In re Marriage of Hort

2022 IL App (1st) 200360-UNo. 1-20-0360
Order filed March 25, 2022
Sixth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re the Marriage of: )
) Appeal from the
TIM HORT, ) Circuit Court of
) Cook County
Petitioner-Appellant, )
) No. 14 D 01-0668
v. )
) The Honorable
KIMBERLY HORT, ) Lori Rosen,
) Judge Presiding.
Respondent-Appellee. )
JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.
Justice Mikva concurred in the judgment.
Presiding Justice Pierce dissented.
.
ORDER
¶1 Held: The circuit court erred in awarding respondent additional maintenance where the
parties’ martial settlement agreement excluded maintenance payments after the
expiration of the unallocated support period.
No. 1-20-0360
¶2 Petitioner, Tim Hort, appeals from the circuit court’s January 27, 2020, order awarding
maintenance to Respondent, Kimberly Hort. On appeal, Tim contends that the circuit court erred
in interpreting the parties’ agreement when it found Kimberly did not waive her right to receive
maintenance and did not give him credit for the unallocated support already paid. For the following
reasons, we vacate the judgment of the circuit court and remand with directions.
¶3 BACKGROUND
¶4 The parties were married on September 23, 2006, and were registered in Cook County,
Illinois. The marriage produced one biological child, M. H.
¶5 On November 24, 2014, Tim filed a petition for dissolution of marriage, equitable division
of property, and joint custody and control over the care of M. H. On January 20, 2015, Kimberly
filed her response and counter-petition for dissolution of marriage.
¶6 On August 23, 2016, Kimberly filed a petition for temporary maintenance and child
support. On September 26, 2016, the circuit court entered an agreed order requiring Tim to pay
Kimberly temporary maintenance at $1717 per month and child support at $844 per month. The
agreed order also provided a payment schedule for other expenses.
¶7 On March 8, 2017, following an uncontested prove-up hearing, the circuit court entered a
judgment for dissolution of marriage. The parties’ marital settlement agreement (“the agreement”)
was incorporated into the judgment. Section 3.1 of the agreement stated:
“Beginning on March 15, 2017, Tim shall pay unallocated support to Kimberly
in the amount of $2,500 per month, for a term of 2 years and 8 months. During this
period, child support shall be reserved. At the expiration of this period, the court
may award child support until the emancipation of the parties’ child.”
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¶8 Section 3.4 of the agreement stated:
“The issue of Maintenance for Kim shall be reserved during the 2 year 8
month period that she shall be receiving Unallocated Support per paragraph
3.1 above. Once the Unallocated Support period expires, Kim agrees to
waive the right to claim any future maintenance. Pursuant to Section 502(f)
of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/502),
this waiver of maintenance is not subject to modification. Kimberly will
never be able to come back to any court and petition for maintenance at a
later date after the Unallocated Support period has expired.”
¶9 On September 6, 2019, Tim filed a motion to modify unallocated support seeking
termination of the unallocated support payments at the end of the unallocated support period on
November 15, 2019. Tim argued that Kimberly waived any right to receive maintenance after the
expiration of the unallocated support term, and thus, she should only be awarded child support
going forward. Tim sought an order from the circuit court ordering payment of child support
beginning on November 15, 2019.
¶ 10 On October 17, 2019, Kimberly filed a verified petition to set maintenance and child
support. Kimberly noted that Tim was earning more than he did at the time of the judgment’s entry.
Kimberly sought an order of permanent, or in the alternative, reviewable, maintenance in
accordance with section 504 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA)
(750 ILCS 5/504 (West 2018)). Kimberly argued that she filed her petition prior to the expiration
of the two-year eight month period, prior to any termination event. Kimberly requested an order
increasing or maintaining the order of unallocated support as well as contribution from Tim for
reasonable attorneys’ fees.
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No. 1-20-0360
¶ 11 On November 25, 2019, Tim filed a response to Kimberly’s petition noting that Kimberly
received maintenance in the form of unallocated support, and that she agreed to waive any future
maintenance once the unallocated support term expired in November 2019. Tim argued that as of
that date, he satisfied his obligation and there should be no additional maintenance. Tim further
argued that Kimberly’s petition for additional maintenance was filed in bad faith. Tim requested
that the court set child support for M. H. and to award him attorney fees for responding to
Kimberly’s petition.
