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                                   Appellate Court                          Date: 2019.08.07
                                                                            13:02:20 -05'00'



                  In re Marriage of Wojcik, 2018 IL App (1st) 170625



Appellate Court        In re MARRIAGE OF WOJCIK (Sandra Wojcik, Petitioner-Appellee,
Caption                and Michael Wojcik, Respondent-Appellant).



District & No.         First District, First Division
                       Docket No. 1-17-0625



Filed                  December 17, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 05-D-12990; the
Review                 Hon. Mark Lopez, Judge, presiding.



Judgment               Affirmed in part and reversed in part.


Counsel on             Benton H. Page, Errol Zavett, and James Rubens, of David Friedman,
Appeal                 LLP, of Chicago, for appellant.

                       Kathy Svanascini, of Law Offices of Kathy Svanascini, PC, of Palos
                       Heights, for appellee.



Panel                  JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
                       Presiding Justice Mikva and Justice Walker concurred in the judgment
                       and opinion.
                                                 OPINION

¶1       Petitioner Sandra Wojcik and respondent Michael Wojcik agreed to dissolve their marriage
     in a marital settlement agreement. The settlement agreement provided that respondent pay
     financial support to petitioner for 60 months to support both the petitioner and the parties’ then-
     minor child. After respondent made the payments for 60 months, petitioner requested that the
     court extend respondent’s maintenance obligation.
¶2       Respondent argued that he had satisfied his support obligations under the marital settlement
     agreement and, thus, that the petition for maintenance should be dismissed. The trial court
     disagreed. A trial was held and respondent was ordered to pay permanent maintenance to
     petitioner. The trial court also ordered respondent to pay retroactive maintenance, dating back
     to when the petition was filed, and ordered respondent pay prejudgment interest on the
     retroactive maintenance award. We affirm the trial court’s judgment on the issue of
     maintenance, but we reverse that part of the trial court’s judgment that pertains to prejudgment
     interest.

¶3                                        BACKGROUND
¶4       Petitioner Sandra Wojcik and respondent Michael Wojcik married in 1978. They had three
     children during the course of the marriage. In 2005, petitioner filed a petition to dissolve the
     marriage. The parties entered into a marital settlement agreement, and the trial court entered a
     judgment dissolving the marriage that incorporated the parties’ agreement.
¶5       During the marriage, petitioner was a stay-at-home mom for the most part. When
     respondent opened his insurance business, petitioner worked there for a few years. Around the
     time she filed for dissolution of the marriage, petitioner began studies to earn her master’s
     degree. She received her master’s degree right around the time the dissolution proceedings
     were wrapping up.
¶6       Under the dissolution judgment, petitioner received all of the parties’ retirement and
     investment accounts, valued at $644,289. Petitioner also received the parties’ marital
     residence, in which they had substantial equity, and a vehicle. Respondent received the parties’
     condominium in Chicago and a townhouse they owned, both of which were subject to
     substantial mortgage obligations. Respondent retained his 25% interest in his parents’ home.
     Respondent also received approximately 7122 shares of stock in the Horton Group 1 that had
     substantial value 2 and two vehicles. Respondent continued to be employed during the course
     of the dissolution proceedings. He was making approximately $386,000 in income at the
     beginning of the proceedings and that amount steadily increased in the ensuing years.


         1
           During the marriage, the Horton Group purchased the insurance company that respondent started
     and owned. Respondent was employed by the Horton Group from that point forward.
         2
           At the time of dissolution, neither the parties nor the trial court assigned a specific value to the
     Horton Group stock that respondent was awarded. At the time of the trial in these post-dissolution
     proceedings, there was evidence that respondent had acquired even more shares and that his interest in
     the company was worth approximately $1.5 million. For argument’s sake, respondent estimates that
     the shares respondent was awarded might have been worth around $760,000 at the time the marriage
     was dissolved.

