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In Re Marriage of Terry Tutor

August 26, 2011

IN RE MARRIAGE OF TERRY TUTOR, PETITIONER-APPELLEE, AND
BRIAN TUTOR,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Kendall County. No. 01-D-132 Honorable Linda S. Abrahamson, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Burke concurred in the judgment and opinion.

OPINION

¶ 1 Respondent, Brian Tutor, appeals an order awarding petitioner, Terry Tutor, postjudgment interest for Brian's failure to make timely payments he owed Terry for her share of the parties' marital estate. On appeal, Brian argues that (1) the trial court erred by granting the petition for postjudgment interest, because the parties entered into a settlement agreement that did not provide for interest on the marital property debt; (2) the trial court violated the agreed bankruptcy order by imposing interest on a nondischarged debt; (3) the trial court erred by failing to dismiss Terry's petition for postjudgment interest because it was barred by res judicata; (4) Brian was in full compliance with the agreed bankruptcy order; and (5) Terry was guilty of laches by failing to file a petition for interest for more than two years following the entry of the agreed bankruptcy order. We affirm.

¶ 2 I. FACTS

¶ 3 On June 23, 2004, after a bench trial, the trial court entered a judgment of dissolution of marriage between the parties. Article 5.1C of the judgment provided:

"[Terry] shall receive a lump sum payment in the amount of $88,929.73 within 60 days of the date of this order which represents her 65% share of the remaining marital estate of $165,443.51 after $28,628.55 has been paid from the marital estate to pay off the marital debts."

Brian failed to pay Terry within 60 days of the date of the entry of the judgment of dissolution of marriage.

¶ 4 On August 24, 2004, Brian filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois. On January 5, 2005, Terry filed an adversary complaint in bankruptcy court, asking the court to declare that Brian's marital property debt owed to Terry was non-dischargeable.

¶ 5 On February 7, 2007, the bankruptcy court entered an agreed order stating that the marital property debt was non-dischargeable. The bankruptcy court then ordered that "the Debtor, Brian Tutor, shall satisfy the debt due and owing to [Terry] as follows":

(1) from February 15, 2007, through January 15, 2008, $300 per month, in addition to maintenance;

(2) from February 15, 2008, $500 per month, until maintenance is terminated; and

(3) from the termination of maintenance until the marital property debt is paid in ...


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