State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0624
Case Date: 03/25/1998
NO. 4-97-0624
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
RICHARD D. NEUMAN, ) Circuit Court of
Petitioner-Appellant, ) Vermilion County
and ) No. 95D432
JUDITH A. NEUMAN, )
Respondent-Appellee. ) Honorable
) James K. Borbely,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Petitioner, Richard Neuman, appeals from the denial of
his petition to modify support obligations to respondent, Judith
Neuman, his ex-wife. The trial court found no substantial change
in circumstances had occurred since entry of the judgment of
dissolution. Richard contends this finding was against the mani-
fest weight of the evidence. We affirm.
Richard and Judith were married on June 24, 1967. They
had one child, Rebecca, born October 9, 1970. At the time of the
parties' separation on July 1, 1995, Richard was 48 and Judith
was 49 years old. Judith suffered from depressive disorder and
somatoform disorder, fibromyalgia, carpal tunnel syndrome and
migraine headaches, which prevented her from working a standard
eight-hour workday due to limitations on standing, walking, lift-
ing, and carrying. At the time of the parties' separation, she
operated a beauty shop in her home where she worked part-time and
had a net income of $170 per month. Richard was employed as a
millwright and earned $14.35 per hour plus overtime and received
occasional "gain share" payments from his company.
Richard filed for dissolution on September 22, 1995.
On April 10, 1996, a judgment for dissolution was entered that
incorporated a marital settlement agreement previously agreed to
by the parties. Pertinent provisions of the agreement included
an award of permanent maintenance to Judith in the amount of $225
per week; a requirement Richard pay the $53.52 per week premium
payments required to keep Judith covered under the health care
provided by his employer through Consolidated Omnibus Budget Rec-
onciliation Act (COBRA) (Pub. L.100-647, tit.III, 3011(a), 102
Stat. 3616 (codified as amended at 26 U.S.C.A. 4980B(West Supp.
1997))) coverage; a requirement Richard maintain Judith as bene-
ficiary on two life insurance policies until she started receiv-
ing social security retirement benefits; and a requirement that
Judith apply for social security disability benefits and advise
Richard as to the disposition of her application.
On March 12, 1997, 11 months later, Richard filed a
petition to modify alleging a substantial change in circumstances
since the entry of the judgment of dissolution. He alleged
Judith's expenses had decreased and she received an award of
social security disability benefits while his own expenses had
increased without a commensurate increase in earnings. He asked
the trial court to reduce his obligations to pay maintenance and
insurance premiums. Following a hearing on July 8, 1997, the
trial court found no substantial change in circumstances had
occurred, since the bulk of Richard's increase in expenses was
due to the obligations he owed Judith to which he agreed in the
marital settlement agreement. Further, the court found Judith's
receipt of social security benefits had been contemplated when
the settlement agreement had been entered into as it was specifi-
cally mentioned in the agreement. Richard contends the court's
findings are erroneous as against the manifest weight of the evi-
dence.
Section 510(a) of the Illinois Marriage and Dissolution
of Marriage Act (Act) (750 ILCS 5/510(a) (West 1996)) provides
the portions of a judgment of dissolution pertaining to mainte-
nance may be modified only upon a showing of a substantial change
in circumstances. The Illinois courts have held "substantial
change in circumstances" as required by section 510 of the Act
means either the needs of the spouse receiving maintenance or the
ability of the other spouse to pay maintenance has changed. The
party seeking modification of a maintenance order bears the bur-
den of showing the change, and the decision to modify maintenance
is within the discretion of the trial court and will not be dis-
turbed on appeal absent an abuse of discretion. In re Marriage
of Pedersen, 237 Ill. App. 3d 952, 956, 605 N.E.2d 629, 632-33
(1992).
Richard first contends the trial court erroneously in-
terpreted the judgment of dissolution to preclude consideration
of Judith's receipt of social security disability benefits as a
substantial change in circumstances. One of the provisions of
the marital settlement agreement incorporated into the judgment
of dissolution referred to Judith's impending receipt of social
security benefits.
"The record reflects and the parties agree
that [Judith] suffers from a number of medi-
cal problems, both psychological and physi-
cal. The parties have agreed that a duty
shall be imposed upon [Judith] to immediately
take such steps as may be necessary in order
to apply for Social Security Disability.
