In re Marriage of Rife

• Decision Date: 24 October 2007
• Docket Number: No. 2-06-1048.,2-06-1048.
• Citation: 878 N.E.2d 775,376 Ill. App.3d 1050
• Parties: In re MARRIAGE OF Maureen E. RIFE, Petitioner-Appellee, and Kevin L. Rife, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

878 N.E.2d 775

376 Ill. App.3d 1050

In re MARRIAGE OF Maureen E. RIFE, Petitioner-Appellee, and Kevin L. Rife, Respondent-Appellant.

No. 2-06-1048.

Appellate Court of Illinois, Second District.

October 24, 2007.

Carol L. Hill, Mohr, Bruce, Nader, Hirsch & Hill P.C., McHenry, for Kevin L. Rife.

William P. Gibbs, Law Office of William P. Gibbs, South Elgin, for Maureen E. Rife.

Rhonda L. Rosenthal, Crystal Lake, Guardian Ad Litem.

Presiding Justice GROMETER delivered the opinion of the court:

Respondent Kevin L. Rife appeals an order denying his petition under section 2-701 of the Code of Civil Procedure, commonly referred to as the Declaratory Judgment Act (Act) (735 ILCS 5/2-701 (West 2004)). On appeal, respondent argues that the trial court erred in holding that petitioner Maureen E. Rife's response to his postdissolution petition to reduce child support was not itself a "petition" as defined by a provision (modification clause) in the marital settlement agreement (MSA) incorporated into the dissolution judgment. Petitioner argues that the trial court correctly held that her response was not a "petition" so as to trigger the modification clause and require that funds in an individual retirement account (IRA) in her name be transferred to an IRA in respondent's name. Petitioner also argues that the modification clause is unenforceable because it violates public policy. We agree with petitioner's second argument, and we affirm.

On January 28, 2004, the trial court dissolved the parties' marriage. The MSA gives the parties joint custody of their two children: Gabrielle, born in 1998, and Mitchell, born in 2000. Respondent is the "residential parent," and petitioner agrees to supervise the children when she has "parenting time." Each party must be kept informed of the children's "day to day residence." Each party shall have "liberal and reasonable parenting time," and the parties "can agree on weekend weekday, holiday, and vacation parenting time between them without the necessity of specifying specific [sic] times herein, said parenting times to be established." The children shall continue attending a Montessori school for the 2004-05 school year; if the parties cannot agree on the children's future schooling, they shall attempt to resolve their differences by mediation.

Article VI of the MSA addresses child support. Paragraph 1 recites that, in the children's interests, petitioner ought to "receiv[e] financial assistance for the minor children during her parenting time." To this end, respondent shall use funds from his employee stock ownership plan to establish a $260,000 IRA in her name. Petitioner may withdraw from the IRA $1,900 per month for child support, to be reduced to $1,390 per month as soon as there is only one minor child. If both children become emancipated, any money in the IRA reverts to respondent. Petitioner is solely responsible for taxes and penalties imposed if she withdraws money from the IRA. She may claim a "dependency exemption" for Gabrielle, and respondent may claim one for Mitchell.

Paragraph 1 contains the modification clause, which states:

"In the event that MAUREEN attempts to modify the weekly visitation, the residency of the children, or the support structure provided and established herein, by petitioning for such relief with a Court of competent jurisdiction, MAUREEN's right to withdraw funds from the established IRA fund would immediately cease and the IRA would immediately be transferred to an IRA in KEVIN's name. Obviously, modification of the weekly visitation, the residency children [sic], or the support structure provided for herein, or any related issue, could always be modified [sic] by agreement of the parties without the consequence of the cessation of the withdrawal of funds and transfer of the IRA.

In the event that MAUREEN attempts to modify the weekly visitation, the residency of the children, or the support structure provided herein, by petitioning for such relief with a Court of competent jurisdiction, she shall immediately deliver good and sufficient instruments necessary and proper to transfer the established IRA to an IRA in KEVIN's name. If she, for any reason, shall fail or refuse to execute any such documents * * *, then any judge or associate judge of the Circuit Court of McHenry County [shall] execute and deliver any and all such documents in her place and stead."

