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12/04/87 Alfred Paul Rosche, Jr., v. Gayle Elizabeth Rosche

December 4, 1987

ALFRED PAUL ROSCHE, JR., PLAINTIFF-APPELLANT

v.

GAYLE ELIZABETH ROSCHE, DEFENDANT-APPELLEE

COUNT II OF MR. ROSCHE'S PETITION REQUESTED MODIFICATION OF MAINTENANCE PURSUANT TO SECTION 510(A) OF THE ILLINOIS MARRIAGE AND DISSOLUTION OF MARRIAGE ACT (ILL. RE

v.

STAT. 1985, CH. 40, PAR. 510(A)), WHICH STATES:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

516 N.E.2d 1001, 163 Ill. App. 3d 308, 114 Ill. Dec. 846 1987.IL.1794

Appeal from the Circuit Court of Montgomery County; the Hon. David W. Slater, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. HARRISON and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

The trial court granted defendant's motion for summary judgment on the modification of maintenance count, ruling that as a matter of law the judgment of dissolution precluded modification. After considering the evidence, the trial court also denied the three remaining counts of plaintiff's petition. Plaintiff appeals.

Alfred Paul Rosche, Jr., and Gayle Elizabeth Rosche were married on March 21, 1959. The marriage produced two children, Alfred Paul Rosche III, born on March 25, 1962, and Charles David Rosche, born on February

On January 10, 1986, Mr. Rosche filed a three-count petition requesting termination or modification of spousal maintenance payments and to set child support and educational payments for their handicapped child. Count I of his petition requested termination of maintenance payments pursuant to section 510(b) of the IMDMA, alleging that Mrs. Rosche was cohabiting with a man on a resident, continuing conjugal basis. Section 510(b) provides:

"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." Ill. Rev. Stat. 1985, ch. 40, par. 510(b).

"Except as otherwise provided in paragraph (f) of section 502, the provisions of any judgment respecting maintenance or support may be modified . . . only upon a showing of a substantial change in circumstances." (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).)

Section 502(f), dealing with separation agreements, provides:

"Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides." (Ill. Rev. Stat. 1985, ch. 40, par. 502(f).)

In this case, both the separation agreement, which was incorporated into the judgment, as well as the judgment itself, expressly precluded modification of maintenance. Paragraph 9 of the separation agreement stated:

"Husband and wife agree pursuant to section 502(f) of the Illinois Marriage and Dissolution of Marriage Act that any judgment of dissolution of marriage which may be entered shall preclude modification of the terms of this ...


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