                                                     -2-
¶7          Among other obligations, respondent agreed to pay petitioner $13,500 per month in
       unallocated family support for a period of 60 months. The parties agree in their briefs on appeal
       that “unallocated family support” was intended to be a combination of child support for the
       parties’ one minor child and maintenance or alimony for petitioner. The precise language in
       the settlement agreement, Paragraph 2.0, is that “Michael shall pay to Sandra, as and for
       Unallocated Family Support, the periodic sum of thirteen thousand five hundred dollars
       ($13,500) per month, for a period of sixty (60) months, reviewable.” Respondent expressly
       waived any claim to maintenance from petitioner. Petitioner did not expressly waive
       maintenance from respondent.
¶8          Paragraph 2.1 of the settlement agreement sets forth certain events that might occur that
       would serve to terminate respondent’s obligation to pay unallocated family support. Those
       termination events are: the death of either petitioner or respondent, petitioner getting remarried,
       or petitioner cohabitating with another person on a resident, continuing, conjugal basis.
¶9          Paragraph 2.3 of the settlement agreement provides that
                “[t]he Unallocated Family Support provided for in Paragraph 2.0 hereof may be
                modifiable by the Court, provided that an appropriate Notice and Petition seeking
                modification are filed with the Court in the case between the parties prior to the
                happening of any of the termination events set forth in Paragraph 2.1 hereof.”
       The settlement agreement contains broad waivers and states that each party waives all claims
       against the other, except for claims based on rights and obligations contained in the agreement.
¶ 10        There is no present dispute that respondent made the required family support payments for
       the 60-month period set forth in the parties’ agreement. The parties’ minor child reached the
       age of maturity right near the end of that period. A month or so after the unallocated family
       support payment period ended, petitioner filed a petition to set maintenance. Respondent filed
       a motion to dismiss that petition, arguing that he had completed the support obligation he
       undertook by agreement. Respondent’s position was that, to the extent the support obligation
       was modifiable, it could only be modified or extended during the period that the obligation
       was ongoing, not after he had fulfilled it. The trial court denied the motion to dismiss, and the
       case proceeded for trial on the issue of maintenance.
¶ 11        At trial, both petitioner and respondent testified. A month after the judgment for dissolution
       of the marriage was entered, petitioner was hired as a teacher. However, she resigned her
       position as a teacher in 2015, before the trial these post-dissolution proceedings, because of
       threats she received from students. Petitioner applied for other teaching jobs, but did not secure
       employment as a teacher. About three months after resigning her teaching position, petitioner
       was hired in a sales associate position earning $9 per hour plus commissions. She received
       health benefits. She also worked a few hours a month as a tutor for $13 per hour.
¶ 12        Petitioner testified that she could find a suitable job based on her education and experience,
       but that she could not earn enough income to support herself. Exhibits introduced at trial and
       admitted into evidence show that petitioner’s monthly expenses were approximately $6191
       and her monthly income was $1418. The trial court found petitioner to be credible and found
       her efforts to secure employment to be reasonable.
¶ 13        The court imputed the income petitioner was earning as a teacher, finding that such an
       amount was a reasonable baseline for what she could earn from full-time employment. The
       trial court found that “even with Sandra’s imputed income she can never achieve the level of


                                                    -3-
       income that would allow her to maintain the lifestyle the parties enjoyed during the marriage
       on her income alone.” The court gave “great weight to the 30 year duration of the marriage”
       and observed that petitioner’s “ability to earn income was impaired by her domestic duties
       having foregone or delayed her education and employment,” while respondent’s career was
       able to thrive. Accordingly, the trial court found that petitioner was entitled to permanent
       maintenance in an amount ultimately determined to be $5700 per month. The court also
       ordered respondent to pay $239,400 in retroactive maintenance plus prejudgment interest on
       that amount. Respondent appeals.

