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Weber v. Weber





APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM E. PETERSON, Judge, presiding.


Hermine Weber (petitioner) appeals from an order denying her petition to modify the judgment of dissolution of her marriage to Theodore Weber (respondent).

The judgment was entered on January 7, 1975. It provided that, pursuant to the oral agreement of the parties, petitioner would have custody of the two minor children. It further provided petitioner would receive "a lump sum settlement in lieu of, and in full discharge of, HERMINE'S [petitioner's] common-law right to alimony or support from THEODORE [respondent]." The judgment referred to payments to petitioner as "a family support payment * * * inclusive of the rights of the minor children of the parties hereto to be supported."

Under the terms of the agreement, petitioner was to receive $1250 per month until August 12, 1985 (the date upon which the eldest child reaches majority). After said date, the payments were reduced to $833.33 per month until August 24, 1988 (when the second child reaches majority). On August 24, 1988, the payments terminate. These payments were to abate if petitioner remarried, petitioner or respondent died or the children were removed from the jurisdiction by petitioner. If respondent received custody of the children at a later date, his obligation to petitioner was to be reduced by two-thirds. Payments received by petitioner would constitute taxable income to her and be deductible by respondent under the agreement. Petitioner also was given the right to take the minor children as dependents.

The judgment refers repeatedly to a "lump sum settlement." However, no lump sum amount is specified therein.

Almost three years after the judgment, on December 12, 1977, petitioner filed a petition for modification of the judgment concerning support of the children. Petitioner alleged inflationary conditions and increased needs of the children because their age increase made their maintenance impossible on the present amount of payments. It alleged respondent had increased his income since the entry of judgment.

Respondent filed a motion to dismiss or strike the petition on the ground that it failed "to state a cause of action or issues which can be litigated or in which this court has jurisdiction to hear * * *." The trial court allowed the motion. Petitioner appeals.

• 1 Preliminarily, this motion is a hybrid. It is labeled as being under section 48 of the Civil Practice Act. It avers that the petition "fails to state a cause of action * * *," resembling closely section 45 of the Act. This type of pleading is not favored by the courts>. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605.) We will treat the motion as brought under section 45. Ill. Rev. Stat. 1977, ch. 110, par. 45.

In this court petitioner contends the trial court had power to modify the terms of child support since the instant action is governed by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 502(f)), which allows modification of support provisions. Respondent contends the former Illinois Divorce Act is applicable here and the judgment provides for a lump sum settlement in lieu of alimony which cannot be modified under this applicable law.

The Illinois Marriage and Dissolution of Marriage Act applies "to all proceedings commenced after its effective date [October 1, 1977] for modification of a judgment * * *." (Ill. Rev. Stat. 1977, ch. 40, par. 801(c).) Respondent cites McArdle v. McArdle (1977), 55 Ill. App.3d 829, 833, 370 N.E.2d 1309, for the proposition "[a]pplication of the new act to cases already decided at the trial level would * * * be grossly unfair * * *." Actually the court in McArdle pointed out that the new legislation was not intended to be applicable "to appeals that had been perfected prior to its effective date." (McArdle, 55 Ill. App.3d 829, 833.) In the instant case, the appeal was perfected by filing the notice of appeal on September 6, 1978, almost a year after the effective date of the new statute. Accordingly, McArdle is inapplicable.

• 2 Winter v. Winter (1978), 69 Ill. App.3d 359, 387 N.E.2d 695, also cited by respondent in this regard, is not pertinent here. McArdle is cited by the Winter court simply to show that since defendant John Winter filed his notice of appeal after the amendment to section 15 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 16) effective October 1, 1976, which deleted a portion of the statute providing for payment of attorneys' fees for defending an appeal, defendant could not obtain fees under the former statute. In our opinion, the rights of these parties are to be determined under the new legislation.

• 3 The controversy as to which act governs the instant case may be without purpose. While the former statute expressly provides "a money or property settlement in lieu of alimony" may not be modified "subsequent to the decree" (Ill. Rev. Stat. 1975, ch. 40, par. 19), modification of child support is allowable under both acts. (Compare Ill. Rev. Stat. 1975, ch. 40, par. 19, and Ill. Rev. Stat. 1977, ch. 40, par. 502(f). See also Powers v. Powers (1979), 69 Ill. App.3d 485, 488, 388 N.E.2d 76.) The gravamen of the instant action is whether the judgment is truly a lump sum settlement in lieu of alimony or whether portions of it are actually child support which may be modified by the court.

It is not the label placed upon payments made under the terms of a divorce decree or a separation agreement which is determinative of their nature. (Richhmeimer v. Richhmeimer (1972), 9 Ill. App.3d 376, 381, 292 N.E.2d 190.) An equitable adjudication of the rights of litigants must necessarily be predicated upon the substance rather than the form of their agreement.

In the instant case, petitioner receives payments from respondent which decrease in amount when each child reaches majority. Furthermore, if custody is transferred to respondent, petitioner is to receive one third of the original payment. The operation of this agreement, regardless of its label, provides an ascertainable payment calculated as child support. The judgment before us uses and repeats ...

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