Modification

Modification

___In General
   The legislature has set forth certain conditions upon which maintenance will be terminated or modified, however, parties to a dissolution action are permitted to enter into settlement agreements which alter the court’s ability to terminate or modify maintenance and they take precedence over the statutory conditions.  In re Brent
   In determining whether there is sufficient cause to modify, the court may consider both the circumstances of the parents and the circumstances of the child.  In re Stone
   For a case discussing modification of alimony award, see Osborn v. Osborn

___Allowed
   Denial of the husband’s motion to reduce the child support order was reversed because the trial court committed impermissible “double counting” of the husband’s workers’ compensation settlement proceeds when it awarded half of the settlement to wife and children but did not adjust the husband’s child support obligation.  In re Marriage of Schacht
   Where an order awarded a former wife rehabilitative maintenance and provided for review of the award some months later with no further pleadings to be filed by the parties, the review did not constitute a modification of the maintenance award; hence, § 510 of the Illinois Marriage and Dissolution of Marriage Act 750 ILCS 5/510, did not apply.  In re marriage of Culp
   Trial court did not abuse its discretion by finding a substantial change in circumstances by a substantial reduction in wife’s income and ordering a $250 pay month increase in maintenance even though, in the original judgment, the court did provide for the diminution of payments when the husband’s salary as a reserve officer terminated; the court made no effort to prophesy or even speculate about the consequence of such reduction and certainly made no finding that the cessation of such payment would be reasonable for both parties.  Thurston v. Thurston
   A trial court did not abuse its discretion in increasing maintenance and child support where evidence showed that the fact that the parties’ daughter had asthma could have necessitated the wife’s decision to become self-employed, the wife had health problems, and the husband filed a written judicial admission of his ability to pay.  Giamanco v. Giamanco

___Burden of Proof
   On a petition to modify under this section, the burden is on the moving party to present to the court sufficient evidence upon which a decision can be made.  In re McGory

___Cohabitation
   One change in conditions which justifies the modification of maintenance is if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.  In re Lowe

___Cost of Raising Children
   A court may presume that the cost of raising children increases as the children grow older.  In re Riegel

___Cross-Petition Necessary
   Respondents in child support modification actions must file a cross-petition if the relief they seek is different from the relief sought by the petitioner.  In re Zukausky

___Discharge in Bankruptcy
   The trial court did not err in considering that the discharge of marital debt in bankruptcy constituted a substantial change in circumstances justifying an increase in support since (1) the discharge in bankruptcy relieved the father of the legal obligation of paying certain debts, thereby affecting a significant change in his financial condition, and (2) the wife became responsible for a substantial debt due to the father’s discharge of that debt.  In re Letsinger

___Disparity in Income
   Where husband may not have been able to develop his career as successfully as he did without wife’s support in her role as the family’s designated homemaker, viewed in legal terms, their marriage, because of its duration and circumstances, constituted a “moral and financial” partnership in which the interest of each partner could be neither easily ascertained nor easily terminated because of the substantial and continuing effect that partnership had and would likely continue to have on their lives.  Thus, where the trial court viewed the matter as if wife bore an obligation to find a full0time job to support herself, which at best would have provided her with but a fraction of husband’s income or the income they enjoyed while married, and her failure to do so precluded her from receiving any extension or increase in her maintenance, in punishing wife for what the court perceived as her lack of diligence, the court unduly encroached upon her reasonable expectations to be able to live in the future in a fashion remotely resembling how she had been able to live in the past, and her expectations in this regard were particularly reasonable in view of husband’s six-figure income; thus the gross disparity in potential incomes and the apparently drastic change in wife’s lifestyle supported her claim that her maintenance should have been extended and increased.  In re Carpel

___Estoppel
   Wife was barred from attacking a divorce decree by accepting the benefits of the divorce decree to the distinct disadvantage of the husband where wife had been awarded the marital home and all the personal property therein, and subsequent to the divorce decree, she sold two pieces of personal property out of the marital home, she sold the marital residence and purchased another residence.  Adams v. Adams

