                             2015 IL App (2d) 140733
                                  No. 2-14-0733
                         Opinion filed September 30, 2015
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the Circuit Court
CHARLES F.G. KUYK III,                 ) of Kane County.
                                       )
      Petitioner-Appellee,             )
                                       )
and                                    ) No. 08-D-1179
                                       )
KIMBERLY L. KUYK, n/k/a                )
Kimberly L. Larson,                    ) Honorable
                                       ) Kevin T. Busch,
      Respondent-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.
       Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.

                                            OPINION

¶1     This post-decree matter comes before us a second time, although it presents a different

issue: whether the parties’ dissolution decree, which incorporated their marital settlement

agreement (MSA), prevented either party from filing a petition for the review of maintenance.

The trial court determined that, under the terms of the MSA, maintenance had terminated before

the former wife’s review petition was filed and the petition was, therefore, barred. The trial

court further found that it lacked jurisdiction to consider the petition. We reverse and remand.

¶2                                     I. BACKGROUND
2015 IL App (2d) 140733


¶3     Petitioner, Charles F.G. Kuyk III, and respondent, Kimberly L. Kuyk, n/k/a Kimberly L.

Larson, were married in 1980. Their marriage resulted in one child, now emancipated.

¶4     The trial court dissolved the parties’ marriage on April 22, 2009, and the court’s

dissolution judgment incorporated the parties’ MSA. Article 2.2 of the MSA provided:

       “Charles shall pay Kimberly maintenance in the sum of $6,200.00 per month for a period

       of 60 months at which time the maintenance shall be reviewable upon the filing of a

       petition prior to the termination of the maintenance. In addition, Charles shall pay

       Kimberly 25% of his annual balance of profits received from Crowe Horwath [(an

       accounting firm, where Charles was a partner)] as and for additional maintenance. These

       amounts, coupled with the income[-]producing assets/pension described [elsewhere], will

       provide income to Kimberly in the approximate amount of $152,700 per year.”

The dissolution decree was entered and Charles made his first maintenance payment to Kimberly

in April 2009.

¶5     In a prior appeal, we held that the trial court correctly interpreted article 2.2 of the MSA

as stating that Charles would pay to Kimberly approximately $152,700 per year in maintenance,

or approximately $12,725 per month. In re Marriage of Kuyk, 2013 IL App (2d) 120989-U,

¶ 26. We also noted the trial court’s comment that, to the extent there was any ambiguity in the

MSA, it would be construed against Charles since he drafted the agreement. Id. ¶ 14.

¶6     Charles made his 60th maintenance payment in April 2014; thereafter, he stopped paying

maintenance. In June 2014 Kimberly filed a “Petition for Declaratory Judgment” and a petition

to review maintenance. The petitions were largely duplicative, and the trial court considered

them together as a single petition for review. We will do the same. Kimberly’s review petition

asserted that Charles’s maintenance obligation remained extant and had not terminated. In



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2015 IL App (2d) 140733


response, Charles filed a “Motion for Summary Judgment” and a supporting memorandum,

which asserted that his maintenance obligation had “automatically terminated” at the end of the

60-month period. Charles also argued that Kimberly’s petition was barred (1) under the MSA,

because it was not filed “prior to the expiration of the period of review,” and (2) under the

Illinois Marriage and Dissolution of Marriage Act (the Marriage Act), because Kimberly had not

alleged a substantial change in circumstances, a necessary condition to “modify” or restart

maintenance (750 ILCS 5/510(a-5) (West 2012)). Further, because maintenance had terminated,

according to Charles, under the holding in Rice v. Rice, 173 Ill. App. 3d 1098 (1988), the trial

court lacked “jurisdiction” to entertain Kimberly’s review petition.

¶7     Following a hearing, the trial court found that maintenance terminated at the end of the

60-month period and that Kimberly’s failure to file her review petition within the 60-month

period “denied the Court jurisdiction to continue hearing the matter.” The court also entered a

written order granting Charles’s “Motion for Summary Judgment,” effectively denying the

petition. Kimberly appealed.

¶8                                         II. ANALYSIS

¶9     As an initial matter, we note that the labels of the parties’ pleadings in the trial court, e.g.,

“summary judgment,” do not control our review. See Sarkissian v. Chicago Board of Education,

201 Ill. 2d 95, 102 (2002) (the substance of a petition, and not its label, controls its identity). As

noted, we construe Kimberly’s pleadings as a single petition for review and Charles’s motion

and memorandum as a response thereto.

