Demond v. Two Star Eagle
| Decision Date | 31 March 1986 |
| Docket Number | No. 5-85-0016,5-85-0016 |
| Citation | 142 Ill.App.3d 134,491 N.E.2d 501,96 Ill.Dec. 455 |
| Parties | , 96 Ill.Dec. 455 In re the Marriage of Benjamin F. DEMOND, Plaintiff-Appellant, v. TWO STAR EAGLE, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Mateyka, Hill & Hill, P.C., Edwardsville, for plaintiff-appellant.
David M. Fahrenkamp, Hackett & Fahrenkamp, Edwardsville, for defendant-appellee.
Benjamin F. Demond (petitioner) appeals from orders of the circuit court of Madison County disposing of several motions filed subsequent to a judgment of dissolution. He claims (1) the court had no authority to order him to pay past-due child support and maintenance amounts which had accrued prior to the dissolution judgment but which were not mentioned in that judgment, (2) the court had no authority to modify the property distribution contained in the judgment, and (3) the court abused its discretion in refusing to reduce the amount of maintenance awarded to respondent. We affirm in part, and reverse and remand with directions in part.
The petitioner and respondent, Two Star Eagle, were married in 1955, and six children were born to the marriage. On November 16, 1981, the marriage was dissolved, with all other issues reserved for later disposition. On June 30, 1983, the court entered a final judgment of dissolution which, inter alia, divided the marital property, awarded respondent $725 a month maintenance until October of 1988, and awarded respondent custody of the one minor child. Apparently neither party took a direct appeal from this judgment. However, several motions were subsequently filed, and the court entered an order on May 22, 1984, finding petitioner owed $4,410 in child support and maintenance arrearages which had accrued prior to the June 30, 1983, judgment. Petitioner filed a motion to modify the May 22, 1984, order regarding the arrearages. He also filed a motion to reduce the maintenance award. Respondent filed a motion asking the court to modify the distribution of property with regard specifically to a condominium the couple owned in Colorado. On December 7, 1984, the court disposed of all motions before it. The court refused to modify the maintenance award, but did modify the property distribution. The court left intact its order regarding arrearages accruing prior to the June 30, 1983, judgment.
Petitioner first contends the court erred in ordering him to pay past-due maintenance and child support amounts which had accrued prior to the judgment entered on June 30, 1983. Petitioner claims respondent waived the right to these arrearages by failing to appeal the June 30, 1983, judgment, which made no mention of any arrearages. We disagree.
In the case of In re Marriage of Johnson (1982), 106 Ill.App.3d 502, 513, 62 Ill.Dec. 478, 490, 436 N.E.2d 228, 236, the husband contended the wife's claim for past-due temporary support payments was barred under the theory of res judicata because the judgment of dissolution did not refer to these arrearages. The court held that since the trial court had no power to directly modify petitioner's vested interests in the past-due installments, the court should not be able to indirectly modify those interests by failing to address them in the judgment of dissolution. (106 Ill.App.3d 502, 513, 62 Ill.Dec. 478, 490, 436 N.E.2d 228, 236.) Thus, in the present case, we reject petitioner's argument that he can no longer be ordered to pay these past-due amounts.
Petitioner next contends the court had no authority to modify the distribution of marital property contained in the June 30, 1983, judgment. The dispute centers around a condominium in Colorado which was marital property. In the June 30, 1983, judgment the court ordered the following:
"The Court hereby orders the parties to place the Colorado condominium on the market for sale and directs the parties to liquidate that marital asset. Two Star shall be responsible for making arrangements for the sale. The condominium shall be sold at the highest possible return. If an acceptable buyer is not located by Two Star within ninety (90) days of the date of entry of this order, then the condominium must be sold to any ready, willing and able buyer at the price of $89,500.00. Out of the proceeds of the sale the first $47,800.00 shall be paid to Ben, who out of the monies received shall extinguish the following liabilities in order of priority herein established:
(a) All past-due child support or maintenance accrued as of that time; (b) all attorney fees assessed against Ben hereunder; (c) the marital debts.
Two Star shall receive as her own property the rest and remainder of the net proceeds of the sale after the payment of costs of the sale, taxes, commissions and the $47,800 to Ben."
The court stated the parties had stipulated to the value of $89,500.
In May of 1984, after considering various motions, the court found that the condominium had been listed for sale at $89,500 but there had been no purchase offers. The court then ordered the condominium "to be sold at a reduced price of $63,000.00 and the parties are directed to execute the documents necessary to list it for sale immediately." On December 7, 1984, the court found that "[t]here has been a change in circumstances caused by the decline of property values in the area of the parties' Colorado condominium resulting in a reduction of value to $63,000.00 from the value of $89,500.00 found in the Judgment." The court then ordered that the judgment "is modified to the extent that proceeds from the sale of the parties' condominium shall be divided equally between the parties to account for the diminished property value."
The question here is whether the court could modify the property distribution so that the parties would share equally in the proceeds of the sale of the condominium rather than enforce the earlier division decided on by the court. Petitioner argues that the court lacked...
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