NO. 4-03-1001

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

On June 23, 1997, petitioner, Kelly Gene Wassom, filed apetition for dissolution of marriage. On August 12, 1997, the trialcourt entered a dissolution judgment. On August 21, 2003, Kellyfiled a petition to modify the judgment of dissolution of marriage. On September 10, 2003, respondent, Rita Irene Wassom, filed aresponse to Kelly's petition to modify and a petition foradjudication of indirect civil contempt for the recovery of healthinsurance premiums and medical payments for their son, Jessie M.Wassom. On October 29, 2003, the court found Kelly was not inindirect civil contempt of court but entered judgment in favor ofRita, ordering Kelly to pay 50% of all health insurance premiums paidby Rita.

Kelly appeals, arguing (1) the court improperlyinterpreted the marital settlement agreement between the parties asto whether he is responsible for half of the health insurancepremiums that Rita pays, and (2) even if the court's decision on thisissue is correct, Kelly is entitled to a setoff based on previouschild support payments made in excess of the required amount. Weaffirm.

I. BACKGROUND

On December 23, 1994, Kelly and Rita married each otherfor the second time. On June 23, 1997, Kelly filed a petition fordissolution of marriage and for other relief. On October 15, 1998,the trial court entered a judgment of dissolution of marriage. Inthe judgment, the court approved the parties' marital settlementagreement.

In summer 2003, Rita sold her home in Tolono, Illinois,and moved to Urbana, Illinois. On August 21, 2003, Kelly, worriedfor Jessie's emotional well-being and high school athletic career,filed a petition to modify the judgment of dissolution of marriage. In it, Kelly requested Jessie's custody so that Jessie could continueto attend Unity High School in Tolono, Illinois.

On September 10, 2003, Rita filed a response, statingdespite her move to Urbana, Jessie would continue to attend UnityHigh School in Tolono. Rita also filed a petition for adjudicationof indirect civil contempt, alleging Kelly had failed to pay healthinsurance premiums and uncovered medical expenses pursuant to themarital settlement agreement.

According to Rita, she spent $25,416 on health insurancepremiums. Rita, however, concedes that Kelly owes her only$11,426.11 in premiums since a few payments were made on the healthinsurance premiums prior to the dissolution of their marriage. Shealso claims that Kelly owes her $378.75 for medical bills paid toChristie Clinic for Jessie.

Kelly argues that the insurance premiums were actuallypaid by Rita's employer, not Rita, and therefore, he should not beresponsible for them. Kelly further claims that even if Rita hadpaid the premiums, he should only be responsible for 50% of thepremiums paid for Jessie, not for those paid for Rita. Finally,Kelly argues he is entitled to offset premium payments amounting to$3,400 because of monthly child support overpayments of $120 paidbetween January 2001 and July 2003.

The issue on appeal centers on article III, "SUPPORT OFCHILDREN AND RELATED MATTERS," of the marital settlement agreement,which states as follows:

"1. HUSBAND will pay to WIFE child supportbased upon approximately 20 percent of his netincome from his current employment. The exactamount of said child support at the currenttime is the sum of $200.00 per month. Wifeacknowledge[s] that the amount agreed on isless than 20 percent of his net income for thereason that it is contemplated that Jessie willspend a great deal of time with the HUSBAND.

2. WIFE will carry the child on herhealth insurance, and the parties will equallydivide any uncovered medical, dental, ororthodontic expenses on a 50/50 basis. In theevent she can no longer obtain health insurancethrough her employment, then HUSBAND will makeevery effort to obtain health insurance. Inaddition to the child support in [a]rticle III,[p]aragraph 1, the HUSBAND will reimburse theWIFE for 50 percent of the health insurancepremiums currently being paid by the WIFE."

On October 29, 2003, the trial court conducted a hearingon Kelly's petition to modify. Michael Dummit, Rita's immediatesuperior, testified that Rita's employer provides insurance to Ritaand Jessie. Dummit explained that the money paid to cover healthcare is paid directly by the union but indirectly through employees'negotiated benefit packages. Under this plan, monthly healthinsurance premium payments ranging from $303.80 to $512 are takenfrom Rita's pay. Rita never has access to the money deducted forhealth insurance premiums, but the premiums were considered to be anamount that would have been added to her paycheck had she not appliedfor the health insurance plan. For example, if there is a $1 raisein Rita's pay, 50 cents is reflected in her paycheck, while the restpays the health coverage premiums. Dummit also stated Rita wasinsured under this plan prior to the dissolution of the marriage, andthe premium for this coverage remains the same regardless of thenumber of dependents.

