In re Marriage of Harris

Annotate this Case
NO. 4-96-0201

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In Re: the Marriage of ) Appeal from
JUDITH A. HARRIS, ) Circuit Court of
Petitioner-Appellee, ) Macon County
and ) No. 92D791
DONALD W. HARRIS, )
Respondent-Appellant. ) Honorable
) John L. Davis,
) Judge Presiding.
_________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:
Respondent, Donald W. Harris, appeals from an order
dismissing his petition to terminate maintenance. We reverse.
The parties were divorced in 1993. At that time, the
parties entered into a settlement agreement, approved by the
trial judge and incorporated in the judgment of dissolution.
Petitioner, Judith A. Harris, was represented by counsel; respon-
dent was not.
One provision of the agreement pertained to maintenance
and provided:
"4. The Husband shall pay to the Wife
the sum of $606.00 per month as transitional
maintenance for a period of ten (10) years at
which time maintenance shall terminate and
the Wife shall be forever barred from any
claim of maintenance; said payments payable
in installments of $303.00 twice each month on the 1st and 15th days of each month. The
Husband is now and forever barred from any
claim of maintenance from the Wife."
On November 13, 1995, respondent filed a petition to terminate
maintenance due to petitioner's alleged cohabitation with another
individual on a resident, continuing conjugal basis. Petitioner
responded with a motion to dismiss arguing the express language
of the maintenance provision precluded termination of maintenance
because of cohabitation or, alternatively, the maintenance pro-
vision was actually nonmodifiable maintenance in gross. Follow-
ing a hearing, the court dismissed the petition on the sole basis
that by its express terms, the agreement was nonmodifiable. Re-
spondent appeals contending that the express wording of the pro-
vision does not bar modification and the award does not consti-
tute maintenance in gross. Petitioner concedes the first issue.
Therefore, the only question before us is whether this provision
constitutes nonmodifiable maintenance in gross. We conclude it
does not.
In In re Marriage of Freeman, 106 Ill. 2d 290, 478 N.E.2d 326 (1985), the supreme court held that under section
510(b) of the Illinois Marriage and Dissolution of Marriage Act
(Act) (Ill. Rev. Stat. 1983, ch. 40, par. 510(b), now 750 ILCS
5/510(c) (West 1994)), a trial court could award maintenance in
gross, whether payable periodically or in a lump sum, and that
award was nonmodifiable and did not terminate upon the occurrence
of any of the events listed in section 510(b) of the Act, such as
death, remarriage or cohabitation absent agreement of the parties
or express order of the court to the contrary. Freeman, 106 Ill. 2d at 298-300, 478 N.E.2d at 329-30.
In this case, the agreement does not refer to mainte-
nance in gross. Instead, it is denominated as "transitional
maintenance" which is neither identified nor defined in the Act.
Petitioner argues, however, that because the award is for a fixed
rather than indefinite duration, it necessarily constitutes main-
tenance in gross. We disagree. Section 504(a) of the Act pro-
vides the court may award maintenance "in gross or for fixed or
indefinite periods of time ***." (Emphasis added.) 750 ILCS
5/504(a) (West 1994). Since the statute is phrased in the dis-
junctive, it is clear that payments for a fixed period of time
are not synonymous with maintenance in gross since the Act ex-
pressly permits a maintenance award for a fixed period of time
which is not maintenance in gross.
The cases cited by petitioner in support of her argu-
ment are distinguishable. In Broadway Bank v. Kakos, 160 Ill.
App. 3d 6, 7, 513 N.E.2d 97, 98 (1987), the ex-husband was or-
dered to pay $158,000 in installments "'in lieu of periodic main-
tenance or support.'" There the court found that "[t]hese words
or similar words are often used to describe awards of maintenance
in gross." Broadway Bank, 160 Ill. App. 3d at 9, 513 N.E.2d at
99.
In Interstate Bank v. Cordona, 167 Ill. App. 3d 214,
521 N.E.2d 140 (1988), the settlement called for the ex-husband
to pay 126 monthly installments over 10« years totaling $60,000.
The agreement further provided that the ex-husband was responsi-
ble for any tax liability which the ex-wife incurred as a result
of the payments. The ex-wife was entitled to the payments re-
gardless of her marital status or cohabitation with another man
and the ex-husband could not seek a reduction in the amount on
the basis of her future earnings or income. The parties also
agreed that payments would be subject to existing federal and
state tax laws and adjustments in the amount and nature of the
payments would be made if applicable tax laws changed. Analyzing
these additional provisions, the court concluded a reasonable
inference could be drawn that the payments were to be made in
recognition of the ex-husband's duty to support the ex-wife, a
concept consistent with maintenance in gross. Interstate Bank,
167 Ill. App. 3d at 217-18, 521 N.E.2d at 142-43.
Finally, in Pacione v. Pacione, 81 Ill. App. 3d 600,
402 N.E.2d 316 (1980), the judgment required the ex-husband to
pay the ex-wife $150 per week for 121 months or until the husband
died, whichever occurred first. The ex-husband later sought to
modify the agreement, but the court found the payments were non-
modifiable maintenance in gross. Among the reasons advanced by
the court for this conclusion was the additional provision in the
agreement that if the ex-husband died prior to the final payout,
his estate was charged with a cash payment of the remaining sum
within 90 days of death, discounted to present value. There was
also direct evidence in that case from the ex-husband who testi-
fied he believed he was paying a "property settlement obliga-
tion." Pacione, 81 Ill. App. 3d at 604, 402 N.E.2d at 318-19.
None of these additional qualifying provisions appear in the
agreement in this case.
We believe the maintenance award in this case more
nearly resembles that described in Freeman, in which the supreme
court specifically found that an order which provided "'[f]or
maintenance of the Petitioner, the Respondent shall make payments
to her for a period of thirty-six (36) months in the following
manner ***'" was not maintenance in gross but, rather, periodic
maintenance. Freeman, 106 Ill. 2d at 293-97, 478 N.E.2d at 327-
29.
We conclude the maintenance agreement in this case is
actually an award of periodic maintenance for a fixed period
rather than maintenance in gross. Therefore, upon a proper show-
ing, the agreement is subject to modification or termination.
For this reason, we reverse the judgment of the Macon County
circuit court and remand for further proceedings on the merits of
respondent's petition to terminate maintenance.
Reversed and remanded.
GREEN and McCULLOUGH, JJ., concur.