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In Re Marriage of Davis

OPINION FILED JUNE 22, 1984.

IN RE MARRIAGE OF CAROLYN A. DAVIS, A/K/A CAROLYN A. FREEMAN, PETITIONER-APPELLANT, AND GERALD C. FREEMAN, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The petitioner, Carolyn A. Davis (former Carolyn A. Freeman), appeals from the trial court's order terminating the obligation of the respondent, Gerald C. Freeman, to pay maintenance as of the date of the petitioner's remarriage pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1981, ch. 40, par. 510(b) (hereafter the IMDMA).

A brief review of the facts is necessary before we address the issue in this case. On March 18, 1982, the petitioner and respondent were granted a judgment of dissolution of marriage with all ancillary aspects reserved for subsequent hearing. On May 3, 1982, the Honorable Stephen J. Covey, Chief Judge of the Tenth Judicial Circuit, entered an order entitled "Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters" (hereafter Initial Order). Paragraph C of the Initial Order of May 3, 1982, provided:

"C. For maintenance of the Petitioner, the Respondent shall make payments to her for a period of thirty-six (36) months in the following manner: the sum of Seven Hundred and Fifty Dollars ($750) during the period of time she is receiving unemployment insurance payments and Eight Hundred and Fifty Dollars ($850) per month when said payments terminate except that such payments shall cease upon the remarriage of the Petitioner, death of either party, continuous cohabitation with another person by Petitioner or upon further order of Court after a change in economic status of either party justifies a change. Such payments are solely for the maintenance of the Petitioner."

The petitioner filed a post-trial motion and an amendment to post-trial motion. In the post-trial motion and at hearing, the petitioner asserted certain inequities in the distribution of property by the Initial Order of May 3, 1982. Among the petitioner's assertions was that she should have been awarded a greater share of the property before the court awarded maintenance and that the maintenance award should have been an award in gross to insure its receipt, to offset the disproportionate distribution of property to the respondent, and to change the tax consequences.

On June 24, 1982, Judge Covey entered a "Modified Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters" (hereafter First Modified Order). Paragraph C of the First Modified Order provided:

"C. For maintenance in gross of the Petitioner the Respondent shall pay the sum of Twenty-seven Thousand Dollars ($27,000) at the rate of Seven Hundred and Fifty Dollars ($750) per month for a total of thirty-six (36) months."

All other property disposition provisions of the Initial Order entered May 3, 1982, were retained.

On July 9, 1982, Judge Covey entered an order entitled "Second Modified Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters" (hereafter Second Modified Order). Paragraph C of the Second Modified Order provided:

"C. For maintenance in gross of the Petitioner the Respondent shall pay the sum of Twenty-seven Thousand Dollars ($27,000) at the rate of Seven Hundred and Fifty Dollars ($750) per month for a total of thirty-six (36) months. Said payments to be terminable upon the death of either Petitioner or Respondent. First payment to be made on May 5, 1982, and on the 5th of each month thereafter until paid in full."

All other property disposition provisions of the First Modified Order entered June 24, 1982, were retained.

On August 21, 1982, the petitioner remarried. The respondent did not pay the September installment of the maintenance award. On December 17, 1982, the respondent filed a petition to terminate the maintenance obligation. On December 21, 1982, the Honorable Donald C. Courson, found "[t]hat the Petitioner was remarried on August 21, 1982, and pursuant to Section 510(b) of Chapter 40 of the Illinois Revised Statutes, the Respondent's obligations to pay maintenance to the Petitioner terminated on that date." Judge Courson entered an order providing that "[t]he maintenance to be paid by the Respondent to the Petitioner is terminated as of August 21, 1982." It is from that order that the petitioner appeals.

Section 504(b) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)) provides that "maintenance * * * may be in gross * * *." Section 510(b) (Ill. Rev. Stat. 1981, ch. 40, par. 510(b) provides that "the obligation to pay future maintenance is terminated upon * * * the remarriage of the party receiving maintenance * * *." The issue in the instant case requires that we construe these statutory provisions. We must ultimately determine whether the maintenance in gross awarded the petitioner in the Second Modified Order under section 504(b) is future maintenance which, pursuant to section 510(b), must terminate upon remarriage.

As a preliminary matter, we note that both section 504(b) and section 510(b) of the IMDMA were amended in 1982. Section 510(b) was amended by Public Act 82-194, effective January 1, 1982. (1981 Ill. Laws 1130.) Section 504(b) of the IMDMA was amended twice in 1982; first by Public Act 82-566, effective January 1, 1982 (1981 Ill. Laws 2850), and a second time by Public Act 82-716, effective July 1, 1982. (1981 Ill. Laws 716.) Article III of the 1982 Revisory Act resolved these multiple actions of the 82nd General Assembly. (1982 Ill. Laws 231.) While the effective date of the 1982 Revisory Act was July 13, 1982, it was not intended to make substantive revisions in the law and its effective date was not intended to prevail over the July 1, 1982, effective date of Public Act 82-716.

The dates and language of the amendments, their relationship to the orders in this case, and other dates important to our consideration are presented below in chronological order:

September 25, 1981 - Petition for dissolution of marriage, filed by petitioner;

January 1, 1982 - Effective date of Public Act 82-194, adding the following indicated language to section 510(b) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)):

"(b) Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving ...


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