¶ 12 On January 27, 2020, after “reviewing the pleadings, responses, transcript, evidence and
hearing testimony of the parties and argument of the attorneys,” the circuit court entered a written
order finding that the unallocated support was not deemed maintenance and that there should be
no credit applied for the duration of unallocated support. The circuit court required Tim to pay
Kimberly maintenance in the amount of $1194 per month, retroactive from November 15, 2019,
and continuing through March 15, 2022. In the order, the circuit court stated that section 504 of
the IMDMA provided for a maintenance award for 35.82 months, but in its discretion, it awarded
a temporary credit of support paid from September 26, 2016, until March 15, 2017; this reduced
the award to 28.2 months. The circuit court also ordered payment of child support for M. H. and
held each party responsible for their own attorney fees in connection with their respective motions.
No report of proceedings or bystander’s report of the hearing appears in the record on appeal.
¶ 13 On February 19, 2020, Tim filed a timely notice of appeal.
¶ 14 ANALYSIS
¶ 15 On appeal, Tim contends that the circuit court should not have awarded maintenance to
Kimberly in its January 27, 2020, order. Tim maintains that that the circuit court erred in finding
that Kimberly did not waive her right to receive future maintenance under the agreement and
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No. 1-20-0360
denying him credit for the unallocated support already paid. Tim further maintains that the terms
of the agreement are not in dispute, asserting that Kimberly expressly waived her right to additional
maintenance after the two-year, eight-month period of unallocated support ended and further that
the agreement included a non-modification clause. Tim contends that Kimberly’s petition was just
a way for her to circumvent the parties’ agreement.
¶ 16 Kimberly contends that Tim’s failure to support the record with a report of a proceeding or
bystander’s report from the hearing that occurred on January 27, 2020, requires this court to affirm
the judgment of the circuit court. Kimberly asserts that the circuit court did not err when it awarded
her maintenance because section 3.4 of the agreement expressly states that she reserves the right
to maintenance and that the court could modify the support obligation provided that a petition was
filed, and no termination event had occurred.
¶ 17 First, we will address whether this court is required to affirm the judgment of the circuit
court because Tim did not provide a full record. Indeed, Tim as the appellant, holds the burden of
“presenting a sufficiently complete record of the proceedings at trial to support a claim of error.”
Midstate Siding and Window Co., Inc. v. Rogers, 204 Ill. 2d 314, 319 (2003). Absent such a record
on appeal, “the reviewing court will presume the order entered by the trial court was in conformity
with the law and had a sufficient factual basis.” Id. However, the failure to present a report of
proceedings does not require automatic dismissal or affirmance where the issues can be resolved
on the record as it stands. Marx Transport, Inc. v. Air Express International Corp., 379 Ill. App.
3d 849, 853 (2008). In this case, we are asked to determine whether the trial court erred in
interpreting the parties’ agreement, which is provided in the record. Additionally, a marital
settlement agreement is construed in the same way as any other contract and involves a purely
legal question, which we review de novo. Blum v. Koster, 235 Ill. 2d 21, 31 (2009). Accordingly,
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as determining the intent of the parties at the time the marital settlement agreement was executed
is purely a question of law, the absence of a report of proceedings does not bar review (McNames
v. Rockford Park District, 185 Ill. App. 3d 291, 293 (1989)), and we will consider the merits of
Tim’s appeal.
¶ 18 As previously stated, a marital settlement agreement is construed in the manner of any
other contract. “The court must ascertain the parties’ intent from the language of the agreement.”
In re Marriage of Doermer, 2011 IL App (1st) 101567, ¶ 27. “When the terms of the marital
settlement agreement are unambiguous, a reviewing court determines the parties’ intent solely
from the plain language of the agreement.” Id. We review a circuit court’s interpretation of a
marital settlement de novo. Id.¶ 19 In the case at bar, Section 3.4 of the marital settlement agreement clearly states that, “[t]he
issue of Maintenance for Kim shall be reserved during the 2 year 8 month period that she shall be
receiving Unallocated Support per paragraph 3.1 above. Once the Unallocated Support period
expires, Kim agrees to waive the right to claim any future maintenance.” This language is
unambiguous, and it is clear that Kimberly would not receive maintenance while she received the
unallocated support or after.
¶ 20 Our review of the record shows that the September 26, 2016, temporary order required Tim
to pay both, maintenance of $1717 and child support of $844 on a monthly basis, totaling $2561.
The unallocated support amount, entered on March 8, 2017, was $2500 which we believe suggests
that, consistent with the 2016 order, the unallocated support was comprised of both, maintenance
and child support. Additional evidence lies in the fact that the circuit court gave Tim credit for
paying maintenance from September 26, 2016, through March 15, 2017. Accordingly, we find it
to have been error not to extend that credit to November 15, 2019, when the payments terminated.
