No. 2--04--0573

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

Prior to dissolving their marriage, petitioner, Rachel Dundas, and respondent, MichaelDundas, financed the purchase of a 1999 Dodge Durango. When their marriage was dissolved in2003, the trial court incorporated into that judgment the parties' marital settlement agreement, whichprovided that respondent would pay petitioner maintenance of $200 per month until the car loan waspaid in full. In February 2004, respondent petitioned to terminate maintenance, contending thatpetitioner was living with her boyfriend on a resident, continuing, conjugal basis. See 750 ILCS5/510(c) (West 2002). The trial court denied the petition, finding that respondent's obligation tomake monthly payments toward the car loan was part of the parties' property settlement, notmaintenance. Respondent timely appeals, claiming that the payments were maintenance and, thus,subject to termination pursuant to section 510(c) of the Illinois Marriage and Dissolution of MarriageAct (Act) (750 ILCS 5/510(c) (West 2002)). We affirm.

In resolving the issue raised on appeal, we must examine the parties' marital settlementagreement, which provides as follows:

"PERSONAL PROPERTY

C. MOTOR VEHICLES

1. That Wife shall receive as her sole and exclusive property, free and clear of allright, title, interest, or claim of Husband, a certain 1999 Dodge Durango automobile. Wifeshall pay any indebtedness on said vehicle and hold Husband harmless and indemnified withrespect thereto."

Regarding maintenance, the parties had agreed not to seek support from each other. However, onthe day of the hearing on the petition to dissolve the marriage, the parties modified the agreement toprovide:

"Husband shall pay to Wife the amount of $200 per month as and for maintenancecommencing December 2003 and continuing until the existing loan on her vehicle is paid infull."

Under a portion of the agreement entitled "Cooperation of Parties," petitioner and respondent agreedto waive any claim to maintenance, among other things. Specifically, the agreement provides:

"To the fullest extent by law permitted to do so, and except as herein otherwiseprovided, each of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other, his or her heirs, personal representatives and assigns, all rightsof maintenance, alimony, dower, inheritance, descent distribution, [and] communityinterest[.]"

At the hearing on the petition to dissolve the marriage, petitioner testified that she voluntarilysigned the marital settlement agreement and that the agreement was fair and equitable. She statedthat, pursuant to the agreement, she would keep the 1999 Dodge Durango, on which the parties stillowed many thousands of dollars. Because of the outstanding balance on the loan, petitioner andrespondent agreed that respondent would pay $200 per month to First National Bank in Clifton,which was the holder of the vehicle loan, until the loan was paid off. Petitioner acknowledged thatshe was responsible for the remainder of each month's loan payment, as the $200 did not cover theentire amount. Further, petitioner agreed that respondent's monthly payments would be in the formof maintenance, meaning that she would be taxed on that money and that respondent could deductthose payments for tax purposes. She also agreed that she was waiving any further right tomaintenance she may have. Respondent testified consistently with petitioner.

The trial court granted the petition to dissolve the parties' marriage, incorporating into thatorder the parties' martial settlement agreement. In so doing, the trial court referred to the monthly $200 payments as maintenance, but clarified that respondent, with these payments, was "essentially[paying] off [petitioner's] car loan." The trial court also found that "subject only to the provisionswhere [respondent] is to pay off a defined and prescribed debt on [petitioner's] car that both sideshave entered into a knowing waiver of maintenance."

Approximately two months after the parties' marriage was dissolved, respondent petitionedto terminate maintenance, contending that petitioner was living with her boyfriend on a resident,continuing, conjugal basis. The trial court denied the motion, finding that any claim that petitionerwas living with someone was irrelevant, as the monthly payments of $200 were part of the overalldistribution of marital assets and debt. The trial court stated that it reached this conclusion afterexamining the agreement and the transcript of the dissolution proceedings. Based on thesedocuments, the trial court found that the clear intent of the parties was that the $200 per monthconstituted car payments. Respondent timely appealed.

Before addressing the merits of this appeal, we note that petitioner, as appellee, has failed tofile a brief in this court. Because we find the issue presented relatively straightforward, we maydecide this case without petitioner's brief, pursuant to First Capitol Mortgage Corp. v. TalandisConstruction Corp., 63 Ill. 2d 128, 133 (1976) (holding that a reviewing court should decide themerits of an appeal where the record is simple and the claimed error is such that a decision can bemade easily without the aid of an appellee's brief). See In re Marriage of Duffy, 307 Ill. App. 3d 257,259 (1999).