¶ 14                                               ANALYSIS
¶ 15                                          I. Motion to Dismiss
¶ 16       Respondent argues that the trial court erred when it denied his motion to dismiss the
       petition to set maintenance. Respondent maintains that he fulfilled his maintenance obligation
       under the dissolution judgment and, therefore, that the trial court lacked the authority to set a
       new support obligation. Respondent’s motion to dismiss was brought under section 2-619 of
       the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)).
¶ 17       A section 2-619 motion to dismiss admits the legal sufficiency of the complaint. Id. The
       purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved
       issues of fact at the outset of the litigation. In re Estate of Gallagher, 383 Ill. App. 3d 901, 903
       (2008). Although a section 2-619 motion to dismiss admits the legal sufficiency of a complaint,
       it raises defects, defenses, or some other affirmative matter appearing on the face of the
       complaint or established by external submissions that defeat the plaintiff’s claim. Ball v.
       County of Cook, 385 Ill. App. 3d 103, 107 (2008). We review the trial court’s decision on a
       motion to dismiss de novo. American Family Mutual Insurance Co. v. Tyler, 2016 IL App (1st)
       153502, ¶ 9.
¶ 18       The marital settlement agreement provides that “Michael shall pay to Sandra, as and for
       Unallocated Family Support, the periodic sum of thirteen thousand five hundred dollars
       ($13,500) per month, for a period of sixty (60) months, reviewable.” The parties both
       acknowledge that unallocated family support is comprised of child support and support for
       petitioner. The parties’ minor child reached the age of maturity during the set payment period,
       so child support is not an issue. So we must address respondent’s contention that the trial court
       did not have authority to order maintenance to continue after the 60-month period set forth in
       the marital settlement agreement had already elapsed.
¶ 19       Respondent maintains that “[a] review or extension of maintenance may only occur where
       a judgment awards or reserves maintenance in the first place” (citing In re Marriage of
       Heasley, 2014 IL App (2d) 130937, ¶ 25). But the marital settlement agreement in this case
       expressly states that respondent’s support obligation is “reviewable.” The parties did agree that
       the support obligation was reserved and could be reviewed. The parties also agreed that the
       court could modify the support obligation provided that a petition was filed and no termination
       event had occurred. “[T]he intent of the parties to preclude or limit modification or termination
       of maintenance must be clearly manifested in their agreement.” (Emphasis in original.) In re
       Marriage of Brent, 263 Ill. App. 3d 916, 923 (1994). There is no such manifestation of intent
       to limit the modification of maintenance in the marital settlement agreement in this case.
       Instead, it was expressly made reviewable.


                                                    -4-
¶ 20       Nonetheless, respondent argues that petitioner was required to bring her petition to review
       and modify the maintenance obligation before the original, reviewable payment period expired.
       So respondent acknowledges that his support obligation was reviewable, but suggests that
       petitioner had to seek extended support a few weeks earlier than she did. The same argument
       made by respondent was squarely rejected in In re Marriage of Rodriguez, 359 Ill. App. 3d
       307, 312-13 (2005).
¶ 21       In Rodriguez, the former husband argued that because the former wife did not petition for
       review of maintenance within the four-year period set for maintenance in the court’s original
       order, the former wife was forever barred from seeking an extension of maintenance. Id. at
       312. We rejected that argument and held that the trial court was entitled to review the
       maintenance award, even though the original maintenance payment period had lapsed. Id. at
       313. In this case, petitioner filed the petition to review maintenance just weeks after the
       original, admittedly reviewable support obligation ended.
¶ 22       The marital settlement agreement does not state that respondent’s support obligations will
       terminate in 60 months. It states that the obligation will endure 60 months, reviewable. That is
       why respondent’s reliance on Rice v. Rice, 173 Ill. App. 3d 1098 (1988), is misplaced.
¶ 23       In Rice, the trial court ordered that time-limited maintenance payments be made and
       included no provision for review. Id. at 1101. In this case, we have a clear provision for review.
       Nothing in the marital settlement agreement states that respondent’s support obligations would
       end after five years. There was no automatic termination clause included. The inclusion of
       “reviewable” after stating the duration of the original payment term is significant. In construing
       a contract, effect must be given to each clause and word used, without rejecting any words as
       meaningless or surplusage. Hufford v. Balk, 113 Ill. 2d 168, 172 (1986).
¶ 24       Also, as in Rodriguez, the settlement agreement in this case contained express termination
       events, none of which ever occurred. The agreement provides that the support obligation may
       be modified until one of the termination events occurs.
               “[T]he Unallocated Family Support provided for in Paragraph 2.0 hereof may be
               modifiable by the Court, provided that an appropriate Notice and Petition seeking
               modification are filed with the Court in the case between the parties prior to the
               happening of any of the termination events set forth in Paragraph 2.1 hereof.”
               (Emphasis added.)
       The termination events in paragraph 2.1 are the death of either petitioner or respondent,
       petitioner getting remarried, or petitioner cohabitating with another person on a resident,
       continuing, conjugal basis. As none of those events occurred, the trial court was entitled to
       review the maintenance obligation just as the parties agreed. See In re Marriage of Rodriguez,
       359 Ill. App. 3d at 312-13; see also In re Marriage of Kuyk, 2015 IL App (2d) 140733, ¶¶ 15-
       19.
¶ 25       Respondent relies on In re Marriage of Doermer, 2011 IL App (1st) 101567, ¶ 17, and
       maintains that the circumstances in that case are analogous to the circumstances in this case.
       They are not. In Doermer, our decision that the former wife was not entitled to seek
       maintenance after the original term expired was based on the fact that the settlement agreement
       contained an express provision for the termination of maintenance once the former husband
       paid all of the unallocated family support. Id. ¶¶ 4, 28. The agreement in that case also stated
       that the former wife would be “ ‘forever barred from receiving maintenance’ ” once the former


