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06/24/97 MARRIAGE LOIS AILEEN SCHWEITZER

June 24, 1997

IN RE: THE MARRIAGE OF LOIS AILEEN SCHWEITZER, PETITIONER-APPELLEE, AND HARVEY JOHN SCHWEITZER, RESPONDENT-APPELLANT.


Appeal from Circuit Court of Champaign County. No. 89C1269. Honorable Harold L. Jensen, Judge Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published nunc pro tunc July 24, 1997.

Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable Frederick S. Green, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Petitioner Lois Schweitzer and respondent Harvey Schweitzer were married in 1947. Their marriage was dissolved in the circuit court of Champaign County in June 1990. The parties entered into a marital settlement agreement (Agreement), which was incorporated into the judgment of dissolution, in which respondent agreed to pay maintenance to petitioner. The maintenance provision, designated as article II of the Agreement, states:

"1. Husband shall pay direct to Wife, as and for her support and maintenance, the sum of $1,500 per month, effective July 1, 1990, and continuing thereafter on the first day of each month.

2. The payment [of] maintenance shall not terminate upon the occurrence of any of the statutory events for the termination of maintenance, except for the death of either party.

3. All of the payments to be made by Husband to Wife pursuant to this Article will be payments in discharge of a legal obligation which, because of the marital or family relationship, is imposed on or incurred by Husband under a written instrument incident to a dissolution of marriage, all within the meaning and intendment of Sections 71(a) and 215 of the Internal Revenue Code of 1986, as amended and as now in effect, and of similar provisions of future laws, and that such payments will be includible in Wife's gross income pursuant to Section 71(a) and will be deductible by Husband from his gross income pursuant to Section 215 in determining their respective taxable incomes."

Article XV, paragraph 8, of the Agreement provided that "this Marital Settlement Agreement shall not be modifiable." On March 29, 1996, respondent filed a petition to modify the judgment, in which he alleged that a material change in circumstances had occurred and asked that his maintenance obligation be reduced. In support of this request, he alleged that a farm he owned would no longer be involved in the raising and selling of hogs, which would result in an approximate $20,000 reduction in his income per year. He also alleged that he believed petitioner was about to sell certain properties that would provide her with additional income. In her response to this petition, petitioner alleged that pursuant to article XV, paragraph 8, of the Agreement, the maintenance provision could not be modified.

After hearing arguments of counsel, the trial court ruled that respondent's maintenance payments were not modifiable and dismissed the petition. Respondent now appeals, arguing that the trial court's order was in error. We disagree and affirm.

Section 502 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 502) governs marital settlement agreements. Section 502(f) of the Act 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 judgment are automatically modified by modification of the judgment." Ill. Rev. Stat. 1989, ch. 40, par. 502(f).

Section 510(a) of the Act states in pertinent part:

"Except as otherwise provided in paragraph (f) of Section 502, *** the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a ...


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