Marriage of Lehr, In re

• Decision Date: 28 June 1991
• Docket Number: No. 1-89-2170,1-89-2170
• Citation: 578 N.E.2d 19,160 Ill.Dec. 840,217 Ill.App.3d 929
• Parties: , 160 Ill.Dec. 840 In re the MARRIAGE OF Rosemarie LEHR, Petitioner/Appellant/Cross-Appellee, and Louis A. Lehr, Jr., Respondent/Appellee/Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 19

578 N.E.2d 19

217 Ill.App.3d 929, 160 Ill.Dec. 840

In re the MARRIAGE OF Rosemarie LEHRPetitioner/Appellant/Cross-Appellee and Louis A. Lehr, Jr., Respondent/Appellee/Cross-Appellant.

No. 1-89-2170.

Appellate Court of Illinois First District, First Division.

June 28, 1991.

Rehearing Denied Aug. 16, 1991.

Rinella and Rinella, Chicago (David A. Novoselsky and Linda A. Bryceland of David A. Novoselsky & Associates, of counsel, for respondent-appellee-cross-appellant.

Grund, Marcus, McNish, Knabe & Nadler, Chicago (Dorene Marcus, Linda J. Kroning, of counsel), for petitioner-appellant-cross-appellee.

Justice CAMPBELLdelivered the opinion of the court:

Petitioner, Rosemarie Lehr, approximately 61 years old, appeals from an order entered by the trial court which reduced the amount of monthly unallocated alimony and child support (the "monthly obligation") that respondent, Louis Lehr, an attorney, was obligated to pay pursuant to a marital settlement agreement entered into by the parties at the time of their divorce in 1977.Rosemarie also appeals from an order which required Louis to pay only $3800 of her attorney fees.Rosemarie contends that: (1)the trial court erred in finding that the terms of the marital settlement agreement were ambiguous and in allowing extrinsic evidence to establish the intent of the parties regarding reduction of the monthly obligation; (2)the trial court abused its discretion in reducing Louis' monthly obligation; and (3)the trial court abused its discretion in awarding only partial attorney fees to Rosemarie.On cross-appeal, Louis claims that the trial court erred: (1) in denying his petition to terminate the monthly obligation; and (2) in not requiring Rosemarie to pay all of her own attorney fees and costs.For the following reasons, we reverse the judgment of the trial court and remand the cause for a hearing on the reasonableness of Rosemarie's attorney fees and the allocation of her fees between the parties.

The record indicates that judgment for the divorce of Rosemarie and Louis was entered on February 10, 1977.¹A marital settlement agreement (the "Settlement Agreement") between the parties was approved and incorporated into the judgment.Paragraph 3 of the Settlement Agreement provides as follows:

"3.UNALLOCATED ALIMONY

AND CHILD SUPPORT

The husband covenants and agrees that he will pay to the wife, as and for unallocated alimony and child support, the sum of Three Thousand Two Hundred Fifty Dollars ($3,250.00) per month in equal semi-monthly installments of One Thousand Six Hundred Twenty-Five Dollars ($1,625.00) each, from which funds the wife shall provide for the support of the children except as is otherwise hereinafter provided, which said payments shall commence on the date of the entry of a judgment for divorce in this cause and shall continue on the first and fifteenth day of each month thereafter, as set forth under the so-called Lester Plan, until the death or remarriage of the wife, whichever shall first occur.In the event of the remarriage of the wife, the parties will consult as to the amount to be paid thereafter as child support; and in the event that they shall be unable to come to an agreement with respect thereto, the matter shall be referred to the chancellor hearing the cause aforementioned, or to his successor in office, provided, however, that in the event that either of the children of the parties hereto shall hereafter attend a college or university outside the Chicago Metropolitan area, and shall not be living in the home of the wife, the amount payable by the husband to the wife for such combined alimony and child support shall be reduced by the amount of $200 for each such child for each such month in which such child shall not reside in the home maintained by the wife, and provided that in the event such child shall attend college or university in the Chicago Metropolitan area, and shall reside in the home maintained by the wife, the amount payable by the husband to the wife shall be reduced by the amount of $150.00 for each such child for each month in which such child does not reside in the home of the wife.

* * * * * *

The parties agree that the aforesaid unallocated alimony and child support payments are predicated upon the husband's represented adjusted gross income of Eighty-Six Thousand Dollars ($86,000.00) per year for federal income tax purposes.

The parties further covenant and agree that the amount of alimony so fixed has been arrived at in the light of the knowledge that the wife may hereafter derive income from employment or from other sources; the fact that the wife may hereafter derive such income shall not be deemed to comprise a ground for the making by the husband of an application of any court of competent jurisdiction for a reduction in the amount of such unallocated alimony and child support."

