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01/13/89 In Re Marriage of Emily S. Sutton

January 13, 1989

IN RE MARRIAGE OF EMILY S. SUTTON, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

and ROBERT L. SUTTON, Respondent-Appellee

533 N.E.2d 1125, 178 Ill. App. 3d 928, 128 Ill. Dec. 37 1989.IL.19

Appeal from the Circuit Court of Peoria County; the Hon. Robert Barnes, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. SCOTT, J., concurs. JUSTICE BARRY, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff appeals from a trial court order dismissing her petition to modify the judgment of legal separation, in which she sought an increase in maintenance. The trial court determined that the judgment was not modifiable without the agreement of the parties. We reverse and remand for further proceedings.

Emily and Robert Sutton were married on December 25, 1942, and Emily filed a petition for legal separation on October 1, 1982. In July of 1983, the parties entered into an ambiguous and carelessly drafted separation agreement which was later incorporated into the judgment of legal separation. The agreement disposed of all property, awarded Emily a cash payment, and established maintenance. The paragraph which incorporates the parties' agreement regarding maintenance provides:

"4. Respondent [Robert] shall pay to Petitioner [Emily] as maintenance the sum of Eleven Hundred Dollars ($1,100.00) per month commencing as of June 1, 1983, and continuing until February, 1984, when Petitioner is first eligible to receive social security. Beginning in February, 1984, Respondent's maintenance payments to Petitioner shall be reduced by the amount of Petitioner's initial monthly social security grant. Pursuant to Section 502(f) of 'An Act in Relation to Marriage and Dissolution of Marriage,' the parties agree that maintenance shall not be reduced as a result of any increases in Petitioner's social security grant. Respondent shall maintain Petitioner as beneficiary on his retirement income plan provided by Caterpillar Tractor Company to assure the payment of the survivor pension benefits. In no event shall total maintenance go below $1,100 which will include maintenance plus social security."

Additionally, the last paragraph of the agreement states:

"10. Terms of this marital separation agreement shall not be changed or modified without the agreement and consent of both parties."

On February 17, 1988, Emily filed a petition to modify the judgment of legal separation, seeking an increase in the amount of maintenance Robert paid. Robert filed a motion to dismiss the petition. Finding the judgment incorporating the agreement to be nonmodifiable without the parties' consent, the court dismissed Emily's petition. This appeal followed.

At issue is whether the separation agreement precludes judicial modification of the maintenance award without the consent of both parties. To resolve this issue, we must ascertain the intent of the parties based on a fair and reasonable interpretation of the agreement, taking into consideration the language of the entire agreement and the circumstances under which it was made. In re Marriage of Reidy (1985), 134 Ill. App. 3d 534, 541.

The Illinois Marriage and Dissolution of Marriage Act provides that, except for terms concerning the children of a marriage, "the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides." (Ill. Rev. Stat. 1987, ch. 40, par. 502(f).) Such provisions are intended to allow parties to agree that their future property and maintenance arrangements will not be altered except with their consent and to eliminate uncertainties based on the fear that subsequent motions might increase or decrease their obligations. (Simmons v. Simmons (1979), 77 Ill. App. 3d 740.) If the parties to a settlement agreement intend to preclude or limit modification of certain terms, they must express such an intent in clear language. (In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478.) Illustrative of language which clearly expresses such an intent is that contained in the agreement in Simmons. In that case, the ...


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