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09/18/87 In Re Marriage of Richard H. Mcfarlane

September 18, 1987

IN RE MARRIAGE OF RICHARD H. MCFARLANE,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellant and Cross-Appellee, and SIRI E.

McFARLANE, Respondent-Appellee and

Cross-Appellant

513 N.E.2d 1146, 160 Ill. App. 3d 721, 112 Ill. Dec. 537 1987.IL.1376

Appeal from the Circuit Court of Kane County; the Hon. R. Peter Grometer, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

In this post-dissolution action, petitioner, Richard H. McFarlane, seeks the termination or modification of support payments being paid to respondent, Siri E. McFarlane, pursuant to a marital settlement agreement (agreement) entered into between the parties at the time of their divorce. At issue is whether the terms of the agreement preclude its modification. The trial court held that they did. We affirm.

On October 5, 1976, the parties entered into a marital settlement agreement which was incorporated into the judgment of divorce subsequently entered on October 25, 1976. The agreement provided, in pertinent part, as follows:

"6. Allowance for Wife. Richard shall pay to Siri as and for her allowance for her support and maintenance the sum of Two Thousand Eight Hundred Dollars ($2,800.00) per month for each and every month after the effective date of this Agreement, and until terminated as hereinafter provided, the first of such Two Thousand Eight Hundred Dollars [ sic ] ($2,800.00) monthly installments being due and payable on the first day of the month next following the effective date of this Agreement. These monthly payments to Siri of her allowance shall continue until the first to happen of the following:

(a) The death of Siri;

(b) The death of Richard after the fifth anniversary of any divorce between the parties; or

(c) The remarriage of Siri after the date of the fifth anniversary of any Decree of Divorce granted one party from the other.

For the purposes of this Agreement, 'remarriage' shall be considered to include the participation by Siri as a principal in any marriage ceremony that is performed even if that marriage be void or voidable and despite any subsequent annulment thereof.

All of the payments to be made by Richard to Siri pursuant to this paragraph will be periodic payments in discharge of a legal obligation, which, because of the marital or family relationship, is imposed on or incurred by Richard under a written instrument incident to a divorce, all within the meaning and intendment of Sections 71(a) and 215 of the Federal Revenue Code of 1954, as amended, and as now in effect, and of any similar provisions of future laws, and that such payments will be includable in Siri's gross income pursuant to Section 71(a) and will be deductable [ sic ] by Richard pursuant to said Section 215 in determining their respective taxable incomes.

In the event of his death or her remarriage prior to the fifth anniversary of a divorce decree between these parties, alimony payments will continue and will be allowed as a claim against his estate up to but not ...


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