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¶ 21 Further, Kimberly agreed to waive maintenance upon the termination of unallocated
support. In fact, section 3.4 provided, “this waiver of maintenance is not subject to modification,”
which further demonstrated the parties’ intent to limit maintenance to that which was outlined in
the agreement. See In re Marriage of Kozloff, 101 Ill. 2d 526, 533-34 (1984) (the denial of a
petition to modify is proper when a clause prohibiting modification is included in marital
agreement). See also In re Marriage of Dynako, 2021 IL 126835, ¶ 20 (when the parties expressly
provided in their agreement that the maintenance obligation was nonmodifiable, denial of a
petition to modify is proper).
¶ 22 Although Kimberly attempts to argue that section 3.4 provided that she could petition for
future maintenance as long as she did so prior to the designated expiration date, this is simply not
what the plain language of the agreement states. The parties included specific language regarding
additional child support after the expiration of unallocated support but made no such provision for
maintenance. Section 3.1 states, “[a]t the expiration of this period, the court may award child
support until the emancipation of the parties’ child.” We find that the parties’ omission of
maintenance from this provision was intentional and thus will be upheld.
¶ 23 In summary, we find the circuit court erred in interpreting the parties’ agreement.
Kimberly was not entitled to a modification of the marital settlement agreement to extend
maintenance payments beyond November 2019. Any modification of maintenance or unallocated
support would be limited to the period beginning with the date of filing her motion until the
termination date of November 2019.
¶ 24 CONCLUSION
¶ 25 Based on the forgoing, we vacate the circuit court of Cook County’s January 27, 2020,
order. We find that maintenance was included in the unallocated support and that the circuit court
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erred in awarding Kimberly additional maintenance from November 15, 2019, through March 15,
2022. We further find that the Tim’s unallocated support obligation ended on November 15, 2019.
We remand this cause to the circuit court to enter an order consistent with these findings.
¶ 26 Vacated and remanded with directions.
¶ 27 PRESIDING JUSTICE PIERCE, dissenting.
¶ 28 I dissent from the majority’s finding that the marital settlement is unambiguous on the issue
of maintenance, and I disagree that the record before us provides a sufficient basis to overturn the
circuit court’s award of maintenance to Kimberly because there is no such record before us. Tim
has failed to attach a bystander’s report of the hearing conducted by the circuit court to obtain parol
evidence of the parties’ intentions in reaching the ambiguous marriage settlement agreement. In
short, Tim has failed to furnish a record in support of his appeal and the circuit court’s judgment
cannot be reversed because of this flagrant deficiency.
¶ 29 “An ambiguity exists where the language of an agreement is susceptible to more than one
reasonable interpretation.” In re Marriage of Farrell & Howe, 2017 IL App (1st) 170611, ¶ 12. If
the agreement is ambiguous, the court may hear parol evidence to determine the parties’ intent. In
re Marriage of Shulga, 2019 IL App (1st) 182028, ¶ 23.
¶ 30 Here, the parties propose two different, yet equally reasonable interpretations of section
3.4. Tim argues that Kimberly waived the right to future maintenance payments after the
unallocated support period terminated, while Kimberly argues that she waived the right to claim
future maintenance after the termination date, and as long as she petitioned for future maintenance
before the termination date an award of future maintenance was allowed. The ambiguity in the
parties’ agreement was sufficient for the circuit court to hold a hearing and consider parol evidence
to determine the intention of the parties and, on appeal, requires us to look to the parol evidence
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No. 1-20-0360
presented to and considered by the circuit court to determine whether the circuit court’s finding
was correct. But Tim’s failure to provide this court with a complete record on appeal hinders
meaningful review of this issue and requires the affirmance of the circuit court judgment.
¶ 31 As the appellant, Tim “has the burden to present a sufficiently complete record of the
proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it
will be presumed that the order entered by the trial court was in conformity with law and had a
sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391–92 (1984). Tim has failed to meet
this burden. In its written order, the circuit court stated that the maintenance award was based on
the pleadings, responses, transcript, evidence and hearing testimony of the parties, and argument
of the attorneys. This evidence and hearing testimony of the parties is not available to this court
because of Tim’s failure to provide it. This evidence is critical to resolving the ambiguity presented
by the language of the parties’ agreement. Without it, we must resolve any doubts arising from the
incompleteness of the record against Tim. Id. As such, we are compelled to presume the circuit
court ruled in conformity with the law and that its judgment is not against the manifest weight of
the evidence. In re Marriage of Brill, 2017 IL App (2d) 160604. Nevertheless, without the benefit
of all the evidence considered by the circuit court, the majority finds that there is other sufficient
evidence in the record to support Tim’s interpretation of the agreement.
