
NO. 4-97-0624 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In Re:  the Marriage of                 )   Appeal from

RICHARD D. NEUMAN,                      )   Circuit Court of

Petitioner-Appellant,         )   Vermilion County

and                           )   No. 95D432

JUDITH A. NEUMAN,                       )

Respondent-Appellee.          )   Honorable

                                        )   James K. Borbely,

                                        )   Judge Presiding.

_________________________________________________________________





JUSTICE KNECHT delivered the opinion of the court:

Petitioner, Richard Neuman, appeals from the denial of his petition to modify support obligations to respondent, Ju­dith Neuman, his ex-wife.  The trial court found no substantial change in circumstances had occurred since entry of the judgment of dissolution.  Richard contends this finding was against the mani­fest weight of the evidence.  We affirm.

Richard and Judith were married on June 24, 1967.  They had one child, Rebecca, born October 9, 1970.  At the time of the parties' separation on July 1, 1995, Richard was 48 and Judith   was 49 years old.  Judith suf­fered from de­pres­sive dis­order and somatoform dis­order, fibromyalgia, carpal tun­nel syn­drome and migraine head­aches, which prevented her from working a standard eight-hour workday due to limitations on standing, walk­ing, lift­ing, and carrying.  At the time of the parties' separa­tion, she oper­at­ed a beau­ty shop in her home where she worked part-time and had a net income of $170 per month.  Richard was em­ployed as a mill­wright and earned $14.35 per hour plus overtime and re­ceived occasional "gain share" pay­ments from his company.  

Richard filed for dis­so­lu­tion on September 22, 1995.  On April 10, 1996, a judg­ment for dissolution was en­tered that in­corporat­ed a mari­tal settle­ment agreement previous­ly agreed to by the par­ties.  Per­tinent provisions of the agree­ment in­clud­ed an award of perma­nent maintenance to Judith in the amount of $225 per week; a re­quirement Richard pay the $53.52 per week pre­mi­um payments required to keep Judith cov­ered under the health care provid­ed by his employer through Consolidated Omnibus Budget Rec­on­cil­i­a­tion Act (COBRA) (Pub. L.100-647, tit.III, §3011(a), 102 Stat. 3616 (codified as amended at 26 U.S.C.A. §4980B(West Supp. 1997))) cov­er­age; a re­quire­ment Rich­ard main­tain Ju­dith as bene­fi­ciary on two life in­sur­ance policies until she started re­ceiv­ing so­cial secu­ri­ty re­tire­ment benefits; and a requirement that  Ju­dith apply for so­cial secu­ri­ty disability bene­fits and ad­vise Rich­ard as to the dispo­si­tion of her ap­plica­tion.

On March 12, 1997, 11 months later, Richard filed a peti­tion to modi­fy alleging a substantial change in circumstances since the entry of the judgment of dissolution.  He alleged Judith's ex­penses had decreased and she received an award of social secu­rity dis­ability benefits while his own expenses had increased without a commensurate increase in earnings.  He asked the trial court to reduce his obligations to pay maintenance and insurance premi­ums.  Following a hearing on July 8, 1997, the trial court found no substantial change in circumstances had occurred, since the bulk of Richard's increase in expenses was  due to the obli­ga­tions he owed Judith to which he agreed in the mari­tal set­tle­ment agree­ment.  Further, the court found Judith's receipt of so­cial secu­rity benefits had been contem­plated when the set­tle­ment agreement had been entered into as it was specifi­cally men­tioned in the agreement.  Richard contends the court's find­ings are erroneous as against the manifest weight of the evi­dence.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/510(a) (West 1996)) provides the portions of a judgment of dis­so­lu­tion pertaining to mainte­nance may be modified only upon a show­ing of a substantial change in circumstances.  The Illi­nois courts have held "substantial change in circumstances" as re­quired by section 510 of the Act means either the needs of the spouse receiving maintenance or the abil­ity of the other spouse to pay maintenance has changed. 
 The party seeking modification of a main­te­nance order bears the bur­den of showing the change, and the deci­sion to modi­fy main­te­nance is with­in the dis­cre­tion of the trial court and will not be dis­turbed on appeal ab­sent an abuse of discre­tion.  
In re Mar­riage of Pedersen
, 237 Ill. App. 3d 952, 956, 605 N.E.2d 629, 632-33 (1992).         

Richard first contends the trial court erroneously in­ter­pret­ed the judgment of dissolution to preclude consider­ation of Judith's receipt of social security disability benefits as a substantial change in circumstances.  One of the provisions of the marital settlement agreement incorporated into the judgment of dissolution referred to Judith's impending receipt of social security benefits.

