                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     In re Marriage of Bohnsack, 2012 IL App (2d) 110250




Appellate Court            In re MARRIAGE OF MARK BOHNSACK, Petitioner-Appellant, and
Caption                    DEBORAH BOHNSACK, Respondent-Appellee.



District & No.             Second District
                           Docket No. 2-11-0250


Rule 23 Order filed        February 17, 2012
Rule 23 Order
withdrawn                  March 29, 2012
Opinion filed              March 29, 2012


Held                       The trial court did not err in modifying respondent’s maintenance award
(Note: This syllabus       pursuant to her petition seeking an increase due to a substantial change
constitutes no part of     in circumstances, notwithstanding petitioner’s contention that the initial
the opinion of the court   award of $10,000 per year for six years was nonmodifiable maintenance
but has been prepared      in gross, since the language of the parties’ settlement agreement did not
by the Reporter of         specify whether the maintenance award was to be periodic or in gross, it
Decisions for the          did not provide a specific total sum petitioner was to pay, the settlement
convenience of the         agreement did not indicate that the date the first payment was to be made
reader.)
                           was a vesting date for maintenance in gross rather than just the starting
                           date of petitioner’s payments, and although an award of maintenance
                           need not be labeled as nonmodifiable, no language in the settlement
                           agreement established that the award was intended to be for maintenance
                           in gross.
Decision Under             Appeal from the Circuit Court of Jo Daviess County, No. 05-D-78; the
Review                     Hon. William A. Kelly, Judge, presiding.



Judgment                   Affirmed.


Counsel on                 Thomas H. James, of James & Associates, of Forreston, for appellant.
Appeal
                           Richard B. Kirk, of Schirger Law Offices LLC, and M. Allyson Misevich,
                           of Law Office of M. Allyson Misevich, P.C., both of Rockford, for
                           appellee.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Hutchinson and Zenoff concurred in the judgment and opinion.




                                             OPINION

¶1         Petitioner, Mark Bohnsack, appeals from the trial court’s order modifying the
        maintenance award to respondent, Deborah Bohnsack. Petitioner argues that the parties’
        marital settlement agreement provided for maintenance in gross and was thus nonmodifiable.
        For the reasons that follow, we affirm.

¶2                                         BACKGROUND
¶3          In January 2006, the trial court entered a judgment dissolving the parties’ marriage. The
        judgment incorporated a marital settlement agreement. Paragraph 7 of the settlement
        agreement provided as follows:
            “Mark shall pay to Deb $10,000 in maintenance for 6 years, beginning on January 1,
            2006[,] and the last payment ending on January 1, 2011. Mark shall pay this money to
            Deb twice a year, with a payment of $5[,]000 on January 1 and a payment of $5[,]000.00
            on June 1st of every year, with the last year being 2011.”
¶4          Four years later, respondent filed a petition to modify the maintenance award, seeking
        an increase in maintenance due to a substantial change in circumstances. Following a
        hearing, the trial court granted the petition and ordered petitioner to pay maintenance in the
        amount of $3,000 per month. Petitioner filed a postjudgment motion, arguing that the trial


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     court erred in modifying the maintenance award, because the maintenance was maintenance
     in gross and was thus nonmodifiable. The trial court denied petitioner’s motion. Petitioner
     then brought this timely appeal.