In addition, Rosemarie was awarded the marital home and was to pay the mortgage, real estate, insurance and maintenance costs relevant to the home.During their 25-year marriage, the parties had six children, two of whom had reached majority when the judgment for divorce was entered.The other children were 17, 14, 12 and 7 years old at the time of the divorce.

In a subsequent order entered on November 28, 1978, section 3 of the judgment for divorce was modified.The relevant part of the modification is as follows:

"A.Paragraph Numbered 3 of the Agreement (p. 4): That in addition to the provisions for reductions in the amount of support which husband shall pay to wife in conjunction with the attendance by a child at a college or university, the amount which husband shall pay to wife shall also be reduced by the amount of $200 per child upon the attaining of the majority (provided the child is not attending college or university), emancipated or death of any child, whicheger [sic] shall first occur."

Approximately eight years later, on September 22, 1986, Louis filed a Petition to Modify Judgment and Subsequent Order, requesting that alimony payments be terminated as a result of the following changed circumstances: (1) the only minor child was attending college away from home; (2) Rosemarie was employed full time; and (3) the mortgage would be paid off in several months.In response, Rosemarie moved to dismiss the petition to modify on the ground that the alleged changed circumstances had been anticipated and had been addressed in either the judgment of divorce, dated February 10, 1977, or in the order, dated November 28, 1978.

Following a hearing on the motion, the trial court entered its order, dated August 30, 1988, which included the following findings: (1) the final paragraph of Section 3 of the Settlement Agreement is ambiguous and the parties are entitled to a hearing as to the parties' intent regarding modification and termination of the support; (2) the Settlement Agreement does not expressly prohibit modification; it only limits modification to the extent that Louis cannot base a request for reduction of alimony and child support on the fact that Rosemarie earns money; this limitation on modification applies only until all of the children are attending college or are otherwise emancipated, at which point Louis may request modification on any ground; and (3) Louis is entitled to a hearing on his request for modification of support.Predicated on these findings, the trial court ordered that: (1) Rosemarie's motion to strike and dismiss Louis' petition to modify is denied; (2) Louis' request to terminate maintenance is denied; (3) Louis' request for modification is granted and commencing May 1, 1988, maintenance payments are reduced to $1600; (4) the monthly sum of $1600 shall not vary depending on whether the minority child resides with Rosemarie during vacation periods from school; (5) Louis shall pay all of his own attorney fees and costs; and (6) Rosemarie is given 21 days within which to file a petition requesting Louis' payment of or contribution to her attorney fees and costs.

Thereafter, Rosemarie filed a petition for attorney fees and costs, requesting that, based on her inability to pay, Louis pay the balance of her attorney fees and costs.Rosemarie's attorney fees and costs totalled $12,740.96, $2500 of which Rosemarie had already paid as a retainer.Following a hearing on the petition, the trial court entered its order, dated July 19, 1989, which found, inter alia, that the parties had stipulated that Louis had the financial ability to pay the fee requested by Rosemarie's attorney and that Rosemarie had already paid her attorney $2500.The trial court then ordered Louis to pay to Rosemarie's attorney "the sum of $3800, as and for additional attorney's fees, over and above the $2500 paid to date by Rosemarie," and to pay the additional sum of $259.71 in costs.

Rosemarie appealed from the orders dated August 30, 1988, (maintenance reduction) and July 19, 1989(attorney fees).Louis cross-appealed.

Initially, Rosemarie contends that the terms of Section 3 of the Settlement Agreement were not ambiguous and clearly stated that Louis cannot rely on her subsequent employment as a changed circumstance which warrants a reduction or termination of the monthly obligation.

In interpreting settlement agreements, ordinary rules of contract construction apply.As with any contract, the intent of the parties governs the interpretation of the terms.Unless the agreement is incomplete or ambiguous, that intent must be determined from the plain language of the agreement itself.(Olson v. Olson(1983), 114 Ill.App.3d 28, 69 Ill.Dec. 769, 448 N.E.2d 229.)An agreement is ambiguous if it is susceptible to more than one interpretation (In re Marriage of Marquardt(1982), 110 Ill.App.3d 271, 65 Ill.Dec. 956, 442 N.E.2d 267), or if its terms are obscure in meaning through indefiniteness of expression.(Carvallo v. Carvallo(1978), 62 Ill.App.3d 394, 398, 19 Ill.Dec. 413, 378 N.E.2d 1288....