Lamp v. Lamp

• Decision Date: 09 July 1979
• Docket Number: No. 78-557,78-557
• Citation: 392 N.E.2d 349,29 Ill.Dec. 792,73 Ill.App.3d 713
• Parties: , 29 Ill.Dec. 792 Robert E. LAMP, Plaintiff-Appellee, v. Susan M. LAMP, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 349

392 N.E.2d 349

73 Ill.App.3d 713, 29 Ill.Dec. 792

Robert E. LAMP, Plaintiff-Appellee, v. Susan M. LAMP, Defendant-Appellant.

No. 78-557.

Appellate Court of Illinois, Fifth District.

July 9, 1979.

Rehearing Denied July 27, 1979.

Sprague, Sprague & Ysursa by John R. Sprague, Belleville, for defendant-appellant.

Jim D. Keehner, Ltd. by Jim D. Keehner, Belleville, for plaintiff-appellee.

KARNS, Justice:

Susan Lamp appeals from the judgment of the Circuit Court of St. Clair County modifying a divorce decree to provide for the immediate sale of the parties' marital home.

In December, 1974, Robert Lamp obtained a divorce from defendant-appellant, Susan Lamp. The decree incorporated an agreement of the parties whereby the marital home, apparently owned in joint tenancy, would remain in the possession of the wife during the minority of the children of the parties. Provision was made for the payment of the mortgage by the husband, the division of maintenance expenses by the parties and the division of the proceeds upon the eventual sale of the home.

The part of the decree here in issue provided that the real estate would be sold when the youngest of the minor children of the parties attained the age of 18 years, or when the wife remarried, whichever occurred first. The decree further awarded custody of the children to the wife, provided for child support and awarded the wife $300.00 "temporary" alimony for a period of three months, without prohibition of further alimony, all as agreed upon by the parties.

In February, 1977, by agreement of the parties, the decree was modified and custody of the three minor children was transferred to the father who had remarried.

On October 16, 1978, on petition of Robert Lamp, the decree was further modified to provide for the immediate sale of the residence and division of the proceeds of sale according to the formula contained in the original decree. The trial court's opinion stated that the former wife's possessory interest awarded to her in the 1974 decree could be viewed as periodic alimony, a provision for child support or a combination thereof. Considering the change of circumstances, the transfer of custody to the father, the court concluded that it was authorized to modify the decree, citing as authority Chamberlin v. Chamberlin, 119 Ill.App.2d 295, 256 N.E.2d 159 (1st Dist. 1970).

Susan Lamp contends on appeal that the award of possession of the marital home as provided in the original decree is a vested property right which is not subject to modification; that until she remarries or the youngest child attains the age of 18 years, she is entitled to possession even though she no longer has custody of the children. Robert Lamp contends that the provision either viewed as periodic alimony or a provision for child support was properly modified considering the substantial change of circumstances.

Susan also contends on appeal that she occupied the residence as her homestead even though she is not the head of a household nor was she found to be an innocent spouse and cites extensively cases construing the Homestead Act. (Ill.Rev.Stat.1977, ch. 52, par. 1 Et seq.) We do not believe the Homestead Act has any bearing on the issue before us. The Homestead Act merely creates an exemption as a protection against creditors. It has no relevancy as between joint tenants (Phillips v. Phillips, 74 Ill.2d 27, 23 Ill.Dec. 102, 383 N.E.2d 973 (1978); Gottemoller v. Gottemoller, 37 Ill.App.3d 689, 346 N.E.2d 393 (3d Dist. 1976); Berg v. Berg, 45 Ill.App.3d 422, 4 Ill.Dec. 59, 359 N.E.2d 892 (2d Dist. 1977).) To interject the Homestead Act into this case obscures the issue before us for decision. In any event section 5 of the Homestead Act (Ill.Rev.Stat.1977, ch. 52, par. 5) provides that in the event of divorce, the court may dispose of the homestead estate " according to the equities of the case." The original decree incorporating the agreement of the parties provided for the sale and division of proceeds. The homestead estate was effectively disposed of at that time. (Krusemark v. Stroh, 385 Ill. 64, 52 N.E.2d 156 (1944).) The new Marriage and Dissolution of Marriage Act is applicable to proceedings commenced after October 1, 1977 involving the modification of maintenance (periodic alimony) and child support provisions of divorce decrees entered prior to the effective date of the new Act. (Ill.Rev.Stat.1977, ch. 40, par. 801(c); Pierce v. Pierce, 69 Ill.App.3d 42, 25 Ill.Dec. 511, 386 N.E.2d 1175 (5th Dist. 1979).) However, as to property settlement provisions, including awards of alimony in gross, incorporated into divorce decrees which became final before the effective date of the new Act, the law then in effect, including the provisions of the former Divorce Act (Ill.Rev.Stat.1975, ch. 40, par. 1, Et seq.) would govern. (Pierce v. Pierce; Staub v. Staub, 67 Ill.App.3d 1004, 24 Ill.Dec. 630, 385 N.E.2d 771 (5th Dist. 1978).) In any event, section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 510(a)), as here applicable, is a re-codification of prior law.