The parties filed various postdissolution petitions. On January 3, 2006, respondent petitioned to remove the children from the Montessori school in Crystal Lake to Neubert, a public school near his home. On January 20, 2006, by an agreed order, the trial court ruled that both children would attend the Montessori school through spring 2006 but, beginning in fall 2006, would attend school in the community where the residential parent lived.

On April 28, 2006, respondent filed three petitions to modify the dissolution judgment. The first, to decrease child support, alleged that petitioner had recently remarried; that she was currently unemployed and had not contributed to the children's needs as much as the judgment required; that, as of fall 2006, the children would be attending Neubert; and that, because the "current parenting time" was "being modified to a more traditional schedule," petitioner would need less financial support than under the "split parenting time arrangement." The petition asked the court to decrease the monthly withdrawal from the IRA from $1,900 to $500.

Respondent's second petition, "to set parenting time," asserted that the parties would no longer "split parenting time" and asked the court to set a "definite parenting * * * schedule" for petitioner. Respondent's third petition asked permission to claim both children as dependents on his tax return.

Petitioner's answers to the first and third petitions did not request relief beyond the denials of the petitions and awards of attorney fees. However, in answering the petition to set parenting time, she alleged that it was in the children's best interests to award her "their primary day to day care." She asked the court to "[d]eny [the] Petition to Set Parenting Time; alternatively, award [her] the children's day to day care, while awarding [him] a reasonable liberal visitations [sic] schedule."

On June 7, 2006, respondent filed his petition under the Act. He alleged that petitioner's answer to his petition to set parenting time was in substance a counterpetition and thus triggered the modification clause. Petitioner denied that her answer to the petition was a counterpetition and alleged that the modification clause was against public policy because it penalized her for seeking relief that might be in the children's best interests.

On July 17, 2006, the trial court denied respondent's petition under the Act. The court held that the modification clause would have been triggered only had petitioner "take[n] an affirmative step or `set the wheels in motion'" but that she did not do so merely by answering respondent's petition to set parenting time. Having held that the modification clause did not apply, the court did not decide whether it violated public policy. On September 28, 2006, with various other postdissolution petitions pending, the court found that there was no just reason to delay the enforcement or appeal of its order (155 Ill.2d R. 304(a)). Respondent appeals.

On appeal, respondent again contends that, by asking the trial court to award her custody of the children, petitioner "attempt[ed] to modify" the dissolution judgment by "petition[ing] for such relief," triggering the modification clause. Because we agree with petitioner that the modification clause violates public policy, we affirm. Although the trial court did not decide this issue, we may affirm its judgment on any basis of record. See Travelers Casualty & Surety Co. v. A.G. Carlson, Inc., 368 Ill.App.3d 519, 522, 306 Ill.Dec. 694, 858 N.E.2d 491 (2006). In explaining our holding, we shall address the construction of the modification clause only as necessary to our discussion of why it violates public policy.

We recognize that we are deciding this appeal on a relatively broad ground by holding that the modification clause is unenforceable, even though we might avoid this issue by first considering whether the trial court correctly held that the clause does not apply here. Nonetheless, we believe that our holding is not merely proper but necessary. Even if the modification clause does not apply this time, respondent may well invoke it again if petitioner ever seeks a modification of the dissolution judgment. As important, the very existence of the modification clause would tend to deter petitioner from seeking a change in custody, child support, or visitation, even if it would be in the children's best interests. Thus, whether or not the children's interests are presently affected by the modification clause, those interests are bound to be so affected in the future, even if neither party actually litigates issues relating to custody, support, or visitation.

We turn to the general principles of law applicable to our review of the issues that respondent raises on appeal. The construction of a contract and whether the contract violates public policy raise issues of law, which we review de novo. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill.2d 100, 129, 296 Ill.Dec. 448, 835 N.E.2d 801 (2005) (construction of contract); Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 192, 91 N.E. 1041 (1910) (whether contract violates public policy); Rome v. Upton, 271 Ill.App.3d 517, 520, 208 Ill.Dec. 163, 648 N.E.2d 1085 (1995) (same). Therefore, were we to review the trial court's conclusion that the modification clause does not apply here, or had the trial court decided whether the modification clause violates public policy, we would owe its judgment no deference. Also, because we consider the second issue de novo, it...