In re Marriage of Andrew , 2023 IL App (1st) 221039 ( 2023 )

2023 IL App (1st) 221039FIFTH DIVISION
June 16, 2023
No. 1-22-1039
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re MARRIAGE OF BENJAMIN ANDREW, ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellant, )
)
and ) No. 14 D3 31099
)
JACQUELINE ANDREW, ) Honorable
) Thomas J. Kelley,
Respondent-Appellee. ) Judge, presiding.
PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Mitchell and Lyle concurred in the judgment and opinion.
OPINION
¶1 BACKGROUND
¶2 This appeal involves the marriage of Benjamin Andrew (Benjamin) and Jacqueline Andrew
(Jacqueline), who divorced in 2014. About six years later, they engaged in extensive motion
practice establishing the claims at issue here. Benjamin first filed a petition to invalidate the
marriage and then filed a separate motion to terminate maintenance, both of which the circuit court
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ultimately dismissed. He appeals from those dismissals. Additionally, Benjamin appeals from an
evidentiary ruling the circuit court made during a proceeding on Jacqueline’s 2020 petition for a
rule to show cause regarding Benjamin’s cessation of maintenance payments. We affirm the
rulings of the circuit court.
¶3 FACTS
¶4 Benjamin and Jacqueline were married in 1994. About 20 years later, Benjamin filed a
petition for dissolution of marriage. In 2014, the circuit court entered a judgment for dissolution
of marriage, which incorporated a marital settlement agreement (MSA) reached by both parties,
following negotiations during which both parties were represented by counsel. The MSA detailed,
in relevant part, Benjamin’s agreement and obligation to pay Jacqueline maintenance at an initial
rate of $20,000 a month. The judgment for dissolution stated that Benjamin entered into the MSA
“freely and voluntarily and without coercion.” Additionally, the MSA revealed Benjamin had
financial assets exceeding $3 million, and the couple owned multiple residences. The case was
essentially dormant for the next six years.
¶5 On October 19, 2020, Jacqueline filed a petition for rule to show cause seeking an order of
indirect civil contempt, alleging in relevant part that Benjamin was not complying with his
maintenance obligations to her.
¶6 On the same day, Benjamin filed a petition to invalidate the former marriage pursuant to
750 ILCS 5/301(1) (West 2018). In his petition, Benjamin alleged that his relationship with
Jacqueline began in 1985, when he was 16 years old and in high school. Jacqueline was his teacher
and a faculty advisor to his tennis team. According to Benjamin, Jacqueline used these positions
to “take dominance and control” over him. In June 1985, Jacqueline “committed sexual assault
upon” Benjamin. Thereafter, she used her “position of trust, authority, supervision and dominance”
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over Benjamin to “sexually assault” him “on an almost weekly basis.” The relationship continued
after Benjamin turned 18 years old. On March 26, 1994, when Benjamin was 25 years old, the
parties married, at Jacqueline’s “insistence” and due to “the dominance and control” she exercised
over him. Because of this dominance and control, he was incompetent and without capacity to
consent to the marriage. Therefore, the petition continued, the marriage was “invalid and void,
ab initio,” and any orders resulting from it, including the judgment for dissolution and MSA, were
also void. Specifically, he claimed he agreed to the MSA “without his valid consent and under
duress” because “he continued to be under the control and dominance” of Jacqueline.
¶7 As a remedy, Benjamin requested, in relevant part, that Jacqueline disgorge all money and
personal property she received from Benjamin pursuant to the MSA over the more than five years
in which it had been in effect.
¶8 Benjamin attached the December 11, 2014, judgment for dissolution of marriage, and the
MSA incorporated therein, to his petition to invalidate. The judgment acknowledged that Benjamin
filed the initial petition for dissolution, citing “irreconcilable differences”; both parties entered into
the MSA “freely and voluntarily”; Benjamin and Jacqueline were “lawfully married” on March
26, 1994; and both parties “freely and voluntarily and without coercion” agreed to the MSA in lieu
of trial.
¶9 In section 2.2 of article II of the MSA, titled “Maintenance,” the parties agreed that
Benjamin would make maintenance payments to Jacqueline starting January 15, 2015. The
payment calculation could “be modified as necessary to reflect any change in how Benjamin is
compensated by his then current employer” and could also be modified if Jacqueline’s pension
payment amount changed.
