Marriage of Harris, In re

Decision Date17 September 1990
Docket NumberNo. 1-89-0076,1-89-0076
Parties, 148 Ill.Dec. 541 In re the MARRIAGE OF Sandra HARRIS, Petitioner-Appellant, and Howard A. Harris, Respondent-Appellee.
CourtUnited States Appellate Court of Illinois

Laser, Schostok, Kolman & Frank, Chicago (Henry S. Frank, Bruce M. Friedman, Danni J. Haag, of counsel), for petitioner-appellant.

Batler and Schwartz, Buffalo Grove (Jerome Marvin Kaplan, of counsel), for respondent-appellee.

Justice CAMPBELL delivered the opinion of the court:

Petitioner, Sandra Harris, appeals from an order entered by the trial court denying her motion to vacate an Agreed Order entered on October 29, 1987 (the "Agreed Order"), which terminated the obligation of respondent, Howard A. Harris, to provide maintenance to Sandra, retroactive to August 1, 1987. On appeal, Sandra contends that the trial court erred in failing to vacate or to modify the Agreed Order on the grounds that: (1) her right to receive maintenance terminated by operation of law prior to the entry of the Agreed Order; (2) Howard fraudulently induced Sandra to enter into the Agreed Order; and (3) the invalidation of Sandra's remarriage effected a fundamental change in circumstances which operated to turn the Agreed Order into an "instrument of wrong." For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. On April 20, 1982, a judgment dissolving the marriage of Sandra and Howard was entered. The judgment incorporated a written marital settlement agreement, which stated, inter alia, that Howard would provide the unallocated sum of $1500 per month for maintenance and child support. Subsequently, on November 29, 1984, by an agreed order, the settlement agreement was modified to reduce maintenance payments to $1166.66 per month.

Thereafter, on May 29, 1987, Howard petitioned the court to terminate child support and maintenance or, in the alternative, to reduce maintenance. As grounds for his request, Howard alleged that there had been a substantial change in the circumstances of the parties, i.e., (1) Sandra had substantial assets to support herself; (2) Sandra had supplemental income; (3) Howard had remarried, thereby incurring additional expenses; (4) the children of the parties are emancipated and no longer need support; (5) the younger of the two children now resides with Howard, rather than with Sandra; (6) Howard can no longer afford to support Sandra as he did in the past; and (7) Sandra's monthly expenses have decreased. On October 4, 1987, prior to the hearing on Howard's petition, Sandra remarried. Subsequently, on October 29, 1987, the Agreed Order, from which Sandra appeals, was entered. The Agreed Order provided, in pertinent part, that:

"1. Article II of the Marital Settlement Agreement is hereby modified to provide that maintenance shall terminate retroactive to August 1, 1987; provided, however, that the Respondent shall pay to Petitioner the arrearage of Three Hundred ($300.00) Dollars."

On November 14, 1987, Sandra separated from her second husband. Approximately two weeks later, she filed a motion to vacate the Agreed Order, alleging: (1) two of the five life insurance policies that Howard had agreed to maintain had lapsed; and (2) her second marriage was invalid as a matter of fact and law. On December 23, 1987, a declaration of invalidity was entered as to Sandra's second marriage nunc pro tunc to October 4, 1987. The grounds for the declaration of invalidity were the second husband's false representations prior to marriage that he would be willing to consummate the marriage. Following a hearing on Sandra's motion to vacate the Agreed Order, the trial court denied the motion. Sandra's appeal followed.

Sandra initially contends that, pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act ("IMDMA") (Ill.Rev.Stat.1987, ch. 40, par. 510(b)), Howard's obligation to pay maintenance terminated by operation of law upon her remarriage on October 4, 1987, and the Agreed Order was merely an acknowledgement of the earlier termination. Therefore, Sandra argues that the trial court erred in failing to vacate or to modify the Agreed Order. Section 510(b) provides:

"Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis."

In the present case, the marital agreement was silent as to the termination of maintenance. Thus, section 510(b) was applicable and acted to terminate, by operation of law, Howard's obligation to pay future maintenance upon Sandra's remarriage on October 4, 1987. However, contrary to Sandra's position, Howard's obligation to pay maintenance was not reinstated by the subsequent declaration of invalidity of Sandra's remarriage.

