In re Marriage of Wig ( 2020 )

2020 IL App (2d) 190929No. 2-19-0929
Opinion filed December 29, 2020
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
DAVID WIG, ) of Du Page County.
)
Petitioner-Appellee, )
)
and ) No. 17-D-1444
)
JUDITH WIG, n/k/a Judith Progo, ) Honorable
) Timothy J. McJoynt,
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Presiding Justice Bridges and Justice McLaren concurred in the judgment and opinion.
OPINION
¶1 The marriage of petitioner, David Wig, and respondent, Judith Wig, n/k/a Judith Progo,
was dissolved in August 2018. Incorporated into the dissolution judgment was the parties’ marital
settlement agreement. The agreement provided a calculation to determine the amount of
maintenance that respondent would pay petitioner. The agreement also provided that, if a change
in the law affected the tax consequences of the maintenance ordered in the agreement, the parties
could negotiate a change in the agreement. If those efforts failed, the parties would submit the
matter to the trial court for resolution. A few days after the parties’ marriage was dissolved,
respondent lost her job. In September 2018, under the terms of the dissolution judgment, petitioner
submitted a qualified domestic relations order (QDRO) to his former employer. Garnishment of
2020 IL App (2d) 190929petitioner’s pension began in October 2018. Respondent obtained new employment in November
2018, and in December 2018, petitioner moved to set maintenance. Effective January 1, 2019,
section 504(b-1)(1)(A) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/504(b-1)(1)(A) (West 2018)) (the 2019 version) was amended as to its formula for the initial
setting of maintenance. 1 The former version of section 504(b-1)(1)(A) was added by Public Act
100-520, § 15 (eff. Jan. 1, 2018) and is found in the 2017 supplement to West’s Illinois Compiled
Statutes (the former version) (see 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017)).
¶2 In February 2019, the QDRO concerning petitioner’s pension was entered in the trial court.
Thereafter, the parties disagreed over which version of section 504(b-1) the trial court should
apply in setting the specific dollar amount of maintenance. The court chose the 2019 version but
applied the provision on modification of maintenance, rather than the provision governing the
initial setting of maintenance. Compare 750 ILCS 5/504(b-1)(1)(A-1) (West 2018) with id.
§ 504(b-1)(1)(A).
¶3 Respondent timely appeals from that order. 2 For the reasons that follow, we affirm.
1
The section amended by Public Act 100-923, § 10 (eff. Jan. 1, 2019) is found in the
2018 version of West’s Illinois Compiled Statutes.
2
Respondent initially appealed while other matters remained pending in the trial court.
Those matters have since been resolved, allowing us now to exercise jurisdiction over this appeal.
See In re Marriage of Knoerr, 377 Ill. App. 3d 1042, 1050 (2007) (if the trial court’s jurisdiction
has lapsed, such that it is too late to file a timely notice of appeal, the appellant may invoke the
savings provision of Illinois Supreme Court Rule 303(a)(2) (eff. July 1, 2017), and the appellate
court will give effect to the appellant’s premature notice of appeal once the last pending claim is
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2020 IL App (2d) 190929¶4 I. BACKGROUND
¶5 After almost 29 years of marriage, the parties’ marriage was dissolved. The agreement
incorporated into the August 22, 2018, dissolution judgment stated the parties’ annual incomes,
divided the parties’ marital assets and debts, and provided petitioner with maintenance.
Concerning the parties’ incomes, the agreement indicated that respondent earned an annual salary
of $54,000 and that petitioner, who was retired, received $19,260 in annual social security benefits
and $18,123.96 in annual pension benefits. The parties’ marital property and debts, which were
not large, were divided essentially equally. The section of the agreement addressing maintenance
provided:
“(a) Beginning immediately upon [respondent] receiving pension benefits from
[petitioner’s] pension (pursuant to QDRO), [respondent] shall pay maintenance to
[petitioner] pursuant to statutory guidelines, subject to the 40% cap, based upon the
following formula: Thirty percent (30%) of [respondent’s] gross income, inclusive of
benefits received from [petitioner’s] pension minus twenty percent (20%) of [petitioner’s]
gross income, inclusive of Social Security benefits and pension benefits received by
[petitioner] (exclusive of pension benefits paid to [respondent]). *** Upon entry of the
QDRO dividing [petitioner’s] pension, the attorneys for the parties shall immediately
determine the parties’ incomes and the dollar amount of maintenance and enter an order
setting the dollar amount of maintenance.