¶ 10   This case requires us to consider the parties’ MSA and the trial court’s jurisdiction. We

address jurisdiction first, which we review de novo. Crossroads Ford Truck Sales, Inc. v.

Sterling Truck Corp., 2011 IL 111611, ¶ 26.            Kimberly contends that the trial court had



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2015 IL App (2d) 140733


jurisdiction to consider her review petition even though it was filed after the expiration of the 60-

month period. Charles disagrees. He asserts that any order granting Kimberly’s petition would

be “void” for lack of jurisdiction because it would contravene the MSA and the Marriage Act.

Although the parties were not specific in their pleadings (or their appellate briefs), the parties

invoke the concept of subject matter jurisdiction, which is the circuit court’s inherent power to

hear and decide a given case. As noted, Charles relies on Rice v. Rice, 173 Ill. App. 3d 1098

(1988), for support.

¶ 11   In Rice, as part of the parties’ dissolution decree, the trial court ordered the petitioner

(former husband) to pay $1,000 monthly maintenance to the respondent (former wife) for a

period of 42 months. Twenty-four days after the final maintenance payment, the respondent

filed a petition to modify the maintenance award. The trial court denied the petition and the

appellate court affirmed, stating, “The respondent’s petition to modify the maintenance award

*** was untimely, was filed after payment in full of the maintenance award and after the trial

court’s jurisdiction to modify the maintenance award had terminated.” (Emphasis added.) Id. at

1103. The Rice court noted that the trial court in the dissolution judgment “did not reserve

jurisdiction to review the award of rehabilitative maintenance at the end of the 42 months.”

(Emphasis added.) Id. at 1099.

¶ 12   We find Charles’s reliance on the jurisdictional language in Rice misplaced. Jurisdiction

is a loaded word and, in Rice, it was incorrectly used to suggest that Illinois circuit courts derive

their subject matter jurisdiction from statutes, such as the Marriage Act. Under that view, if a

party failed to comply with a statutory prerequisite—say, a pleading requirement—that failure

seemingly divested the court of jurisdiction to hear and decide the case altogether. Rice was by




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2015 IL App (2d) 140733


no means alone in making this mistake (see, e.g., City of Marseilles v. Radke, 287 Ill. App. 3d

757 (1997); In re Shaw, 153 Ill. App. 3d 939 (1987)), but it is a mistake nonetheless.

¶ 13   Under the state constitution of 1970, excepting administrative review and suits against

the State in the Court of Claims (irrelevant here), the circuit court is a court of original

jurisdiction over general legal subject matter. See Belleville Toyota, Inc. v. Toyota Motor Sales

U.S.A., Inc., 199 Ill. 2d 325, 336 (2002) (citing Ill. Const. 1970, art. VI, § 9). Accordingly,

because the circuit court’s jurisdiction is of constitutional dimension, it cannot be constrained by

a statute, or by a party’s compliance with a statute, such as the Marriage Act. See Steinbrecher

v. Steinbrecher, 197 Ill. 2d 514, 530 (2001) (stating that “a circuit court is a court of general

jurisdiction, which need not look to the statute for its jurisdictional authority”).        Both the

supreme court and this court have expressed this principle in a variety of contexts. See, e.g.,

McCormick v. Robertson, 2015 IL 118230 (child custody); LVNV Funding, LLC v. Trice, 2015

IL 116129 (debt collection); In re Luis R., 239 Ill. 2d 295 (2010) (juvenile delinquency); People

v. Glowacki, 404 Ill. App. 3d 169 (2010) (bond forfeiture); In re Estate of Pellico, 394 Ill. App.

3d 1052 (2009) (guardianship); In re Andrew B., 386 Ill. App. 3d 337 (2008), aff’d, 237 Ill. 2d

340 (2010) (involuntary commitment).

¶ 14   The only prerequisite to the circuit court’s subject matter jurisdiction “is whether the

asserted claim, legally sufficient or not, was filed in the proper tribunal” (In re Luis R., 239 Ill.