Provisions respecting the disposition of the parties' property incorporated in a divorce decree are not subject to modification, whether labeled a property settlement or an award of alimony in gross payable in installments. This has been established law in Illinois and needs no elaboration. (Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342 (1951); Jamal v. Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246 (1st Dist. 1968); Brickey v. Brickey, 44 Ill.App.3d 563, 3 Ill.Dec. 239, 358 N.E.2d 406 (5th Dist. 1976).) This principle was incorporated in section 18 of the former Divorce Act (Ill.Rev.Stat.1975, ch. 40, par. 19) and is reaffirmed without change in section 510(a) of the new Act.

In Chamberlin v. Chamberlin, 119 Ill.App.2d 295, 256 N.E.2d 159 (1st Dist. 1970), the court construed a similar provision in a decree of divorce. The decree provided that the wife, who was given custody of the children, would have exclusive possession of the marital home until the youngest of the minor children reached her majority. She subsequently remarried and the court modified the decree and required her removal from the premises, title to which had been awarded to the husband. On appeal, she argued that the provision in the decree awarding her possession was a property settlement or alimony in gross, not subject to modification.

The court stated it must determine the intent of the provision in the decree by examining all the attendant facts. In so doing, the court noted that the original decree required the wife to convey her interest in the premises to the husband; that the decree made no provision for periodic alimony in money; and that items of personal property were awarded to the wife. Considering the entire decree and specifically that title to the property was awarded to the husband, the court concluded that as to the wife, the award of possession was a property settlement. However, the court further concluded:

" * * * (t)he provision did concern the minor children's support and to this extent was a benefit to them. Thus, defendant argues that pursuant to Section 19 of the Divorce Act (Ill.Rev.Stat. (1967), Ch. 40, Sec. 19), the trial court could modify the award as to the children. However, from the record it would appear that defendant has not sustained his burden in showing such a change of circumstances that would justify a court in changing the child support provisions of the decree. (citation). We are not persuaded that the removal of these children from their home would benefit them in any respect." (119 Ill.App.2d at 300, 256 N.E.2d at 161-162)

The appellant does not here contend that the transfer of custody of the children to the father was not a substantial change in circumstances. Nor did the original decree deprive the wife of her interest in the marital home, as she is to share in the proceeds of sale.

We believe the trial court was correct in considering the award of possession to the wife until the youngest child reached the age of 18 years to be an award of child support for the benefit of the children, not a property settlement or award of alimony in gross.

The decree also terminated her right to possession upon remarriage; however, periodic alimony, now maintenance, is always terminated upon remarriage of the former spouse. We believe this indicates that the intent of the decree as to her was to award possession only as periodic alimony.

The decree also awarded the wife $300 periodic alimony. Further awards of periodic alimony were not precluded. It is established that an award of periodic alimony precludes alimony in gross. (Pierce v. Pierce; Stotlar v. Stotlar, 50 Ill.App.3d 790, 8 Ill.Dec. 711, 365 N.E.2d 1097 (5th Dist. 1977).) Considering the indefinite duration of the wife's award of possession and the traditional preference of the law for periodic alimony rather than alimony in gross (Musgrave v. Musgrave, 38 Ill.App.3d 532, 347 N.E.2d 831 (5th Dist. 1976)), we conclude her award of possession of the home, as distinguished from the children's award of possession, to be maintenance or periodic alimony subject to modification upon a proper showing of change of circumstances. We cannot view her award of temporary possession as conferring on her a vested property right. The transfer of custody of the children to the father was clearly a substantial change of circumstance. The marital home was no longer needed for their support.

The primary purpose of the award of possession, however, was to provide a home for the minor children of the parties. We believe the trial court properly concluded that the purpose of the provision was to furnish a home and, therefore, support for the children. (Pope v. Pope, 7 Ill.App.3d 935, 289 N.E.2d 9 (1st Dist. 1972).) A like conclusion was reached in Barlow v. Barlow, 56 Ill.App.3d 629, 14 Ill.Dec. 411, 372 N.E.2d 422 ...