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¶ 10 In article II, section 2.4, the parties agreed that, “The maintenance payments *** pursuant
to this Article II shall be non-modifiable as to amount and duration, pursuant to Section 502(f) of
the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502), except as specifically
provided in this Article II.” Section 2.4 lists six termination events—180 months of payments,
Benjamin’s or Jacqueline’s death, her remarriage or entry into a civil union, or Jacqueline’s
cohabitation. Article II does not contain any other terms permitting modification or termination of
maintenance, aside from a provision specific to a possible buy-out of Benjamin’s then-employer.
¶ 11 On October 23, 2020, Jacqueline moved to dismiss the petition to invalidate pursuant to
sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West
2018)). In the motion, Jacqueline argued, “The claim of sexual abuse was never alleged or
addressed at any time including the filing of the Petition for Dissolution of Marriage, mediation,
or prove-up and entry of the Judgment for Dissolution of Marriage.” She further argued
Benjamin’s claim was untimely and that, “[t]o now claim for the first time that he lacked the
capacity to marry in 1994, more than 26 years after the marriage took place, is false, fraudulent,
and sanctionable.”
¶ 12 Benjamin responded to Jacqueline’s motion to dismiss his petition to invalidate, stating, “he
did not claim sexual abuse upon him by Jacqueline in any prior pleading or action *** [because]
due to her dominance and control over him he did not have the capacity to do so.”
¶ 13 Jacqueline later filed an amended motion to dismiss the petition to invalidate based on
sections 2-615 and 2-619(a)(4), (5), and (9) (id. §§ 2-615, 2-619(a)(4), (5), (9)) of the Code.
Benjamin responded to Jacqueline’s amended motion to dismiss, alleging that in addition to lack
of capacity, he also could not consent to the marriage in 1994 “due to the fraud or duress” by
Jacqueline.
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¶ 14 On February 18, 2021, the circuit court granted Jacqueline’s amended motion to dismiss but
permitted Benjamin to file an amended petition.
¶ 15 On March 18, 2021, Benjamin filed his amended petition to invalidate the marriage.
Therein, Benjamin reiterated the allegations of the original petition. Additionally, Benjamin
included new allegations that, “After years of therapeutic counseling *** on or about September
28, 2020, [he] finally became aware of the dominance and control Jacqueline had over him and
that she had repeatedly raped him while he was minor.” The amended petition continued, “At the
time Benjamin became aware of the dominance Jacqueline had over him, he had a psychological
and emotional breakthrough of the control Jacqueline had over him and was then able to break
away from her dominance and control.” Benjamin attached the judgment for dissolution and MSA
to the amended petition to invalidate.
¶ 16 Jacqueline moved to dismiss the amended petition to invalidate pursuant to section
2-619(a)(4) and (a)(9). In the motion, Jacqueline admitted that “she did enter into a relationship
with [Benjamin] towards the completion of his high school education.” In the section 2-619(a)(4)
portion of the motion, she argued res judicata barred the amended petition because the judgment
of dissolution was a final judgment containing a specific finding that the marriage had been valid.
See id. § 2-619(a)(4). In the section 2-619(a)(9) portion, she argued, in relevant part, that because
she and Benjamin were divorced, there was no marriage to invalidate. See id. § 2-619(a)(9).
¶ 17 Benjamin responded to Jacqueline’s motion to dismiss his amended petition to invalidate,
arguing res judicata could not apply because new facts or conditions had arisen, specifically his
therapeutic breakthrough. In Jacqueline’s reply, she denied she brought her motion pursuant to
section 2-615.
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¶ 18 On June 17, 2021, the circuit court granted Jacqueline’s motion to dismiss Benjamin’s
amended petition to invalidate. At the argument on the motion, the court confirmed it granted
dismissal on the basis of both subsections (a)(4) and (a)(9) of section 2-619. Regarding section 2-
619(a)(9), the court explained, “the marriage was dissolved and, therefore, there’s no marriage at
this time to invalidate.”
¶ 19 Benjamin moved to reconsider that dismissal. At an August 6, 2021, proceeding on the
motion, his counsel responded to the question of whether Benjamin alleged any “repressed
memory” of the sexual assault with “[n]ot specifically.” The circuit court denied the motion. In so
ruling, it specified that it believed, “you can’t invalidate a marriage that’s already been dissolved.”
The court further stated, “I don’t think the theory of dominion and control equates to [lack of] legal
capacity.” It acknowledged Benjamin did not present a typical repressed memory argument, where
“the repressed memory [is the victim doesn’t] even remember the facts.”
