{ "id": 980654, "name": "In re MARRIAGE OF ROXANNE SEMONCHIK, Petitioner-Appellant, and JAMES W. SEMONCHIK, Respondent-Appellee", "name_abbreviation": "In re Semonchik", "decision_date": "2000-06-30", "docket_number": "Nos. 1\u201498\u20143258, 1\u201498\u20143665 cons.", "first_page": "395", "last_page": "403", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 395" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "266 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887192 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "468" }, { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0467-01" ] }, { "cite": "283 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182713 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0703-01" ] }, { "cite": "183 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2627568 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0759-01" ] }, { "cite": "223 Ill. App. 3d 671", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255334 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0671-01" ] }, { "cite": "286 Ill. App. 3d 969", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544502 ], "year": 1997, "pin_cites": [ { "page": "973" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0969-01" ] }, { "cite": "287 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520988 ], "year": 1997, "pin_cites": [ { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0846-01" ] }, { "cite": "312 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411676 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "967", "parenthetical": "wherein this court held that a plaintiff who voluntarily dismisses his case faces a final and appealable order upon the trial court's denial of his motion to vacate or otherwise reopen his case" }, { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0965-01" ] }, { "cite": "80 Ill. App. 3d 883", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3235852 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0883-01" ] }, { "cite": "244 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5099967 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0614-01" ] }, { "cite": "251 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963211 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0411-01" ] }, { "cite": "96 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3113757 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "120" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/96/0114-01" ] } ], "analysis": { "cardinality": 638, "char_count": 20081, "ocr_confidence": 0.697, "pagerank": { "raw": 7.89109026718374e-08, "percentile": 0.460420665451924 }, "sha256": "59073bdce4ef596bb4f865e6d536f879c509ed98c60712628036f8e7eca61b08", "simhash": "1:89ecf52e3b4e2d75", "word_count": 3231 }, "last_updated": "2023-07-14T22:05:04.441996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF ROXANNE SEMONCHIK, Petitioner-Appellant, and JAMES W. SEMONCHIK, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nOn May 13, 1997, respondent James Semonchik, filed a motion to modify support payments payable to petitioner Roxanne Semonchik pursuant to a judgment of dissolution of marriage. The basis of the motion to modify was respondent\u2019s unemployment. On November 12,\n1997, respondent voluntarily dismissed the motion to modify. On December 3, 1997, respondent filed a motion to vacate the voluntary dismissal, and on February 2, 1998, the trial court denied respondent\u2019s motion. On February 20, 1998, respondent filed a \u201csupplemental\u201d motion to modify support payments once again alleging unemployment. On April 3, 1998, the trial court granted respondent\u2019s \u201csupplemental\u201d motion and abated his support obligation retroactive to February 20,\n1998, the filing date of the \u201csupplemental\u201d motion. Respondent filed a motion to reconsider asking the trial court to abate the arrearage retroactive to May 13, 1997, the filing date of the first motion. On July 27, 1998, the trial court granted respondent\u2019s motion to reconsider, vacated its order of April 3, 1998, and abated respondent\u2019s support obligation retroactive to May 13, 1997. Petitioner now appeals that order.\nOn May 21, 1998, petitioner filed a petition to set family support alleging that respondent had found gainful employment. On August 31, 1998, the trial court entered an order on petitioner\u2019s petition holding that: respondent was to pay $2,275 per month in unallocated family support for 17 months and that, after the termination of petitioner\u2019s maintenance rights, respondent was to pay $1,294 per month as child support until the'children attained age 18 or other factors under the order were met. Respondent cross-appeals and argues that the trial court abused its discretion in extending the length of support payments 17 months beyond the period set forth in the parties\u2019 marital settlement agreement.\nSTATEMENT OF FACTS\nPetitioner and respondent were married on May 17, 1980. A judgment for dissolution of the marriage of petitioner and respondent was entered on October 31, 1995. At that time, the parties had two children, Evan and David, both born on January 12, 1985. The judgment for dissolution of marriage incorporated the terms of a marital settlement agreement pursuant to which respondent was to pay petitioner $3,500 per month for unallocated child support and maintenance. The payments were to continue until October 1, 1998, unless terminated sooner pursuant to paragraph 3.I.B. of the marital settlement agreement. In the event that payments were terminated as provided under paragraph 3.I.B., respondent was required to pay $2,000 per month as child support for the minor children until their emancipation.