insurance-premium obligations. ment should not offset his
III. CONCLUSION stated, judgment. affirm the trial For the reasons court’s Affirmed.
McCullough, j., concurs. COOK, dissenting:
JUSTICE
I dissent. respectfully First, language does the presents questions.
This case three “Husband,” any health pay paragraph require article require Second, does coverage on “Wife”? insurance coverage on the any for a health pay portion husband to required I for wife’s health insur- suggest pay child? husband is not required pay portion any ance but is a logical question: any to the Is there for the child. That leads third coverage wife’s health insurance pay reason to husband to to comply agreement order with the that husband will he for a portion the child’s health premium?
Marital agreements settlement are subject contracts and to the same rules applied any of construction as are primary contract. The goal in construing settlement tois ascertain the intent of A parties. whole, court must consider the contract as a rather focusing than upon portions. Marriage isolated In re Ackerley, 333 (2002). Ill. App. 775 N.E.2d “The intent of the parties to a contract must be determined with reference to the contract whole, as a merely by particular reference to words or isolated phrases, by viewing each light of La v. Throp others.” Ass’n, Bell Savings Federal & Loan 68 Ill. 2d (1977). 188, 191 The marital settlement here is divided into logical units, articles, such custody, address issues as child support, maintenance, particular and other more issues. Article III is the article of interest in this case: III
“ARTICLE SUPPORT OF CHILDRENAND RELATEDMATTERS 1. HUSBAND to WIFE upon ap- will child based proximately percent of his net income from his employ- current ment. exact amount of said child at the current time is [handwritten], per $200.00 [handwritten] sum of month acknowledges [W 16—98.] [KGW WIFE 16—98.] 9— 9— agreed percent amount on is less than 20 of his net income for the reason that it is contemplated spend great that Jessie will deal of time with the HUSBAND. carry WIFE will the child insurance, and the equally medical, dental, divide uncovered or *7 expenses
orthodontic on a In basis. the event she can no 50/50 longer through obtain health insurance employment, her then every HUSBAND will make effort to obtain health In insurance. III, support addition to the child [pjaragraph [a]rticle HUSBANDwill reimburse the WIFE percent for the health paid by premiums currently being insurance the WIFE.” Article III deals with child support matters related child support, such as insurance for the It spousal child. does not deal with (maintenance) or matters such as insurance the wife. Article paragraph says “carry that wife will the child” on her “any expenses health insurance and uncovered” be divided. That will expenses child, expenses uncovered of the not means uncovered wife or the husband or can no other relatives. If wife longer through employment, obtain health insurance her husband will cover the wife or not insurance to again, attempt to obtain insurance — In support. child others, child, related to cover the insurance but to will reimburse “the HUSBAND support payments, to child addition currently premiums health insurance for 50 of the percent the WIFE about? talking are premiums being paid by the WIFE.” What family, members of wife, for other premiums Premiums for the may currently paying? she any premiums other health insurance carry “WIFE by that No, requirement premiums engendered added), opening (emphasis on her health insurance” the child paragraph words of sentence, “HUSBAND will majority part a of a picks
The out insurance percent of the health reimburse the WIFE for WIFE,” in isola- by and reads those currently being paid words agreement tion, analysis, summarily conclude without for half of that will reimburse Rita “clearly states were if those pays” regardless major- 352 Ill. 3d at 331. The on behalf of Jessie or another. determined parties the rule that the intent of the must be ity violates whole, merely reference to by with reference to the contract as a by viewing light each particular phrases, words or isolated title, III According of the to its article deals with child other. relating upon The which the support. and matters to child sentence majority The begins support. a reference to child majority relies with majority’s if the child ignores language. approach, that Under the Kelly’s policy, portion would Rita still be entitled a switched of her premiums? argument for significant
It also that Rita never raised this five is custody. The years, Kelly requested change interpretation a until significant a factor that we placed on their (West 2002) should take into account. See also 810 ILCS 5/2—208 (course cases). in commercial performance practical or construction require any logical reason to
Getting question, to the third is there coverage comply with husband for wife’s health of the child’s that husband will be 50% might premium That be the case if premium? a coverage represented premium and the child’s was an undivided here, That is not the case premium. of that portion substantial represents knowledge coverage It common that children however. a health insur- only very parent’s portion premium small charge there is no additional policy. majority ance concedes that for this coverage “[T]he policy on Rita’s Jessie. dependents.” regardless of the number coverage remains same pay for Equity 3d at 329. does not coverage. portion of Rita’s health insurance *8 The majority opinion does a real policy, disservice to fundamental that dissolution-of-marriage cases are best resolved when the parties are able to work out an resolving Litigants their differences. encouraged will not be to enter agreements into if agreements their are so easily apart. torn It is important also to note peti- that Rita’s tion response Kelly’s was filed in petition. a postdissolution When filed, merits, whatever its it is not appropriate respondent to comb the record for some fanciful basis on which to file his or her petition. majority opinion own encourages practice. bad ILLINOIS, THE PEOPLE OF THE STATE OF Plaintiff-Appellee, v. McMILLIN, RAY Defendant-Appellant. NORMAN Fifth District No. 5 — 02—0794 Opinion September filed