¶ 20 On August 26, 2021, Benjamin filed a “motion” to terminate maintenance, arguing that his
therapeutic breakthrough constituted a “substantial change in circumstances.” He requested that
the circuit court terminate maintenance as of the date of filing.
¶ 21 Jacqueline moved to dismiss Benjamin’s motion to terminate maintenance under both
sections 2-615 and 2-619. In the section 2-615 portion of her motion, she argued the petition was
legally insufficient because the MSA stated maintenance was generally nonmodifiable in terms of
duration and amount and could only be modified or terminated as specified in the MSA, which
does not permit modification or termination based on a substantial change in circumstances. She
further argued that even if a substantial change in circumstances was a potential ground for
modification or termination, Benjamin failed to plead a substantial change because he made no
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showing that, “the needs of the spouse receiving maintenance or the ability of the other spouse to
pay that maintenance [had] changed.”
¶ 22 On October 6, 2021, Jacqueline filed an amended petition for a rule to show cause, again
alleging that Benjamin was not complying with his maintenance obligations.
¶ 23 On November 1, 2021, Benjamin responded to Jacqueline’s motion to dismiss his motion
to terminate maintenance, arguing that he sufficiently alleged a substantial change in
circumstances and that this constituted a valid basis to terminate maintenance under the MSA. He
further argued he would not have agreed to the MSA’s maintenance terms but for Jacqueline’s
dominance and control.
¶ 24 During proceedings on the motion to terminate maintenance, Jacqueline’s counsel argued
that Benjamin could not allege the MSA was void as a ground to terminate maintenance and that
to pursue a claim that the MSA should be vacated, Benjamin had to petition the circuit court under
section 2-1401 of the Code (735 ILCS 5/2-1401 (West Supp. 2021)). Benjamin’s counsel argued
that a contract entered into under duress may be void, but here Benjamin was not requesting that
the court vacate the MSA. In granting Jacqueline’s motion to dismiss, the circuit court found “that
the substantial change in circumstances mentioned in [the statute] has to do with the financial
circumstances of the parties and nothing else.” The court granted Jacqueline’s motion to dismiss
Benjamin’s motion to terminate maintenance under section 2-615 of the Code.
¶ 25 Benjamin moved to reconsider the dismissal of his motion to terminate maintenance.
Therein, he argued the court erred by stating a substantial change in circumstances “has to do with
the financial circumstances of the parties and nothing else.” He reiterated that the substantial
change in circumstances which should permit him to terminate maintenance was his realization
“of the dominance and control” Jacqueline had over him. Jacqueline responded, arguing that a
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substantial change in circumstances only refers to the needs of the receiving spouse or means of
the paying spouse. She contended Benjamin could cite to no case showing “a realization of
emotional abuse qualified as a substantial change in circumstances.”
¶ 26 On March 23, 2022, the circuit court denied Benjamin’s motion to reconsider. The court
explained that the MSA “states that [Benjamin’s] maintenance obligation is non-modifiable in
terms of duration and amount,” and “sets forth the conditions *** when [Benjamin’s] maintenance
obligation would terminate. And a substantial change of circumstances is not one of those
conditions.”
¶ 27 On May 19, 2022, at a hearing on Jacqueline’s amended petition for rule to show cause,
Benjamin stated he stopped paying maintenance in 2020 “[b]ecause [Jacqueline] raped me when I
was 16.” On May 20, 2022, the circuit court issued a rule to show cause against Benjamin “to show
why he should not be held in contempt of Court for failure to comply with the Judgment for
Dissolution of Marriage” specific to his maintenance payments.
¶ 28 On May 24, 2022, the circuit court held a hearing on whether Benjamin should be held in
indirect civil contempt. During the proceeding, Benjamin began to testify regarding the origins of
his and Jacqueline’s relationship. Jacqueline’s counsel objected, and Benjamin’s counsel
responded that the origins formed “the basis of why he stopped making payments.” The circuit
court sustained the objection but permitted Benjamin’s counsel to make an offer of proof of the
proposed testimony.
¶ 29 During the offer of proof, Benjamin testified he met Jacqueline in high school, when he was
a student and she his teacher. He did not understand that Jacqueline had sexually assaulted him
when they first had sexual intercourse and still did not understand this years later when he filed
for divorce. He sent Jacqueline a letter in 2017, in which he wrote he was under her dominance
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and control when he signed the MSA. Benjamin further testified that he read the well-publicized
recent indictment of Ghislaine Maxwell for similar conduct, which triggered him to stop paying
maintenance, and that his therapeutic breakthrough in September 2020 helped him realize
Jacqueline groomed him. Benjamin reiterated he would not have married Jacqueline or agreed to
the MSA had he been aware of her dominance and control.