\nOn May 13, 1997, respondent filed a motion to modify support alleging that a substantial change in circumstances had occurred. Respondent alleged that his employment had been terminated as of May 23, 1996, and that his one-year severance package, which extended his salary and benefits, was set to expire on May 23, 1997. He alleged that he had not yet secured new employment and that petitioner, while only employed part-time at the time of the dissolution of marriage, was now employed full-time. Respondent, therefore, requested that his support obligations be modified.\nOn June 24, 1997, petitioner filed a petition to review the joint parenting order, requesting that the court review the issue of visitation.\nOn August 25, 1997, an agreed order was entered resetting the hearing on the motion to modify to September 8, 1997. On September 8, 1997, the hearing was again extended and scheduled for November 13, 1997.\nOn November 12, 1997, respondent filed an emergency motion to continue the hearing set for November 13, 1997. The emergency motion was supported by an affidavit of respondent\u2019s counsel. The motion averred that counsel spoke with respondent on November 7, 1997, and respondent informed counsel that he was going to be out of town on vacation on November 12, 1997, and that his plans were \u201cnoncancellable.\u201d The trial court denied respondent\u2019s emergency motion for continuance, and respondent\u2019s counsel orally moved to voluntarily dismiss the motion to modify support. The trial court granted respondent\u2019s motion to voluntarily dismiss, struck the hearing date of November 13, 1997, on petitioner\u2019s petition to review the joint parenting agreement and set a status date on petitioner\u2019s petition for December 2, 1997.\nOn December 3, 1997, respondent filed a motion to vacate the voluntary dismissal and asked the court to reinstate his petition to modify support. On December 16, 1997, petitioner filed a response to respondent\u2019s motion to vacate.\nOn January 13, 1998, petitioner filed a petition for rule to show cause and other relief alleging that since June 1997 respondent had paid only $2,016 in support and, as respondent was required to pay $3,500 per month pursuant to the judgment of dissolution, respondent had failed to make $22,750 in support payments.\nOn February 2, 1998, the trial court denied respondent\u2019s motion to vacate his voluntary dismissal and ordered that a rule to show cause issue against respondent returnable on February 25, 1998.\nOn February 20, 1998, prior to the hearing on the rule to show cause, respondent filed a \u201csupplemental\u201d motion to modify support. Hearings were held on the petition for rule to show cause and on the \u201csupplemental\u201d motion to modify support on March 30 and 31.\nThereafter, on April 3, 1998, the trial court made a number of findings. The trial court found that respondent\u2019s failure to make his support payments was not contemptuous because he was unemployed and had no ability to pay. In addition, the court found that as a result of respondent\u2019s unemployment, there existed a substantial change in circumstances warranting the modification of support obligation. However, the court also found a support arrearage of $29,236.03. Consequently, the court denied petitioner\u2019s petition for rule to show cause and granted respondent\u2019s \u201csupplemental\u201d motion for modification of support. The court abated respondent\u2019s support obligation retroactive to February 20, 1998, the filing date of the \u201csupplemental\u201d motion. The court also set a status date for respondent to report on his job search. Judgment was entered against respondent and in favor of petitioner in the amount of $29,236.03, the total amount of arrearage as of February 20, 1998.\nOn May 1, 1998, respondent filed a motion for reconsideration pursuant to section 2 \u2014 1203 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1203 (West 1996)). Respondent asked the court to reconsider its ruling on the retroactivity of the modification order. Respondent asserted that the trial court previously denied his motion to vacate the voluntary dismissal of the first motion to modify support in the mistaken belief that it did not have the authority to do so and, as a result, could not modify the support obligations to coincide with the filing date of the first motion to modify, May 13, 1997, but could only abate the arrearage from the date of the filing of the \u201csupplemental\u201d motion to modify, February 20, 1998. Respondent argued that the court did have the authority to vacate the dismissal under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). The court took the matter under advisement.\nOn May 21, 1998, petitioner filed a petition to reestablish maintenance and child support alleging that respondent had found a job beginning May 18, 1998.\nOn July 27, 1998, the court granted respondent\u2019s motion for reconsideration of the April 3, 1998, order and vacated that order. The court granted respondent\u2019s motion to modify and held that his support obligation should be abated retroactive to the date of the filing of the first motion to modify, May 13, 1997. The court found no just reason to delay enforcement or appeal of that order. Petitioner filed a timely notice of appeal on August 24, 1998.\nOn August 31, 1998, the trial court granted petitioner\u2019s petition to set family support ordering that respondent pay $2,275 for unallocated family support for 17 months commencing September 1998 and continuing through January 2000 unless terminated as provided for in the judgment of dissolution. The order further provided that, upon termination of petitioner\u2019s maintenance rights, respondent was required to pay $1,294 for child support until the parties\u2019 children attained the age of 18 or graduated from high school, but in no event longer than their nineteenth birthday. Respondent cross-appeals from the August 31, 1998, order.