In re Marriage of Ellinger ( 2008 )

No. 3--06--0940
_________________________________________________________________
Filed January 3, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
In re MARRIAGE OF ) Appeal from the Circuit Court
SANDRA ELLINGER, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Petitioner-Appellee, )
)
and ) No. 03--D--1190
)
GARY ELLINGER, ) Honorable
) Bobbi N. Petrungaro,
Respondent-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE CARTER delivered the opinion of the court:
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Sandra Ellinger petitioned the trial court to dissolve her
marriage with the respondent, Gary Ellinger. In the court's
judgment granting the dissolution, it ordered Gary, among other
things, (1) to pay maintenance to Sandra; and (2) to maintain a
certain life insurance policy, with Sandra as sole beneficiary,
so long as Gary was statutorily obligated to pay maintenance. On
appeal, Gary argues that the trial court erred in its order
concerning the life insurance policy. We reverse and remand.
BACKGROUND
The court issued its written dissolution judgment on
March 10, 2006. The judgment consisted of 9 enumerated
paragraphs of findings (numbered 1 to 9), and 21 enumerated
paragraphs of orders (numbered 1 to 21). We will refer to these
two kinds of enumerated paragraphs as "finding paragraphs" and
"order paragraphs," respectively.
In order paragraph 15, the court required Gary to pay Sandra
monthly maintenance. In this paragraph, the court also stated
that the "maintenance shall terminate on the first to occur of a
statutory termination event."
Finding paragraph 8 listed a Thrivent life insurance policy
among Gary's nonmarital assets. Gary had purchased the life
insurance policy in 1962. The couple was married in 1985. In
the court's oral pronouncement of its decision, it found that
during the marriage the premiums for the life insurance policy
were paid from marital assets. In order paragraph 8, the court
required Gary to "maintain [Sandra] as the sole beneficiary of
the Thrivent life insurance policy, free of loans, liens and
encumbrances, so long as he shall have an obligation to pay
maintenance to [Sandra]."
Gary filed a motion to reconsider the judgment in which he
argued, among other things, that the court erred by requiring him
to maintain Sandra as the sole beneficiary of the life insurance
policy, while he was obligated to pay maintenance to her. In its
ruling on Gary's motion, the court stated that it had ordered
Gary to designate Sandra as the beneficiary of the life insurance
policy as security for Gary's maintenance obligation. The court
cited In re Marriage of Vernon, 253 Ill. App. 3d 783, 625 N.E.2d
823 (1993), as precedential authority, and several cases from
other jurisdictions (Parley v. Parley, 72 Conn. App. 742, 807
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A.2d 982 (2002) (Connecticut); Kushman v. Kushman, 297 A.D.2d
333, 746 N.Y.S.2d 319 (2002) (New York); In re Marriage of Sim,
939 P.2d 504 (1997) (Colorado); and Sheridan v. Sheridan, No. CX-
-94--520 (Minn. App. 1994) (an unpublished Minnesota case)), as
persuasive authority for its decision. The court also said that
the use of life insurance to secure maintenance payments was
analogous to the use of life insurance to secure child support
payments. The court denied Gary's motion to reconsider, and Gary
appealed.
ANALYSIS
Gary contends that the trial court erred by requiring him to
designate Sandra as the beneficiary of the life insurance policy
as security for his maintenance obligation.
The issue in this case concerns the statutory construction
of provisions in the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/101 et seq. (2006)). The primary
rule of statutory construction is to discern the intent of the
legislature. Ultsch v. Illinois Municipal Retirement Fund, 226
Ill. 2d 169, 874 N.E.2d 1 (2007). The best evidence of the
legislature's intent is the statutory language itself, which must
be given its plain and ordinary meaning. Ultsch, 226 Ill. 2d
169, 874 N.E.2d 1.
It is well established that when the legislature used
certain language in one part of an act, and different language in
another portion of the act, the legislature intended different
results. Collins v. Board of Trustees of the Firemen's Annuity &
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Benefit Fund, 155 Ill. 2d 103, 610 N.E.2d 1250 (1993).
Additionally, when the legislature deleted certain language from
previous legislation, it is presumed that the legislature
intended to change the law. Forest City Erectors v. Industrial
Commission, 264 Ill. App. 3d 436, 636 N.E.2d 969 (1994). Our
construction of statutory provisions involves a question of law,
which we review de novo. In re Marriage of Thomsen, 371 Ill.
App. 3d 236, 872 N.E.2d 1 (2007).
Section 504 of the Act authorizes a trial court to order one
spouse to pay the other spouse maintenance. 750 ILCS 5/504
(2006). Neither section 504, nor any other section of the Act,
states that the court may order the spouse paying maintenance to
designate the spouse receiving maintenance as the beneficiary of
a life insurance policy as security for the maintenance payments.
See 750 ILCS 5/101 et seq. (2006).
