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January 30, 1995


Appeal from the Circuit Court of Du Page County. No. 84-D-273. Honorable Thomas E. Callum, Judge, Presiding.

Released for Publication March 2, 1995.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

Petitioner, Donald Corkey, appeals the circuit court's orders requiring him to pay $44,466.66 in past-due maintenance and child support and denying his petition to modify a marital settlement agreement. Petitioner contends that the settlement agreement expressly contemplated that his income would increase substantially and that his subsequent reduction in income renders the agreement unconscionable.

The parties were married in New Jersey in 1968. They had three children: Scot, born January 31, 1972; Jon, born June 23, 1975; and David, born September 8, 1976. The circuit court dissolved their marriage in 1984. The judgment of dissolution incorporated the parties' settlement agreement, which contained the following provisions, among others. The wife would have custody of the children, subject to reasonable visitation by the husband. The wife would have exclusive possession of the marital residence and would be solely responsible for all obligations in connection with the residence, including the mortgage payment. The husband would retain the outstanding shares of his business, D.B. Corkey Company, Inc., all accounts in his name or the name of his business, and various items of personal property. The husband would pay the wife $31,200 annually, in monthly installments of $2,600, as unallocated maintenance and child support.

The agreement further provided:

"The parties consider this to be a lump sum unallocated maintenance and support award and that the same shall be non-modifiable no matter what the change in circumstances are by either party. It is specifically understood by the Wife that the sums to be paid to her by the Husband are far greater than usual, based upon the income of the Husband. The parties contemplate that the Husband's in-come shall increase substantially, but that any increase in income and/or assets on the part of the Husband shall not be a cause for the modification of the amounts as stated aforesaid. To that purpose, the parties agree that the amounts and times of termination of said amounts are nonmodifiable."

The agreement then lists five specific circumstances in which the maintenance and child support provision may be modified. These include the wife's remarriage or cohabitation with another person on a continuing, conjugal basis; one of the children reaching majority; and the transfer of custody of any of the children to the husband.

The agreement also states that the husband shall be solely responsible for the children's primary and advanced education and will keep in force insurance policies covering extraordinary dental and medical expenses, four life insurance policies payable to the wife, the husband's disability insurance, and $5,000 life insurance policies on each of the three children.

On March 4, 1993, the wife filed a petition for a rule to show cause, alleging, inter alia, that the husband had not paid the unallocated maintenance and child support since January 1, 1990. The husband filed a response to the show cause petition and a petition to modify the dissolution judgment. The latter pleading alleged a material change in circumstances and sought a reduction in maintenance and child support to a level appropriate to the husband's earnings.

On August 25, 1993, the trial court held a combined hearing on the two petitions. The husband testified that at the time of the dissolution he was a real estate broker. He owned his own company which specialized in commercial real estate ventures. In 1984, his company was in the process of negotiating a contract with a major corporation to buy $55,000,000 worth of property in the Chicago area. The husband was to have a planning contract for those properties worth about $250,000 per year to the corporation. However, in 1985 the seller of the property refused to close the sale. Litigation ensued. The husband expended $45,000 in legal fees, but ultimately he and the buyer lost. The husband never realized any income from the transaction.

The husband also testified that, in 1986, the commercial real estate market collapsed and his business declined precipitously. Hestated that by 1988 he had no income. He borrowed money from his current wife, his sister, and his credit card lines of credit to keep up the maintenance and child support payments.

The husband's exhibit No. 1, which was introduced into evidence without objection, shows that the husband's income in 1984 was $74,000. He had income in 1985 of $28,500; in 1986 of $20,900; and in 1987 of $24,000. From 1988 through 1993, his income was $0. The exhibit also shows that the husband continued to pay the full amount of unallocated maintenance and child support from 1984 through 1989. Beginning in 1990, the annual payments began to decline, with $2,775 paid in 1993 through the date of the hearing. Further, the husband paid an ...

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