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June 27, 1994


Appeal from Circuit Court of McLean County. No. 85D112. Honorable Luther H. Dearborn, Judge Presiding.

As Corrected September 6, 1994.

Honorable James A. Knecht, J., Honorable Carl A. Lund, J., Concurring, Honorable John T. McCULLOUGH, P.j., Concurring IN Part; Dissenting IN Part

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Rodney Brent appeals from the order of the circuit court denying his request to modify his obligation to pay maintenance to his former wife, Diane Brent, and from an order granting Diane's petition for prospective attorney fees in connection with the appeal. Rodney alleges the court erred in construing a settlement agreement incorporated into the supplemental judgment of dissolution to preclude modification unless Diane was employed for at least 10 hours per week. He further alleges the award of attorney fees was improper because this court has previously disapproved prospective attorney fee awards and the evidence does not support such an award in this case. We reverse on the construction of the supplemental judgment of dissolution and affirm the order regarding attorney fees.


Rodney and Diane Brent were married in June 1967. Their marriage was dissolved in December 1988. The parties had three children: Mark, Laura, and Elizabeth, ages 19, 17 and 15, respectively, at the time of the dissolution.

Diane received a bachelor's degree in elementary education in 1966. She taught in an elementary school for two years, one year prior to her marriage to Rodney and a second year after her marriage but prior to the birth of Mark. After the birth of Mark, Diane did not return to teaching full-time; however, she did substitute teach for a year while Rodney was in graduate school. During the marriage, Rodney sold insurance through his father's insurance agency, the Lyle Brent Agency. At the time of the dissolution Rodney and Diane owned all of the stock in the agency.

Upon dissolution of their marriage, the parties entered into an agreement with respect to the custody of the minor children, property distribution, and maintenance, the terms of which were incorporated into the supplemental judgment of dissolution filed in December 1988. This judgment provided (1) Rodney received custody of the two minor children; (2) Rodney received the family home, all of the stock in the insurance agency, and all of the pension plans and retirement benefits; (3) Diane received $6,450 cash; and (4) Rodney agreed to purchase the Bloomington condominium which Diane had been renting. The parties believed the condominium could be purchased for $58,000 to $60,000, and Rodney would be required to make a down payment of $6,000. Rodney agreed to make the mortgage payments, while Diane is responsible for the maintenance fees, assessments and taxes. The condominium was placed in a land trust naming Rodney as the beneficiary. Diane holds Rodney's beneficial interest in the land trust as security for Rodney's performance. The judgment further provided (5) Rodney pay maintenance of $1,500 monthly to Diane for an indefinite period of time. With respect to modification and termination of maintenance, the judgment provided:

"[Rodney] shall pay Diane the sum of $1,500 per month as and for maintenance for an indefinite period of time. In addition to the statutory provisions for modification and termination of maintenance, and as a limitation on those statutory provisions, maintenance shall in no event be increased. It shall be decreased upon [Diane] becoming employed. The decrease in maintenance shall be by an amount equal to 50% of her net income, as net income is defined in the Illinois Marriage and Dissolution of Marriage Act, except, maintenance shall be reduced only if [Diane] is employed by an employer required under law to prepare a W-2 form and such employment is for at least ten hours per week." (Emphasis added.)

In December 1991, Diane and daughter Elizabeth (who had resided with Diane since November 1990) moved to Georgia. Rodney agreed the move would be a good idea and paid their moving expenses. Diane rented the Bloomington condominium and began to receive $650 per month in rental income.

In March 1992, Rodney unilaterally decided to terminate the maintenance payments to Diane. In July 1992 Rodney filed a petition requesting modification of maintenance and requesting the court to order the sale of the condominium. In October 1992, Diane and Elizabeth moved back to Bloomington and began residing with Diane's parents. Diane testified Rodney's failure to make the maintenance payments rendered her unable to pay rent and other living expenses, so the move was necessary.

At the time of the hearing on the petition, Diane's only source of income was the rental income from the condominium. Diane had received two offers of part-time employment for $5 per hour while in Georgia but she turned down both jobs as she had already planned to move back to Bloomington. Since the dissolution of the marriage, Diane has been hospitalized for surgery on her knee, treated for "Atoxia" (a balance disorder), and treated for depression, stress and various other mental disorders. Diane testified she would like to obtain employment, but had difficulty due to her age (49 years old), lack of skills, lack of employment history, and mental state. The evidence deposition of Dr. Melvin French, a psychologist, was admitted into evidence. French testified Diane has long-standing psychological and emotional problems which had surfaced as the result of lack of stability and stress. French opined Diane was unable, at the present time, to maintain employment, but that with treatment and medication she would be able to do so in the future.

In 1991 Rodney entered into an agreement with the Van Gundy Insurance Agency (Van Gundy) which essentially amounted to a sale of the Lyle Brent Agency's (Brent agency) accounts and a covenant not to compete. Pursuant to their agreement, Rodney received Van Gundy stock valued at $25,000. Van Gundy also paid Rodney and his father $196,494.50, the bulk of which was paid in 1991, with the balance to be paid in 1992. Of this amount, all but $30,000 was to be paid either to Rodney directly, or to the Brent agency, of which Rodney was the sole shareholder. Rodney testified he no longer had any of the money he had been paid. Rodney testified he gave $30,000 of this money he had been paid to his father to supplement the $30,000 paid by Van Gundy, because they had agreed the father deserved it in exchange for the years of service he dedicated to the Brent agency. The balance of the money, Rodney testified, was used to pay debts. Pursuant to the agreement with Van Gundy, Rodney became a part owner of Van Gundy and sold insurance for it.

Rodney testified he earned income of $6,500 to $7,500 per month, in addition to a yearly bonus of approximately $5,000, and had expenses of $9,200 per month. A significant portion of these expenses consisted of voluntary payments made to or on behalf of his adult children, various life insurance policies he maintained in addition to those provided by his employer, and country club and entertainment expenses.

At the Conclusion of the evidence, the trial court found both of the parties had some changes and problems, and their situations may be different than those which existed previously. However, the court found its ability to grant Rodney the relief requested was precluded by the supplemental judgment of dissolution. Rodney's purchase of a Bloomington condominium for Diane was a portion of the property settlement, which would only be modifiable in extraordinary circumstances not present in this case. The court additionally found its ability to modify maintenance had been limited by the December 1988 supplemental judgment of dissolution. The court stated:

"[Diane] bargained away her ability to increase maintenance. She is prohibited by the agreement from ever under any circumstances having a maintenance increase. The court believes that [Diane] received in exchange for that the restriction on the part of Rodney's ability to decrease maintenance. The only ability retained by [Rodney] to decrease maintenance was in certain circumstances, specifically when [Diane] was employed for ten hours per week or more. [Diane] is not now employed nor has she been for some time and there is no requirement in the agreement that she in fact be employed."

Rodney appeals from the trial court's ruling with respect to maintenance (No. 4-93-0402); he does not take issue with the court's ruling regarding the condominium. Diane filed a motion for prospective attorney fees of $1,500, which she believed would be incurred defending the trial court's order on appeal. The trial court awarded Diane prospective partial attorney fees of ...

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