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07/29/88 In Re Marriage of Solomon Munford

July 29, 1988



and JESSYE MUNFORD, Respondent-Appellee

527 N.E.2d 892, 173 Ill. App. 3d 576, 123 Ill. Dec. 254 1988.IL.1170

Appeal from the Circuit Court of Cook County; the Hon. Julia Nowicki, Judge, presiding.


JUSTICE MURRAY delivered the opinion of the court. SULLIVAN and PINCHAM, JJ. concur.


Petitioner Solomon Munford appeals from an order of the circuit court of Cook County increasing his maintenance obligation to respondent Jessye Munford from $300 to $750 per month for a one-year period. On appeal, Solomon argues that the trial court abused its discretion in increasing his maintenance obligation because no change in the parties' circumstances was established at trial and the court improperly considered his pension and retirement income as a basis for his ability to pay the increased maintenance. For the reasons set forth below, we reverse.

On May 8, 1981, the parties' marriage was dissolved. Solomon was 60 years old and Jessye was 64. No children were born to the parties. A property settlement agreement executed by the parties was incorporated into the dissolution judgment. Pursuant to the judgment, Solomon was ordered to pay Jessye $300 per month as maintenance. Jessye also was awarded the parties' financial assets in the amount of $29,500, which consisted of stocks, bonds, debentures and a certificate of deposit, as well as the parties' "Vacation Key Plan" in Lake Geneva, Wisconsin, and all the furniture, fixtures and furnishings contained in the marital home. In exchange, Jessye agreed to pay Solomon $3,500 for his interest in their joint property and waived " any and all claims that she may have in and to Solomon's pension and/or profit sharings plans" (hereafter retirement benefits). (Emphasis added.)

On March 11, 1986, Solomon filed a petition to terminate maintenance. On April 7, Jessye filed a petition to modify the dissolution judgment to increase her monthly maintenance, claiming a substantial change in the parties' circumstances, i.e., Jessye alleged that her health was failing, she had increased expenses, medical and otherwise, and she was unable to work, whereas Solomon's income had increased and he therefore was able to pay an additional sum in maintenance.

During the hearings on the parties' petitions, it was established that Solomon's gross annual income in 1980, one year prior to the dissolution of the parties' marriage, was $17,066 and in 1985, one year prior to the filing of the petition to modify the dissolution judgment, $3,128.72 ($37,544.64 annually), which consisted of approximately $15,000 in ordinary income and $22,553.28 in retirement benefits. On the other hand, Jessye testified that her health "is failing" (she suffers from memory loss, glaucoma, high blood pressure, diabetes, bunions and arthritis) and has, as a result, incurred higher medical expenses and other attendant expenses thereto. In rendering its judgment, the court expressly found that "there was no medical evidence, competent medical evidence as to the condition of Jessye Munford" and that "there was not a real explanation as to what medical costs are being paid by [Jessye]" as opposed to Medicare. Nonetheless, the court awarded Jessye an increase in maintenance for one year, to be reviewed at a later time, based on its determination that Jessye was equitably entitled to "some" additional support out of the income derived by Solomon from his retirement benefits pursuant to the following rationale:

"As to the pension issue, I can see from the decree that Jessye got approximately, well, nearly thirty thousand dollars, ($30,000.00) of assets that we can see from her affidavit, which has not been contested as to that issue, this is two hundred and two dollars, ($202.00) per month, whereas the asset of the pension that Mr., or rather that Solomon received at this point is giving him approximately, almost two thousand dollars, ($2,000.00) a month, it's a huge difference and I don't see from the case that you cited me that that should cause me to disregard the income that's been generated from that asset, certainly that's different than here being given a distribution of that at the time of the decree . . ..

. . . [As] I look at the decree, it would certainly make sense because she is getting only, if she only got thirty thousand dollars, ($30,000.00) worth of assets, I don't think it takes much common sense the value of these pensions far, far, far exceed that, so it would not make sense to me that she would get that small amount of asset without there being some consideration later that she would get the benefit of some, of that income from that asset." (Emphasis added.)

Accordingly, on October 3, the court entered an order denying Solomon's petition to terminate maintenance and granting Jessye's petition, increasing Solomon's maintenance obligation from $300 to $750 per month for a one-year period. Solomon now appeals only from the order increasing his maintenance payments.

Dispositive of this appeal is resolution of whether, as Solomon argues, the ordered increase in maintenance was actually a modification of the parties' property settlement agreement rather than a modification of the maintenance provision of the dissolution judgment based on a substantial change in circumstances. While maintenance provisions are modifiable upon a showing of a substantial change in circumstances, property settlement provisions are not (In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 411 N.E.2d 519; see also Ill. Rev. Stat. 1985, ch. 40, par. 510(a)), unless a court finds the existence of conditions that justify the reopening of a judgment under the laws of this State (In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 443 N.E.2d 1075). Reopening of a judgment is proper and a property settlement agreement will be set aside where the execution of the settlement agreement was accompanied by some element of fraud, coercion or misrepresentation. (Thompson v. Thompson (1980), 91 Ill. App. 3d 943, 415 N.E.2d 28.) It is also ...

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