\nDISCUSSION\nPetitioner contends that the trial court erred in ordering an abatement of accrued support obligations retroactive to a time prior to the filing date of respondent\u2019s \u201csupplemental\u201d motion to modify. Petitioner argues that the trial court did not have authority to vacate respondent\u2019s voluntary dismissal of the May 13, 1997, motion. Therefore, petitioner asserts that the \u201csupplemental\u201d motion was a new action and the trial court could only abate support obligations retroactive to its filing date, i.e., February 20, 1998. We agree with petitioner.\nThe only authority for a court to make a modification of an order of support or maintenance obligations is pursuant to the power vested in it by the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/101 et seq. (West 1998)). Section 510(a) of the Marriage Act gives the court the power to make retroactive modifications only to the notice date of the filing of the motion to modify. Section 510(a) provides:\n\u201c510. Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.\n(a) Except as otherwise provided in paragraph (f) of Section 502 and in subsection (d), clause (3) of Section 505.2, 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, with respect to maintenance, only upon a showing of a substantial change in circumstances.\u201d (Emphasis added.) 750 ILCS 5/510 (West 1998).\nThus, in order to determine the notice date for purposes of calculating the support amount subject to retroactive abatement, we must determine which of the two motions to modify filed by respondent is the operative motion.\nThat brings us to the issue of whether respondent\u2019s voluntary dismissal of his first motion to modify filed on May 13, 1997, was properly vacated. We note that although the parties argue the authority of the trial court to vacate respondent\u2019s voluntary dismissal of the May 13, 1997, motion to modify, the trial court never expressly vacated the voluntary dismissal. With its July 27, 1998, order, the trial court did two things: it vacated its order of April 3, 1998, which granted respondent\u2019s February 20, 1998, supplemental motion to modify and abated arrearage retroactive to February 20, 1998; and it granted respondent\u2019s May 13, 1997, motion to modify and abated arrearage retroactive to May 13, 1997. Arguably, the trial court implicitly vacated the voluntary dismissal when, by its order of July 27, 1998, it granted respondent\u2019s May 13, 1997, motion. Thus, the question is whether the trial court had the authority on July 27, 1998, to implicitly revisit its previous denial of respondent\u2019s motion to vacate the voluntary dismissal of the May 13, 1997, motion to modify.\nPetitioner contends that the trial court did not have the authority to vacate respondent\u2019s voluntary dismissal of the May 13, 1997, motion to modify. We agree.\nRespondent argued in his motion for reconsideration that the trial court had the authority to vacate the voluntary dismissal pursuant to Supreme Court Rule 304(a), which provides in pertinent part:\n\u201cIf multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.\u201d 73 Ill. 2d R. 304(a).\nRespondent contended that because multiple claims were present (i.e., his supplemental motion to modify petitioner\u2019s petition to review the joint parenting agreement and petitioner\u2019s rule to show cause), the court\u2019s order was subject to revision pursuant to Rule 304(a) at any time before the entry of judgment adjudicating all the claims.\nWe find, however, that there is no merit to respondent\u2019s argument that Rule 304(a) applies in this case. This case does not involve multiple parties, and contrary to respondent\u2019s assertion, this case does not involve multiple claims. \u201c[I]ssues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under Rule 304(a).\u201d In re Marriage of Leopando, 96 Ill. 2d 114, 120 (1983). Indeed, \u201c[a] petition for dissolution advances a single claim; that is, a request for an order dissolving the parties\u2019 marriage.\u201d In re Marriage of Leopando, 96 Ill. 2d at 119. Here, the judgment of dissolution was entered on October 31, 1995. That order did not reserve any issues for later determination and was, therefore, final and appealable itself.\nThereafter, when respondent filed his motion to modify support on May 13, 1997, he initiated a new proceeding. Motions for modification of a dissolution judgment are new proceedings and effectively pleadings. See In re Marriage of Sutherland, 251 Ill. App. 3d 411 (1993); In re Marriage of Zukausky, 244 Ill. App. 3d 614 (1993); In re Marriage of Sipich, 80 Ill. App. 3d 883 (1980). On November 12, 1997, respondent voluntarily dismissed his first motion to modify support. He filed his motion to vacate the voluntary dismissal on December 2, 1997, and it was denied by the trial court on February 2, 1998. We find that at that point, when the trial court denied respondent\u2019s motion to vacate, respondent faced a final and appealable order. See Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 967 (2000) (wherein this court held that a plaintiff who voluntarily dismisses his case faces a final and appealable order upon the trial court\u2019s denial of his motion to vacate or otherwise reopen his case). Respondent failed to challenge the judgment within 30 days pursuant to section 2 \u2014 1203 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1203 (West 1996)), and he failed to timely appeal to this court. Therefore, we ctmclude that, after the expiration of 30 days, respondent lost his right to challenge the denial of his motion to vacate the voluntary dismissal. See Noakes, 312 Ill. App. 3d at 967. Accordingly, the denial of the motion to vacate the voluntary dismissal stands, and the May 13, 1997, motion to modify remains dismissed.