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In Re Marriage of Clarke



Appeal from the Circuit Court of Sangamon County; the Hon. Howard Lee White, Judge, presiding. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

• 1 We hold here that in a proceeding under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) a court does not have authority either (1) to order a spouse or the estate of that spouse to make maintenance payments for a period extending beyond the death of that spouse, or (2) to require that spouse to secure income in lieu of maintenance to the other spouse after death of the first spouse by making the other spouse or a trustee for the other spouse the beneficiary of (a) insurance policies on the life of the first spouse, or (b) other contracts payable at the death of the first spouse.

The instant proceeding began on July 7, 1982, when petitioner, John P. Clarke, filed suit in the circuit court of Sangamon County seeking dissolution of his marriage to respondent, Roberta J. Clarke. On September 16, 1983, that court entered a judgment of dissolution which incorporated by reference a detailed property settlement agreement which included an order whereby petitioner was to pay respondent $3,500 per month in unallocated maintenance. The agreement provided for a certain cash payment by petitioner to respondent and determined the rights in the marital residence and certain investments. By the terms of the agreement petitioner was required to designate the parties' minor daughters as primary beneficiaries of a $100,000 whole life insurance policy maintained by petitioner's employer on petitioner's life. The purpose for this transaction was stated to be to "assure [the daughters'] support and payment of their educational expenses through four years of college or vocational school." Petitioner was given the option of designating a different beneficiary upon completion of the daughters' schooling.

We need not explain the other provisions of the comprehensive plan. However, the parties were not able to agree upon all matters and, accordingly, provided in article XVIII of the agreement to "submit" certain matters, upon which they could not agree, "to the court for determination." Significant on appeal is paragraph 2 which lists as a matter for determination, the following:

"Whether husband shall be ordered to provide any security to wife for the payment of the unallocated maintenance in the event of his death and, if so, whether the security should be: [any one of various term and whole life insurance policies on petitioner's life] or * * * designation as beneficiary on [petitioner's] Deferred Compensation Contracts."

Paragraph 2 also sought determination as to which party should pay the premiums on any policy used for security and as to how long that party should pay the premiums.

An evidentiary hearing was held on August 18, 1983, and, on September 16, 1983, a judgment was entered which dissolved the marriage, awarded joint custody of the parties' two children, approved the property settlement, divided the property and, among other determinations, refused to order petitioner to give security to respondent for unallocated maintenance in the event of his death. Respondent has appealed contending that the court erred (1) in allegedly failing to award two life insurance policies to either party, and (2) in refusing to require the security for unallocated maintenance requested by respondent. We affirm.

• 2 The record clearly shows that the two life insurance policies in question, policies issued by Massachusetts Mutual Insurance Company having a total face value of $20,000 and a combined cash surrender value of $6,800, were awarded by the September 16, 1983, judgment to petitioner. We need give no further consideration to that contention.

• 3 In regard to respondent's assertion that she was entitled to the security for unallocated maintenance, she maintains that: (1) the court had authority to award such maintenance, and (2) the court breached its discretion in refusing to do so. Because of our previously stated ruling that the court had no authority to make such an award, we need not consider whether a breach of discretion occurred.

The parties agree that, when sitting in a dissolution proceeding, a circuit court cannot properly exercise general equity powers (In re Marriage of Garrison (1981), 99 Ill. App.3d 717, 425 N.E.2d 518), but must look to the Act for authority. At all times pertinent, section 510(b) of the Act has provided:

"(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 maintenance or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 501(b).)

Here, article III, paragraph 2 of the agreement expressly provides that the unallocated maintenance should cease upon the death of either party. Nevertheless, the parties' reservation in article XVIII, paragraph 2 of the agreement of the issue of whether petitioner should be required to give security for post-death unallocated maintenance indicated their intention to seek a court determination as to whether unallocated maintenance beyond that agreed to could and should be awarded by the court.

Respondent maintains that section 510(b) provides authority for the court to order maintenance after petitioner's death and to order petitioner to give security to enforce it. She interprets section 510(b) to authorize such maintenance if (1) "agreed to by the parties in a written separation agreement set forth in the judgment," or (2) if "otherwise" ordered by the court. She contends that "approved" means the same as ordered and that the phrase "otherwise approved by the court" does not modify, in the alternative, the phrase "written separation agreement." She contends that the section envisions a method of providing for post-death maintenance that is an alternative to that based on agreement of the parties.

We disagree. The word "approve" is defined by Black's Law Dictionary as follows: "To be satisfied with; to confirm, ratify, sanction, or consent to some act or thing done by another." (Emphasis added.) (Black's Law Dictionary 94 (5th ed. 1979).) The word is said to be distinguished from the word "authorize." Within the context of section 510(b) there must be a pre-existing "act" or "thing" for the court to approve. That "act" or "thing" is the agreement of the parties. The court's authority in this case is not inherent. It arises only when there is a written agreement of the parties which either has been incorporated in the judgment and approved in that manner or "otherwise approved by the court." Here, there was no such agreement. The court had no authority under section 510(b) to order unallocated maintenance beyond petitioner's death.

It seems axiomatic that if the court has no authority to order maintenance that would extend beyond the death of the party obligated to pay the maintenance, the court has no authority to require security for the payment of maintenance after the death of the obligor. Moreover, it is questionable if the court has authority under the Act even to order security for maintenance accruing prior to death of the obligor. ...

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