                                                   -5-
       husband made all the unallocated maintenance payments. Id. ¶ 4. In this case, the marital
       settlement agreement had no such terms. Respondent’s support obligation was “reviewable.”
¶ 26       Respondent makes much of the fact that the marital settlement agreement does not use the
       word “maintenance” to describe his original support obligation and instead uses the phrase
       “unallocated family support.” But, as he must, respondent acknowledges that unallocated
       family support is simply the phrase used to characterize both his child support obligation and
       his maintenance obligation to petitioner. That phrase was appropriate at the time of contracting
       because the parties’ minor child was 13 and the 5-year support period was set to expire when
       she would be 18. See Blum v. Koster, 235 Ill. 2d 21, 35, 39 n.2 (2009). When unallocated
       support is used in original agreement to denote both child support and maintenance, the trial
       court can extend just the maintenance portion of the obligation, reducing the overall support to
       reflect that child support is no longer included. Id. at 35-36.
¶ 27       The title of Article II in the settlement agreement here states that it concerns
       “maintenance.” Paragraph 2.2 also makes clear that “[i]t is contemplated and understood by
       the parties that the Unallocated Family Support Payments provided to be paid by Michael to
       Sandra pursuant to paragraph 2.0 hereof are intended to be alimony payments.” Respondent
       expressly waived his right to receive maintenance from petitioner, while petitioner made no
       such waiver of maintenance. There is nothing in the marital settlement agreement that prohibits
       petitioner from seeking or the trial court from considering whether maintenance payments
       should be extended beyond their initial term.
¶ 28       The general waivers in the marital settlement agreement similarly fail to bar petitioner from
       seeking extended support. The waiver provision does not preclude the parties from pursuing
       rights and remedies preserved under the agreement. As discussed at length above, respondent’s
       support obligation to petitioner was expressly made reviewable, so petitioner did not waive her
       right to seek extended support.

¶ 29                                 II. Award of Extended Support
¶ 30        Respondent argues that the trial court erred when it ordered him, based on the evidence
       adduced at trial, to pay permanent maintenance to petitioner. Although not addressed by the
       parties, we think it is important to restate that, when it comes to maintenance, “permanent”
       does not mean everlasting; it means the obligation is for an indefinite period. In re Marriage
       of Shen, 2015 IL App (1st) 130733, ¶ 84. Indefinite maintenance is commonly granted where
       the parties have grossly disparate earning potentials and where the marriage was lengthy. See
       In re Marriage of Drury, 317 Ill. App. 3d 201, 210 (2000) (holding that the trial court abused
       its discretion by terminating maintenance after 36 months when the parties were married for
       29 years and there was a significant disparity in the present and future earning capacities of the
       parties).
¶ 31        A trial court’s determination awarding maintenance is presumed to be correct. In re
       Marriage of Donovan, 361 Ill. App. 3d 1059, 1063 (2005). A trial court’s decision to review
       or set maintenance will stand unless the trial court abused its discretion. In re Marriage of
       Heroy, 385 Ill. App. 3d 640, 650-51 (2008). An abuse of discretion occurs only when we can
       conclude that no reasonable person would take the view adopted by the trial court. Id. at 651.
¶ 32       Respondent seizes on the trial court’s finding that petitioner was “rehabilitated” and argues
       that, because she was rehabilitated, the trial court was forbidden from awarding her continued
       support. However, even though the court used the term “rehabilitated” to describe its finding