¶ 30 Following the offer of proof, the court adhered to its prior decision not to admit Benjamin’s
proffered testimony into evidence. The court then found that Benjamin had no legal justification
to cease his maintenance payments and held him in indirect civil contempt. In so finding, the court
explained that Benjamin “did not present evidence to support a legal justification to stop paying
maintenance,” despite his “belief that he has a legal defense to [Jacqueline’s] amended petition for
indirect civil contempt because he was sexually assaulted by Jacqueline while he was in high
school.”
¶ 31 On May 25, 2022, the circuit court entered an order adjudicating Benjamin in indirect civil
contempt for failing to pay Jacqueline $463,197 in maintenance and ordered that he pay that sum
by June 21, 2022, to purge the contempt. On June 17, 2022, the court ordered Benjamin to pay an
additional $18,237.50 in attorney fees. On June 22, 2022, the circuit court entered an order finding,
in relevant part, that (1) Benjamin purged himself of contempt by paying the required maintenance
and attorney fees, and (2) “the issues being resolved, this matter is off call.” This appeal followed.
¶ 32 ANALYSIS
¶ 33 On appeal, Benjamin argues that the circuit court (1) erred in dismissing his amended
petition to invalidate marriage, (2) erred in dismissing his motion to terminate maintenance, and
(3) abused its discretion by not admitting Benjamin’s testimony into evidence during the May 24,
2022 proceeding.
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¶ 34 We begin with Benjamin’s contention that the circuit court erred in granting Jacqueline’s
motion to dismiss his amended petition to invalidate marriage. Specifically, he contends that
res judicata did not bar his claim and that the court misapplied section 2-619(a)(9) of the Code
because Illinois courts can invalidate a marriage that no longer exists pursuant to In re Estate of
McDonald, 2022 IL 126956.
¶ 35 Under section 301 of the Illinois Marriage and Dissolution of Marriage Act (Act), a party
can seek to invalidate a marriage because they “lacked capacity to consent to the marriage at the
time the marriage was solemnized, either because of mental incapacity or infirmity *** or a party
was induced to enter into a marriage by force or duress.” 750 ILCS 5/301(1) (West 2018). The Act
requires a party (or their legal representative) to file the petition to invalidate “no later than 90
days after the petitioner obtained knowledge of the described condition.” Id. § 302(a)(1).
¶ 36 The circuit court dismissed Benjamin’s petition to invalidate pursuant to section 2-619 of
the Code. Under the Code, a party may move to dismiss a pleading under section 2-615, section
2-619, or both. A section 2-615 motion “challenges the legal sufficiency of a complaint based on
defects apparent on its face.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). Under
section 2-615, the circuit court must accept all well-pleaded allegations as true and draw all
reasonable inferences in favor of the non-movant, then determine whether the alleged facts
contained in the pleadings, and attached documents to the pleadings, are legally sufficient to state
a claim. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 320 (2008). “Exhibits are a part of the
complaint to which they are attached and, absent some explanation, the factual matters contained
within an exhibit serve to negate inconsistent allegations of fact contained within the body of the
complaint.” Metrick v. Chatz, 266 Ill. App. 3d 649, 653 (1994). A section 2-619 motion to dismiss
admits the legal sufficiency of the pleading but contends that an affirmative matter precludes the
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claim. Illinois Road & Transportation Builders Ass’n v. County of Cook, 2022 IL 127126, ¶ 10.
Affirmative matters include arguments that the claim is “barred by a prior judgment,” or “is barred
by other affirmative matter avoiding the legal effect of or defeating the claim.” See 735 ILCS 5/2-
619(a)(4), (9) (West 2018). We review the circuit court’s dismissal of a pleading de novo. Illinois
Road, 2022 IL 127126, ¶ 10. Moreover, a reviewing court may affirm a lower court’s ruling on
any basis supported by the record. See People v. Gawlak, 2019 IL 123182, ¶ 39; see also Rivera
v. Allstate Insurance Co., 2021 IL App (1st) 200735, ¶ 25; Morris v. Williams, 359 Ill. App. 3d
383, 386-87 (2005).