¶5                                           ANALYSIS
¶6        On appeal, petitioner contends that the trial court lacked subject matter jurisdiction to
     modify the maintenance award and that, even if it did have subject matter jurisdiction, the
     trial court nevertheless erred in modifying the maintenance award. We do not find merit in
     either of these contentions.
¶7        Petitioner argues that the trial court lacked subject matter jurisdiction because more than
     30 days have passed since the entry of the judgment of dissolution. According to petitioner,
     because the maintenance award in the settlement agreement is properly characterized as
     maintenance in gross, which is nonmodifiable, it is in the nature of a property settlement and
     cannot be raised once 30 days have passed since the entry of the judgment. We disagree. As
     the supreme court made clear in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,
     199 Ill. 2d 325, 334 (2002), a trial court’s subject matter jurisdiction is conferred by our state
     constitution and extends to all “ ‘justiciable matters.’ ” “Generally, a ‘justiciable matter’ is
     a controversy appropriate for review by the court, in that it is definite and concrete, as
     opposed to hypothetical or moot, touching upon the legal relations of parties having adverse
     legal interests.” Belleville Toyota, 199 Ill. 2d at 335. The modification of maintenance–which
     is what respondent sought in her petition–is a justiciable matter. Accordingly, the trial court
     had subject matter jurisdiction to evaluate respondent’s petition, and petitioner’s argument
     regarding jurisdiction is simply an argument that the trial court erred in modifying the
     maintenance award because maintenance in gross cannot be modified.
¶8        Before addressing the substance of petitioner’s contention that the trial court erred in
     modifying the maintenance award, we must first address the standard of review. Respondent
     contends that, because petitioner did not raise the maintenance-in-gross contention until his
     postjudgment motion, the trial court’s denial of petitioner’s postjudgment motion should be
     reviewed for an abuse of discretion. See Muhammad v. Muhammad-Rahmah, 363 Ill. App.
     3d 407, 415 (2006) (“When reviewing a trial court’s denial of a motion to reconsider that was
     based on new matters, such as additional facts or new arguments or legal theories that were
     not presented during the course of the proceedings leading to the issuance of the order being
     challenged, this court employs an abuse of discretion standard.”). Petitioner responds that the
     determination of whether the maintenance award was for maintenance in gross depends on
     the interpretation of the parties’ settlement agreement, an issue of law, which is typically
     subject to de novo review. In re Marriage of Hendry, 409 Ill. App. 3d 1012, 1017 (2011).
     Petitioner also contends that he raised the issue of maintenance in gross prior to his
     postjudgment motion. After scouring the record, including the portions cited by petitioner,
     we can find no place prior to his postjudgment motion where he argued that the maintenance
     award was for maintenance in gross. In any case, we need not resolve the conflict
     surrounding the standard of review, because the trial court did not err under any standard.
¶9        The question of whether the maintenance award is properly characterized as maintenance