                                                   -6-
       that petitioner had satisfied her duty to obtain suitable employment, it is clear that the trial
       court found that she was nonetheless still not self-sufficient.
¶ 33       The trial court expressed in its written order that it found that petitioner’s “ability to earn
       income was impaired by her domestic duties having foregone or delayed her education and
       employment.” Her domestic duties allowed respondent’s career to thrive, the trial court found,
       noting that he earned an income of around $700,000 in 2015. Petitioner was earning $9 an hour
       at the same point. During the marriage, petitioner also worked for respondent to help him get
       the insurance company he was starting off the ground—the company that enabled him to earn
       the notable income that he earns today. The marital settlement agreement required the court to
       examine all the factors for an entitlement to maintenance under the Illinois Marriage and
       Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2016)). See 750 ILCS 5/504 (West
       2016); 750 ILCS 5/510 (West 2016). Petitioner’s efforts at rehabilitation and obtaining suitable
       employment were just one factor the court was to consider under the agreement.
¶ 34       In finding that petitioner had “satisfied her obligation at rehabilitation,” the trial court was
       not making a finding that she had achieved self-sufficiency. Instead, it explained that her
       efforts at rehabilitation since the divorce, namely, earning a master’s degree, working full time
       for seven years as a teacher, and then quickly starting a new job as a sales representative after
       resigning her teaching position, constituted a good faith effort at self-sufficiency. Even so, the
       court still found that maintenance was justified because it had become clear that petitioner’s
       earning capacity is such that “she can never achieve the level of income that would allow her
       to maintain the lifestyle the parties enjoyed during the marriage on her income alone.” See
       In re Marriage of Johnson, 2016 IL App (5th) 140479, ¶ 93 (“Maintenance is designed to allow
       the recipient former spouse to maintain the standard of living enjoyed during the marriage.”).
       But even more than that, the record evidence shows that petitioner cannot earn enough to cover
       her monthly expenses, which are fairly modest in consideration of the marital circumstances.
       The trial court also rightly considered the length of the marriage, giving “great weight to the
       30 year duration of the marriage.” The trial court did not abuse its discretion by finding that
       maintenance payments were warranted under the circumstances of this case.
¶ 35       After arguing that petitioner should not be entitled to maintenance because she is
       rehabilitated, respondent then argues that petitioner should not be entitled to maintenance
       because she failed to make a good faith effort at rehabilitation. Respondent demeans
       petitioner’s efforts at employment, stating that “[n]o maintenance recipient has ever become
       self-supporting by seeking only enjoyable and unchallenging work and working only during
       the hours and periods of year that pleases him or her.” Respondent claims that petitioner’s
       efforts at self-support have been “apathetic.” Respondent also claims that petitioner is
       “disinterested in becoming self-supporting,” has “a sense of entitlement,” and analogizes her
       basis for seeking maintenance to “self-imposed poverty.” The trial court obviously disagreed
       with these characterizations of petitioner and her work and found that she had made a good
       faith effort at rehabilitating herself and obtaining suitable employment, considering all the
       facts. The trial court did not abuse its discretion in holding that petitioner had made reasonable
       and sufficient efforts at becoming self-supportive.
¶ 36       Respondent argues that the trial court abused its discretion in determining the amount of
       maintenance to which petitioner is entitled. In particular, respondent points to the amount of
       income the trial court imputed to petitioner as too low, and he alleges that the trial court failed
       to consider evidence of petitioner’s passive earnings.