(b) Payments for maintenance shall be modifiable upon a showing of a substantial
change in circumstances.
resolved).
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2020 IL App (2d) 190929***
*** It is agreed and understood by the parties that all of the payments made by [respondent]
to [petitioner] pursuant to this [s]ection *** of this [a]greement shall constitute
maintenance payments which are imposed on or incurred by [respondent] under a written
instrument within the meaning of Section 71 of the Internal Revenue Code, as amended,
and as of now in effect, and of similar provisions of future laws, and that such payments
will be includable in [petitioner’s] gross income and deductible by [respondent] for federal,
state, and local (if any) tax purposes. Inasmuch as this [a]greement has been negotiated and
executed on the assumption that the payments made by [respondent] to [petitioner]
pursuant to this [s]ection *** of this [a]greement will be deductible by [respondent] and
taxable to [petitioner], if any or all of such payments are not so includable and deductible
as a result of a final and binding judicial or administrative determination, or because of
amendment or repeal of the applicable statutory provisions or their authoritative
interpretation, then any such payment(s) otherwise due [petitioner] pursuant to this
[s]ection *** of this [a]greement may be adjusted by an amount to be negotiated by the
parties. In the event that the parties are unable to agree upon a readjustment of these
provisions to take account of the changed tax impact, then this matter shall be submitted to
the [trial court] for final and binding determination of the payments from [respondent] to
[petitioner].”
¶6 The 30%-20% calculation in the agreement mirrored the formula in the former version of
section 504(b-1)(1)(A) of the Act for the initial setting of maintenance. See 750 ILCS 5/504(b-
1)(1)(A) (West Supp. 2017).
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2020 IL App (2d) 190929¶7 Ten days after the parties’ marriage was dissolved, respondent was fired from her job. At
the end of September 2018, petitioner delivered the required QDRO to his former employer. In the
beginning of October 2018, petitioner’s former employer began garnishing petitioner’s pension.
At the end of November 2018, respondent obtained new employment, with an annual income of
$53,000. On December 11, 2018, after learning that respondent had obtained new employment,
petitioner petitioned to set the dollar amount of maintenance.
¶8 Effective January 1, 2019, before the trial court’s hearing on the petition to set
maintenance, section 504 was amended in two respects pertinent here. First, an amendment to
section 504(b-1)(1)(A) (750 ILCS 5/504(b-1)(1)(A) (West 2018)) altered the formula for the initial
setting of maintenance. This amendment was in response to a change in federal law that eliminated
the deductibility of maintenance for federal tax purposes. See Pub. L. No. 115-97, 131 Stat. 2089(2017) (repealing 26 U.S.C. § 71).
¶9 Second, section 504(b-1)(1)(A-1) (750 ILCS 5/504(b-1)(1)(A-1) (West 2018)) was added.
This section provided that the 30%-20% formula in the former version for the initial setting of
maintenance (which, again, was mirrored in the parties’ agreement) would generally apply to
“[m]odification of maintenance orders entered before January 1, 2019, that are and continue to be
eligible for inclusion in the gross income of the payee for federal income tax purposes and
deductible by the payor.” Id.¶ 10 On January 9, 2019, after the 2019 version of section 504 of the Act went into effect,
respondent answered the petition to set the dollar amount of maintenance. Respondent asserted
that she had not received any of petitioner’s pension benefits to which she was entitled. The trial
court continued the proceedings for the entry of the QDRO. On February 5, 2019, the QDRO was
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2020 IL App (2d) 190929entered in court. On April 1, 2019, respondent began receiving her share of petitioner’s pension
pursuant to the QDRO.
