APPEAL from the Circuit Court of Will County; the Hon. HERMAN
S. HAASE, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The case at bar arises from a post-decree petition involving the nature of certain monthly payments from the defendant, Donald M. Ihle (hereinafter Donald), to his wife, Judith S. Ihle (hereinafter Judith). The monthly payments in question are found in paragraph D of the parties' marital settlement agreement that was incorporated into their divorce decree entered January 5, 1976. That paragraph provides as follows:
"that the Defendant shall pay the Plaintiff, through the Clerk of this Court, as and for alimony in gross the sum of $525.00 on 1/5/76 and a like sum on the 5th day of each month thereafter until fully paid; provided however that said payment shall terminate instanter upon Plaintiff's remarriage or her death."
In late 1978, Donald ceased making the monthly payments as provided, and so Judith filed a petition for rule to show cause why Donald should not be found in contempt of court for failing to maintain the scheduled payments. Donald responded by filing a petition to terminate alimony. He alleged that Judith was then living with a man on a continuing, conjugal basis; thus, pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(b)) (hereinafter the new marriage act), his obligation to pay future installments terminated as a matter of law. The trial court, without an evidentiary hearing, characterized the monthly payments as nonterminable alimony in gross and granted Judith's motion to strike Donald's petition.
He appeals from that order, contending that (1) section 510(b) terminates his obligation to pay the sum of $44,100 in monthly $525 installments; and (2) he was improperly denied an evidentiary hearing on his petition to terminate alimony.
• 1 Even though the parties' divorce decree was entered prior to the effective date of the new marriage act, the act applies to this post-decree proceeding. (Ill. Rev. Stat. 1979, ch. 40, par. 801(c); Lamp v. Lamp (1980), 81 Ill.2d 364, 410 N.E.2d 31.) Naturally, however, the decretal provision in issue was drafted using the terminology of the prior statute, namely, alimony in gross. (Ill. Rev. Stat. 1975, ch. 40, par. 19.) Thus, our purpose is to ascertain the character of the parties' intentions under the prior law and then to superimpose the new act on those intentions.
Under the prior marriage act, there existed three distinct sets of decretal rights and duties. The first was periodic alimony, which was defined as an allowance in a decree carved out of one spouse's estate for the support of the other. (Adler v. Adler (1940), 373 Ill. 361, 26 N.E.2d 504.) The payments extended for an indefinite period of time and usually for an indefinite amount. (Walters v. Walters (1950), 341 Ill. App. 561, 94 N.E.2d 726, aff'd (1951), 409 Ill. 298, 99 N.E.2d 342.) Because periodic alimony was based on the spouse's common law duty to support the other, the payments were modifiable after the decree to reflect the changes in the recipient's needs, or the obligor's ability to pay. Hence, the obligation usually terminated upon the death of the obligor or the recipient, and future installments were never a charge on the obligor's estate.
The second decretal relationship under the prior marriage act was called alimony in gross, which was defined in Walters v. Walters (1950), 341 Ill. App. 561, 567, 94 N.E.2d 726, 729, aff'd (1951), 409 Ill. 298, 99 N.E.2d 342, as a sum certain of money, payable in installments for a fixed period of time. Alimony in gross was not modifiable and, pursuant to section 18 of the prior marriage act (Ill. Rev. Stat. 1975, ch. 40, par. 19), the recipient was entitled to receive future unpaid installments regardless of the death of either party or remarriage by the recipient. Alimony in gross became non-modifiable or vested on the date of settlement or entry of the decree.
The third decretal relationship was the property settlement in lieu of alimony. It consisted of a lump sum, often payable in installments, passing between the parties as consideration for their release of their marital rights, including court-ordered periodic alimony. (Jacobson v. Jacobson (1964), 50 Ill. App.2d 244, 200 N.E.2d 378.) As with alimony in gross, a property settlement in lieu of alimony was non-modifiable or vested on the date of settlement or entry of the decree.
The source of the obligation distinguished alimony in gross from a property settlement. The former stemmed from the legal duty of the spouse to support the other, while the latter was based on the legal and equitable interests each spouse has in marital property accumulated during coverture. (Jacobson v. Jacobson.) The distinction between alimony in gross and a property settlement became muddled by parties frequently juxtaposing elements of both into a single agreement. This court recently commented that:
"Alimony in gross has been characterized as `part of the lump sum property settlement' and `closely connected' with the distribution of real and personal property (Koivun v. Koivun), and is often undistinguishable in character from a settlement of property between spouses." (Pacione v. Pacione (1980), 81 Ill. App.3d 600, 605, 402 N.E.2d 316, 320.)
Consequently, neither the labels attached nor the method of payment prescribed by the parties conclusively determined the nature of the decretal provision. Jacobson v. Jacobson (1964), 50 Ill. App.2d 244, 200 N.E.2d 379; Walters v. Walters (1950), 341 Ill. App.3d 561, 94 N.E.2d 726, aff'd (1951), 409 Ill. 298, 99 N.E.2d 342.
In the case at bar, we find that the parties intended paragraph D to constitute alimony in gross in the nature of a property settlement. (Pacione v. Pacione.) The decretal section ordered Donald to pay a specific amount ($44,100) in monthly installments. The payments would have expired in a definite period of time. The fact that the agreement provided for the sum payable in installments does not negate a property settlement. Further, the provision terminating the installments upon the death or remarriage of Judith does not change the settlement agreement to periodic alimony, now maintenance. (See, e.g., Olson v. Olson (1978), 58 Ill. App.3d 276, 374 N.E.2d 247; Roberts v. Roberts (1967), 90 Ill. App.2d ...