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06/10/87 Therese L. Ingrassia, v. David A. Ingrassia

June 10, 1987




APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THERESE L. INGRASSIA, Plaintiff-Appellant, v. DAVID A. INGRASSIA, Defendant (Dan Walker, Jr., Petitioner-Appellee). -- In re MARRIAGE OF THERESE L. INGRASSIA, Petitioner-Appellant, and DAVID A. INGRASSIA, Respondent-Appellee

509 N.E.2d 729, 156 Ill. App. 3d 483, 109 Ill. Dec. 68 1987.IL.792

Appeal from the Circuit Court of Winnebago County; the Hon. David A. Englund, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Therese L. Ingrassia, appeals from two orders of the circuit court of Winnebago County in a post-judgment proceeding arising from the 1975 dissolution of her 11-year marriage to defendant, David A. Ingrassia. One appeal (No. 86 -- 462) is from an order of the trial court terminating maintenance and setting a ceiling on defendant's financial obligations under the settlement agreement provision requiring defendant to provide their daughter, Jacqueline, with a college education. The other appeal (No. 86 -- 461) is from an order requiring plaintiff to pay $9,730.08 in attorney fees to attorney Dan Walker, Jr. The two appeals were consolidated for review by this court. We affirm in No. 2 -- 86 -- 0462 and reverse and remand in No. 2 -- 86 -- 0461.

Although the record and the appellant (Therese L. Ingrassia) are the same in the two appeals, the issues raised and the appellees (David A. Ingrassia in No. 2 -- 86 -- 0462 and Dan Walker, Jr., in No. 2 -- 86 -- 0461) are distinct. The two appeals will, therefore, be considered separately, starting with No. 2 -- 86 -- 0462.

That appeal is from the order terminating maintenance and setting a ceiling on defendant's financial obligations under the college education provision of the settlement agreement. Many of the facts relevant to this appeal were set out in our opinion deciding a prior case between these same parties. (In re Marriage of Ingrassia (1986), 140 Ill. App. 3d 826, 489 N.E.2d 386.) It is, therefore, unnecessary to set forth the facts in detail here. We will note the facts relevant to the issues raised when the particular issues are discussed.

It is difficult to pinpoint the issues plaintiff is raising, especially with respect to the termination of maintenance. Her statement of the issues is not very closely related to her points, and her precise contention is not always clear from her argument. From an examination of her brief and reply brief, it appears that the best summary of the issues is her statement of the issues, which reads:

"a. A settlement contract providing for maintenance is conclusive on the parties to the contract. It is subject to change or termination only by its terms; absent fraud, unconscionability, coercion, violation of law, public policy or morals.

b. The contract entered into by these parties was subject to termination by its terms, not by operation of law on this Record.

c. The provision for the college education for the daughter of the parties falls far short of equitable measures statutorily required, given the quality, talent and industry of the daughter and the ample means of the defendant.

d. The want of impartiality by the trier of fact deprived the plaintiff of due process of law."

None of these issues warrants reversal.

Primarily, plaintiff's first two issues depend upon her having a contract right to maintenance unmodifiable except by the terms of the 1975 settlement agreement. She has no such right, and the maintenance she received was modifiable.

The applicable provisions of the settlement agreement provide:

"2. ALIMONY, That the Husband shall pay to the Wife for Alimony the sum of $750.00 per month. The Husband agrees to waive any and all right to alimony, past, present and future.

4. AGREEMENT WITH RESPECT TO THE PAYMENT OF ALIMONY AND CHILD SUPPORT. That the Wife and Husband agree that, from the date of the execution of this Agreement, there shall be a 5-year moratorium with respect to the provisions outlined herein regarding the payment of alimony and child support on the part of the Husband. During this 5-year period of time there shall be no attempts by either party to alter, either by increase or decrease, the amount of alimony and child support payments outlined herein except that in the event of the Wife earning in excess of $15,000.00 in the course of her employment in any one calendar year, the Wife ceasing to live within the State of Illinois or the remarriage of the Wife. In the event of the remarriage of the Wife, the amount of child support payments by the Husband for the minor child shall be subject to modification through renegotiation or court action. Likewise, in the event that the Wife moves out of the State of Illinois or earns in excess of $15,000.00 in her occupation in any given calendar year, the amount of alimony and child support payments shall be subject to modification through renegotiation or court action.

10. SECURITY FOR ALLOWANCE, SUPPORT AND RELATED MATTERS. That the Husband agrees to provide $30,000.00 term life insurance on his life with the Wife as beneficiary, to secure the payments undertaken to be made by the Husband, until the Wife remarries or reaches the age of 65."

The interpretation of these provisions is straightforward. Modification of maintenance and child support is specifically precluded for five years, unless plaintiff earns more than $15,000 in one calendar year, ceases to live in Illinois, or remarries. The provision of a five-year moratorium, with specified exceptions, for modification of child support and maintenance indicates that those obligations are to be more generally modifiable after that time, since otherwise such a provision would be unnecessary and would make no sense. Contrary to plaintiff's contentions, the security provision is of no significance to the modifiability of maintenance. It requires a life insurance policy on defendant to secure those payments defendant has undertaken, until plaintiff remarries or reaches age 65. It clearly does not set a time period during which maintenance is to be paid. We, thus, conclude that the terms of the settlement agreement contemplated that maintenance would be generally modifiable after five years.