¶ 11 At the hearing on the petition, the parties disagreed over whether the former or 2019 version
of section 504(b-1) applied to the calculation of maintenance. The parties did agree that, under the
former version, petitioner would receive $423 in monthly maintenance, but under the 2019 version,
he would receive only $3 in monthly maintenance. Petitioner asked the court to apply the
agreement’s maintenance formula, which, in effect, would be to apply the former version of section
504 because the agreement’s formula was borrowed from that version. See 750 ILCS 5/504(b-
1)(1)(A) (West Supp. 2017). Petitioner also noted that applying the 2019 version of the Act would
leave him with an absurdly small amount of maintenance. Respondent urged the court to apply the
2019 version of section 504.
¶ 12 The trial court held that our decision in In re Marriage of Carstens, 2018 IL App (2d)
170183, required the court to apply the 2019 version of section 504. The court then considered
whether to follow section 504(b-1)(1)(A), which governed the initial setting of maintenance, or
section 504(b-1)(1)(A-1), which governed the modification of maintenance. The court decided to
apply section 504(b-1)(1)(A-1), reasoning that this was “the better move” because “that’s what
[the parties] intended and [the court has] to give credence *** to the *** agreement.” The court
continued:
“[I]f the IRS says no, you’re back, *** then it would seem to me the only alternative left
for this Court is to apply [section 504(b-1)(1)(A)] of the maintenance statute, which
provides for a formula without deductibility and deals with that income, but that’s for
another day and maybe a day we don’t have to worry about if the IRS goes along with this
provision.”
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2020 IL App (2d) 190929¶ 13 In October 2019, the trial court, in line with its decision, awarded petitioner $423 in
monthly maintenance. The court also ordered that respondent pay petitioner $705.87. This sum
represented the difference between $5076 in retroactive maintenance owed to petitioner from
October 1, 2018, to October 1, 2019, and respondent’s right to $4370.13 in pension benefits
accrued between October 1, 2018, and April 1, 2019.
¶ 14 II. ANALYSIS
¶ 15 At issue in this appeal is what law governs the calculation of maintenance that petitioner
sought in his December 2018 petition. This issue involves contract and statutory construction, both
of which are pure questions of law that we review de novo. In re Application of the County
Treasurer & ex officio County Collector of Kane County, 2018 IL App (2d) 170418, ¶ 22.
Moreover, we may affirm the judgment of the trial court on any basis found in the record. In re
Marriage of Heroy, 2017 IL 120205, ¶ 24.
¶ 16 As we explain below, the change in the law did not affect the parties’ agreement. Under
section 502(b) of the Act (750 ILCS 5/502(b) (West Supp. 2017)), the agreement is enforceable
because neither party argued, nor did the trial court find, that the agreement is unconscionable.
The agreement provides unambiguous terms for the calculation of maintenance. Because petitioner
asked the trial court to set maintenance under that formula rather than to modify the agreement,
the agreement controls exclusive of statutory provisions on maintenance.
¶ 17 Before we address the agreement, we acknowledge the relevant differences between the
former and 2019 versions of section 504(b-1). The versions differ on how to set guideline
maintenance, which is an award of maintenance based on the Act’s delineated calculations. 750
ILCS 5/504(b-1)(1)(A) (West 2018); 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). The former
version of section 504(b-1)(1)(A) provides that “[t]he amount of [guideline] maintenance *** shall
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2020 IL App (2d) 190929be calculated by taking 30% of the payor’s gross annual income minus 20% of the payee’s gross
annual income.” 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). The 2019 version of section
504(b-1)(A) changed this, providing that “[t]he amount of [guideline] maintenance *** shall be
calculated by taking 33⅓% of the payor’s net annual income minus 25% of the payee’s net annual
income.” 750 ILCS 5/504(b-1)(1)(A) (West 2018). As noted, this amendment was in response to
a change in federal law that eliminated the deductibility of maintenance for federal tax purposes.
See Pub. L. No. 115-97, 131 Stat. 2089 (2017) (repealing 26 U.S.C. § 71). The 2019 version also
added section 504(b-1)(1)(A-1), which provides that
“[m]odification of maintenance orders entered before January 1, 2019 that are and continue
to be eligible for inclusion in gross income of the payee for federal income tax purposes
and deductible by the payor shall be calculated by taking 30% of the payor’s gross annual
income minus 20% of the payee’s gross annual income.” 750 ILCS 5/504(b-1)(1)(A-1)
(West 2018).