"The record reflects and the parties agree 

that [Judith] suffers from a number of medi-

cal problems, both psychological and physi-

cal.  The parties have agreed that a duty 

shall be imposed upon [Judith] to immediately 

take such	steps as may be necessary in order 

to apply for Social Security Disability.  

[Ju­dith] shall further be required to advise 

[Rich­ard] as to any	disposition of such appli-

ca­tion."    

In ex­plain­ing its deci­sion, the trial court stat­ed: 

"[T]he Social Security situation was not

only contemplated by the parties at the time 

of the entry of judgment, but it certainly 

ap­pears to the court it was taken into account 

in arriving at the number that they did.

***

The only other mention is that she is obliged 

to apply and to do that as quickly as she could 

and to keep everybody posted on the progress of

it.  The only conclusion that the court can come 

to is that they figured that she was going to 

qual­ify for Social Security Disability bene­fits, 

would do so quickly, and that that was part of 

the basis of the bargaining in the amounts that 

were ordered."

Changed cir­cum­stanc­es jus­tify­ing modi­fica­tion of main­tenance must occur after the time of the award.  
Pedersen
, 237 Ill. App. 3d at 957, 605 N.E.2d at 633; 
In re Mar­riage of Zeman
, 198 Ill. App. 3d 722, 733, 556 N.E.2d 767, 773 (1990).	 We do not believe the trial court concluded it was 
precluded
 from consider­ing the receipt of social security benefits.  Instead, the trial court permitted the parties to engage in a full evidentiary hear­ing and to offer evidence on that issue.  Be­cause the re­ceipt of bene­fits by Ju­dith was con­tem­plat­ed in the marital set­tlement agree­ment, their actu­al re­ceipt was then in­ter­pret­ed by the trial court as not constituting a change in circumstances.	

Richard argues this interpretation is incorrect be­cause the parties did not know the amount of the benefits Judith would receive and there must be a reason she was obligated to apply for the benefits and inform Richard of the results of her appli­ca­tion.  Because the parties did not know the amount of benefits at the time they agreed to the maintenance amounts, Richard argues the benefits could not have been taken into account when setting those amounts and their receipt would then be a change in circum­stances.  However, if the parties had meant for a change in Richard's maintenance obligations upon receipt of benefits, they could have so stated.  For example, they could have agreed for every dollar of benefits re­ceived Richard's obli­gations would be re­duced by a set amount.  They did not do this.

Richard argues it only makes sense to allow him to re­duce his maintenance obligations upon Judith's receipt of bene­fits because she was obligated to inform him when she received those benefits.  He contends there is no other reason for requir­ing her to keep him informed other than to allow him to seek a reduction in his obligations toward her.  Richard contends the op­pos­ing pos­si­bil­i­ty, that Judith was required to inform him of the bene­fits re­ceived so she might seek an increase in mainte­nance from him, is absurd due to his already gen­erous com­mit­ment to pay Ju­dith (or on her behalf) 65.4% of his monthly net in­come.  		Richard's implication he would not have agreed to what he contends is an outrageously high obligation on his part unless he could get the obligation reduced upon Judith's receipt of benefits is not supported by any evidence.  An equally plausible explanation is Richard agreed to the amounts of his maintenance and related obligations in order to reach a marital settlement agreement and obtain a dissolution that he wanted.            	

No evidence was in­tro­duced by ei­ther party as to the reason Judith was required to keep Richard in­formed of her re­ceipt of benefits.  It would be specula­tion on the part of the trial court to assume a rea­son and it is not neces­sary to support the court's judgment.  The parties agreed to a specific amount of maintenance 
knowing
 
additional
 
bene­fits
 of some sort would likely be com­ing to Judith.  If the parties desired the amount of main­tenance to be tied to the amount of bene­fits received, they could have so agreed.  

Richard contends a substantial change in circumstances has occurred in any event.  In addition to the disability bene­fits of $398 per month that Judith receives, she received $4,967 in retroactive benefits.  Richard argues a comparison of Judith's fi­nan­cial affidavits from the time of the dissolution to the time of the hearing on the petition to modify show a decrease in liv­ing ex­penses of approximately $120 per month.  However, Judith's more recent affidavit also reveals even with receipt of the month­ly dis­abil­i­ty bene­fits, she would barely break even each month.  Her net income from her beauty shop had risen to only $215 per month.      

Richard also contends his financial circumstances have changed since the judgment of dissolution because he pays $1,230.82 of his $1,889.44 net monthly income either to Judith di­rect­ly or for her benefit.  This income does not include a raise he received to $15 per hour and was also based on a 40- hour week.  He usu­al­ly had over­time in the neigh­bor­hood of 2 hours per day for a 50-hour week.  It also did not in­clude the "gain share," which was the result of sharing company prof­its with em­ployees.  This amounted to $40 to $80 per week.  While Rich­ard claimed he could no longer afford to rent the small house where he lived at the time of the dissolu­tion and was forced to move into his sister's home, he also tes­tified he bought new lawn mowing/snowplowing equip­ment for $2,000.  His income totals on his affidavit did not re­flect much income from lawn mowing or snow re­moval.