¶ 37 In Benjamin’s initial petition to invalidate, he alleged that because Jacqueline sexually
assaulted him beginning when he was 16 years old in 1985, he then lacked capacity in 1994 to
consent to the marriage. He alleged Jacqueline exerted “dominance and control” over him and
used her “position of trust, authority, supervision, and dominance” to insist they marry. Benjamin
further alleged he remained under her “dominance and control” when he filed for divorce and
agreed to the MSA. The circuit court dismissed the petition based on section 2-615 but permitted
Benjamin to file an amended petition. In the amended petition, Benjamin added allegations that he
only became aware of Jacqueline’s dominance and control on September 28, 2020, 21 days before
he filed the initial petition to invalidate. He also claimed he entered the MSA without valid consent
and under duress. Benjamin attached the judgment for dissolution and MSA to the amended
petition. Both documents recite in multiple places that Benjamin pursued dissolution and agreed
to the MSA freely and voluntarily, and with the advice of counsel.
¶ 38 Jacqueline moved to dismiss the amended petition only under section 2-619(a)(4) and (a)(9)
of the Code, alleging (1) res judicata barred Benjamin’s claim because he already legally
acknowledged that the marriage was valid by signing the MSA, meaning the judgment for
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dissolution was a final judgment that the marriage was valid, and (2) the marriage was already
dissolved, and thus there was no marriage to declare invalid. The circuit court granted Jacqueline’s
motion to dismiss on both grounds.
¶ 39 We affirm the circuit court’s dismissal of Benjamin’s amended petition to invalidate
marriage but on different grounds. While Jacqueline did not move to dismiss the amended petition
under section 2-615, and the court ultimately dismissed it on section 2-619 grounds, we hold that
the amended petition failed to state a claim under section 2-615. Even accepting all the allegations
in the amended petition as true, and drawing all reasonable inferences in Benjamin’s favor, it failed
to allege sufficient facts to reach a conclusion that he filed the petition to invalidate marriage within
90 days of gaining knowledge of the alleged condition that deprived him of capacity at the time of
marriage. We note that while statute of limitations issues are typically raised under section 2-
619(a)(5), section 2-615 dismissal is appropriate “where it appears from the face of the [pleading]
that the statute of limitations has run.” See Cangemi v. Advocate South Suburban Hospital, 364
Ill. App. 3d 446, 456 (2006). Additionally, although Jacqueline moved for dismissal under section
2-619, not section 2-615, this does not preclude us from affirming under section 2-615 (as
Benjamin argues), as we may affirm on any basis supported by the record. See Rivera, 2021 IL
App (1st) 200735, ¶ 25.
¶ 40 Benjamin’s allegation that he lacked capacity to marry is based on his being under
Jacqueline’s “dominance and control.” He further alleges that he lacked knowledge of that
condition for decades, specifically until September 28, 2020, also due to this same “dominance
and control.” The facts contained in the judgment for dissolution and MSA, however, directly
contradict Benjamin’s allegation that he was under Jacqueline’s “dominance and control” beyond
the dissolution.
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¶ 41 Specifically, the attachments to the amended petition show Benjamin to be a successful
professional who (1) filed a petition for dissolution of marriage; (2) participated in negotiations
against Jacqueline while represented by counsel; and (3) following those negotiations, agreed to
enter the MSA, which included language that the initial marriage was lawful and he was acting of
his own free will, voluntarily and without duress. Under the facts as alleged, we may be able accept
(for purposes of a motion to dismiss) that Benjamin was for some period of time so under
Jacqueline’s “dominance and control” that he initially lacked capacity to consent to marriage and
then was unable to gain knowledge of this condition during their near two-decades-long marriage.
The pleading is also clear by virtue of the attachments, however, that any condition of Benjamin
being under, or unaware of, this “dominance and control” ended when he took the numerous
affirmative steps to dissolve his marriage.
¶ 42 It was incumbent upon Benjamin to at least plead some facts alleging how Jacqueline’s
“dominance and control” could have persisted beyond the dissolution such that he could not have
learned of his alleged condition at the time of marriage until September 2020. See Metrick, 266
Ill. App. 3d at 653 (“[A]bsent some explanation,” factual matters revealed in an attachment to a
pleading will “negate inconsistent allegations of fact contained within the body” of the pleading.).