¶ 32 It is presumed that maintenance is modifiable absent express agreement to the contrary.
“[T]he intent of the parties to preclude or limit modification or termination of maintenance must
be clearly manifested in their agreement.” (Emphasis in original). In re Marriage of Brent, 263 Ill.
App. 3d 916, 923 (1994)). “[W]here the language utilized by the parties is not an express
preclusion of modification, the court retains its authority to modify maintenance.” Id. at 925. In
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such cases, “it is error to hold the maintenance nonmodifiable.” In re Marriage of Scott, 205 Ill.
App. 3d 561, 565 (1990).
¶ 33 The majority finds that in section 3.4, the parties agreed that Kimberly would not receive
maintenance during or after the unallocated support period (¶ 19). This is not correct. The issue of
maintenance was “reserved” for the duration of the unallocated support period. “Reserv[ing]”
maintenance does not indicate an intention to prohibit any future award of maintenance or an
intention to prohibit Kimberly from making a claim for maintenance during the unallocated
support period. If anything, reserving maintenance indicates the possibility that maintenance may
at some time in the future be something she would be entitled to and that she could attempt to
receive. The circuit court, after considering parol evidence, determined the agreement was
ambiguous, clarified the agreement and found that the parties intended that Kimberly was entitled
to a maintenance award because she filed a timely petition.
¶ 34 The majority also relies on the provision that “this waiver of maintenance is not subject to
modification,” to support its finding that the agreement unambiguously prohibited an award of
maintenance to Kimberly. But the majority does not explain how this limitation to making a claim
for maintenance only occurred “once the Unallocated Support period expires ***.” This narrow,
conditional limitation is expressed again in section 3.4 where it states that “Kimberly will never
be able to come back to any court and petition for maintenance at a later date after the Unallocated
Support period has expired.” (Emphasis added.) If, as the majority finds, under the agreement
Kimberly was never entitled to maintenance there would be no need to prohibit her from
petitioning for maintenance after the unallocated support period expired.
¶ 35 Tim admits in his opening brief that “Kimberly agreed that following the expiration of her
unallocated support period, her ability to request maintenance would terminate and she would be
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barred from asking for additional maintenance.” (Emphasis added.) If Kimberly’s “ability to
request maintenance” ended after the unallocated support period, her ability to request
maintenance must have existed before that time. The term in section 3.4 stating “Kimberly will
never be able to come back to any court petition for maintenance at a later date after the
Unallocated Support period has expired” is further indication that she could “come back to court”
and petition for maintenance any time before the unallocated support period ended: if she could
not come back to petition for maintenance after the unallocated support period, she must have had
the right to petition for maintenance before that time.
¶ 36 The majority notes that section 3.1 of the agreement expressly contemplates an award of
child support after the expiration of the unallocated support period. The majority finds that the lack
of a similar provision for maintenance means that the parties intended to prohibit a future
maintenance award. I disagree. The absence of a similar term in section 3.4 does not
unambiguously communicate the parties’ intentions for a future maintenance award nor does it
clearly manifest a desire to prohibit such an award. The circuit court retains the authority to modify
maintenance unless the parties, by agreement, clearly manifest their intention to preclude an award
of maintenance. This omission is not a clear manifestation of the parties’ intention to deviate from
the default and the circuit court was correct in finding an ambiguity and resolving that ambiguity
with the consideration of parol evidence.
¶ 37 The majority cites to In re Marriage of Kozloff, 101 Ill. 2d at 533–34, and In re Marriage
of Dynako, 2021 IL 126835, for the proposition that maintenance is not modifiable where a marital
settlement agreement clearly provides otherwise. These cases are inapposite because the marital
settlement is not clear in this case: it is ambiguous. Further, neither Dynako nor Kozloff discussed
marital settlement agreements that “reserved” the issue of maintenance, as here. Unlike in Dynako
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or Kozloff, there is no controversy regarding the obligation to modify an existing, agreed-upon
maintenance award.
¶ 38 Section 3.4 allowed Kimberly to make a claim for future maintenance during the
unallocated support period, and she did. The circuit court did not err in finding the agreement
ambiguous and thereafter considering parol evidence to resolve this claim. Because Tim has failed
to present an adequate record of the circuit court proceeding underlying the complained of
judgement, the judgment of the circuit court should be affirmed. For the foregoing reasons, I would
find that the circuit court did not err in awarding Kimberly maintenance. Therefore, I respectfully
dissent.
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