In re Marriage of Bohnsack , 968 N.E.2d 692 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Marriage of Bohnsack, 2012 IL App (2d) 110250
Appellate Court In re MARRIAGE OF MARK BOHNSACK, Petitioner-Appellant, and
Caption DEBORAH BOHNSACK, Respondent-Appellee.
District & No. Second District
Docket No. 2-11-0250
Rule 23 Order filed February 17, 2012
Rule 23 Order
withdrawn March 29, 2012
Opinion filed March 29, 2012
Held The trial court did not err in modifying respondent’s maintenance award
(Note: This syllabus pursuant to her petition seeking an increase due to a substantial change
constitutes no part of in circumstances, notwithstanding petitioner’s contention that the initial
the opinion of the court award of $10,000 per year for six years was nonmodifiable maintenance
but has been prepared in gross, since the language of the parties’ settlement agreement did not
by the Reporter of specify whether the maintenance award was to be periodic or in gross, it
Decisions for the did not provide a specific total sum petitioner was to pay, the settlement
convenience of the agreement did not indicate that the date the first payment was to be made
reader.)
was a vesting date for maintenance in gross rather than just the starting
date of petitioner’s payments, and although an award of maintenance
need not be labeled as nonmodifiable, no language in the settlement
agreement established that the award was intended to be for maintenance
in gross.
Decision Under Appeal from the Circuit Court of Jo Daviess County, No. 05-D-78; the
Review Hon. William A. Kelly, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas H. James, of James & Associates, of Forreston, for appellant.
Appeal
Richard B. Kirk, of Schirger Law Offices LLC, and M. Allyson Misevich,
of Law Office of M. Allyson Misevich, P.C., both of Rockford, for
appellee.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Hutchinson and Zenoff concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Mark Bohnsack, appeals from the trial court’s order modifying the
maintenance award to respondent, Deborah Bohnsack. Petitioner argues that the parties’
marital settlement agreement provided for maintenance in gross and was thus nonmodifiable.
For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 In January 2006, the trial court entered a judgment dissolving the parties’ marriage. The
judgment incorporated a marital settlement agreement. Paragraph 7 of the settlement
agreement provided as follows:
“Mark shall pay to Deb $10,000 in maintenance for 6 years, beginning on January 1,
2006[,] and the last payment ending on January 1, 2011. Mark shall pay this money to
Deb twice a year, with a payment of $5[,]000 on January 1 and a payment of $5[,]000.00
on June 1st of every year, with the last year being 2011.”
¶4 Four years later, respondent filed a petition to modify the maintenance award, seeking
an increase in maintenance due to a substantial change in circumstances. Following a
hearing, the trial court granted the petition and ordered petitioner to pay maintenance in the
amount of $3,000 per month. Petitioner filed a postjudgment motion, arguing that the trial
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court erred in modifying the maintenance award, because the maintenance was maintenance
in gross and was thus nonmodifiable. The trial court denied petitioner’s motion. Petitioner
then brought this timely appeal.
¶5 ANALYSIS
¶6 On appeal, petitioner contends that the trial court lacked subject matter jurisdiction to
modify the maintenance award and that, even if it did have subject matter jurisdiction, the
trial court nevertheless erred in modifying the maintenance award. We do not find merit in
either of these contentions.
¶7 Petitioner argues that the trial court lacked subject matter jurisdiction because more than
30 days have passed since the entry of the judgment of dissolution. According to petitioner,
because the maintenance award in the settlement agreement is properly characterized as
maintenance in gross, which is nonmodifiable, it is in the nature of a property settlement and
cannot be raised once 30 days have passed since the entry of the judgment. We disagree. As
the supreme court made clear in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
199 Ill. 2d 325, 334 (2002), a trial court’s subject matter jurisdiction is conferred by our state
constitution and extends to all “ ‘justiciable matters.’ ” “Generally, a ‘justiciable matter’ is
a controversy appropriate for review by the court, in that it is definite and concrete, as
opposed to hypothetical or moot, touching upon the legal relations of parties having adverse
legal interests.” Belleville Toyota, 199 Ill. 2d at 335. The modification of maintenance–which
is what respondent sought in her petition–is a justiciable matter. Accordingly, the trial court
had subject matter jurisdiction to evaluate respondent’s petition, and petitioner’s argument
regarding jurisdiction is simply an argument that the trial court erred in modifying the
maintenance award because maintenance in gross cannot be modified.
¶8 Before addressing the substance of petitioner’s contention that the trial court erred in
modifying the maintenance award, we must first address the standard of review. Respondent
contends that, because petitioner did not raise the maintenance-in-gross contention until his
postjudgment motion, the trial court’s denial of petitioner’s postjudgment motion should be
reviewed for an abuse of discretion. See Muhammad v. Muhammad-Rahmah, 363 Ill. App.
3d 407, 415 (2006) (“When reviewing a trial court’s denial of a motion to reconsider that was
based on new matters, such as additional facts or new arguments or legal theories that were
not presented during the course of the proceedings leading to the issuance of the order being
challenged, this court employs an abuse of discretion standard.”). Petitioner responds that the
determination of whether the maintenance award was for maintenance in gross depends on
the interpretation of the parties’ settlement agreement, an issue of law, which is typically
subject to de novo review. In re Marriage of Hendry, 409 Ill. App. 3d 1012, 1017 (2011).
Petitioner also contends that he raised the issue of maintenance in gross prior to his
postjudgment motion. After scouring the record, including the portions cited by petitioner,
we can find no place prior to his postjudgment motion where he argued that the maintenance
award was for maintenance in gross. In any case, we need not resolve the conflict
surrounding the standard of review, because the trial court did not err under any standard.