2d at 303), that is, whether it belongs to the class of cases generally heard in the circuit court (In

re M.W., 232 Ill. 2d 408, 415 (2009) (quoting Belleville Toyota, Inc., 199 Ill. 2d at 334)). Here,

undoubtedly, issues related to the parties’ dissolution and post-decree maintenance were

ordinary, justiciable matters for a circuit court to consider. Once Kimberly filed her petition, the

trial court’s subject matter jurisdiction was triggered and it possessed the authority to adjudicate



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2015 IL App (2d) 140733


her claims. See In re Luis R., 239 Ill. 2d at 304. Put differently, parties may, by agreement,

revest the court with jurisdiction (People v. Bailey, 2014 IL 115459, ¶ 25), but they may not

divest the court of jurisdiction. Thus, even if maintenance had terminated (as in Rice), or

Kimberly’s petition was barred by the MSA or insufficient under the Marriage Act, the court’s

subject matter jurisdiction—the power to hear the petition and render a decision on its merits—

was not affected.

¶ 15   To the extent that Rice and similar cases discuss maintenance petitions in jurisdictional

terms, and speak of the need to “reserve” jurisdiction over post-decree matters (see In re

Marriage of Heller, 153 Ill. App. 3d 224 (1987); In re Marriage of Cannon, 132 Ill. App. 3d 821

(1985), rev’d on other grounds, 112 Ill. 2d 552 (1986); In re Marriage of Fairchild, 110 Ill. App.

3d 470 (1982)), those cases are vestiges of an outmoded view of jurisdiction and we decline to

follow them.    As discussed in those cases, the concept of reserving “jurisdiction” is best

understood as the court placing the parties on notice that it intends to revisit certain post-decree

issues down the line (like maintenance, child support, income calculations, asset valuations, etc).

We emphasize, however, that the form of that notice—whether the trial court says “jurisdiction”

when it really means “issue”—or a lack of notice altogether is in no way jurisdictional. See In re

M.W., 232 Ill. 2d 408, 422 (2009) (“not every error made by the trial court or every failure to

strictly comply with the provisions of the statute creating the justiciable matter is an act in excess

of statutory authority that renders the court’s judgment void”).

¶ 16   The through line is that the circuit court will always have subject matter jurisdiction to

address a party’s post-decree petition, regardless of what the parties agreed to in their MSA,

because the circuit court is where post-dissolution matters are heard. That does not mean that a

post-decree petition necessarily has merit and will succeed. The petition might fail for any



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2015 IL App (2d) 140733


number of procedural or substantive reasons (e.g., it could be barred by the MSA). Or, the court

might make any number of errors when it considers the petition and reaches its decision. But

those missteps would in no way divest the court of subject matter jurisdiction. See In re Luis R.,

239 Ill. 2d at 303. Here, since the trial court had subject matter jurisdiction to adjudicate

Kimberly’s petition, the court erred to the extent that it denied the petition on jurisdictional

grounds.

¶ 17   Furthermore, we determine that, under well-settled principles of contract interpretation,

the trial court was not prevented from considering the petition and conducting a general review

of maintenance under the terms of the parties’ MSA. See Blum v. Koster, 235 Ill. 2d 21, 35

(2009) (where MSA provides for general review of maintenance, it is unnecessary to show a

substantial change in circumstances). An MSA is a contract between the parties and our primary

objective is to give effect to the parties’ intent. In re Marriage of Coulter, 2012 IL 113474, ¶ 19

(citing Blum, 235 Ill. 2d at 33). Our interpretation of the MSA is a question of law, which we

also review de novo. Id.

¶ 18   As noted, article 2.2 of the MSA provided that Charles would pay Kimberly maintenance

“for a period of 60 months at which time the maintenance shall be reviewable upon the filing of a

petition prior to the termination of the maintenance.” Charles argues, and the trial court found,

that under article 2.2 his maintenance obligation “automatically terminated” in April 2014 after

60 monthly maintenance payments, and that Kimberly was thereafter barred from filing a

petition for review. Kimberly argues that Charles’s maintenance obligation did not terminate

after 60 months; rather, maintenance became reviewable after 60 months and her review petition

was filed “prior to the termination of the maintenance”—an event that has yet to occur.




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2015 IL App (2d) 140733


¶ 19   Given the inherent tension between the phrases “at which time,” “reviewable upon,” and

“prior to,” we find article 2.2 to be ambiguous because it is susceptible to more than one

reasonable interpretation. The agreement is ambiguous as to whether, at the 60-month mark,

maintenance became reviewable (as Kimberly argues) or terminated (as Charles argues).