[Judith] shall further be required to advise
[Richard] as to any disposition of such appli-
cation."
In explaining its decision, the trial court stated:
"[T]he Social Security situation was not
only contemplated by the parties at the time
of the entry of judgment, but it certainly
appears to the court it was taken into account
in arriving at the number that they did.
***
The only other mention is that she is obliged
to apply and to do that as quickly as she could
and to keep everybody posted on the progress of
it. The only conclusion that the court can come
to is that they figured that she was going to
qualify for Social Security Disability benefits,
would do so quickly, and that that was part of
the basis of the bargaining in the amounts that
were ordered."
Changed circumstances justifying modification of main-
tenance must occur after the time of the award. Pedersen, 237
Ill. App. 3d at 957, 605 N.E.2d at 633; In re Marriage of Zeman,
198 Ill. App. 3d 722, 733, 556 N.E.2d 767, 773 (1990). We do not
believe the trial court concluded it was precluded from consider-
ing the receipt of social security benefits. Instead, the trial
court permitted the parties to engage in a full evidentiary hear-
ing and to offer evidence on that issue. Because the receipt of
benefits by Judith was contemplated in the marital settlement
agreement, their actual receipt was then interpreted by the trial
court as not constituting a change in circumstances.
Richard argues this interpretation is incorrect because
the parties did not know the amount of the benefits Judith would
receive and there must be a reason she was obligated to apply for
the benefits and inform Richard of the results of her applica-
tion. Because the parties did not know the amount of benefits at
the time they agreed to the maintenance amounts, Richard argues
the benefits could not have been taken into account when setting
those amounts and their receipt would then be a change in circum-
stances. However, if the parties had meant for a change in
Richard's maintenance obligations upon receipt of benefits, they
could have so stated. For example, they could have agreed for
every dollar of benefits received Richard's obligations would be
reduced by a set amount. They did not do this.
Richard argues it only makes sense to allow him to re-
duce his maintenance obligations upon Judith's receipt of bene-
fits because she was obligated to inform him when she received
those benefits. He contends there is no other reason for requir-
ing her to keep him informed other than to allow him to seek a
reduction in his obligations toward her. Richard contends the
opposing possibility, that Judith was required to inform him of
the benefits received so she might seek an increase in mainte-
nance from him, is absurd due to his already generous commitment
to pay Judith (or on her behalf) 65.4% of his monthly net income.
Richard's implication he would not have agreed to what
he contends is an outrageously high obligation on his part unless
he could get the obligation reduced upon Judith's receipt of
benefits is not supported by any evidence. An equally plausible
explanation is Richard agreed to the amounts of his maintenance
and related obligations in order to reach a marital settlement
agreement and obtain a dissolution that he wanted.
No evidence was introduced by either party as to the
reason Judith was required to keep Richard informed of her re-
ceipt of benefits. It would be speculation on the part of the
trial court to assume a reason and it is not necessary to support
the court's judgment. The parties agreed to a specific amount of
maintenance knowing additional benefits of some sort would likely
be coming to Judith. If the parties desired the amount of main-
tenance to be tied to the amount of benefits received, they could
have so agreed.
Richard contends a substantial change in circumstances
has occurred in any event. In addition to the disability bene-
fits of $398 per month that Judith receives, she received $4,967
in retroactive benefits. Richard argues a comparison of Judith's
financial affidavits from the time of the dissolution to the time
of the hearing on the petition to modify show a decrease in liv-
ing expenses of approximately $120 per month. However, Judith's
more recent affidavit also reveals even with receipt of the
monthly disability benefits, she would barely break even each
month. Her net income from her beauty shop had risen to only
$215 per month.
Richard also contends his financial circumstances have
changed since the judgment of dissolution because he pays
$1,230.82 of his $1,889.44 net monthly income either to Judith
directly or for her benefit. This income does not include a
raise he received to $15 per hour and was also based on a 40-
hour week. He usually had overtime in the neighborhood of 2
hours per day for a 50-hour week. It also did not include the
"gain share," which was the result of sharing company profits
with employees. This amounted to $40 to $80 per week. While
Richard claimed he could no longer afford to rent the small house
where he lived at the time of the dissolution and was forced to
move into his sister's home, he also testified he bought new lawn
mowing/snowplowing equipment for $2,000. His income totals on
his affidavit did not reflect much income from lawn mowing or
snow removal.