¶9 The question of whether the maintenance award is properly characterized as maintenance
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in gross or the more typical periodic maintenance is to be determined by examining the
parties’ settlement agreement. As a marital settlement agreement is a contract, the usual
contract interpretation rules apply. Our task is to determine the parties’ intent when the
agreement was executed. In re Marriage of Michaelson, 359 Ill. App. 3d 706, 711 (2005).
To do so, we are to examine the language of the agreement, and we are to give the terms in
the agreement their plain and ordinary meaning. Michaelson, 359 Ill. App. 3d at 711.
¶ 10 Periodic maintenance, the more common type of maintenance, typically takes the form
of an order to pay a spouse a specified amount at regular intervals. In re Marriage of Mass,
102 Ill. App. 3d 984, 994 (1981). Its defining characteristic is its indefiniteness, as it may be
modified or terminated by a court upon a showing of a “substantial change in
circumstances.” See 750 ILCS 5/510(a-5) (West 2010); Mass, 102 Ill. App. 3d at 994. In
contrast, maintenance in gross involves an order to pay a spouse “a definite total sum upon
the entry of the decree or a definite total sum in installments over a definite period of time.”
Mass, 102 Ill. App. 3d at 994. The distinguishing characteristics of maintenance in gross are
its definite sum and its vesting date. In re Marriage of Hildebrand, 166 Ill. App. 3d 795, 799
(1988). Amounts that are awarded as maintenance in gross are not subject to modification
based on a change in circumstances. In re Marriage of Freeman, 106 Ill. 2d 290, 298 (1985).
Periodic maintenance, however, is the preferred form of maintenance, and “an award in gross
is appropriate only in exceptional circumstances.” Lamp v. Lamp, 81 Ill. 2d 364, 374 (1980).
¶ 11 The language of the settlement agreement in this case is ambiguous at best; it does not
specify whether the maintenance award was intended to be periodic or in gross. Petitioner
argues that the maintenance award is properly characterized as maintenance in gross because
it is for a definite amount and has a set vesting date. The cases petitioner cites in support,
however, differ from the present case in a significant way: the settlement agreement or
judgment in each case specifically stated that the maintenance was in gross or provided a
specific total sum to be paid to the recipient. See Freeman, 106 Ill. 2d at 294 (the modified
judgment specifically labeled the $27,000 the husband was to pay to the wife as maintenance
in gross); Michaelson, 359 Ill. App. 3d at 708 (settlement agreement provided that the
husband was to pay the wife “ ‘a total of Three Hundred Sixty Thousand ($360,000)
Dollars’ ” and that the maintenance provisions were to terminate “ ‘only after the payment
of all monies due to Wife are paid in full’ ”); Hildebrand, 166 Ill. App. 3d at 797 (settlement
agreement awarded the wife the specific sum of $12,000 in maintenance); In re Marriage of
Burgstrom, 135 Ill. App. 3d 854, 857 (1985) (order provided a specific sum that the husband
was to pay to the wife). In contrast, the settlement agreement in the present case does not
label the maintenance as in gross, nor does it provide a specific total sum that petitioner is
to pay to respondent. Although petitioner contends that the total sum is easily calculable, the
lack of a specifically stated total sum differentiates the present case from those found to
involve maintenance in gross and lends credence to the position that the maintenance award
was for periodic maintenance over a fixed period. See In re Marriage of Harris, 284 Ill. App.
3d 389, 390, 392 (1996) (holding that a settlement agreement that provided that the husband
was to pay the wife $606 per month for 10 years but did not provide for a specific total sum
was for periodic maintenance for a fixed period rather than maintenance in gross).
¶ 12 Petitioner also contends that the existence of a vesting date demonstrates that the
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maintenance award was one for maintenance in gross. According to petitioner, the vesting
date of the award was January 1, 2006, the date on which he was to make the first payment
to respondent. Nothing in the language of the settlement agreement indicates that January 1,
2006, was intended as a vesting date for maintenance in gross rather than merely a start date
for periodic maintenance. Petitioner relies on Hildebrand as demonstrating the importance
of a vesting date to a finding of maintenance in gross. The settlement agreement in
Hildebrand, however, did not provide a vesting date, and the court did not rely on a vesting
date in concluding that the award was for maintenance in gross. Rather, the court concluded
that the award was for maintenance in gross because the settlement agreement required the
husband to pay to the wife a specified sum over a definite number of installments.
Hildebrand, 166 Ill. App. 3d at 799. The court merely commented that the maintenance
award in that case vested on the date the judgment was entered, because under section 510(b)
of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510(b) (West 2008)),
judgment provisions regarding the disposition of property may not be revoked or modified
unless there is a reason justifying the reopening of the judgment. Hildebrand, 166 Ill. App.
3d at 799.
¶ 13 While it is true, as petitioner states, that an award of maintenance in gross need not be
labeled as nonmodifiable, because it is, by definition, nonmodifiable (Burgstrom, 135 Ill.
App. 3d at 858), there is nothing in the language of the settlement agreement that definitively
establishes that the maintenance award was intended to be for maintenance in gross. Given
that and the fact that maintenance in gross is the exception rather than the rule, we must
conclude that the trial court did not err in modifying the maintenance award.
¶ 14 CONCLUSION
¶ 15 For the foregoing reasons, the judgment of the circuit court of Jo Daviess County is
affirmed.
¶ 16 Affirmed.
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