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11/17/88 In Re Marriage of Earl N. Silber

November 17, 1988

IN RE MARRIAGE OF EARL N. SILBER, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

HARRIET SILBER, Respondent-Appellee

531 N.E.2d 910, 176 Ill. App. 3d 853, 126 Ill. Dec. 283 1988.IL.1667

Appeal from the Circuit Court of Cook County; the Hon. John J. Beatty, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This is an appeal from an order of the circuit court of Cook County denying the post-dissolution request of petitioner, Earl N. Silber, M.D., to terminate maintenance payments to respondent, Harriet Silber. Payments were being made pursuant to a marital property settlement agreement that was incorporated into their divorce judgment. The agreement was subsequently modified to preclude future financial reconsideration except upon showing of any "unfavorable" change in petitioner's financial circumstances. The sole issue for review is whether the trial court abused its discretion in denying petitioner's request to terminate payments.

We affirm.

Petitioner and respondent were married on June 10, 1945. On May 19, 1964, the parties were divorced. A marital property settlement agreement was incorporated in the dissolution judgment which provided, in pertinent part, that petitioner was to pay permanent alimony in the sum of $8,500 per year and child support of $5,000 per year, together with the cost of their children's college educations. The agreement also provided that in the event petitioner's income increased, 30% of it would go toward increased alimony.

On August 18, 1969, an agreed order was entered reducing alimony to $7,000 until respondent remarried, respondent died, or petitioner died. The agreement also contained a clause pertaining to modification which provided:

"Notwithstanding the allowance herein made for HARRIET's support, HARRIET shall have the right to become employed on a full or part-time basis without such employment or the income derived therefrom constituting a basis for a decrease in the amounts otherwise payable to HARRIET hereunder; and EARL SILBER shall not at any time permit or request reconsideration of the amounts paid to HARRIET SILBER hereunder to include the calculation or consideration of HARRIET's future employment or the amount derived therefrom as a basis for such reconsideration, but rather to predicate such request only upon any unfavorable change in his economic circumstances alone."

On March 7, 1986, petitioner filed a petition to modify the judgment and agreed order. The petition sought termination of the maintenance payments based on a change in the circumstances of the parties and the law. Respondent filed a response, and on July 21, 1986, a hearing was held where the parties testified regarding their financial situations. On August 28, 1987, the trial court entered an order denying termination of the maintenance payments. It is from this order that petitioner appeals.

Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 502(f)) (hereinafter the Act) pertains to the modification of settlement agreements and provides as follows:

"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. Otherwise, terms of an agreement set forth in the ...


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