                                                    -7-
¶ 37        The trial court imputed an income of $46,000 to petitioner. The court found that amount to
       be the reasonable amount petitioner could earn from full-time employment. That amount was
       consistent with the evidence that petitioner earned approximately $46,000 a year as her
       teacher’s salary.
¶ 38        To make his point that petitioner’s imputed income should be higher, respondent relies on
       assumptions and hypotheticals. For example, respondent argues that the imputed income
       should be increased by raises petitioner might have received if she kept teaching, and he argues
       that petitioner’s imputed income should include some amount as a result of her not working
       during the summer while she was a teacher. Respondent also argues that the trial court ignored
       the income petitioner would receive from dividends and interest. The trial court rejected
       respondent’s arguments, and we find that the trial court’s considerations and calculations to
       arrive at an amount of imputed income were reasonable and that it did not abuse its discretion.
       If circumstances change, respondent has the right to seek modification. See supra ¶ 30. But the
       trial court’s determination was based on current facts, not on the type of conjecture respondent
       interposes here.
¶ 39        Respondent contends that petitioner is capable of supporting herself in the standard of
       living enjoyed during the marriage. To support his position, respondent argues that, during the
       period between the unallocated family support obligation lapsing and the trial for maintenance,
       petitioner lived as she did during the marriage. The trial court disagreed, stating that even in
       consideration of the assets petitioner received in the divorce and “considering the lifestyle the
       parties enjoyed during the marriage that even with Sandra’s imputed income she can never
       achieve the level of income that would allow her to maintain the lifestyle the parties enjoyed
       during the marriage on her income alone.” The amount awarded was supported by the
       evidence. There is nothing in the record that would permit us to find that no reasonable person
       could take the view adopted by the trial court.

¶ 40                                    III. Prejudgment Interest
¶ 41       The trial court held that petitioner was entitled to statutory interest on the retroactive
       maintenance award. The trial court held that petitioner was entitled to prejudgment interest
       from the time the petition for maintenance was filed until the final judgment on that petition
       was entered—about a 40-month period. The Illinois Marriage and Dissolution of Marriage Act
       provides that “[a]ny maintenance obligation including any unallocated maintenance and child
       support obligation, or any portion of any support obligation, that becomes due and remains
       unpaid shall accrue simple interest as set forth in Section 505 of this Act.” 750 ILCS 5/504(b-
       5) (West 2016).
¶ 42       Neither party has pointed us to a case in which this issue has been addressed. Under the
       circumstances, we hold that prejudgment interest on the retroactive maintenance award is not
       warranted. The statute states that interest accrues on a support obligation that “becomes due
       and remains unpaid.” Id. In this case, the retroactive maintenance award did not become due
       and cannot be considered unpaid until the point that the trial court entered the judgment
       modifying and extending respondent’s support obligation.
¶ 43       Respondent put forth a good faith argument that his support obligations had terminated
       under the terms of the marital settlement agreement. The trial court decided to extend and
       modify the support obligation, but respondent could not have known what the trial court would
       do until it acted, nor could he have known the amount to pay. The award of continued

                                                   -8-
       maintenance was to be made in the trial court’s discretion. Blum, 235 Ill. 2d at 36 (an order to
       extend or modify maintenance will not be disturbed absent a clear abuse of discretion). In fact,
       respondent was successful in getting the trial court to reduce the maintenance award in a
       motion to reconsider. So it is not as if respondent was breaching a known, static obligation.
       Respondent was not unjustifiably withholding money from petitioner. The obligation did not
       “become due” until the trial court entered a final order that it was due. The obligation was not
       “unpaid” until the trial court set the amount and ordered that it be paid. Therefore, the trial
       court erred in ordering respondent to pay prejudgment interest on the retroactive maintenance
       award. Nothing in this opinion affects postjudgment interest.

¶ 44                                         CONCLUSION
¶ 45       Accordingly, we affirm the trial court’s order modifying and extending respondent’s
       support obligation. We reverse the trial court’s order holding that respondent is required to pay
       prejudgment interest.

¶ 46      Affirmed in part and reversed in part.




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