Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of St. Clair
County, the Hon. Stephen M. Kernan, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The plaintiff, Robert E. Lamp, filed a petition in the circuit court of St. Clair County on May 23, 1978, to modify a decree of divorce from the defendant, Susan M. Lamp, which the plaintiff had been granted on August 16, 1974. The circuit court granted the petition, and the appellate court, with one judge dissenting, affirmed (73 Ill. App.3d 713). We granted the defendant's petition for leave to appeal.
The plaintiff's complaint for divorce charged the defendant with extreme and repeated mental cruelty. It asked that custody of the three minor children of the marriage be awarded to the plaintiff, and that the court make an equitable distribution of the property of the parties. The defendant filed a counterclaim for separate maintenance which also charged mental cruelty. The counterclaim asked that all the property of the parties be awarded to the defendant, and that the plaintiff be ordered to provide support for the defendant and the three children. The circuit court found in favor of the plaintiff on the complaint and found against the defendant on her counterclaim.
The decree ordered the payment of "temporary" alimony to the defendant of $300 a month, limited to a period of three months from the date of the decree. No further monetary award of alimony was made. The decree also gave custody of the three children to the defendant, subject to visitation privileges for the plaintiff. The plaintiff was ordered to pay the defendant child support in the amount of $100 per month for each of the three children, subject to escalation or de-escalation in the event of a change in the plaintiff's net income from its level in 1974. Each of the parties was directed to maintain specified amounts of life insurance payable to the three children as beneficiaries.
The decree gave the defendant possession of the marital home until the defendant should remarry or until the youngest of the three children should reach the age of 18 years, whichever should first occur. While the defendant was in possession of the home the plaintiff was to pay real estate taxes and mortgage installments, the defendant was to maintain a homeowners insurance policy, and maintenance expenses were to be divided equally between the parties. Upon the sale of the marital property, whose market value in 1974 was found to be $30,000, the defendant was to receive "one-half of that portion of the proceeds which represent the difference between the said $30,000 base amount and the then existing mortgage indebtedness."
On February 8, 1977, the plaintiff, who had remarried, petitioned the court to modify the decree by awarding him the custody of the children, subject to visitation privileges for the defendant. The petition alleged that circumstances had developed at the defendant's residence which prevented her from attending to the needs of the children and which created a threat of physical harm to them. The petition also asked that the obligation to make child-support payments be eliminated. The defendant filed an appearance as well as a consent to the entry of a default order as to custody and visitation. The circuit court granted the petition to modify the custody and visitation provisions. The court did not eliminate the child-support payments, and the record does not show whether these continued to be made by the plaintiff.
On May 16, 1978, the plaintiff filed a second petition to modify the decree, the one which is the subject of this appeal. At this time the defendant had not remarried, and the youngest child was 12 years old. The petition stated that the children were now residing with the plaintiff, and that their use of the marital home of the parties as a residence was no longer required. The petition asked that the property be sold without awaiting the occurrence of the events enumerated in the decree. The court entered an order so providing.
The central question on this appeal is whether the provision of the decree awarding possession of the marital home to the defendant is to be characterized as a provision for periodic alimony or for child support, which are subject to modification, or rather as a property settlement or alimony in gross, which are not.
Section 801(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 801(c)) makes the Act applicable to "all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act." Section 510(a) (Ill. Rev. Stat. 1977, ch. 40, par. 510(a)) permits modification of provisions respecting maintenance, a term which corresponds to what was formerly called alimony, or child support upon a showing of "a substantial change in circumstances." Section 510(a) further states: "The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State."
These provisions in general seem to carry forward the provisions of section 18 of the former statute regulating divorce (Ill. Rev. Stat. 1973, ch. 40, par. 19), which was in effect at the time the divorce decree in the present case was entered. The fifth paragraph of section 18 states:
"The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper. * * *"
The parties have not called our attention to any significant difference between the pertinent provisions of the former act and the present act, and for purposes of our decision we will consider that decisions under the former act remain applicable here.
The decisions of this court have established that the statutory power of a court to reduce the amount of periodic payments, whether by way of alimony or child support, is not defeated by the fixing of the amount of the payments in a settlement agreement which was incorporated in the decree. That rule is also followed in most other States (Annots., 61 A.L.R.3d 520, 657 (1975).) In Herrick v. Herrick (1925), 319 Ill. 146, the settlement agreement provided that the husband was to pay the wife $300 a month for her support and that of their son. Some 8 years later the husband filed a petition to reduce the payments because of a deterioration in his financial position, and the court lowered them to $200 per month. The court rejected the wife's contention that the incorporation of the agreement into the decree barred subsequent alteration. The court reasoned that the agreement had been merged in the decree and that since the statute permitted ...