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In Re Support of Burks

OPINION FILED SEPTEMBER 30, 1981.

IN RE SUPPORT OF MARY PAXTON BURKS ET AL. — (JAMES BURKS, PETITIONER-APPELLANT,

v.

MARY PAXTON BURKS, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLARD J. LASSERS and the Hon. JAMES MEEHAN, Judges, presiding.

MR. PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Petitioner, James Burks, filed a petition to modify his support obligation to respondent, Mary Paxton Burks, and their children. This obligation arose from a settlement agreement between respondent and petitioner which was incorporated in a divorce judgment. The trial court refused to grant the relief sought in the petition. Petitioner appeals, contending that the trial court's ruling was erroneous and that the trial court erred in awarding attorney's fees to respondent's attorney. We affirm in part, reverse in part and remand.

A judgment for divorce was entered on September 2, 1976. The judgment incorporated a settlement agreement entered into between the parties. The agreement provided that petitioner was to pay respondent $272,250 in equal monthly installments of $2,250 each. The payment of this sum was to be in "full and final settlement of all of [petitioner's] obligations to support and maintain [respondent] as a `lump sum property settlement in installments' in lieu of alimony and also as and for the support of the minor children of the parties." In the event of the death of respondent or petitioner, any installments thereafter due would abate, and respondent and her heirs would have no further claim against petitioner or his heirs. If petitioner became ill or disabled and therefore unable to work and make the payments, the payments due during that period would be delayed until petitioner's recovery. Upon petitioner's recovery and return to work, he would pay respondent with each current payment an additional amount equal to 5% of the current payment until all delayed payments were made. The agreement further provided:

"Wife releases and discharges Husband absolutely and forever for the rest of her life from all claims, demands, past, present or future, for alimony or for any other provisions for maintenance and support except as contained in this Agreement. Wife agrees that she will not seek increased or additional amounts for the support, maintenance or pre-college education of the children. If, at any time hereafter, any court of competent jurisdiction orders Husband to pay any additional sum as and for the support, maintenance, and pre-college education of the minor children, Wife agrees to indemnify Husband in the amount of the increase of the additional sum."

The parties also agreed that the payment of college expenses of the minor children would be determined at the time the children were ready to attend college.

On July 17, 1979, petitioner filed a petition alleging a material change in circumstances which necessitated a reduction in child support and maintenance. At the time of the divorce judgment in 1976, petitioner was employed by Presbyterian St. Lukes Hospital as an obstetrician and gynecologist. He was earning approximately $53,000 per year. On June 30, 1977, petitioner left Presbyterian St. Lukes Hospital and joined Health Specialists, Inc. In his first and second years of employment with Health Specialists, petitioner earned $70,000 and $76,500 respectively.

On June 30, 1979, petitioner left Health Specialists to open a private practice. According to petitioner, he left Health Specialists because he was having problems getting along with his fellow workers and because he was not earning enough money to cover his expenses. Petitioner formed a medical corporation and was drawing a monthly gross salary of $2,083.33 at the time of the hearing on the petition. Petitioner's new wife, Marilyn Moore, was also working for the corporation, earning $15,000 per year. At the time of the hearing, the corporation had no retained earnings.

From the time petitioner opened his private practice in July of 1979 until September of 1979, petitioner paid respondent only one-half of the monthly amount required by the settlement agreement. His monthly expenses for October 1979 were $5,302.45, which included a full payment of $2,250 to respondent. That amount also included a $750 monthly payment to Moore's mother for the purpose of property in Michigan.

At the time of the divorce judgment, the parties' three children were living with respondent. Shortly thereafter, the oldest child left to attend college. The parties' middle child enrolled in college in September of 1979. At the time of the hearing, petitioner had paid for the college education of both children. The youngest child attended the University of Chicago Lab School, and respondent paid her tuition.

At the time of the divorce judgment, respondent was working 15 to 20 hours per week and earning $5 per hour. At the time of the hearing on the petition, she was earning approximately $6500 per year.

The trial court refused to grant the relief requested in the petition, ruling that the agreement between the parties is not modifiable. The trial court specifically stated that it did not have the power to modify the terms of the payments. Petitioner contends that the ruling of the trial court was erroneous because his support obligation is modifiable under section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. Section 502(f) provides:

"Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the judgment are automatically modified by modification of the judgment." (Ill. Rev. Stat. 1979, ch. 40, par. 502(f).)

If the terms are modifiable, they may be modified only upon a showing of a substantial change in circumstances. Ill. Rev. Stat. 1979, ch. 40, par. 510(a); Miller v. Miller (1978), 65 Ill. App.3d 844, 846, 382 N.E.2d 823, 826.

In the present case, the agreement, which was executed prior to the new act, does not expressly preclude or limit modification of its terms. However, regardless of the presence or absence of any such language, provisions relating to the support of minor children are always modifiable. (In re Support of Bayuk (1979), 79 Ill. App.3d 877, 880, 398 N.E.2d 1109, 1112; Weber v. Weber (1979), 77 Ill. App.3d 383, 386, 396 N.E.2d 43, 46; Dull v. Dull (1979), 73 Ill. App.3d 1015, 1017, 392 N.E.2d 421, 423; In re Marriage of Gentile (1979), 69 Ill. App.3d 297, 301, 387 N.E.2d 979, 983.) The parties cannot agree to make child support non-modifiable. (Ill. Ann. Stat., ch. 40, pars. 502, 510, Historical and Practice Notes, at 403, 700 (Smith-Hurd 1980).) Therefore, child support is modifiable even when combined with non-modifiable alimony or maintenance. (See Powers v. Powers (1979), 69 ...


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