This 30%-20% formula was identical to the formula specified in the former version of section
504(b-1)(A) and adopted by the agreement.
¶ 18 In August 2018, when the dissolution judgment was entered, section 502(a) of the Act
provided that “[t]o promote amicable settlement of disputes between parties to a marriage attendant
upon the dissolution of their marriage, the parties may enter into an agreement containing
provisions for *** maintenance of either of them.” 750 ILCS 5/502(a) (West Supp. 2017). Section
502(b) provided:
“The terms of [an] agreement, except those providing for the support and parental
responsibility allocation of children, are binding upon the court unless [the court] finds,
after considering the economic circumstances of the parties and any other relevant evidence
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2020 IL App (2d) 190929produced by the parties, on their own motion or on request of the court, that the agreement
is unconscionable.” Id. § 502(b).
¶ 19 The parties’ agreement pertained to spousal maintenance, not child support or parental
responsibility. Therefore, the agreement was binding absent a finding of unconscionability.
Unconscionability is assessed based on the facts existing immediately after the agreement is made
(In re Marriage of Nilles, 2011 IL App (2d) 100528, ¶ 13), and “involves at least two separate
considerations: one, the conditions under which the agreement was made, and two, the economic
circumstances of the parties resulting from the agreement” (In re Marriage of Riedy, 130 Ill. App.
3d 311, 313-14 (1985)). Under the second consideration, an agreement is unconscionable if “no
man in his senses, not under delusion, would make [it], on the one hand, and *** no fair and honest
man would accept [it] on the other.” Id. at 317.
¶ 20 Neither party has contended that the agreement is unconscionable, and the trial court did
not so find. Interestingly, although no one is claiming that the agreement is unconscionable, we
note that interpreting the agreement consistent with section 504(b-1)(1)(A) of the 2019 version
would render the agreement unconscionable. Both parties agreed that, under the 2019 version,
petitioner would receive monthly maintenance of only $3. No sensible person would offer, and no
fair-minded person would accept, $3 in monthly maintenance.
¶ 21 We recognize that section 504(a) lists “any valid agreement of the parties” as one of a
multitude of factors for the trial court to consider in setting the amount and duration of
maintenance. 750 ILCS 5/504(a)(13) (West 2018); 750 ILCS 5/504(a)(13) (West Supp. 2017).
However, as noted, the 2018 version of section 502(b) clearly states that an agreement not
pertaining to child support and parenting is enforceable if it is not unconscionable. If an agreement
governing maintenance is just a factor for the court to consider in setting maintenance, parties
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2020 IL App (2d) 190929would have little incentive to enter into such agreements. Thus, making agreements enforceable
unless they are unconscionable advances section 502’s stated goal of fostering settlement of
disputes in connection with marital dissolution.
¶ 22 Given the validity of the agreement, we turn now to interpreting its maintenance terms.
Interpreting an agreement involves principles of contract construction. In re Marriage of Dundas,
355 Ill. App. 3d 423, 425-26 (2005). Courts must give effect to the parties’ intent, which is best
determined by examining the language used in the parties’ agreement. Id. at 426. When the
language used in the agreement is unambiguous, the agreement’s terms must be given their plain
and ordinary meaning. Id.
¶ 23 Here, the parties’ agreement unambiguously provides that respondent shall pay petitioner
maintenance amounting to 30% of her gross income minus 20% of petitioner’s gross income. The
agreement also unambiguously provides that the maintenance payments are includable in
petitioner’s gross income and deductible by respondent for any tax purposes. Given that the
agreement clearly and unambiguously provides how maintenance is calculated, it must be
followed. 750 ILCS 5/502(b) (West Supp. 2017); see also Olson v. Olson, 58 Ill. App. 3d 276, 279
(1978) (“Only if [an] agreement, when taken as a whole, fails to sufficiently define [the parties’]
rights and duties is it necessary or indeed justifiable to determine the form of [maintenance]
involved and the corresponding rights and duties which the law prescribes for that form.”).