Rich­ard knew his expenses and in­come at the time he entered into the marital set­tle­ment agree­ment with Ju­dith.  There has been no substantial change in cir­cum­stances since the judg­ment of dis­solution.  He is not enti­tled to a modi­fication of his obliga­tions to Ju­dith.

Richard's final argument is Judith has done nothing to enhance her earning capacity and contends she should be required to do so or he is entitled to a reduction in his maintenance obligation.  The main­te­nance award­ed to Ju­dith was not reha­bil­i­ta­tive main­tenance as both parties agree her physical and mental prob­lems precluded her from most gainful employment.  Further, after al­most 30 years of mar­riage and no meaningful employment in the workforce during that time, Judith's job skills were out­dat­ed.  There was little real­istic chance Judith would ever find more lucrative employment than she already had with her home beauty shop.  Judith testified she applied for one or two jobs after the dissolution but did not get them or did not take them because they paid too lit­tle.  This uncontradicted evi­dence sug­gests her lack of employability and not a lack of good-faith ef­forts to achieve fi­nancial inde­pendence.

Richard also notes Judith inherited $30,000 from her par­ents shortly after the dissolution but in­stead of using it to sup­port herself, she gave all but $4,000 to the parties' daughter Rebecca, a college-educated adult capable of sup­porting her­self.  Judith gave the money to Rebecca to fur­ther her educa­tion.  Rebecca had a degree in edu­ca­tion but was then only work­ing as a sub­stitute teacher.            

Richard knew Judith would be receiving an inher
i­tance be­cause she disclosed it on her financial affidavit at the time of the dissolution.  He did not know how much the inheri­tance would be yet he agreed to the provisions of the marital settle­ment agree­ment.  While we may believe it would have been prefer-

a­ble for Judith to enhance her own economic security with the inheritance, the gift to the parties' daughter did not cause a sub­stan­tial change in cir­cum­stance. 

Richard has not demonstrated a substantial change in circumstance in either his income and expenses or those of Ju­dith from the time of the entry of the judgment of dissolution.  All he has demonstrated is his unhappiness with the bargain he made in the marital settlement agreement.  The factors he al­leges are new were known to him at the time of the agreement, and the tri­al court properly concluded the contemplated award of so­cial secu­rity benefits was taken into account by the parties in nego­tiat­ing the marital settlement agreement.

The judgment of the circuit court is af­firmed.

Affirmed.    

GARMAN, P.J., concurs.

COOK, J., dissents.

JUSTICE COOK, dissenting:

I respectfully dissent.  I would reverse and remand the decision of the trial court with instructions to modify the main­tenance order.  The April 1996 agreed maintenance order of $225 per week did not take into account Judith's social security dis­abili­ty award, an award for which she had not even applied when the agreed $225-per-week order was entered.  

The majority opinion adopts a new rule, that what is important in an agreement is what the parties contemplated, or could have contem­plated, not what they said.  It is not the func­tion of the courts to carry out the inten­tion of the parties regard­less of whether the instrument contains lan­guage suffi­cient to express it.  17A Am. Jur. 2d 
Contracts
 §352 (1991).  The in­ten­tion or understanding of the parties must be determined not from what the parties thought but from the lan­guage of the con­tract itself.  
Saddler v. National Bank
, 403 Ill. 218, 228, 85 N.E.2d 733, 740 (1949); 
Monroe Dearborn Limit­ed Partner­ship v. Board of Education
, 271 Ill. App. 3d 457, 462, 648 N.E.2d 1055, 1058 (1995) (court should give effect to parties' intent as evi­denced by language used in con­tract).  

The majority opinion states that if the parties intend­ed that maintenance be modified when social securi­ty bene­fits were received, they could have so agreed.  It is also true that if the parties intended that the amount of maintenance 
not
 be modified when social security benefits were received, they could have included that language in their agree­ment.  The majority's analysis allows a court, in hindsight, to rule which­ev­er way it wants, by selecting a party to criticize for the lack of addi­tional language in the contract.  If parties are to be bound not just by what they said, but by what they could have said, where will we draw the line?  Will we say that surely the parties con­tem­plat­ed that the payor would be receiving pay increases since he had been receiving regular pay increases in the past?  Will we say that surely the parties contem­plated that the recipient's expens­es would be increasing since infla­tion has been a fact of life for many years?  Under the majority's analysis, a court may now choose not to modify mainte­nance in almost every case where the parties have entered into an agreement.  