Because of the ambiguity, we must construe the MSA against Charles, since he was the party

who drafted it. See Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153

(2004) (if the words used in a contract “are reasonably susceptible to more than one meaning,

they are ambiguous and will be strictly construed against the drafter”).         Accordingly, we

determine that, under the terms of the MSA, maintenance became reviewable after 60 months

and did not terminate. Therefore, Kimberly’s review petition was not time-barred; indeed,

without a petition for review, Charles’s maintenance obligation could not have terminated. See,

e.g., In re Marriage of Rodriguez, 359 Ill. App. 3d 307, 313 (2005) (stating that when a court

orders reviewable maintenance, “[u]ntil a party petitions for review, the maintenance award shall

continue as ordered”).

¶ 20   We also note that Charles’s reliance on parol evidence is unavailing. When a contract is

ambiguous, we may consider extrinsic evidence to determine the parties’ intent (Gallagher v.

Lenart, 226 Ill. 2d 208, 233 (2007)), but it is axiomatic that the evidence be probative of the

parties’ intent. First, Charles relies on a form “Order of Support,” which was entered by the trial

court in 2009 in conjunction with the dissolution judgment. According to Charles, the order

reflects that his “support” obligation terminated in April 2014. Not so. The order states that

child support would terminate in April 2014; it does not refer to the duration or termination of

maintenance. And, the notation concerning child support was obviously erroneous because the

parties’ daughter was long ago emancipated and there was no child support ordered in this case.



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2015 IL App (2d) 140733


Since the support order does not refer to the termination of maintenance, it sheds no light on the

parties’ intent regarding when maintenance would terminate.

¶ 21   Second, Charles references three pleadings “filed” by Kimberly in June 2014. According

to Charles, the pleadings Kimberly “filed” reflect her acknowledgement that his maintenance

obligation had already terminated and could not be reviewed. We say “filed” because only two

of the pleadings appear in the record—the petition for declaratory judgment and the petition for

review. The other pleading, a petition for a rule to show cause, appears only in the appendix of

Charles’s brief. It appears to be a copy that was faxed to Charles’s counsel but was not filed

with the trial court. Attachments to briefs that are not otherwise of record are not properly before

this court and will not be considered. In re O.R., 328 Ill. App. 3d 955, 961 (2002). That said,

nothing in Kimberly’s pleadings that are of record indicates that she believed that maintenance

was no longer reviewable in June 2014.         The trial court considered both the petition for

declaratory judgment and the petition for review together because they both made the same

essential point: that the dissolution judgment ordered reviewable maintenance that had not yet

terminated. Given that it is based on a misreading of the record and on unfiled correspondence

that is not of record, we find Charles’s reliance on parol evidence unpersuasive. We reiterate

that the MSA was ambiguous and should have been construed against him as the drafter.

¶ 22   One final point. Six days after the trial court entered its order denying Kimberly’s review

petition, Charles filed a petition for a rule to show cause concerning a separate matter (an

unrelated tax liability). Although Kimberly’s notice of appeal was initially timely as to the order

denying her review petition, Charles’s rule petition rendered that order no longer appealable.

See In re Marriage of Valkiunas, 389 Ill. App. 3d 965, 966 (2008) (citing In re Marriage of

Knoerr, 377 Ill. App. 3d 1042, 1049 (2007)). We stayed this appeal and ordered the parties to



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2015 IL App (2d) 140733


supplement the record to show that Charles’s petition had been resolved, or to secure an

immediate-appealability finding from the trial court under Illinois Supreme Court Rule 304(a)

(eff. Feb. 26, 2010). The parties supplemented the record with an order resolving the petition

and we proceeded with our review.

¶ 23   We recognize that there is a split in authority over this issue. The First and Third

Districts hold that each post-decree order is separately appealable (In re Marriage of Demaret,

2012 IL App (1st) 111916, ¶ 35; In re Marriage of A’Hearn, 408 Ill. App. 3d 1091, 1097-98

(2011)), while this district and the Fourth District maintain that a post-decree order is not

appealable without a Rule 304(a) finding if another post-decree matter is pending (In re

Marriage of Duggan, 376 Ill. App. 3d 725, 744 (2007); In re Marriage of Gaudio, 368 Ill. App.

3d 153, 157-58 (2006)). Until this split is resolved by our supreme court, we continue to adhere

to our position as set forth in Valkiunas, Knoerr, and Duggan.

¶ 24                                   III. CONCLUSION

¶ 25   For the reasons stated, the judgment of the circuit court of Kane County is reversed and

the cause is remanded for further proceedings consistent with this opinion.

¶ 26   Reversed and remanded.




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