___Factors Considered
   Trial court abused its discretion when it ruled that it was not required to apply statutory child support guidelines to a petition to modify a father’s child support obligation and that it did not have to make any written findings of fact as to why it was refusing to apply the guidelines.  Anderson v. Heckman
   In accordance with the Illinois Parentage Act of 1984, 750 ILCS 45/1 through 27 (2000), trial courts “shall” use the guidelines and standards set forth in 750 ILCS 5/505 (2000) in determining whether to modify an order for child support in accordance with 750 ILCS 5/510 (2000).  Anderson v. Heckman
   Nothing in 755 ILCS 5/504 or this section authorizes or permits the consideration of the fact that ex-wife was overweight and continued to smoke in the consideration of modification of maintenance; the existence of these “factors” was none of the trial court’s business.  In re Offer
   Deviation from the guidelines may be had upon the consideration of relevant factors, and the factors to be considered in a modification proceeding are the same factors which may be considered when formulating an original support award.  In re Olsen

___Fraudulent Misrepresentation
   Orders rendered in the context of dissolution of marriage case may be vacated or modified if procured through fraud; in order to show fraudulent misrepresentation, plaintiff must show (1) a false statement of material fact; (2) the party making the statement knew or believed in to be untrue; (3) the recipient of the statement the purpose of inducing the recipient to act; and (5) injury from the recipient’s reliance on the statement.  In re Ealy

___Jurisdiction
   The trial court had jurisdiction to modify custody supports, notwithstanding the argument that the trial court was divested of jurisdiction by the failure to file a petition for modification of child support within 30 days of the final judgment of dissolution, since a trial court has inherent jurisdiction to modify child support in a dissolution proceeding upon a showing of a substantial change in circumstances, and the trial court need not expressly retain jurisdiction.  In re Letsinger

___Lifestyle During Marriage
   The trial court had to admit testimony on how the parties lived during their marriage; such testimony would bear directly on the propriety of any extended and increased maintenance.  In re Carpel

___Movant’s Burden
   The burden of demonstrating circumstances warranting modification is on the party seeking the modification.  Graham v. Graham

___Not Allowed
   A party cannot stop or reduce his child support payments unless the trial court has approved the modification.  In re Ingram
   Though the father’s income had drastically diminished, his standard of living had not and the court was apprehensive about reducing the father’s $550 pre month support obligation where he had not seen fit to reduce his discretionary expenses.  In re Burris
   Where original dissolution agreement stated husband (petitioner) was to pay mortgage until date of sale of home, trial court’s the mortgage payments until the date of the sale of the home was thus clearly in violation of subsection (a) of this section.  In re Pitts
   Past-due installments of child support are the vested right of the designated recipient; thus, the court lacks the authority to modify those amounts that have already accrued.  In re Erickson
   The trial court would not reverse a concededly adequate award of maintenance and child support based on a hypothetical and highly speculative argument regarding the possible future increase in the reasonable needs of petitioner or the minor children; should those needs in fact increase, petitioner could simply seek modification of the judgment by direct motion to the trial court.  In re Wilder
   The portions of the circuit court’s orders which modified the provision of the judgment of divorce concerning Bar Mitzvah expenses was reversed, because the settlement unambiguously stated that defendant would pay for the party.  In re Roth
   While the appeal of a prior order was still pending, and the trial court changed the order by specifically adding the following: (1) “that the only material change it could consider would be the termination of plaintiff’s social security benefits, and (2) that there was no substantial change in defendant’s income since November 26, 1975 order,” the trial curt did not have authority to modify its order after a notice of appeal from such order had been filed.  Dunn v. Dunn
   Modification of a separation agreement was not permitted where a father was not attempting to relieve himself of his obligation of support when he entered into a property settlement agreement, but on the contrary, when he promised to pay the costs of his daughter’s college tuition, and expenses for a scholastic year, without contribution by the plaintiff and without a determination of his ability to pay he was contracting to do more than the law required of him; the property settlement agreement was founded upon sufficient consideration; and the father sought a reduction of his obligation with no reciprocal officer on his part to restore the property rights which the mother released to him.  The court could not release one of the contracting parties from terms actually agreed upon but later found disadvantageous when the party had already enjoyed the benefits of the agreement.  Gaddis v. Gaddis

___Oral Modification
   Where an oral modification between ex-husband and ex-wife was alleged, although the conduct of the parties was not in total accord with the divorce decree, this did not establish that a modification occurred.  Gordon v. Joseph