This is consistent with the way maintenance has previously been treated in this case. The settlement agreement required defendant to pay $250 child support and $750 maintenance each month. In 1984, on plaintiff's petition, the trial court modified this to $1,700 per month unallocated child support and maintenance. (In re Marriage of Ingrassia (1986), 140 Ill. App. 3d 826, 827-30, 489 N.E.2d 386, 387-89.) The maintenance and child support obligations have thus been treated as generally modifiable after the five-year moratorium.

Plaintiff seems to object to the trial court's use of factors in the current maintenance statute in modifying her maintenance. (Ill. Rev. Stat. 1985, ch. 40, par. 504.) It seems that her objection has to do with modifying the maintenance she received under the 1975 settlement agreement, which was incorporated into the 1975 judgment, on the basis of a statute effective in 1977. There is no merit to this objection.

First, the provisions of the 1975 settlement agreement, which the 1975 judgment incorporated, regarding child support and maintenance were not the ones at issue in the case at bar. It was the 1984 order which was modified, not the 1975 judgment, and the 1984 order was entered after the 1977 effective date of the statute. Second, a provision of the statute provides that it "applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act." (Ill. Rev. Stat. 1985, ch. 40, par. 801(c).) Since the proceeding at bar for modification was commenced long after the 1977 effective date of the act, there can be no question that it is applicable to this case.

Under the statute, maintenance provisions may be modified "only upon a showing of a substantial change in circumstances." (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) Plaintiff in her reply brief claims that this provision is not involved in this case; that defendant sought "termination" of maintenance, which is governed by a separate provision. (Ill. Rev. Stat. 1985, ch. 40, par. 510(b).) This is utterly without merit. It is apparent from the record of the proceedings below that defendant in his counterpetition was claiming a substantial change in circumstances justified terminating (modifying to zero) maintenance, and it is apparent that the court and the parties tried the case on the substantial-change-in-circumstances theory. Moreover, a termination is consistent with modification in the maintenance context. The statutory provision on termination cited by plaintiff is one providing for automatic termination of maintenance under certain conditions. (Ill. Rev. Stat. 1985, ch. 40, par. 510(b).) The "change in circumstances" provision is a more general modification provision. (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) Since maintenance may be for a definite period of time (Ill. Rev. Stat. 1985, ch. 40, par. 504(b)), there is nothing inconsistent with declaring maintenance at an end on a particular date and an order for modification of "the provisions of any judgment respecting maintenance or support." (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) Thus, the termination is permitted under the modification provisions of section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)). In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 322-23, 480 N.E.2d 147, 150 (in a case controlled by section 510(a) (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)), appellate court held that trial court should have granted petition for termination of maintenance).

Having established that the modification provisions of the current statute apply, it is now possible to resolve a specific claim made by plaintiff. Her specific claim is that the trial court improperly found that she had a duty to seek employment. The factors to be considered in making an award of maintenance (Ill. Rev. Stat. 1985, ch. 40, par. 504) are applicable to modification proceedings. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 323, 480 N.E.2d 147, 150; Ill. Ann. Stat., ch. 40, par 510(a), Historical and Practice Notes, at 699 (Smith-Hurd 1980).) Among those factors is "the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment." (Ill. Rev. Stat. 1985, ch. 40, par. 504(b)(2).) Thus, the statute provides for consideration of the time that will be necessary for a spouse receiving maintenance to be able to prepare for employment.

In addition, it is by now well established that the statute places an affirmative obligation on the party receiving maintenance to seek appropriate training and skills to become financially independent in the future. (See, e.g., In re Marriage of Ingrassia (1986), 140 Ill. App. 3d 826, 835, 489 N.E.2d 386, 392; In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 322, 480 N.E.2d 147, 149; In re Marriage of Lasota (1984), 125 Ill. App. 3d 37, 41, 465 N.E.2d 649, 652.) Moreover, it has been said:

"The failure of the petitioner to make good-faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Act. [Citations.]" (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 635, 450 N.E.2d 1229, 1234.)

(See Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) Thus, the finding that plaintiff had a duty to seek employment was proper.

Although it is not entirely clear from her brief, it appears, from plaintiff's argument of point I. B. in her reply brief, that all of her claims with respect to maintenance are based upon her having a contract right to it under the settlement agreement, which the trial court failed to enforce. If so, the foregoing has disposed of plaintiff's contentions.

We would note that if plaintiff were challenging the sufficiency of the counterpetition and of the evidence under the current statute, she would nonetheless not be entitled to prevail.

With respect to termination of maintenance, the counterpetition alleged:

"1. That the Defendant has been paying maintenance, child support or unallocated maintenance and child support since May of 1975.

2. That the minor child of the parties will be emancipated in March of 1986.

3. That the plaintiff, THERESE L. INGRASSIA, is an able-bodied person educated and equipped to be gainfully employed and that she is no longer in need of maintenance.

4. That if the request for payment of college expenses is granted, that the Defendant's sole responsibility should be for the education of the minor child.

5. That the Plaintiff, THERESE L. INGRASSIA, has engaged in a course of conduct over the last ten years which has dissipated the assets of the Defendant making ...


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