The trial court, in this case, said that the use of life
insurance to secure maintenance payments was analogous to the use
of life insurance to secure child support payments. We observe
that the language in the Act regarding child support is different
from the Act's language regarding maintenance. Section 510(c) of
the Act states that, with exceptions not applicable to this case,
"the obligation to pay future maintenance is terminated upon the
death of either party." 750 ILCS 5/510(c) (2006). However,
section 510(d) says that "provisions for the support of a child
are" not terminated "by the death of a parent obligated to
support *** the child." 750 ILCS 5/510(d) (2006).
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Section 510(d) further provides that "[w]hen a parent
obligated to pay support *** dies, the amount of support *** may
be enforced, modified, revoked or commuted to a lump sum payment,
as equity may require, and that determination may be provided for
at the time of the dissolution of the marriage." 750 ILCS
5/510(d) (2006). The Act does not contain an analogous provision
concerning a spouse's maintenance obligation regarding this
latter provision in section 510(d).
Additionally, section 503(g) of the Act states that "[t]he
court if necessary to protect and promote the best interests of
the children may set aside a portion of the jointly or separately
held estates of the parties in a separate fund or trust for the
support *** of any *** child of the parties." 750 ILCS 5/503(g)
(2006). The Act does not contain a provision analogous to
section 503(g) regarding a spouse's maintenance obligation.
In the present case, we note that the language in the Act
concerning a spouse's obligation to pay maintenance after the
obligor's death is different from the language in the Act
concerning a parent's obligation to pay child support after the
obligor's death. Also, the Act contains language regarding the
court's discretion to designate assets as security for child
support obligations, whereas the Act does not contain language
giving the court discretion to designate assets as security for
maintenance obligations. We must presume that the legislature
intended different results by the different language in the Act
concerning child support compared with its language regarding
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maintenance. See Collins, 155 Ill. 2d 103, 610 N.E.2d 1250.
Thus, we rule that the trial court erred as a matter of law by
stating that the use of life insurance to secure maintenance
payments was analogous to the use of life insurance to secure
child support payments.
Furthermore, as the court observed in In re Marriage of
Clarke, 125 Ill. App. 3d 432, 465 N.E.2d 975 (1984), when the Act
was enacted, it replaced earlier legislation that gave a trial
court discretion to designate life insurance as security for
maintenance obligations. The omission of such a provision in the
Act showed the intent of the legislature to change the law in
this regard. See Forest City Erectors, 264 Ill. App. 3d 436, 636
N.E.2d 969. For this additional reason, we hold that the trial
court erred as a matter of law by stating that it had discretion
to require Gary to maintain a life insurance policy as security
for his maintenance obligation.
The trial court in this case based its decision, in part, on
the ruling in Vernon, 253 Ill. App. 3d 783, 625 N.E.2d 823. In
Vernon, the court stated that it declined to address the
application of the holding of Clarke because the parties had not
raised Clarke in its briefs. Curiously, the Vernon court,
nonetheless, discussed why it disagreed with the ruling in
Clarke. Because the Vernon court's rejection of Clarke was
obiter dicta, we find Vernon to be inapplicable to the present
case. Moreover, unlike the parties in Vernon, in this case, Gary
argued the applicability of Clarke in his brief. Thus, the
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holding of Vernon is factually distinguishable from the present
case.
The trial court in this case also based its ruling, in part,
on the persuasive authority of cases from other jurisdictions.
We observe that the cases from other jurisdictions also are
factually distinguishable from the instant case. These cases
concerned jurisdictions in which trial courts have statutory
authority to require life insurance as security for maintenance
obligations, whereas no such provisions exist in Illinois law, as
we discussed above. See Parley, 72 Conn. App. 742, 807 A.2d 982;
Kushman, 297 A.D.2d 333, 746 N.Y.S.2d 319; Sim, 939 P.2d 504;
Sheridan, No. CX--94--520. Therefore, the cases from other
jurisdictions are inapplicable to the present case as persuasive
authority.
In summary, we rule that the trial court erred as a matter
of law by requiring Gary to maintain the Thrivent life insurance
policy, with Sandra as sole beneficiary, so long as Gary was
statutorily obligated to pay maintenance. Thus, we reverse and
remand the cause for further proceedings.
We note that in its dissolution judgment, a trial court is
to consider maintenance, insurance, assets, debts, and other
factors, not in isolation, but rather, equitably and as a whole.
See 750 ILCS 5/503 (West 2006); In re Marriage of Leopando, 96
Ill. 2d 114, 449 N.E.2d 137 (1983). Because our ruling may have
disturbed the trial court's original equitable calculation, on
remand the court may reconsider the distribution of those factors
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that may affect the financial future of the parties. See
Leopando, 96 Ill. 2d 114, 449 N.E.2d 137.
CONCLUSION
For the foregoing reasons, we reverse that portion of the
Will County circuit court's dissolution judgment requiring Gary
to maintain the Thrivent life insurance policy, with Sandra as
sole beneficiary, and remand the cause for further proceedings.
Reversed and remanded.
MCDADE, P.J. and HOLDRIDGE, J. concurring.
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