Instead, the amended petition provides two short paragraphs containing only the conclusory
allegations that he was generally under her “dominance and control” until his therapeutic
breakthrough. It is well-established that conclusory statements are insufficient to state a claim. See
Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31 (“a court cannot accept as
true mere conclusions unsupported by specific facts”). Here, there are no allegations that would
permit a court to conclude he still acted under Jacqueline’s “dominance and control” through
September 28, 2020, despite acting counter to it in 2014. There are no allegations of a mental
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health diagnosis, no allegations of repressed memory, and, indeed, no allegations even describing
how Jacqueline’s “dominance and control” actually manifested in Benjamin’s life.
¶ 43 Instructive here is the reasoning Illinois courts have used when considering whether to toll
the statute of limitations in civil matters when a victim of sexual assault claims repressed memory.
In Presberry v. McMasters, 2021 IL App (2d) 200538, ¶¶ 33-36, the court discussed Clay v. Kuhl,
189 Ill. 2d 603 (2000), and Parks v. Kownacki, 193 Ill. 2d 164 (2000), to examine the difference
between sexual abuse victims who claim they repressed the memory of their abuse, and victims
who allege they did not repress the memory of the abuse, but could not appreciate the full extent
of the damage the abuse caused until years later. In this discussion, the Presberry court explained
that in Illinois, based on Clay and Parks, “the fact that the [victim] did not realize all the harm that
[her abuser] caused her until years later is not grounds to extend the statute of limitations.”
(Emphasis added). Presberry, 2021 IL App (2d) 200538, ¶ 36. Similarly, here, Benjamin does not
allege that he did not recall the alleged grooming conduct until September 28, 2020; instead, he
alleged he did not realize that the conduct resulted in Jacqueline’s “dominance and control” over
him. This would not be sufficient in the repressed memory context to toll the statute of limitations,
and we believe the analogous result is appropriate here, particularly given the conclusory nature
of Benjamin’s allegations on this point.
¶ 44 In sum, the facts recited in the judgment for dissolution and MSA negate the allegation that
Benjamin continued to act pursuant to, and without knowledge of, Jacqueline’s “dominance and
control” any time beyond December 11, 2014. See Metrick, 266 Ill. App. 3d at 653. It is thus clear
on the face of his pleading that Benjamin did not file his petition to invalidate within 90 days of
obtaining knowledge of the alleged condition that rendered him unable to consent to marriage on
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March 26, 1994, as required by the Act. See 750 ILCS 5/302(a)(1) (West 2018). Therefore, the
amended petition is legally insufficient and subject to dismissal.
¶ 45 Because we hold that Benjamin’s petition failed to state a claim and was suitable for
dismissal under section 2-615, we need not reach the arguments in the parties’ briefing regarding
whether res judicata barred Benjamin’s invalidation claim, or his argument that, pursuant to
McDonald, the circuit court erred by holding that a marriage that no longer exists cannot be
declared invalid.
¶ 46 Finally, we emphasize that we reach no conclusion here as to the viability of grooming
claims, and our holding is limited to the specific facts of this matter. The effect conduct like that
Jacqueline is accused of could have on a victim’s psychological well-being and legal capacity are
not issues we can reach here, and this opinion should not be cited for the proposition that marriage
invalidation claims raising such issues are generally precluded.
¶ 47 Benjamin next claims the circuit court erred by denying his “motion” to terminate
maintenance. The court dismissed the motion to terminate based on section 2-615 of the Code,
which, again, is a decision we review de novo. Illinois Road, 2022 IL 127126, ¶ 10. As noted
above, facts contained in attachments to a pleading can negate inconsistent allegations in the body
of the pleading. Metrick, 266 Ill. App. 3d at 653.
¶ 48 Under the Act, when a marriage is dissolved, “the court may grant a maintenance award for
either spouse,” or the spouses can agree on maintenance payments pursuant to an MSA. 750 ILCS
5/502(a), 504(a) (West 2018). Here, the parties reached an MSA. In an MSA, “[t]the parties may
provide that maintenance is non-modifiable in amount, duration, or both.” Id. § 502(f). If the
parties do not so specify, a spouse’s maintenance obligations are modifiable upon a showing of a
“substantial change of circumstances.” Id. An MSA is a contract, subject to the usual rules of
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contract interpretation. Blum v. Koster, 235 Ill. 2d 21, 33 (2009). In interpreting a contract, the
reviewing court’s objective is to give effect to the parties’ intent, determined from the language of
the contract given its ordinary meaning. In re Marriage of Scarp, 2022 IL App (1st) 210711, ¶ 11.
Contract interpretation is a matter of law that we review de novo. Blum, 235 Ill. 2d at 33.