Even if we accept the majority's argument that specific language is necessary before future social security bene­fits can justify maintenance, such language was present in this case.  The marital settlement agreement contains section 1, entitled "Main­te­nance."  Under that section there is subsection 1-d, entitled "Social Security Disability Application," which imposes on Judith a duty to apply for social security disability and to advise Richard of the disposition of such application.  The majority's sugges­tion that it would be speculation for us to assume why this language is present in the agreement is simply a refusal to con­sider the language of the contract, the most legit­imate source for determining the parties' intent.  The majori­ty does not point to any contract language to support its argument that an award of social security benefits cannot be a basis for modifica­tion.        
 

In the absence of language in the agreement stating whether future changes in income or expenses may be considered in modifying a maintenance order, those changes should be consid­ered.  It would be exceptional for the existing order to have taken those changes into account.  A basic principle in setting support, either child support or maintenance, is that the amount of support should be based on current conditions.  When changes then occur, child support or mainte­nance can be modified.  
In re Marriage of Carpel
, 
232 Ill. App. 3d 806, 819, 597 N.E.2d 847, 857 (1992) (should not consider mere possi­bility of future re­sources); 
In re Mar­riage of Moore
, 117 Ill. App. 3d 206, 208, 453 N.E.2d 102, 104 (1983) (should not consider possibility or like­li­hood of future income in­creas­es).  In fact, evidence of future social security benefits has been excluded in setting mainte­nance, as the trial court is generally required to consider the parties' economic circumstanc­es as they exist at the time of the mainte­nance determination.  
In re Marriage of Zeman
, 198 Ill. App. 3d 722, 736, 556 N.E.2d 767, 775 (1990).  

The Act is geared toward a present ability to pay sup­port and does not suggest in its terms that possible future fi­nancial resourc­es of a party may also be taken into account.  
Coons v. Wilder
, 93 Ill. App. 3d 127, 134, 416 N.E.2d 785, 792 (1981).  

"In ordering the payment of child support, 

a circuit court must consider the needs of the 

child, the sepa­rate income of the wife, and 

the income of the husband.  [Cita­tions.]  			

Because changes in these facts cannot be anti-

ci­pated with accura­cy, a circuit court should 

ordi­narily not try to anticipate such changes 

by making its award of child support to increase 		

automat­ically with the child's age."  
McManus v.		

McManus
, 38 Ill. App. 3d 645, 647, 348 N.E.2d 

507, 509 (1976).    

If a payor's net income of $500 per week would justify support of $100 per week, what sense does it make to order $120 per week, on the expectation that the payor will be earning $600 a year later?  If the trial court does order $120 per week, there will be an over­pay­ment of support until the increase in net in­come occurs.  It would be possible to set child support or main­tenance at a percentage of net income, but percentages are gener­ally disfavored.  See 
In re Mar­riage of Florence
, 260 Ill. App. 3d 116, 120, 632 N.E.2d 681, 684 (1994);  
In re Marriage of Waldschmidt
, 241 Ill. App. 3d 7, 12-13, 608 N.E.2d 1299, 1303 (1993); see also 1 H. Gitlin, Gitlin on Divorce §15-17, at 679-81 (2d ed. 1997) (suggesting that while the parties can agree to auto­matic increases in the mainte­nance level, the court in the absence of agreement should not provide for automatic in­creas­es).  		The fact that the present agreement did not provide any type of adjustment in the event Judith began receiving social security indicates that the receipt of social security benefits was intended to be a basis for modification.  In the present case, the mainte­nance of $225 per week was either too little before Judith began receiving social securi­ty or was too much after she began receiving it.                     

Courts are sometimes frustrated when parties return to court shortly after signing a settlement agreement.  See 
In re Marriage of Uphoff
, 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243, 1245 (1980) (where the ex-husband agreed to a child support order knowing full well that two days later his salary would end by virtue of a voluntary agreement he had entered into with his employer).  In 
Uphoff
, modification was denied because of the ex-husband's bad faith.  No such circumstances are present in this case.  See 
In re Marriage of Lavelle
, 206 Ill. App. 3d 607, 613, 565 N.E.2d 291, 295 (1990) (respondent agreed to order well be­fore his busi­ness entered bankruptcy).    

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT



INTER-OFFICE MEMORANDUM





TO:  Darryl Pratscher			DATE:  March 10, 1998



FROM:  Robert W. Cook



  RE:  Marriage of Neuman

  4-97-0624  1/98/Oral

  KNECHT, Garman, Cook



  
FILE
 
DISSENT





Please file the dissent as transmitted.





______________________________

Robert W. Cook





RWC:plu



cc:  Judge Garman

Judge Knecht

Judge Green

Judge Steigmann

Judge McCullough