___Post-Judgment Relief
   A petition under 735 ILCS 5/2-1401 is a proper ground for relief from a divorce decree which incorporates a written agreement which fails to express the real intention of the parties through mutual mistake, or through mistake of one side and fraud on the other, where the proof clearly and convincingly shows that a mistake was made and that it was mutual and common to both parties.  In re Johnson

___Remarriage of Supporting Parent
   A factor the court may consider in an action to modify child support is whether the supporting parent has remarried; this fact is relevant because couples are likely to pool their resources, thereby possibly increasing the resources available to the supporting parent.  In re Riegel

__Retroactivity
   The court did not abuse its discretion in making an increase in child support retroactive to the date the petition was filed, notwithstanding the assertion that the petitioner’s delay in responding to discovery slowed the proceedings, where the respondent did not explain how this prejudiced him and did not contend that he did not receive notice of the petition within a short time after it was filed.  In re Sweet
   With regard to the notice date for purposes of calculating the support amount subject to retroactive abatement, the husband’s voluntary dismissal of his first motion to modify was not properly vacated and, therefore, the date of the husband’s second motion to modify was the date to which his support obligation could be retroactively abated.  In re Semonchik
   The circuit court erred in requiring the respondent to pay retroactive child support and interest between the date of the judgment of dissolution and when the petition for modification was filed.  In re Pettifer
   Under the Illinois Marriage and Dissolution of Marriage Act, retroactive modification of child support orders in not permitted.  In re Smak
   Although subsection (a) prohibits retroactive modification of an existing order of support, where the trial court determined that no order directing any payment was in existence at the time of the court’s finding because the original agreement had expired, no court’s finding because the original agreement had expired, no order was in existence to be modified by the trial court and no violation of subsection (a) occurred upon the court’s order for retroactive child support.  In re Campbell
   Any modification allowed by the court of a child support agreement will only act prospectively.  In re Macino
   The question of whether modification should be retroactive is within the sound discretion of the trial court.  In re Heil
   There was no basis on which to conclude the trial court abused its discretion when it denied retroactive support where husband caused no delay in the court’s hearing wife’s petition to modify child support, and the court did hear that petition in a timely fashion, and where wife had petitioned the court in 1987 and 1988 for an increase in support based on the same allegations in her 1989 petition, but failed to pursue those claims.  In re Carpel
   Whether a modification is to be retroactive to the date of the filing of the petition, or any time after, is a mater within the trial court’s discretion.  Brandt v. Brandt
   Where under the original divorce decree wife was responsible for all medical expenses, and a 1964 modification of the divorce decree requiring the husband to pay medical bills applied only to medical expenses which would be incurred in the future, the trial court erred in assessing husband for one-half of a 1963 medical bill.  Berg v. Berg

___Review
   When a petition or petitions are filed which seek modification of issues determined in dissolution proceedings, all matters which are interrelated, that is, where the resolution of one affects the outcome of the other, must be determined before an appeal may be filed.  In re Stockton

___Settlement Agreement
   Modification of a maintenance order based on the former wife’s receipt of social security disability benefits was not required where the settlement agreement referred to her impending receipt of such benefits.  In re Neuman
   The marital settlement agreement showed an intent on the part of the parties to preclude modification of maintenance.  In re Schweitzer
   The settlement agreement as reflected in the supplemental judgment of dissolution did not expressly limit reduction of maintenance to the condition of wife’s employment, and therefore did not preclude reduction of maintenance based upon a substantial change of circumstances.  In re Brent
   Where a separation agreement was not incorporated into the judgment, the trial court correctly ruled that the agreement was not modifiable upon a showing of changed circumstances, as the agreement remained a contract enforceable only by contract remedies.  In re Dellitt
   A clause in a settlement agreement prohibiting its modification is effective and not violative of public policy.  In re Kozloff

___Typographical Error
   A petition brought under 735 ILCS 5/2-1401 by former wife was not a property settlement modification which would have violated this section where she brought the petition to merely correct a typographical error and reform the agreement to accurately reflect the intent of all the parties involved.  In re Johnson

___Upheld
   Where an agreed modification of a decree of dissolution provided for a $50 a month rent payment so that former wife could have moved, such modification was consistent with public policy of state.  In re Steel

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