¶ 49 Benjamin’s motion to terminate maintenance alleged that his therapeutic breakthrough
constituted a substantial change in circumstances which justified termination. He did not list any
other grounds. Benjamin attached the judgment of dissolution and MSA to the motion to terminate.
¶ 50 Section 2.2 of the MSA states, in relevant part, that maintenance may be modified “as
necessary to reflect any change in how [Benjamin] is compensated by his then current employee,”
and also provides for termination in the event of his then-employer’s buyout or modification
should Jacqueline’s pension payouts change. The MSA contains no other terms permitting
modification or termination of maintenance. Section 2.4 of the MSA lists six termination events—
180 months of payments, Benjamin’s or Jacqueline’s death, her remarriage or entry into a civil
union, or Jacqueline’s cohabitation. Section 2.4 also states that maintenance is “non-modifiable as
to amount and duration, pursuant to Section 502(f) of [the Act],” except for those six events.
¶ 51 The circuit court granted Jacqueline’s motion to dismiss Benjamin’s motion to terminate
maintenance pursuant to section 2-615. When it denied Benjamin’s motion to reconsider that
decision, the court explained that the MSA listed the only methods by which maintenance could
be terminated or modified, and a substantial change in circumstances was not included in the list.
¶ 52 Based on this record, we hold that the circuit court correctly dismissed Benjamin’s motion
to terminate maintenance pursuant to section 2-615 because the MSA directly contradicted
Benjamin’s claim that his maintenance obligation was modifiable or terminable based on a
substantial change in circumstances. The Act allows parties to fashion an MSA such that a
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substantial change in circumstances does not constitute a modification or termination event, and
the record is clear that Benjamin and Jacqueline did just that in their MSA. Section 2.4 of the MSA
states maintenance obligations are nonmodifiable as to duration and amount, absent specifically
listed events, which do not include a substantial change in circumstances. This provision is clear
and unambiguous, and thus we must give effect to the parties’ intent and hold that a substantial
change in circumstances is not an event which would permit Benjamin to modify or terminate
maintenance. See Scarp, 2022 IL App (1st) 210711, ¶ 11. Benjamin’s motion to terminate
maintenance relied solely on this theory, and thus failed to state a claim, making it subject to
dismissal under section 2-615.
¶ 53 Benjamin’s primary counterargument on appeal echoes his theory regarding the amended
petition to invalidate: he was under Jacqueline’s “dominance and control” at the time he entered
the MSA and thus the MSA itself is invalid. This argument fails because Benjamin’s motion to
terminate maintenance did not seek invalidation of the MSA as a remedy, he did not request that
the circuit court invalidate the MSA while the motion was pending, and the court made no ruling
on this issue. In fact, Benjamin’s counsel specifically stated Benjamin was not seeking to vacate
the MSA during a proceeding on the motion. Instead, Benjamin requested as relief only the
termination of maintenance pursuant to the MSA, based on a substantial change in circumstances.
Benjamin’s pleading may contain language indicating he would not have entered the MSA but for
Jacqueline’s alleged “dominance and control,” but he specifically chose below not to pursue a
theory that the MSA was invalid and should be set aside, and he cannot now do so here. See
Wagner v. City of Chicago, 166 Ill. 2d 144, 147 (1995) (“as a general rule, any issue not raised at
the trial court level is waived”).
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¶ 54 Benjamin also argues that the circuit court should be reversed because, under the Act,
maintenance obligations are generally modifiable due to a substantial change in circumstances,
and thus his petition stated a ground for relief. This argument fails because the Act explicitly
permits parties to make maintenance nonmodifiable in duration or amount, or both, and (as
explained above) Benjamin’s and Jacqueline’s MSA explicitly does just that. See 750 ILCS
5/502(f) (West 2018). It follows that the court appropriately found that the motion to terminate
maintenance did not state a ground for relief.
¶ 55 Benjamin’s final claim is that the circuit court erred by not admitting his testimony
regarding Jacqueline’s alleged sexual assault, and later “dominance and control” over him, during
the hearing on Jacqueline’s amended petition for rule to show cause.
¶ 56 Benjamin’s proffered testimony came in the context of a hearing on whether Benjamin
should be found in indirect civil contempt for his failure to pay maintenance. Indirect civil
contempt is appropriate when the circuit court finds, by a preponderance of the evidence, that a
party has disobeyed a court order. In re Marriage of Charous, 368 Ill. App. 3d. 99, 107 (2006).