¶ 24 In two respects, the agreement contemplates modifications of its terms. First, the agreement
states that “[p]ayments for maintenance shall be modifiable upon a showing of a substantial change
in circumstances.” Second, the agreement provides that, if the tax consequences of maintenance
payments are changed, “payment(s) otherwise due to [respondent] *** may be adjusted by an
amount to be negotiated by the parties” or by court order if negotiations fail. Since the agreement
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2020 IL App (2d) 190929provides no criteria for modification of the agreement, a court considering a request for
modification would resort to the maintenance factors of sections 504 and 510 of the Act (750 ILCS
5/504, 510 (West 2018); 750 ILCS 5/504, 510 (West Supp. 2017); Blum v. Koster, 235 Ill. 2d 21,
31-32 (2009)). This, of course, would raise the question of which version of those sections would
apply.
¶ 25 However, we need not decide which statutory version applies, because the petition to set
maintenance did not seek a modification of the agreement’s maintenance formula, but rather a
calculation using that formula. Under the agreement, respondent would begin paying maintenance
immediately upon receiving petitioner’s pension benefits. Before respondent began receiving her
share of petitioner’s pension benefits (in April 2019), respondent lost her job and started a new
one. Since respondent’s duty to pay maintenance was not yet triggered, her change in employment
was not a “change in circumstances” contemplated by the agreement but rather a revised baseline
for the initial calculation of maintenance.
¶ 26 Respondent, however, contends that because maintenance was not calculated until April
2019 when petitioner began receiving her share of the pension, the 2019 version of section 504(b-
1) should apply here. We disagree. The parties set a formula for maintenance in August 2018,
when the agreement was executed and incorporated into the dissolution judgment. See In re
Marriage of Maher, 95 Ill. App. 3d 1039, 1042 (1981) (agreement binding when approved by trial
court). What remained undetermined in August 2018 was the dollar amount of monthly
maintenance that petitioner would receive based on the parties’ income. That calculation was not
a contingency that had to occur before respondent became entitled to maintenance. See id.(agreement not effective when entered if parties “subjected [agreement’s] effectiveness to the
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2020 IL App (2d) 190929occurrence of other contingencies”). Because respondent’s entitlement to maintenance was not in
question when the 2019 version of the Act became effective, that version does not govern here.
¶ 27 The trial court relied on Carstens in applying the 2019 version of section 504(b-1). The
parties discuss Carstens as well as In re Marriage of Cole, 2016 IL App (5th) 150224, and In re
Marriage of Kasprzyk, 2019 IL App (4th) 170838. All three cases differ materially from the facts
here.
¶ 28 In Cole, the parties secured a judgment of legal separation in 2009 and incorporated into
that judgment a separation agreement, which required the husband to pay the wife maintenance.
Cole, 2016 IL App (5th) 150224, ¶ 3. Thereafter, the husband petitioned to dissolve the parties’
marriage, and the wife asked that the terms of the legal separation be incorporated into the
judgment dissolving the marriage. Id. ¶ 4. The trial court held a hearing on the dissolution petition
in 2014, but it did not enter its order until February 2015. Id. In that order, the court found that the
agreement’s provision making maintenance nonmodifiable was unconscionable, and the court
reduced maintenance due to an increase in the wife’s income. Id. The husband moved the court to
reconsider, arguing that the court failed to apply the statutory guidelines that went into effect on
January 1, 2015. Id. ¶ 5; see Pub. Act 98-961 (eff. Jan. 1, 2015) (adding 750 ILCS 5/504(b-1)).
Under these guidelines, the husband’s maintenance obligation would be further reduced. Cole,
2016 IL App (5th) 150224, ¶ 5. The court found that those guidelines did not apply, because,
among other things, the hearing on maintenance was held, and all evidence was received, in 2014.
Id.¶ 29 The appellate court agreed. Id. ¶ 7. In reaching that conclusion, the court noted that the
mere fact that the case was taken under advisement and not ruled on until 2015, after the law
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2020 IL App (2d) 190929changed, did not warrant the application of the 2015 version of the law, as “[t]he rights of the
parties should be determined by the facts of the case, not by the timing of the final order.” Id. ¶ 9.
¶ 30 This court had the opportunity to consider Cole in Carstens. There, the parties executed an
agreement that was incorporated into the 2004 judgment dissolving their marriage. Carstens, 2018
IL App (2d) 170183, ¶ 4. The agreement provided that the husband would pay the wife
maintenance. Id. The Act’s provisions on maintenance were amended effective January 1, 2016.