Richard knew his expenses and income at the time he
entered into the marital settlement agreement with Judith. There
has been no substantial change in circumstances since the judg-
ment of dissolution. He is not entitled to a modification of his
obligations to Judith.
Richard's final argument is Judith has done nothing to
enhance her earning capacity and contends she should be required
to do so or he is entitled to a reduction in his maintenance
obligation. The maintenance awarded to Judith was not rehabili-
tative maintenance as both parties agree her physical and mental
problems precluded her from most gainful employment. Further,
after almost 30 years of marriage and no meaningful employment in
the workforce during that time, Judith's job skills were outdat-
ed. There was little realistic chance Judith would ever find
more lucrative employment than she already had with her home
beauty shop. Judith testified she applied for one or two jobs
after the dissolution but did not get them or did not take them
because they paid too little. This uncontradicted evidence sug-
gests her lack of employability and not a lack of good-faith ef-
forts to achieve financial independence.
Richard also notes Judith inherited $30,000 from her
parents shortly after the dissolution but instead of using it to
support herself, she gave all but $4,000 to the parties' daughter
Rebecca, a college-educated adult capable of supporting herself.
Judith gave the money to Rebecca to further her education.
Rebecca had a degree in education but was then only working as a
substitute teacher.
Richard knew Judith would be receiving an inheritance
because she disclosed it on her financial affidavit at the time
of the dissolution. He did not know how much the inheritance
would be yet he agreed to the provisions of the marital settle-
ment agreement. While we may believe it would have been prefer-
able for Judith to enhance her own economic security with the
inheritance, the gift to the parties' daughter did not cause a
substantial change in circumstance.
Richard has not demonstrated a substantial change in
circumstance in either his income and expenses or those of Judith
from the time of the entry of the judgment of dissolution. All
he has demonstrated is his unhappiness with the bargain he made
in the marital settlement agreement. The factors he alleges are
new were known to him at the time of the agreement, and the trial
court properly concluded the contemplated award of social secu-
rity benefits was taken into account by the parties in negotiat-
ing the marital settlement agreement.
The judgment of the circuit court is affirmed.
Affirmed.
GARMAN, P.J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent. I would reverse and remand the
decision of the trial court with instructions to modify the main-
tenance order. The April 1996 agreed maintenance order of $225
per week did not take into account Judith's social security dis-
ability award, an award for which she had not even applied when
the agreed $225-per-week order was entered.
The majority opinion adopts a new rule, that what is
important in an agreement is what the parties contemplated, or
could have contemplated, not what they said. It is not the func-
tion of the courts to carry out the intention of the parties
regardless of whether the instrument contains language sufficient
to express it. 17A Am. Jur. 2d Contracts 352 (1991). The in-
tention or understanding of the parties must be determined not
from what the parties thought but from the language of the con-
tract itself. Saddler v. National Bank, 403 Ill. 218, 228, 85
N.E.2d 733, 740 (1949); Monroe Dearborn Limited Partnership v.
Board of Education, 271 Ill. App. 3d 457, 462, 648 N.E.2d 1055,
1058 (1995) (court should give effect to parties' intent as evi-
denced by language used in contract).
The majority opinion states that if the parties intend-
ed that maintenance be modified when social security benefits
were received, they could have so agreed. It is also true that
if the parties intended that the amount of maintenance not be
modified when social security benefits were received, they could
have included that language in their agreement. The majority's
analysis allows a court, in hindsight, to rule whichever way it
wants, by selecting a party to criticize for the lack of addi-
tional language in the contract. If parties are to be bound not
just by what they said, but by what they could have said, where
will we draw the line? Will we say that surely the parties con-
templated that the payor would be receiving pay increases since
he had been receiving regular pay increases in the past? Will we
say that surely the parties contemplated that the recipient's
expenses would be increasing since inflation has been a fact of
life for many years? Under the majority's analysis, a court may
now choose not to modify maintenance in almost every case where
the parties have entered into an agreement.