That party then has the burden to demonstrate good cause for noncompliance. Id. at 107-08.
“[N]oncompliance with an order to pay maintenance constitutes prima facie evidence of
contempt.” In re Marriage of Anderson, 409 Ill. App. 3d 191, 210 (2011) (citing In re Marriage
of Logston, 103 Ill. 2d 266, 285 (1984)). To avoid contempt, the delinquent spouse must “prove
that he neither has money now with which to pay, nor has he wrongfully disposed of money or
assets with which he might have paid.” Id.¶ 57 The circuit court denied Benjamin’s testimony as irrelevant to the proceedings. Relevant
evidence is evidence which tends to make a fact at issue more or less likely true. Peach v.
McGovern, 2019 IL 123156, ¶ 26. The decision of whether to admit evidence is within the sound
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No. 1-22-1039
discretion of the circuit court and will not be reversed absent an abuse of discretion. Id. ¶ 25. A
court abuses its discretion where “no reasonable person would take the position adopted by the
circuit court.” Id.
¶ 58 The only issue before the circuit court was whether Benjamin had good cause not to pay
maintenance, as he did not dispute that he withheld payments starting in 2020 or that his
maintenance obligation under the MSA was active during this time. The court, after hearing
Benjamin’s offer of proof regarding Jacqueline’s alleged misconduct and its effect on him, deemed
the proffered testimony irrelevant and refused to admit it into evidence.
¶ 59 On this record, we cannot say the circuit court abused its discretion in refusing to admit
Benjamin’s testimony into the record. The proffered testimony would not have made a fact at issue
in the proceeding more or less likely true, and thus the court had grounds to exclude it. Id. ¶ 26.
We note Benjamin has not specified what relief he seeks from this court on this particular claim
and does not argue the circuit court’s contempt decision would have, or even should have, changed
had it admitted the proffered testimony. Even under the broadest reading of Benjamin’s claim on
appeal, however, we cannot find the court abused its discretion. Simply, the proposed testimony
had no relevance to the actual issues before the court—whether a maintenance obligation existed,
whether Benjamin failed to honor that obligation, and whether Benjamin could show good cause
for not paying because he lacked the means and had not wrongfully disposed of potential funds.
Anderson, 409 Ill. App. 3d at 210. Thus, the claim fails.
¶ 60 As the circuit court noted, Benjamin may have legitimately believed Jacqueline’s alleged
conduct should have permitted him to invalidate the marriage or terminate his maintenance
obligation. Those issues, however, were not at stake in the contempt hearing. His opportunity to
challenge the court’s orders regarding his amended petition to invalidate and motion to terminate
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No. 1-22-1039
maintenance lied in an appeal before a reviewing court, but until such time as his obligations under
the MSA were explicitly terminated, his requirement to pay maintenance remained intact.
Benjamin could not choose to ignore the court’s orders because he disagreed with them, and the
fact that he did so was grounds for contempt. See id. (the failure to pay maintenance is prima facie
evidence of contempt).
¶ 61 CONCLUSION
¶ 62 Thus, we must leave for another day the question of whether a verified history of sexual
misconduct or grooming by a spouse might be a sufficient basis to invalidate a marriage under
section 301(1) of the Act (750 ILCS 5/301(1) (West 2018)). Here, even accepting as true
Benjamin’s allegations that he was acting under Jacqueline’s “dominance and control” such that
he lacked capacity to contract when they married, the pleadings and incorporated exhibits are clear
on their face that such “dominance and control” no longer existed when he filed for dissolution of
marriage in 2014, rendering his 2020 claim untimely. Additionally, Benjamin’s claim regarding
termination of maintenance fails because he did not state a claim under the express terms of the
MSA and he did not bring a claim that the MSA as a whole was void. Finally, Benjamin’s
obligation to pay maintenance was not excused from 2020 to 2022, no matter his feelings about its
propriety, and thus his proffered testimony was irrelevant to the narrow issues at stake in his
indirect civil contempt hearing. We affirm each of the circuit court’s orders.
¶ 63 Affirmed.
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In re Marriage of Andrew, 2023 IL App (1st) 221039Decision Under Review: Appeal from the Circuit Court of Cook County, No. 14-D3-31099;
the Hon. Thomas J. Kelley, Judge, presiding.
Attorneys Allen S. Gabe, of Allen Gabe Law, P.C., of Schaumburg, for
for appellant.
Appellant:
Attorneys Joel Ostrow, of Bannockburn, for appellee.
for
Appellee:
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