Sandra correctly argues that the pivotal question to resolving the issue of whether the maintenance obligation is reinstated if the remarriage is declared invalid is whether the term "remarriage," as it appears in section 510(b) of the IMDMA, means the ceremony of marriage or the status of marriage. Sandra contends that "remarriage" means "marital status," and if the status is subsequently declared void, the parties are placed in the same position as if the remarriage had never occurred. Contrary to Sandra's position, this court defined the term "remarriage" in In re Marriage of Kolb (1981), 99 Ill.App.3d 895, 55 Ill.Dec. 128, 425 N.E.2d 1301 to mean a ceremonial marriage rather than a marital status. Although Kolb interpreted the term "remarriage" as it appeared in a settlement agreement and not in section 510(b) of the IMDMA, the Kolb court's analysis is equally applicable in both contexts.

In Kolb, judgment for divorce was entered on October 20, 1972. The judgment incorporated an oral settlement agreement which specifically provided that maintenance payments were to terminate upon the wife's death or remarriage. In early August 1978, petitioner initiated post-decree proceedings alleging that respondent's remarriage on February 12, 1977, had terminated his obligation to make future payments.

At the hearing on the petition, respondent testified that directly after the remarriage ceremony, she and her second husband became involved in a heated argument, he walked out of the reception, and did not return to the hotel. As a result, the marriage was never consummated. Respondent commenced annulment proceedings in August 1977. The trial court entered an order giving full force and effect to the out-of-state annulment decree and the petition to terminate maintenance payments. Petitioner then filed a motion to reconsider. Following a hearing, the trial court found that, pursuant to the divorce judgment, petitioner's alimony obligation terminated upon respondent's remarriage and was not reinstated by the annulment of the remarriage.

On appeal, the Kolb court held that unless the parties specifically indicated otherwise or unless special circumstances existed at the time of remarriage, such as lack of consent due to intoxication or where the wife was physically or mentally handicapped, "the term 'remarriage' is intended to refer to a ceremonial marriage rather than a marital status." (99 Ill.App.3d 895, 902, 55 Ill.Dec. 128, 425 N.E.2d 1301.) The Kolb court further stated that this definition "offers a predictable and consistent interpretation of the term 'remarriage'." (99 Ill.App.3d 895, 902, 55 Ill.Dec. 128, 425 N.E.2d 1301.) In addressing respondent's argument that it was the parties' intent that the alimony obligation continue until she had entered into a marriage that would provide her with support, the Kolb court stated:

"[I]t would appear that under respondent's view, if she entered a marriage with someone who could not support her, petitioner would be required to continue his support because this would not constitute a 'remarriage' under the terms of the decree." 99 Ill.App.3d 895, 900, 55 Ill.Dec. 128, 425 N.E.2d 1301.

In the present case, Sandra attempts to distinguish Kolb on the ground that the Kolb court had reached its decision based upon the clear intent of the parties as expressed in their settlement agreement. Although the settlement agreement in the present case was silent as to the parties' intent regarding termination of maintenance payments upon remarriage, their intent was clearly expressed to the trial court at the hearing on the petition for dissolution:

"THE COURT: Are there any terminating provisions in connection with maintenance?

[PETITIONER'S COUNSEL]: No, maintenance will continue as long as she is not married.

THE COURT: Oh now, that is different, is that what it says in the agreement?

[PETITIONER'S COUNSEL]: No, the agreement has no terminating features, the agreement will terminate if at all by law, that means in the event she remarries.

THE COURT: I see, since there is no specific provision, that cannot be modified.

[PETITIONER'S COUNSEL]: Yes, sir."

Just as the settlement agreement did in Kolb, the aforementioned colloquy manifests the intent of the parties that remarriage would terminate the maintenance obligation. In fact, Sandra's counsel went one step further than in Kolb by specifically acknowledging that because the obligation terminated by operation of law, it could not be modified. While the plain language of section 510(b) provides that maintenance obligations terminate upon remarriage, it does not provide for reinstatement of those obligations in the event the remarriage is declared invalid. Because it is not within the province of this court to inject provisions not found in a statute (In re Cook (1984), 122 Ill.App.3d 1068, 78 Ill.Dec....

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