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In Re Marriage of Freeman

OPINION FILED MARCH 22, 1985.

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


Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Donald C. Courson, Judge, presiding.

JUSTICE SIMON, DELIVERED THE OPINION OF THE COURT:

In this case we are called upon to decide whether an award of payments to an ex-spouse should be classified as periodic maintenance or maintenance in gross under the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 503), and whether the award must terminate upon the spouse's remarriage (Ill. Rev. Stat. 1983, ch. 40, par. 510(b).). When Gerald C. Freeman (Gerald) did not make the monthly payments provided for by order, his former wife, Carolyn A. Davis, formerly Carolyn A. Freeman (Carolyn) applied in the circuit court of Peoria County for a rule to show cause requiring him to pay. Gerald applied for a rule to show cause terminating the payments as of August 21, 1982, the date of Carolyn's remarriage. Gerald's motion for substitution of judges was allowed, and the substituted judge, Donald Courson, held that, as a matter of law, the payments terminated as of the date of Carolyn's remarriage. The appellate court reversed. (124 Ill. App.3d 1088.) We allowed Gerald's petition for leave to appeal (87 Ill.2d R. 315).

The marriage was dissolved on March 18, 1982. A series of orders dealing with property division, custody, maintenance, and child support followed. The original order issued by Judge Stephen Covey and dated May 3, 1982, provided:

"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."

In a post-trial motion, Carolyn objected that she should have been awarded "alimony in gross." At the hearing on her motion, Carolyn's attorney argued that she had asked for maintenance in gross, but the court had ordered periodic maintenance, and that this should be altered. Judge Covey asked, "What is the difference if I allow her $27,000 in gross or $27,000 periodic over three years," and then answered his own question by saying, "The gross is paid regardless of remarriage." He then immediately asked if there was any income tax difference.

When the hearing was continued to a later date, Judge Covey asked if there was any reason why Gerald should continue to pay if Carolyn remarried. Carolyn's attorney responded that the relative positions of the parties and Gerald's possible future unwillingness to pay warranted the in-gross arrangement. Judge Covey said that the payments should be deductible by Gerald, and to accomplish that he clearly indicated that he was talking about maintenance, not a property settlement. Gerald's attorney stated that "[i]f it is payment of maintenance with conditions then it is deductible by him and payable [sic] by her."

On June 24, 1982, the first modified judgment was issued. The maintenance provision was replaced by the following:

"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."

On July 9, 1982, a second modified judgment was issued. The same maintenance-in-gross provision was included, but this time it was followed by an additional sentence reading, "Said payments to be terminable upon the death of either Petitioner or Respondent." On August 3, Gerald moved for rehearing on the issue of "alimony in gross," but he later withdrew that motion.

Should this award be considered as maintenance in gross? Before the enactment of the Act, prior Illinois law provided for "alimony in gross" which could be awarded in lieu of periodic alimony. (See, e.g., Ill. Rev. Stat. 1975, ch. 40, par. 19.) Alimony in gross was treated as a property settlement. Although it was frequently payable in installments, it was the award of a sum certain which created a vested interest in the recipient. (Walters v. Walters (1951), 409 Ill. 298.) In contrast to periodic alimony, alimony in gross was non-modifiable and was therefore payable regardless of the remarriage of either party. 409 Ill.2d 298, 302.

When the new statute was enacted in 1977, it included no specific provision for alimony in gross. It contained separate sections dealing with property settlements and with maintenance, the new term for what was formerly called alimony. (Ill. Rev. Stat. 1981, ch. 40, pars. 503, 504.) In addition, section 510(b) provided:

"[T]he 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." Ill. Rev. Stat. 1981, ch. 40, par. 510(b).

Although this court has never considered whether maintenance in gross was payable under the Act, the appellate court concluded that maintenance in gross could be awarded under the Act pursuant to the trial court's authority to award maintenance "`in such amounts and for such periods of time as the court deems just * * *.'" (In re Marriage of Preston (1980), 81 Ill. App.3d 672, 680, quoting Ill. Rev. Stat. 1977, ch. 40, par. 504(b).) The appellate court has also described an award of maintenance in gross as in the nature of a ...


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