Id. ¶ 29. Almost two months after the amendments went into effect, the husband petitioned to
terminate or reduce maintenance. Id. ¶ 10. In ruling on the petitions, the trial court found, among
other things, that it was not bound to follow the Act’s amendments. Id. ¶ 17.
¶ 31 We reversed the trial court and held that the Act’s amendments applied. Id. ¶ 36. We noted
that, though the husband’s petition sought modification of an order entered before the amendments
went into effect, his petition was filed after the effective date. Id. ¶ 29. Thus, the husband’s petition
fell squarely within section 801(c) of the Act. Carstens, 2018 IL App (2d) 170183, ¶ 29 (citing
750 ILCS 5/801(c) (West 2016) (the Act applies to “all proceedings commenced after its effective
date for the modification of a judgment or order entered prior to the effective date of this Act ”)).
We found the analysis in Cole flawed, in that the court there failed to consider the impact, if any,
that section 801 of the Act had in that case. Id. ¶¶ 32-33.
¶ 32 In Kasprzyk, 2019 IL App (4th) 170838, ¶¶ 3, 6, the parties’ 25-year marriage was
dissolved in 2014. In the order dissolving the marriage, the trial court awarded the wife two years
of maintenance, but it determined that the wife could seek to extend maintenance before that two-
year period expired. Id. ¶ 7. In 2016, the legislature added guidelines for trial courts to consider in
setting the duration of maintenance. Id. ¶ 28. That same year, the wife petitioned to extend
maintenance. Id. ¶ 8. In 2017, the court held a hearing and granted the wife’s petition based on the
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2020 IL App (2d) 1909292016 amendments to the Act. Id. ¶¶ 9, 16. The husband moved to reconsider, arguing that the trial
court should not have applied the 2016 version of the law. Id. ¶ 17. The trial court denied the
motion, noting that “there had ‘been a finality and then there [are] new circumstances that
arrive[d].’ ” Id. ¶¶ 18-19.
¶ 33 On appeal, the court characterized the wife’s proceeding as one for review, rather than
modification, of maintenance; both review and modification proceedings are avenues for
reconsideration of maintenance. Id. ¶ 23 (distinguishing review and modification proceedings).
The court considered Cole and Carstens in deciding whether the new or old version of the law
applied. Id. ¶¶ 29-30. In following Carstens, the court observed that Cole involved an initial
maintenance award, while Carstens involved proceedings seeking to modify a maintenance award.
Id. ¶¶ 31-34. As in Carstens, the wife in Kasprzyk asked the trial court to reconsider the terms of
a maintenance award entered before the new law’s effective date. However, she filed her petition
to extend after the new law’s effective date, the evidence supporting her petition concerned matters
arising after the new law’s effective date, and the hearing on her petition was held after the new
law went into effect. Id. ¶ 34. As in Carstens, the court found that the case fell within section
801(c) of the Act. Thus, the new version of the law applied in considering the wife’s petition to
extend maintenance. Id. ¶ 38.
¶ 34 Cole, Carstens, and Kasprzyk are all distinguishable from the present case. Carstens
involved a modification proceeding, and Kasprzyk involved a review proceeding. In each case, the
parties had an agreement on maintenance that did not provide criteria for modification or review;
hence, the question was not whether statutory criteria applied to fill the void, but rather which
version applied. See Blum, 235 Ill. 2d at 31-32 (statutory factors govern proceedings for
modification or termination of maintenance unless the parties’ agreement provides specific terms
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2020 IL App (2d) 190929to govern such proceedings). As for Cole, even if that case is rightly described as involving “an
initial maintenance award” (Kasprzyk, 2019 IL App (4th) 170838, ¶ 31), it was an award that the
trial court determined by applying statutory factors after declaring the parties’ agreement
unconscionable.
¶ 35 By contrast, the proceeding here was for an initial calculation of maintenance using a
specific formula provided in the parties’ agreement, which neither party claimed, nor the trial court
found, was unconscionable.
