Howard Peritz

Is Non-modifiable Maintenance Really Non-modifiable?

The appellate court of Illinois was recently asked whether or not non-modifiable maintenance could be modified based upon a change of circumstances. In In Re the Marriage of Dynako, 2020 IL App (1st) 192116 (12/3/2020), the appellate court for the Circuit Court of Cook County took up the question.

In February 2016, the parties entered into an agreed judgment including a marital settlement that provided in pertinent part that husband would pay to wife the sum of $5,000 for a period of 48 months. For months 49 through 96, the amount to be paid to the wife would be reduced each year by $10,000 per year.

The agreement went on to read:

"Said maintenance payments shall be non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. [Respondent] shall make said payments to [petitioner] by depositing monies into the jointly held Chase Bank account * * *."

In November 2017, the Wife filed a petition to hold the husband in contempt as he had only paid her $700 as opposed to the $30,000, she was supposed to receive under the agreement. Husband did not file a response and on January 24, 2018, the trial court found him to be in indirect civil contempt for his failure to pay $43,800 plus statutory interest, that he was required to pay up to the date of entry of the order. The Husband was sentenced to periodic imprisonment, but that imprisonment was stayed to the next court date. The Husband was ordered to pay $10,000 by the next court date to purge the contempt. The matter was continued to March 27, 2018 for status of the purge.

At the March court date, the Husband claimed to be unemployed and therefore unable to meet the obligation set by the court. He had paid $5,000 of the $10,000 the court had previously ordered. The Court continued the atter and ordered Husband to maintain a diary of jobs for which he had applied (a common practice in divorce proceedings when one of the parties is unemployed and get meet his/her obligations to the other party.)

Prior to the next court date, Husband filed a petition to modify claiming he was only earning $3,000 per month working as a consultant and that he had withdrawn all funds from his 401(k) to meet his maintenance obligation. The court, on a temporary basis and without prejudice to ultimately require Husband to continue making the payments required under the agreement, ordered husband to commence paying the wife $1,500 per month.

On December 20, 2018, Husband finally filed a petition to modify the judgment of dissolution of marriage. Husband claimed that, while the agreement indicated the maintenance was "non-modifiable pursuant to Section 502(f) of the Illinois Marriage and Dissolution of Marriage Act," the agreement failed to specifically whether to "non-modifiability applies to amount, duration, or both." That language does appear in Section 502(f) of the act. The case goes on to provide significant details of what happened to the Husband’s income after the entry of the judgment, but that language is not relevant to this discussion.

The parties agreed that the sole issue to be decided by the Court was whether or not the non-modifiable provision of the Judgment and marital settlement agreement, satisfied section 502(f). Following a hearing, the trial court determined that it did not have the ability to modify the Husband’s obligation as a result of the non-modifiability language contained in the judgment and Husband’s petition was denied.

The Husband appealed claiming that because the marital settlement agreement did to use the magic language that the obligation was "non-modifiable in amount duration of both" then it was, in fact modifiable.

The appellate court went through a lengthy discussion of what was required under Section 502 of the Marriage and Dissolution of Marriage Act. The court indicated the fundamental objective in construing the statute was to ascertain and give meaning to the intent of the legislature. Additionally, the marital settlement agreement is to be construed to ascertain the parties’ intent based upon the language of the agreement. The court found that the language had not been interpreted by any court since it had been added to the Marriage and Dissolution of Marriage Act, it was a case of "first impression." The court indicated it could not think of a "clearer expression of an intent to make the obligation non-modifiable…" than citing the Statute that applied to the provision as occurred in this case. The appellate court denied the Husband’s petition.

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