Relying on the above testimony, the trial court found thatthe money used to pay the premium was part of Rita's compensation. The court then found that Rita's premium was based on the averagenumber of participants in the entire plan, and Rita's premiumpayments cover both herself and Jessie. The court also determinedthat the parties' marital settlement agreement controls theirrespective responsibilities for the health insurance premium and theagreement requires Kelly to reimburse Rita for half of the premiumsthat she pays.

On October 29, 2003, the trial court entered judgmentagainst Kelly in the amount of $11,426.11 for health insurancepremiums and $378.75 for charges from Christie Clinic. This appealfollowed.

II. ANALYSIS

A. The Trial Court Correctly Ordered Kelly To Reimburse Rita for Halfof the Premiums

On appeal, Kelly argues the trial court improperlyinterpreted the marital settlement agreement to order Kelly to payRita money for health insurance premiums. In so arguing, Kellymaintains the court's finding that Rita, not her employer, paid thehealth insurance premium was incorrect. We disagree.

As the Illinois Second District Appellate Court stated inIn re Marriage of Turrell, 335 Ill. App. 3d 297, 304, 781 N.E.2d 430,437 (2002), "[w]hen a trial court has directed a finding in a benchtrial, we review that decision under the manifest weight of theevidence standard."

In the instant case, Rita called Dummit, the businessrepresentative for Carpenter's Local 44 and Rita's immediatesuperior, as a witness. Dummit testified as to insurance premiumsare paid by Rita's employer:

"Q. You would agree with me, would younot, that part of her package as well as yourunion member package, is that the contractorpays the health insurance directly rather thangive the money to the union member to pay tohealth insurance?

A. They handle our money, yes, butindirectly it's coming out of our package.

Q. Okay. So if I said to you that thecontractors are paying the health insurance,they're writing the check, but it is coming outof the pocket of your members, would I beaccurate?

A. Right."

Kelly, on the other hand, did not present evidence that would supporthis claim that Rita's employer paid the health insurance premiums.

Based on the uncontradicted testimony by Dummit, the trialcourt found the evidence showed that Rita had paid the healthinsurance premium in question. Such a finding is not against themanifest weight of the evidence. We now turn to Kelly's secondargument that the trial court incorrectly interpreted the parties'marital settlement agreement.

The pertinent language in the settlement agreement states,"In addition to the child support in [a]rticle III, [p]aragraph 1,the HUSBAND will reimburse the WIFE for 50% of the health insurancepremiums currently being paid by the WIFE." The trial court found noambiguity in this sentence and required Kelly to pay 50% of all thehealth premiums.

Interpreting a marital settlement agreement is a questionof law, which we review de novo. In re Marriage of Sweders, 296 Ill.App. 3d 919, 922, 695 N.E.2d 526, 529 (1998). "[W]here the terms areunambiguous, the parties' intent is determined solely from thelanguage of the instrument." (Emphasis added.) In re Marriage ofMulry, 314 Ill. App. 3d 756, 759, 732 N.E.2d 667, 671 (2000). Further, "[l]anguage is not rendered ambiguous simply because theparties do not agree on its meaning." Mulry, 314 Ill. App. 3d at759, 732 N.E.2d at 670.

Here, the language in the marital settlement agreementclearly states that Kelly will reimburse Rita for half of any healthinsurance premiums Rita pays. Such language is not ambiguous, and wedetermine the parties' intent solely from that language. Accordingly, we agree with the trial court's interpretation of themarital settlement agreement and affirm.

In so holding, we disagree with the dissent that ourdetermination focuses on only one sentence and "violates the rulethat the intent of the parties must be determined with reference tothe contract as a whole, not merely by reference to particular wordsor isolated phrases, but by viewing each part in light of the other." Slip op. at 16. First, "the best indication of the parties' intentis the language of the contract, that language must prevail when itconflicts with a general rule of construction." (Emphasis added.) Labor World, Inc. v. Just Parts, Inc., 315 Ill. App. 3d 903, 906, 735N.E.2d 149, 152 (2000). In this case, the language in the maritalsettlement agreement clearly states that Kelly will reimburse Ritafor half of any health insurance premiums Rita pays, and suchlanguage must prevail. Second, as the dissent correctly noted, thetitle of article III indicates this particular article deals withchild support and related matters, and the sentence in question"begins with a reference to child support". Slip op. at 16. Thesereferences, however, do not limit the provisions in question to"support of children" only. If we construe the language in questionas the dissent suggests, which is to require Kelly to pay only thehalf of the health insurance premium attributed to Jessie and not thehalf of the premium Rita pays, then article III should be titled as"SUPPORT OF CHILDREN" instead of "SUPPORT OF CHILDREN AND RELATEDMATTERS."

We further disagree with the dissent's statement that"[i]t is also significant that Rita never raised this argument forfive years, until Kelly requested a change in custody," and Rita'sfailure to request reimbursement from Kelly is an indication that theparties did not intend for Kelly to be responsible for half of thepremiums that Rita paid. Slip op. at 16. As the Supreme Court ofIllinois stated:

"Traditional contract interpretationprinciples in Illinois require that:

'[a]n agreement, when reduced towriting, must be presumed to speakthe intention of the parties whosigned it. It speaks for itself, andthe intention with which it wasexecuted must be determined from thelanguage used. It is not to bechanged by extrinsic evidence.'[Citation.]" Air Safety, Inc. v.Teachers Realty Corp., 185 Ill. 2d457, 462, 706 N.E.2d 882, 884 (1999).

The dissent's speculation as to the parties' intent based on Rita'sinaction violates this well-established "four corners" rule. Further, even if we indulge in the same kind of speculation that thedissent does, the fact that "Rita never raised this argument for fiveyears, until Kelly requested a change in custody," does notnecessarily mean that the parties did not intend for Kelly to beresponsible for half of the premium that Rita paid. For example,Rita may have chosen not to enforce Kelly's obligation so that theycould maintain a civil relationship or because the cost of litigationwas too high for the amount involved. In addition, Kelly's initialvoluntary premium payments for which Rita granted Kelly credit showKelly's awareness of what the current premium he owed was and that heintended to be responsible for half of Rita's health premium.

Last, we note that the dissent states our decision "does areal disservice to a fundamental policy, that dissolution-of-marriagecases are best resolved when the parties are able to work out anagreement resolving their differences. Litigants will not beencouraged to enter into agreements if their agreements are so easilytorn apart." Slip op. at 17. The dissent, however, asks thequestion "is there any logical reason to require husband to pay forwife's health insurance coverage," and then states "[e]quity does notrequire that Kelly pay for a portion of Rita's health insurancecoverage." Slip op. at 16, 17. The dissent's effort to make theprovisions in question "logical" or "equitable" for Kelly violatesthe long-established principle that "a court of law has no right toerroneously construe the intention of the parties, when clearlyexpressed, in the endeavor to make better contracts for them thanthey have made for themselves." Sun Printing & Publishing Ass'n v.Moore, 183 U.S. 642, 674, 46 L. Ed. 366, 382, 22 S. Ct. 240, 253(1902). We, therefore, disagree with the dissent's interpretation ofthe settlement agreement language even if it leads to a more"logical" or "equitable" agreement for Kelly.

B. The Trial Court Correctly Denied Kelly an Offset
on the Health Insurance Premiums Owed

Kelly argues that even if the trial court correctly foundthat he owes 50% of the health insurance premiums paid by Rita, theamount owed should be reduced by the amount of child support heoverpaid, which totals $3,400. Rita claims that Kelly's argument isforfeited because Kelly cited no authority supporting the argument asrequired by Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)). We agree with Rita.

Supreme Court Rule 341(e)(7) states, "[p]oints not arguedare waived and shall not be raised in the reply brief, in oralargument, or on petition for rehearing." 177 Ill. 2d R. 341(e)(7). Counsel for Kelly neglected to cite legal authority in support of theargument. "This court has often stated the failure to cite legalauthority in the argument section of a party's brief forfeits theissue for review." In re Marriage of Parr, 345 Ill. App. 3d 371,380, 802 N.E.2d 393, 401 (2003). Kelly has, therefore, forfeitedthis issue.

Moreover, were we to address the merits, we would notgrant a reduction because the trial court's denial of offset was notan abuse of discretion or against the manifest weight of theevidence. See Slagel v. Wessels, 314 Ill. App. 3d 330, 332, 732N.E.2d 720, 721 (2000) (which states: "[t]he standard of review for acurrent child support award is whether the award is an abuse ofdiscretion or the factual predicate for the decision is against themanifest weight of the evidence").

As the Illinois First District Appellate Court stated inIn re Marriage of Lehr, 317 Ill. App. 3d 853, 862, 740 N.E.2d 417, 424 (2000), "the general rule is that no credit is given for voluntary overpayments of child support, even if they are made under the mistaken belief that they are legally required." Here, Kelly voluntarily paid Rita child support beyond the required monthly amount, and the trial court correctly determined that Kelly's voluntary additional child support payment should not offset his health-insurance-premium obligations.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, J., concurs.

COOK, J., dissents.

I respectfully dissent.

This case presents three questions. First, does thelanguage of article III, paragraph 2, require "Husband," to pay forany health insurance coverage on "Wife"? Second, does the languagerequire husband to pay for a portion of any health insurancecoverage on the child? I suggest the husband is not required to payfor wife's health insurance but is required to pay a portion of anyhealth insurance premium for the child. That leads to the thirdquestion: Is there any logical reason to require husband to pay forwife's health insurance coverage in order to comply with theagreement that husband will be responsible for a portion of thechild's health insurance premium?