\nIndeed, rather than challenge the trial court\u2019s denial of Ms motion to vacate the voluntary dismissal, respondent chose to file a \u201csupplemental\u201d motion to modify on February 20, 1998. Respondent had the right to do so pursuant to section 13 \u2014 217 of the Code of Civil Procedure (735 ILCS 5/13 \u2014 217 (West 1996)), wMch provides that a plaintiff who voluntarily dismisses an action has the right to commence a new action witMn one year or within the remaining period of limitation, whichever is greater. The filing of this new action on February 20, 1998, triggered the court\u2019s authority to make retroactive abatements in accrued support obligations pursuant to section 510(a) of the Marriage Act, and it is that filing date which controls the extent of the court\u2019s authority.\nFor the reasons stated above, because the trial court did not have jurisdiction to revisit the issue of the motion to vacate the voluntary dismissal of the May 13, 1997, motion to modify, the court\u2019s order of July 27, 1998, which granted respondent\u2019s previously dismissed motion to modify and abated support arrearage retroactive to its filing date, May 13, 1997, is hereby reversed.\nPETITIONER\u2019S PETITION TO REESTABLISH SUPPORT OBLIGATION\nRespondent cross-appeals and argues that the trial court abused its discretion when it acted in a manner contrary to the clear and unambiguous language of the parties\u2019 marital settlement agreement and extended respondent\u2019s support obligation beyond the time period agreed upon by the parties.\nThe determination of modification of support lies within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. 750 ILCS 5/505(a)(3) (West 1998); In re Marriage of Davis, 287 Ill. App. 3d 846, 852 (1997); In re Marriage of Carpenter, 286 Ill. App. 3d 969, 973 (1997).\nUnder the marital settlement agreement, respondent was to pay petitioner $3,500 per month for unallocated child support and maintenance until October 1, 1998, unless terminated sooner pursuant to paragraph 3.I.B. of the agreement. In the event payments were terminated, respondent was obligated to pay $2,000 per month as child support for the minor children until their emancipation. Petitioner filed a motion to reestablish maintenance and support and on August 31, 1998, the trial court granted petitioner\u2019s motion and ordered that respondent pay $2,275 for unallocated family support for 17 months commencing September 1998 and continuing through January 2000, unless terminated as provided for in the judgment of dissolution. The order further provided that, upon termination of petitioner\u2019s maintenance rights, respondent was required to pay $1,294 for child support until the parties\u2019 children attained the age of 18 or graduated from high school, but in no event longer than their nineteenth birthday.\nRespondent relies on In re Marriage of Tucker, 223 Ill. App. 3d 671 (1992), and In re Marriage of Mateja, 183 Ill. App. 3d 759 (1989), and contends that where the parties clearly and unambiguously limit the duration of maintenance the trial court is without discretion to modify it. Respondent argues that because the parties agreed that respondent\u2019s obligation to pay unallocated child support and maintenance would terminate on October 1, 1998, unless terminated sooner by the terms of the agreement, the trial court abused its discretion in extending respondent\u2019s obligation beyond the time agreed upon.\nHowever, where a marital settlement agreement contains an unallocated combination of child support and taxable maintenance payment, that payment is subject to the statutory right to modification contained in the Marriage Act. In re Marriage of Steadman, 283 Ill. App. 3d 703 (1996); In re Marriage of Gleason, 266 Ill. App. 3d 467, 468 (1994). This is so even where the agreement contains a nonmodification clause. In re Marriage of Steadman, 283 Ill. App. 3d 703 (1996); In re Marriage of Gleason, 266 Ill. App. 3d 467, 468 (1994). Therefore, although parties to a dissolution of marriage settlement agreement may negotiate that maintenance payments be nonmodifiable, where the parties choose to lump maintenance in with child support, creating an \u201cunallocated\u201d support payment, that \u201cunallocated\u201d support payment is, by statute, modifiable.\nAccordingly, we affirm the court\u2019s August 31, 1998, order.\nCONCLUSION\nFor the foregoing reasons, we hereby reverse the trial court\u2019s order of July 27, 1998, and affirm the court\u2019s order of August 31, 1998.\nReversed in part; affirmed in part.\nZWICK, P.J., and O\u2019BRIEN, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Allen S. Gerrard, of Chicago, for appellant.", "David A. Novoselsky and Linda A. Bryceland, both of David A. Novoselsky & Associates, of Chicago, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF ROXANNE SEMONCHIK, Petitioner-Appellant, and JAMES W. SEMONCHIK, Respondent-Appellee.\nFirst District (6th Division)\nNos. 1\u201498\u20143258, 1\u201498\u20143665 cons.\nOpinion filed June 30, 2000.\nAllen S. Gerrard, of Chicago, for appellant.\nDavid A. Novoselsky and Linda A. Bryceland, both of David A. Novoselsky & Associates, of Chicago, for appellee." }, "file_name": "0395-01", "first_page_order": 413, "last_page_order": 421 }