Husband Appeal on Non-Modifiable Spousal Maintenance Award is Unsuccessful


The parties signed an agreement that the husband would pay non-modifiable maintenance but then he quit his job.  Husband sought to modify the maintenance agreement then, stating that the agreement was required to expressly include the terms “amount, duration, or both” were non-modifiable, and since it did not, he was allowed to modify.  The appellate court found that the argument had no support in the statute.

Non-Modifiable Maintenance Case Background

The parties entered into a marital settlement agreement in which Husband agreed to pay his wife maintenance in the sum of $5,000.00 per month for four years.  Neither the marital settlement agreement nor the judgment for dissolution of marriage set forth any facts as to the amount of either party’s income at the time. They expressly agreed that the maintenance payments “shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.”

When the husband stopped paying, the wife filed a petition for rule to show cause, claiming that between May 2017 and October 2017 her ex-husband had paid only $700 in maintenance payments instead of the $30,000 he was required to pay. The trial court entered an order finding the husband in indirect civil contempt for failure to make $43,800 in maintenance payments as of the date of the order, plus statutory interest.

At the next court date, the trial court entered an order requiring Husband to complete a job diary, as well as to remain current on his maintenance payments. The husband then filed a petition to modify the judgment, claiming that he did not have the financial resources to comply any longer since he was earning less than $3,000 per month working as a “management consultant” and had withdrawn all funds from his 401(k) to make his maintenance payments.  He asked that he be allowed to terminate or modify his maintenance obligation. While the marital settlement agreement provided that the maintenance payments were “nonmodifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act,” the husband claimed that the maintenance obligation was not truly nonmodifiable because it did not specifically provide “that the non-modifiability applies to amount, duration, or both.”  In essence, his argument was that the agreement had to claim all three (amount, duration, or both) were non-modifiable, and expressly state that in the agreement. Otherwise, he should be allowed to modify.  The failure of the agreement to specially state that all three were non-modifiable then meant that he could modify the agreement.

In order to modify a court order, Husband would need to have a change in circumstances which necessitated the modification of his maintenance obligation, and since he had been without steady income for several years and he had liquidated all of his retirement accounts and savings, Husband argued he met the threshold for a change in circumstance as well.  He argued that the maintenance obligation as written was impossible for him to perform and that his ex-wife had substantial assets and is well able to earn an income to support herself.”

HUSBAND USED TO BE A BANKER MAKING $140,000 A YEAR BUT QUIT TO PURSUE A JOB IN PASTORAL COUNSELING

Husband provided this financial affidavit from before the judgment, which demonstrated that he was earning $140,000 as a banker.  He testified that he learned that his job was in jeopardy and that he feared he was to be fired.  Since he had a master’s degree in pastoral counseling, he believed his “best move forward was to develop a career in pastoral counseling.” He left his job at the bank in April 2015 and then earned less than $3,000 a month.

In the wife’s responsive pleading, she claimed that the terms of the maintenance obligation were expressly made nonmodifiable in the marital settlement agreement. Wife claimed that her ex-husband quit his previous job voluntarily because he was unhappy with it, and denied that he was about to lose his job.  She also argued that contrary to her ex-husband’s assertion, she suffered from a variety of health issues that made it difficult for her to earn an income; she was considered disabled by the State of Illinois and received employment assistance from the Illinois Department of Rehabilitation Services. She had never been employed on a full-time basis.

COURT FIRST LOOKED AT WHETHER AGREEMENT COULD BE MODIFIED

Before the court would look into the husband’s motion in-depth, it first set a hearing on whether the agreement could be modifiable at all.  After hearing the parties’ arguments, the court found that it “does not have the ability to modify husband’s obligation to pay maintenance as set forth in the parties’ Judgment for Dissolution of Marriage entered on February 8, 2016, pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” Accordingly, the court denied Husband’s motion, further finding that there was no just reason to delay enforcement or appeal of the order.

Husband's Appeal

Only one issue was presented on appeal, which was whether the maintenance obligation in the marital settlement agreement is modifiable or not, even when the husband claims he cannot pay through a change in circumstances. Husband argued that the language in the marital settlement agreement was insufficient to render the maintenance obligation nonmodifiable under the Act. The parties may provide that maintenance is non-modifiable in amount, duration, or both and if the parties do not provide that maintenance is non-modifiable in amount, duration, or both, then those terms are modifiable upon a substantial change of circumstances. Otherwise, the terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.” 750 ILCS 5/502(f) (West Supp. 2015).

The marital settlement agreement, in this case, provided that the husband agreed to pay a certain amount of money per month, $5,000 and he agreed to pay it for 48 months.  Said maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. Husband argued that because the marital settlement agreement did not expressly state that his maintenance obligation was “non-modifiable in amount, duration, or both” (750 ILCS 5/502(f) (West Supp. 2015)), then it was modifiable, despite the fact that the agreement expressly states that the obligation is nonmodifiable. In other words, the respondent’s argument is that the words “amount, duration, or both” must appear in the agreement in order to render the obligation nonmodifiable.

THE APPELLATE COURT WAS NOT CONVINCED BY HUSBAND’S ARGUMENT

The appellate court was not convinced.  The new statute, 750 ILCS 5/502(f), does allow parties to make maintenance as a whole nonmodifiable or to select a single aspect of the obligation to make nonmodifiable. In the case at bar, the clear language of the marital settlement agreement shows that the parties intended that the husband’s maintenance obligation be nonmodifiable under section 502(f). The agreement set forth a schedule of payments to be made over eight years, and expressly provided that “[s]aid maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act.” The appellate court indicated that it could find no clearer expression of an intent to make the obligation nonmodifiable—not only did the agreement expressly provide that the obligation was nonmodifiable, but it cited the applicable provision of the Act.

The trial court’s denial of the husband’s motion to modify the dissolution judgment was affirmed, where the language of the marital settlement agreement provided that the maintenance obligation was non-modifiable under section 502(f) of the Act, and where there is nothing to suggest that the non-modifiable maintenance provision was intended to apply to only one aspect of the maintenance obligation.

THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://illinoislawforyou.com/spousal-support/husband-appeal-non-modifiable-spousal-maintenance-unsuccessful/

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