¶ 36 We note that, if we were to entertain the question of which version of the Act applies, we
would hold that the former version applies. The formula for calculating maintenance was set in
2018. Moreover, petitioner executed his QDRO in 2018, his pension was garnished in 2018,
respondent obtained new employment in 2018, and petitioner moved to set the dollar amount of
maintenance in 2018. All that occurred in 2019 was the filing in court of the already effective
QDRO, the hearing on petitioner’s petition, and the trial court’s ruling on that petition. These 2019
events were not pivotal in calculating the dollar amount of maintenance that petitioner was owed
pursuant to the parties’ agreement.
¶ 37 In reaching this conclusion, we must comment on this court’s determination in Carstens
that the reasoning in Cole was flawed because the court failed to address the pertinence of section
801 of the Act. Section 801 controls the applicability of amendments to the Act. See 750 ILCS
5/801 (West 2018). We do not comment on how, if at all, section 801 applied in Cole. We are
content simply to hold that section 801 does not apply here, because the setting of maintenance is
controlled entirely by contractual terms; hence, there is no need to determine whether the former
or 2019 version of the maintenance factors applies. And if that question were pertinent here, we
would hold that the former version of section 504(a) applies. Section 801(b), which has remained
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2020 IL App (2d) 190929unchanged since January 1, 2016 (see Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016)), states that the
Act applies “to all pending actions and proceedings commenced prior to its effective date with
respect to issues on which a judgment has not been entered.” 750 ILCS 5/801(b) (West 2018).
Courts considering this language have determined:
“ ‘[T]he legislature attempted through section 801(b) to allow only those issues which had
not been fully litigated prior to the effective date of the new [A]ct to be decided under the
new law. It is not this section’s intent to require the relitigation of issues already decided
under the previous law simply because post-trial motions are pending or filed after the
effective date of the new [A]ct.’ ” West v. West, 76 Ill. 2d 226, 234 (1979) (quoting Staub
v. Staub, 67 Ill. App. 3d 1004, 1007 (1978)).
¶ 38 The issue of maintenance was determined in August 2018 when the trial court issued its
dissolution judgment incorporating the agreement, which specified a formula for calculating
maintenance. What remained as of January 1, 2019, was the calculation of that maintenance. Thus,
the former version of section 504 would apply here.
¶ 39 Moreover, even if the 2019 version applied, the trial court’s judgment could be seen as a
proper award of nonguideline maintenance. Under either the former or the 2019 version of section
504(b-1)(2) of the Act, the trial court was allowed to impose nonguideline maintenance if it found,
after considering the delineated factors, that imposing guideline maintenance under the specified
calculations was inappropriate. 750 ILCS 5/504(b-1)(2) (West 2018); 750 ILCS 5/504(b-1)(2)
(West Supp. 2017). Here, although the trial court may not have properly stated that it was deviating
from awarding guideline maintenance under the 2019 version of the law (750 ILCS 5/504(b-2)
(West 2018)), it was apparent that the trial court gave great deference to the delineated factor that
the parties had a valid agreement (id. § 504(a)(13), (b-2)(1)). The court recognized that following
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2020 IL App (2d) 190929section 504(b-1)(1)(A) of the 2019 version of the law would result in petitioner receiving only $3
in monthly maintenance (id. § 504(b-2)(2)).
¶ 40 For the above-stated reasons, we hold that the trial court erred in applying the 2019 version
of section 504(b-1)(1)(A-1) in calculating maintenance. The error, however, was harmless because
the court ultimately applied the same 30%-20% formula that was specified in the parties’
agreement. See id. § 504(b-1)(1)(A-1).
¶ 41 III. CONCLUSION
¶ 42 We affirm the judgment of the circuit court of Du Page County.
¶ 43 Affirmed.
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2020 IL App (2d) 190929No. 2-19-0929
Cite as: In re Marriage of Wig, 2020 IL App (2d) 190929Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 17-D-
1444; the Hon. Timothy J. McJoynt, Judge, presiding.
Attorneys Chantelle Porter, of A. Traub & Associates, Ltd., of Lombard, for
for appellant.
Appellant:
Attorneys Richard Ian Conner, of Kollias P.C., of Winfield, for appellee.
for
Appellee:
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