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       in gross or the more typical periodic maintenance is to be determined by examining the
       parties’ settlement agreement. As a marital settlement agreement is a contract, the usual
       contract interpretation rules apply. Our task is to determine the parties’ intent when the
       agreement was executed. In re Marriage of Michaelson, 359 Ill. App. 3d 706, 711 (2005).
       To do so, we are to examine the language of the agreement, and we are to give the terms in
       the agreement their plain and ordinary meaning. Michaelson, 359 Ill. App. 3d at 711.
¶ 10        Periodic maintenance, the more common type of maintenance, typically takes the form
       of an order to pay a spouse a specified amount at regular intervals. In re Marriage of Mass,
       102 Ill. App. 3d 984, 994 (1981). Its defining characteristic is its indefiniteness, as it may be
       modified or terminated by a court upon a showing of a “substantial change in
       circumstances.” See 750 ILCS 5/510(a-5) (West 2010); Mass, 102 Ill. App. 3d at 994. In
       contrast, maintenance in gross involves an order to pay a spouse “a definite total sum upon
       the entry of the decree or a definite total sum in installments over a definite period of time.”
       Mass, 102 Ill. App. 3d at 994. The distinguishing characteristics of maintenance in gross are
       its definite sum and its vesting date. In re Marriage of Hildebrand, 166 Ill. App. 3d 795, 799
       (1988). Amounts that are awarded as maintenance in gross are not subject to modification
       based on a change in circumstances. In re Marriage of Freeman, 106 Ill. 2d 290, 298 (1985).
       Periodic maintenance, however, is the preferred form of maintenance, and “an award in gross
       is appropriate only in exceptional circumstances.” Lamp v. Lamp, 81 Ill. 2d 364, 374 (1980).
¶ 11        The language of the settlement agreement in this case is ambiguous at best; it does not
       specify whether the maintenance award was intended to be periodic or in gross. Petitioner
       argues that the maintenance award is properly characterized as maintenance in gross because
       it is for a definite amount and has a set vesting date. The cases petitioner cites in support,
       however, differ from the present case in a significant way: the settlement agreement or
       judgment in each case specifically stated that the maintenance was in gross or provided a
       specific total sum to be paid to the recipient. See Freeman, 106 Ill. 2d at 294 (the modified
       judgment specifically labeled the $27,000 the husband was to pay to the wife as maintenance
       in gross); Michaelson, 359 Ill. App. 3d at 708 (settlement agreement provided that the
       husband was to pay the wife “ ‘a total of Three Hundred Sixty Thousand ($360,000)
       Dollars’ ” and that the maintenance provisions were to terminate “ ‘only after the payment
       of all monies due to Wife are paid in full’ ”); Hildebrand, 166 Ill. App. 3d at 797 (settlement
       agreement awarded the wife the specific sum of $12,000 in maintenance); In re Marriage of
       Burgstrom, 135 Ill. App. 3d 854, 857 (1985) (order provided a specific sum that the husband
       was to pay to the wife). In contrast, the settlement agreement in the present case does not
       label the maintenance as in gross, nor does it provide a specific total sum that petitioner is
       to pay to respondent. Although petitioner contends that the total sum is easily calculable, the
       lack of a specifically stated total sum differentiates the present case from those found to
       involve maintenance in gross and lends credence to the position that the maintenance award
       was for periodic maintenance over a fixed period. See In re Marriage of Harris, 284 Ill. App.
       3d 389, 390, 392 (1996) (holding that a settlement agreement that provided that the husband
       was to pay the wife $606 per month for 10 years but did not provide for a specific total sum
       was for periodic maintenance for a fixed period rather than maintenance in gross).
¶ 12        Petitioner also contends that the existence of a vesting date demonstrates that the

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       maintenance award was one for maintenance in gross. According to petitioner, the vesting
       date of the award was January 1, 2006, the date on which he was to make the first payment
       to respondent. Nothing in the language of the settlement agreement indicates that January 1,
       2006, was intended as a vesting date for maintenance in gross rather than merely a start date
       for periodic maintenance. Petitioner relies on Hildebrand as demonstrating the importance
       of a vesting date to a finding of maintenance in gross. The settlement agreement in
       Hildebrand, however, did not provide a vesting date, and the court did not rely on a vesting
       date in concluding that the award was for maintenance in gross. Rather, the court concluded
       that the award was for maintenance in gross because the settlement agreement required the
       husband to pay to the wife a specified sum over a definite number of installments.
       Hildebrand, 166 Ill. App. 3d at 799. The court merely commented that the maintenance
       award in that case vested on the date the judgment was entered, because under section 510(b)
       of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510(b) (West 2008)),
       judgment provisions regarding the disposition of property may not be revoked or modified
       unless there is a reason justifying the reopening of the judgment. Hildebrand, 166 Ill. App.
       3d at 799.
¶ 13       While it is true, as petitioner states, that an award of maintenance in gross need not be
       labeled as nonmodifiable, because it is, by definition, nonmodifiable (Burgstrom, 135 Ill.
       App. 3d at 858), there is nothing in the language of the settlement agreement that definitively
       establishes that the maintenance award was intended to be for maintenance in gross. Given
       that and the fact that maintenance in gross is the exception rather than the rule, we must
       conclude that the trial court did not err in modifying the maintenance award.

¶ 14                                    CONCLUSION
¶ 15       For the foregoing reasons, the judgment of the circuit court of Jo Daviess County is
       affirmed.

¶ 16      Affirmed.




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