Even if we accept the majority's argument that specific
language is necessary before future social security benefits can
justify maintenance, such language was present in this case. The
marital settlement agreement contains section 1, entitled "Main-
tenance." Under that section there is subsection 1-d, entitled
"Social Security Disability Application," which imposes on Judith
a duty to apply for social security disability and to advise
Richard of the disposition of such application. The majority's
suggestion that it would be speculation for us to assume why this
language is present in the agreement is simply a refusal to con-
sider the language of the contract, the most legitimate source
for determining the parties' intent. The majority does not point
to any contract language to support its argument that an award of
social security benefits cannot be a basis for modification.
In the absence of language in the agreement stating
whether future changes in income or expenses may be considered in
modifying a maintenance order, those changes should be consid-
ered. It would be exceptional for the existing order to have
taken those changes into account. A basic principle in setting
support, either child support or maintenance, is that the amount
of support should be based on current conditions. When changes
then occur, child support or maintenance can be modified. In re
Marriage of Carpel, 232 Ill. App. 3d 806, 819, 597 N.E.2d 847,
857 (1992) (should not consider mere possibility of future re-
sources); In re Marriage of Moore, 117 Ill. App. 3d 206, 208, 453
N.E.2d 102, 104 (1983) (should not consider possibility or like-
lihood of future income increases). In fact, evidence of future
social security benefits has been excluded in setting mainte-
nance, as the trial court is generally required to consider the
parties' economic circumstances as they exist at the time of the
maintenance determination. In re Marriage of Zeman, 198 Ill.
App. 3d 722, 736, 556 N.E.2d 767, 775 (1990).
The Act is geared toward a present ability to pay sup-
port and does not suggest in its terms that possible future fi-
nancial resources of a party may also be taken into account.
Coons v. Wilder, 93 Ill. App. 3d 127, 134, 416 N.E.2d 785, 792
(1981).
"In ordering the payment of child support,
a circuit court must consider the needs of the
child, the separate income of the wife, and
the income of the husband. [Citations.]
Because changes in these facts cannot be anti-
cipated with accuracy, a circuit court should
ordinarily not try to anticipate such changes
by making its award of child support to increase
automatically with the child's age." McManus v.
McManus, 38 Ill. App. 3d 645, 647, 348 N.E.2d
507, 509 (1976).
If a payor's net income of $500 per week would justify
support of $100 per week, what sense does it make to order $120
per week, on the expectation that the payor will be earning $600
a year later? If the trial court does order $120 per week, there
will be an overpayment of support until the increase in net in-
come occurs. It would be possible to set child support or main-
tenance at a percentage of net income, but percentages are gener-
ally disfavored. See In re Marriage of Florence, 260 Ill. App.
3d 116, 120, 632 N.E.2d 681, 684 (1994); In re Marriage of
Waldschmidt, 241 Ill. App. 3d 7, 12-13, 608 N.E.2d 1299, 1303
(1993); see also 1 H. Gitlin, Gitlin on Divorce 15-17, at 679-81
(2d ed. 1997) (suggesting that while the parties can agree to
automatic increases in the maintenance level, the court in the
absence of agreement should not provide for automatic increases).
The fact that the present agreement did not provide any
type of adjustment in the event Judith began receiving social
security indicates that the receipt of social security benefits
was intended to be a basis for modification. In the present
case, the maintenance of $225 per week was either too little
before Judith began receiving social security or was too much
after she began receiving it.
Courts are sometimes frustrated when parties return to
court shortly after signing a settlement agreement. See In re
Marriage of Uphoff, 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243,
1245 (1980) (where the ex-husband agreed to a child support order
knowing full well that two days later his salary would end by
virtue of a voluntary agreement he had entered into with his
employer). In Uphoff, modification was denied because of the ex-
husband's bad faith. No such circumstances are present in this
case. See In re Marriage of Lavelle, 206 Ill. App. 3d 607, 613,
565 N.E.2d 291, 295 (1990) (respondent agreed to order well be-
fore his business entered bankruptcy). STATE OF ILLINOIS
APPELLATE COURT
FOURTH DISTRICT
INTER-OFFICE MEMORANDUM
TO: Darryl Pratscher DATE: March 10, 1998
FROM: Robert W. Cook
RE: Marriage of Neuman
4-97-0624 1/98/Oral
KNECHT, Garman, Cook
FILE DISSENT
Please file the dissent as transmitted.
______________________________
Robert W. Cook
RWC:plu
cc: Judge Garman
Judge Knecht
Judge Green
Judge Steigmann
Judge McCullough
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies