{ "id": 5255334, "name": "In re MARRIAGE OF ARLIE G. TUCKER, Respondent-Appellee, and MELBA JOSEPHINE TUCKER, Petitioner-Appellant", "name_abbreviation": "In re Marriage of Tucker", "decision_date": "1992-01-15", "docket_number": "No. 3-91-0038", "first_page": "671", "last_page": "677", "citations": [ { "type": "official", "cite": "223 Ill. App. 3d 671" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "378 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621708 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0375-01" ] }, { "cite": "370 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "68 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5810785 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/68/0375-01" ] }, { "cite": "214 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5298655 ], "year": 1977, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/214/0092-01" ] }, { "cite": "396 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "632" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3288801 ], "weight": 3, "pin_cites": [ { "page": "741" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0740-01" ] }, { "cite": "513 N.E.2d 1146", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "1150" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 721", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650387 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0721-01" ] }, { "cite": "426 N.E.2d 237", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 478", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3098095 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0478-01" ] }, { "cite": "540 N.E.2d 406", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "407" }, { "page": "408" } ], "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2627568 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "761" }, { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0759-01" ] } ], "analysis": { "cardinality": 689, "char_count": 16268, "ocr_confidence": 0.769, "pagerank": { "raw": 7.578924433977877e-08, "percentile": 0.44911575925855135 }, "sha256": "2597f7f388c8f8b0ad8fe8963f54278cdc6d79f3f56dcfd4121b824d6d2db50b", "simhash": "1:996d75e22bc17c64", "word_count": 2597 }, "last_updated": "2023-07-14T19:46:44.574739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF ARLIE G. TUCKER, Respondent-Appellee, and MELBA JOSEPHINE TUCKER, Petitioner-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE BARRY\ndelivered the opinion of the court:\nThe marriage of Arlie G. and Melba Josephine Tucker was dissolved on May 10, 1985. At that time, the circuit court of Peoria County incorporated in its order the parties\u2019 oral agreement for child support, property distribution and maintenance. On June 20, 1990, Melba filed a petition to modify maintenance and related provisions based on an alleged substantial change in the parties\u2019 circumstances. Arlie moved to dismiss the petition on the ground that any modification of maintenance was expressly precluded by the terms of the original agreement. The trial court granted Arlie\u2019s motion to dismiss, and Melba appeals.\nThe provisions at issue recite in relevant part as follows:\n\u201cIt is further ordered, adjudged and decreed by the Court, also pursuant to said oral agreement, that if Defendant [Melba] obtains disability insurance in addition to any disability insurance through her place of employment, Plaintiff [Arlie] will pay up to $75.00 per month for premiums on such additional disability insurance which would pay Defendant up to $650.00 per month in disability benefits should she become disabled pursuant to the terms of any such insurance policy, and Plaintiff shall pay said premiums in addition to the maintenance herein provided and for up to seventy-eight (78) consecutive months after the date of this Judgment. If Defendant cannot obtain such additional disability insurance and if Defendant becomes totally disabled as defined in the criteria establishing total disability pursuant to the Social Security Administration, then Plaintiff shall pay to Defendant $300.00 per month in addition to any maintenance hereinafter set forth and said $300.00 monthly payments by Plaintiff to Defendant shall be for a total period of no more than twelve (12) months, either consecutively or cumulatively.\n* * *\nIt is further ordered, adjudged and decreed by the Court, also pursuant to said oral agreement, that the Plaintiff shall pay to the Defendant, as and for maintenance, the sum of Twelve Hundred Dollars ($1,200.00) per month, commencing the first day of the month succeeding the date of this Judgment and continuing at said amount for Seventy-seven (77) consecutive months thereafter for a total of Seventy-eight (78) months, or until the Defendant shall die, remarry, or until further Order of this Court, whichever shall first occur.\nAll of said payments to be made as and for maintenance as provided above, will be periodic payments in discharge of legal obligation, which, because of the marital or family relationship, is imposed on or incurred by the Plaintiff under this Judgment of Dissolution of Marriage, all within the meaning and intent of Sections 71(a) and 215 of the Internal Revenue Code of 1954, as amended, and as effective January 1, 1985, with respect to amounts of more than $10,000.00 for six (6) consecutive years, and of similar provisions of future laws. Such payments will be includable in the Defendant\u2019s gross income pursuant to Section 71(a) and will be deductible by the Plaintiff from his gross income pursuant to Section 215 in determining their respective taxable incomes. All of said payments made as and for maintenance shall be made directly to the Defendant during the seventy-eight (78) month period set forth above.\n* * *\nIt is further ordered, adjudged and decreed by the Court that the Defendant, having waived all other claims for maintenance and support for herself, is and shall be forever barred from any and all other maintence [sic] and support for herself from the Plaintiff, the same as if said marriage had never taken place.\nIt is further ordered, adjudged and decreed by the Court that both of the parties hereto are and shall be forever barred from any and all other rights of maintenance and support from the other, and from any and all other interest in and to the property of the other, either now owned or hereafter acquired, including all rights of homestead and inheritance, the same as if said marriage had never taken place.\u201d\nMelba\u2019s 1990 petition for modification alleges substantial changes in circumstances and prays, inter alia, for an increase in the amount of monthly maintenance to $2,500 \u201cuntil she should die, remarry or until the death of the Respondent, Arlie G. Tucker, whichever event should first occur,\u201d and an increase in the disability supplement to $600.00 per month \u201cfor the same period as the *** maintenance payments.\u201d Melba argues on appeal that the agreement contemplated modification prior to the expiration of 78 months by virtue of the contingency, \u201cor until further order of this Court.\u201d She says that other expressions indicating the parties\u2019 intent to waive further claims for maintenance are not controlling because they are either ambiguous or extraneous boiler-plate language found in most orders of support drafted at the time the court entered the decree in this case.\nArlie argues that the agreement clearly provided for no extension of maintenance beyond 78 months, and that maintenance could only be terminated prior to the expiration of that period by the events specified in the agreement. The clause \u201cor until further order of this Court,\u201d he contends, could only further limit the duration of maintenance within the anticipated 78-month period. He says that the provisions waiving \u201cother\u201d maintenance specifically preclude Melba\u2019s petition to modify.\nSection 502 of the Hlinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 502) authorizes the court to incorporate the parties\u2019 oral agreement for maintenance into an enforceable judgment. The statute specifically addresses limiting modification of terms, but does not suggest any \u201cmagic language\u201d for this purpose:\n\u201cExcept for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the agreement so provides. Otherwise, terms of an agreement set forth in the judgment are automatically modified by modification of the judgment.\u201d (Ill. Rev. Stat. 1989, ch. 40, par. 502(f).)\nA legislative preference for modifying maintenance agreements when it is established that the parties\u2019 circumstances have substantially changed appears in section 510 of the Act:\n\u201cExcept as otherwise provided in paragraph (f) of Section 502, in subsection (d), clause (3) of Section 505.2 [relating to failure to maintain health insurance], and in subsection (b) of this Section [relating to child support and property disposition], the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.\u201d Ill. Rev. Stat. 1989, ch. 40, par. 510(a).\nThus, it has been held that post-dissolution modification of maintenance is judicially precluded only where a settlement agreement clearly and unambiguously expresses the parties\u2019 intent to make maintenance nonmodifiable. In re Marriage of Mateja (1989), 183 Ill. App. 3d 759, 761, 540 N.E.2d 406, 407, citing In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 426 N.E.2d 237; In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 513 N.E.2d 1146; Simmons v. Simmons (1979), 77 Ill. App. 3d 740, 396 N.E.2d 631.\nAlthough the parties have not cited any Hlinois precedent interpreting an agreement like the one before us, we find guidance in Mateja and the cases cited therein. In Mateja the parties\u2019 agreement specified that the wife could earn up to $13,000 per year before her earnings would have an effect on the husband\u2019s support and maintenance obligations. \u201cThe agreement also stated: \u2018The parties further agree that the terms of the Agreement shall be nonmodifiable.\u2019 \u201d The court ruled that the clear, unambiguous intent of these provisions was to render the agreement nonmodifiable unless any of the conditions specified (death, remarriage or earnings in excess of $13,000) were first established. Mateja, 183 Ill. App. 3d at 762, 540 N.E.2d at 408.\nSimilarly, in McFarlane, the parties\u2019 agreement in clause 12 stated that the husband agreed not to seek a reduction in his obligations based on any future income or earnings of the wife. Nine years after the dissolution judgment incorporating the agreement was entered, the husband sought a reduction or termination in maintenance on the ground that the wife had failed to rehabilitate herself and provide for her own support. The trial court ruled that the agreement precluded modification. On appeal, the court affirmed, holding that even if the agreement were otherwise modifiable, the specific basis given in husband\u2019s petition to modify was foreclosed by clause 12. The reviewing court found no meaningful distinction between the basis specifically barred by the agreement and that urged in the husband\u2019s petition to modify. McFarlane, 160 Ill. App. 3d at 727, 513 N.E.2d at 1150.\nSimmons presents a clear statement of the parties\u2019 intent to preclude modification. The agreement in Simmons stated in clause (c) that the wife agreed to seek no increase in child support based on the husband\u2019s increased earnings and the husband agreed to seek no decrease based on his own remarriage or the birth of additional children. The clause continued, \u201c[A]nd in no event is the amount of alimony to be modifiable except for death or remarriage of wife.\u201d (Simmons, 77 Ill. App. 3d at 741, 396 N.E.2d at 632.) The trial court construed the child support and alimony references together and ruled that alimony was modifiable to the extent that the husband\u2019s increased earnings would not be a factor to be considered. On appeal, the court reversed this aspect of the court\u2019s judgment, holding that the parties\u2019 intentions to make maintenance nonmodifiable were clearly manifested and enforceable pursuant to section 502(f) of the Illinois Marriage and Dissolution of Marriage Act. 77 Ill. App. 3d at 743, 396 N.E.2d at 634.\nBy contrast to Simmons, in Chalkley, the parties\u2019 agreement did not expressly refer to modifiability. The Chalkley agreement contained merely a \u201ccost-of-living adjustment\u201d clause. This clause, the husband argued, expressed the parties\u2019 intent to limit modification of maintenance, i.e., allowing an increase only upon a showing of inflation. The trial court rejected the husband\u2019s argument and increased maintenance. The court on review agreed that the cost-of-living clause did not preclude the wife\u2019s petition for an increase because, unlike Simmons, the parties had not specifically recited in the agreement their intention to limit modification based on inflation. Chalkley, 99 Ill. App. 3d at 481, 426 N.E.2d at 240.\nTurning to the agreement before us today, we find that the parties clearly and unambiguously limited the duration of maintenance by stating that it would not extend beyond the earliest of three specific events \u2014 the expiration of 78 months, wife\u2019s death or remarriage. The first of these events to occur would mark the termination of Arlie\u2019s maintenance obligation. With respect to the \u201cfurther order of court\u201d clause, it is clear that the parties intended to leave the door open for an unforeseen event that could terminate Arlie\u2019s obligation to pay maintenance prior to the end of the 78 months. By limiting the duration of maintenance to the earliest of the specified events, the parties clearly did not intend to allow for a \u201cfurther order of court\u201d that would obviate the other three events. We find that this provision, as well as the provision limiting the duration of any disability supplement that may be payable, is in sufficiently simple, clear language and that it can and should be enforced. Thus, even were the court to enter a further order modifying the amount of maintenance or terminating it prior to the end of the 78-month period, the agreement precludes a modification extending Melba\u2019s right to maintenance beyond that time. To the extent that Melba\u2019s petition to modify seeks such an extension of maintenance and disability payments beyond the periods agreed to, we hold that the trial court correctly determined that the agreement precluded the relief sought.\nThe question as to whether the parties intended to make the amounts of maintenance or disability payments nonmodifiable within the specified periods is far from clear. Unlike Chalkley, the parties\u2019 agreement here does not even refer to inflation. Instead, only vague references to future changes in the parties\u2019 needs may be gleaned from the last two paragraphs, quoted above, wherein Melba waived \u201call other claims for maintenance and support for herself,\u201d and the parties mutually waived \u201call other rights of maintenance and support from the other.\u201d However, we note that, unlike all other paragraphs relating to property distribution, these last two paragraphs are not prefaced by a reference to the parties\u2019 oral agreement. Moreover, they are separated from the rest of the property distribution and maintenance provisions by a paragraph directing Arlie, \u201calso pursuant to said oral agreement,\u201d to maintain a $50,000 life insurance policy on the parties\u2019 daughter, Kimberly J. Tucker.\nArlie\u2019s position that any modification of maintenance is precluded by virtue of Melba\u2019s waiver of \u201cother claims for maintenance and support\u201d fails to persuade. In fact, the agreement contains provisions for \u201cother claims for maintenance and support\u201d in the paragraph providing for Ar-lie\u2019s payment of an additional $300 per month for up to 12 months in the event Melba should become totally disabled and up to $75 per month for disability insurance, for up to 78 months. As noted in In re Marriage of Sherrick (1991), 214 Ill. App. 3d 92, 96, citing La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 370 N.E.2d 188, and White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255, \u201cThe intent of the parties to a contract must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases but by viewing each part in light of the others.\u201d In our opinion, a reading of the entire agreement supports Melba\u2019s position that the waiver of Melba\u2019s \u201cother claims for maintenance and support\u201d refers to other potential claims in the nature of requests for disability and insurance payments, and not to future modifications in the amount of maintenance based on a showing of a substantial change in circumstances within the prescribed period.\nSimilarly, the final paragraph of the judgment of dissolution, in which the parties mutually waive \u201call other rights of maintenance and support from the other,\u201d does not convince us that the parties clearly intended thereby to limit modification of the amount of maintenance within the prescribed period. Although we find that the parties\u2019 agreement was sufficiently clear to make the duration of payments nonmodifiable in this case without the use of any form of the word \u201cnonmodifiable,\u201d we suggest that the better practice is to employ such in any agreement if the parties intend to preclude future judicial modification.\nBecause the agreement incorporated into the judgment of dissolution does not clearly preclude modification of the amounts of maintenance and other benefits within the prescribed periods, we find that the trial court erred in granting Arlie\u2019s motion to dismiss Melba\u2019s petition for increases prior to the expiration of 78 months or Melba's remarriage as specified in the parties\u2019 agreement. On remand, the court should determine whether there has been a substantial change in the parties\u2019 circumstances justifying the monetary increases sought, which increases would be payable only within the time limitations prescribed by the parties\u2019 agreement.\nThe judgment of the circuit court of Peoria County is reversed.\nReversed and remanded.\nSLATER and HAASE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BARRY" } ], "attorneys": [ "Michael W. Heller, of Peoria, for appellant.", "Lynch & Bloom, P.C., of Peoria (David M. Lynch, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF ARLIE G. TUCKER, Respondent-Appellee, and MELBA JOSEPHINE TUCKER, Petitioner-Appellant.\nThird District\nNo. 3 \u2014 91\u20140038\nOpinion filed January 15, 1992.\nMichael W. Heller, of Peoria, for appellant.\nLynch & Bloom, P.C., of Peoria (David M. Lynch, of counsel), for appellee." }, "file_name": "0671-01", "first_page_order": 695, "last_page_order": 701 }