Marital settlement agreements are contracts and subject tothe same rules of construction as are applied to any contract. Theprimary goal in construing a settlement agreement is to ascertain theintent of the parties. A court must consider the contract as awhole, rather than focusing upon isolated portions. In re Marriageof Ackerley, 333 Ill. App. 3d 382, 398, 775 N.E.2d 1045, 1059 (2002). "The intent of the parties to a contract must be determined withreference to the contract as a whole, not merely by reference toparticular words or isolated phrases, but by viewing each part inlight of the others." La Throp v. Bell Federal Savings & Loan Ass'n,68 Ill. 2d 375, 381, 370 N.E.2d 188, 191 (1977).

The marital settlement agreement here is divided intological units, articles, that address such issues as custody, childsupport, maintenance, and other more particular issues. Article IIIis the article of interest in this case:

1. HUSBAND will pay to WIFE child support based upon approximately 20 percent of his net income from his current employment.

The exact amount of said child support at the current time is the sum of $200.00 [handwritten] per month [handwritten].  [W 9-16-98.] [KGW 9-16-98.] WIFE acknowledges that the amount agreed on is less than 20 percent of his net income for the reason that it is contemplated that Jessie will spend a great deal of time with the HUSBAND.

2. WIFE will carry the child on her health insurance, and the parties will equally divide any uncovered medical, dental, or orthodontic expenses on a 50/50 basis. In the event she can no longer obtain health insurance through her employment, then HUSBAND will make every effort to obtain health insurance. In addition to the child support in [a]rticle III, [p]aragraph 1, the HUSBAND will reimburse the WIFE for 50 percent of the health insurance premiums currently being paid by the WIFE."

Article III deals with child support and matters related tochild support, such as insurance for the child. It does not dealwith spousal support (maintenance) or matters such as insurance forthe wife. Article III, paragraph 2, says that wife will "carry thechild" on her health insurance and "any uncovered" expenses will bedivided. That means uncovered expenses of the child, not uncoveredexpenses of the wife or the husband or the parties' other relatives. If wife can no longer obtain health insurance through her employment,husband will attempt to obtain insurance--again, not insurance tocover the wife or others, but to cover the child, insurance relatedto child support. In addition to child support payments, "theHUSBAND will reimburse the WIFE for 50 percent of the health insurance premiums currently being paid by the WIFE." What premiumsare we talking about? Premiums for the wife, premiums for othermembers of her family, any other health insurance premiums she maycurrently be paying? No, premiums engendered by the requirement that"WIFE will carry the child on her health insurance" (emphasis added),the opening words of paragraph 2.

The majority picks out a part of a sentence, "HUSBAND willreimburse the WIFE for 50 percent of the health insurance premiumscurrently being paid by the WIFE," and reads those words inisolation, without analysis, to summarily conclude that the agreement"clearly states that Kelly will reimburse Rita for half of any healthinsurance premiums Rita pays" regardless if those premiums were paidon behalf of Jessie or another. Slip op. at 7. The majorityviolates the rule that the intent of the parties must be determinedwith reference to the contract as a whole, not merely by reference toparticular words or isolated phrases, but by viewing each part inlight of the other. According to its title, article III deals withchild support and matters relating to child support. The sentenceupon which the majority relies begins with a reference to childsupport. The majority ignores that language. Under the majority'sapproach, if the child were switched to Kelly's policy, would Ritastill be entitled to a portion of her premiums?

It is also significant that Rita never raised this argumentfor five years, until Kelly requested a change in custody. Theinterpretation placed on their agreement by the parties is asignificant factor that we should take into account. See also 810ILCS 5/2-208 (West 2002) (course of performance or practicalconstruction in commercial cases).

Getting to the third question, is there any logical reasonto require husband to pay for wife's health insurance coverage tocomply with the agreement that husband will be responsible for 50% ofthe child's health insurance premium? That might be the case if thepremium was an undivided premium and the child's coverage representeda substantial portion of that premium. That is not the case here,however. It is common knowledge that coverage for childrenrepresents only a very small portion of the premium in a parent'shealth insurance policy. The majority concedes that there is noadditional charge on Rita's policy for the coverage of Jessie. "[T]he premium for this coverage remains the same regardless of thenumber of dependents." Slip op. at 4. Equity does not require thatKelly pay for a portion of Rita's health insurance coverage.

The majority opinion does a real disservice to afundamental policy, that dissolution-of-marriage cases are bestresolved when the parties are able to work out an agreement resolvingtheir differences. Litigants will not be encouraged to enter intoagreements if their agreements are so easily torn apart. It is alsoimportant to note that Rita's petition was filed in response toKelly's petition. When a postdissolution petition is filed, whateverits merits, it is not appropriate for the respondent to comb therecord for some fanciful basis on which to file his or her ownpetition. The majority opinion encourages bad practice.