Turning to the merits, the issue raised on appeal is whether the monthly $200 payments weremaintenance, subject to termination, or part of the parties' nonterminable property settlement. Respondent claims that the payments were maintenance, which would terminate upon petitioner livingwith another person on a resident, continuing, conjugal basis. See 750 ILCS 5/510(c) (West 2002). This issue requires us to interpret the parties' settlement agreement.

Interpreting a marital settlement agreement is a matter of contract construction. In reMarriage of Hulstrom, 342 Ill. App. 3d 262, 269 (2003) As such, courts seek to give effect to theparties' intent. Hulstrom, 342 Ill. App. 3d at 269. The language used in the marital agreementgenerally is the best indication of the parties' intent (In re Marriage of Hahn, 324 Ill. App. 3d 44, 46(2001)), and when the terms of the agreement are unambiguous, they must be given their plain andordinary meaning (In re Marriage of Sweders, 296 Ill. App. 3d 919, 922 (1998)). However, wherethe language is ambiguous, parol evidence may be used to decide what the parties intended. Hulstrom, 342 Ill. App. 3d at 269. We review de novo an interpretation of a marital settlementagreement and a determination of whether the agreement's terms are ambiguous. In re Marriage ofWassom, 352 Ill. App. 3d 327, 330 (2004); Hahn, 324 Ill. App. 3d at 47.

Here, although the parties have labeled the monthly $200 payments as maintenance, merelycharacterizing the payments as such does not mandate a conclusion that the payments were actuallymaintenance. See In re Marriage of Adamson, 308 Ill. App. 3d 759, 769 (1999); In re Marriage ofRowden, 163 Ill. App. 3d 869, 872 (1987). Rather, a court must examine the substance of theagreement to determine its nature. Adamson, 308 Ill. App. 3d at 769. When we examine thesubstance of the agreement, we cannot conclude that the agreement's terms unambiguously providedthat the monthly payments were maintenance because the terms in the agreement are susceptible totwo different, yet equally plausible, interpretations. See Hahn, 324 Ill. App. 3d at 47. Specifically,the payments could have been maintenance or part of the property settlement. When the terms of asettlement agreement are susceptible to two different interpretations, the court must apply theinterpretation that establishes the rational and probable agreement. Hahn, 324 Ill. App. 3d at 47. Inresolving what the parties' rational and probable agreement was, we find Rowden instructive.

In Rowden, the parties purchased a car during their marriage, procuring a loan to purchasethat vehicle. Rowden, 163 Ill. App. 3d at 870. The judgment dissolving the parties' marriageprovided that the wife was awarded the vehicle, that the husband would pay the wife's car loan in lieuof maintenance, and that, except for the car payments, the parties waived any claim to maintenance. A few months after the parties' marriage was dissolved, the wife remarried. A year later, the husbandfiled for bankruptcy and ceased making payments on the car loan. The wife petitioned for a rule toshow cause why the husband should not be held in contempt for failing to make the car payments. In ruling on the wife's petition, the trial court found that payment on the loan was part of the parties'property settlement, unaffected by the wife's remarriage, and the husband appealed. Rowden, 163Ill. App. 3d at 871.

The appellate court affirmed, determining that the husband's payments on the car loanconstituted part of the property settlement, not maintenance. Rowden, 163 Ill. App. 3d at 872. Inreaching this conclusion, the appellate court noted that the payments were for a specific amount ofmoney, paid over a definite period of time. Rowden, 163 Ill. App. 3d at 872. The court found itsignificant that, except for payment on the loan, the parties waived any right to maintenance and anyclaim they may have had to each other's property. Rowden, 163 Ill. App. 3d at 872. Further, thecourt observed that neither the label attached to the obligation nor the method of paymentconclusively determines the nature of the award. Rowden, 163 Ill. App. 3d at 872.

Here, as in Rowden, other than the car payments, both parties waived any claim tomaintenance. Further, the payments went to pay off the car that petitioner was awarded, and theevidence revealed that there was a large outstanding balance on that loan. Thus, the agreement,which the trial court accepted, gave petitioner the car without burdening her with paying adisproportionate share of the total cost of the car. Moreover, the agreement to make monthlypayments was specifically linked to the amount of the car loan and its duration, and respondent wasrequired to make payments directly to the holder of the loan. Even though respondent was notobligated to pay the entire amount of each installment, he was responsible for a specific portion ofit, and his obligation terminated when the loan was paid in full.

Although, as respondent notes, some cases have determined that payment of a marital debtis maintenance, we do not find this proposition persuasive here, as the cases to which respondent citesconcluded that payment of a marital debt is maintenance within the meaning of the United StatesBankruptcy Code (11 U.S.C.