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Dundas v. Dundas

February 2, 2005

IN RE MARRIAGE OF RACHEL DUNDAS, PETITIONER- APPELLEE,
v.
MICHAEL DUNDAS, RESPONDENT- APPELLANT.



Appeal from the Circuit Court of De Kalb County. No. 02-D-335. Honorable William H. Weir, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

Prior to dissolving their marriage, petitioner, Rachel Dundas, and respondent, Michael Dundas, financed the purchase of a 1999 Dodge Durango. When their marriage was dissolved in 2003, the trial court incorporated into that judgment the parties' marital settlement agreement, which provided that respondent would pay petitioner maintenance of $200 per month until the car loan was paid in full. In February 2004, respondent petitioned to terminate maintenance, contending that petitioner was living with her boyfriend on a resident, continuing, conjugal basis. See 750 ILCS 5/510(c) (West 2002). The trial court denied the petition, finding that respondent's obligation to make monthly payments toward the car loan was part of the parties' property settlement, not maintenance. Respondent timely appeals, claiming that the payments were maintenance and, thus, subject to termination pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510(c) (West 2002)). We affirm.

[9]     In resolving the issue raised on appeal, we must examine the parties' marital settlement agreement, which provides as follows:

"PERSONAL PROPERTY

C. MOTOR VEHICLES

1. That Wife shall receive as her sole and exclusive property, free and clear of all right, title, interest, or claim of Husband, a certain 1999 Dodge Durango automobile. Wife shall pay any indebtedness on said vehicle and hold Husband harmless and indemnified with respect thereto."

Regarding maintenance, the parties had agreed not to seek support from each other. However, on the day of the hearing on the petition to dissolve the marriage, the parties modified the agreement to provide:

"Husband shall pay to Wife the amount of $200 per month as and for maintenance commencing December 2003 and continuing until the existing loan on her vehicle is paid in full."

Under a portion of the agreement entitled "Cooperation of Parties," petitioner and respondent agreed to waive any claim to maintenance, among other things. Specifically, the agreement provides:

"To the fullest extent by law permitted to do so, and except as herein otherwise provided, each of the parties does hereby forever relinquish, release, waive and forever quit claim and grant to the other, his or her heirs, personal representatives and assigns, all rights of maintenance, alimony, dower, inheritance, descent distribution, [and] community interest[.]"

At the hearing on the petition to dissolve the marriage, petitioner testified that she voluntarily signed the marital settlement agreement and that the agreement was fair and equitable. She stated that, pursuant to the agreement, she would keep the 1999 Dodge Durango, on which the parties still owed many thousands of dollars. Because of the outstanding balance on the loan, petitioner and respondent agreed that respondent would pay $200 per month to First National Bank in Clifton, which was the holder of the vehicle loan, until the loan was paid off. Petitioner acknowledged that she was responsible for the remainder of each month's loan payment, as the $200 did not cover the entire amount. Further, petitioner agreed that respondent's monthly payments would be in the form of maintenance, meaning that she would be taxed on that money and that respondent could deduct those payments for tax purposes. She also agreed that she was waiving any further right to maintenance she may have. Respondent testified consistently with petitioner.

The trial court granted the petition to dissolve the parties' marriage, incorporating into that order the parties' martial settlement agreement. In so doing, the trial court referred to the monthly $200 payments as maintenance, but clarified that respondent, with these payments, was "essentially [paying] off [petitioner's] car loan." The trial court also found that "subject only to the provisions where [respondent] is to pay off a defined and prescribed debt on [petitioner's] car that both sides have entered into a knowing waiver of maintenance."

Approximately two months after the parties' marriage was dissolved, respondent petitioned to terminate maintenance, contending that petitioner was living with her boyfriend on a resident, continuing, conjugal basis. The trial court denied the motion, finding that any claim that petitioner was living with someone was irrelevant, as the monthly payments of $200 were part of the overall distribution of marital assets and debt. The trial court stated that it reached this conclusion after examining the agreement and the transcript of the dissolution proceedings. Based on these documents, the trial court found that the clear intent of the parties was that the $200 per month constituted car payments. Respondent timely appealed.

Before addressing the merits of this appeal, we note that petitioner, as appellee, has failed to file a brief in this court. Because we find the issue presented relatively straightforward, we may decide this case without petitioner's brief, pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976) (holding that a reviewing court should decide the merits of an appeal where the record is simple and the claimed error is such that a decision ...


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