                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   In re Marriage of McLauchlan, 2012 IL App (1st) 102114




Appellate Court            In re MARRIAGE OF PATRICIA C. McLAUCHLAN, Petitioner-
Caption                    Appellee, and DAVID C. McLAUCHLAN, Respondent-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-2114


Filed                      March 13, 2012


Held                       Although the trial court’s finding that the decrease in respondent’s
(Note: This syllabus       income warranted a modification of his maintenance obligation was
constitutes no part of     supported by the record, the determination that his “gross income”
the opinion of the court   included money drawn from his retirement accounts was improper, since
but has been prepared      the parties had waived any interest in the other’s retirement benefits for
by the Reporter of         purposes of maintenance in their settlement agreement, and under those
Decisions for the          circumstances, respondent’s withdrawals from his retirement accounts
convenience of the         could not be considered in deciding whether to modify maintenance or
reader.)
                           change the award and allowing consideration of that factor would violate
                           the parties’ original intent and constitute a modification of the settlement
                           agreement; therefore, because the calculation of respondent’s arrears was
                           based on income that erroneously included withdrawals from his
                           retirement accounts, the cause was remanded.


Decision Under             Appeal from the Circuit Court of Cook County, No. 99-D-5397; the Hon.
Review                     Pamela E. Loza, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                 Beermann Swerdlove LLP, of Chicago (Howard A. London, of counsel),
Appeal                     for appellant.

                           Swanson, Martin & Bell, LLP, of Chicago (Steven H. Klein and
                           Catherine Basque Weiler, of counsel), for appellee.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Quinn and Justice Connors concurred in the judgment
                           and opinion.




                                             OPINION

¶1           Appellant David C. McLauchlan (David) appeals the order of the circuit court modifying
        his maintenance payments to appellee, Patricia C. McLauchlan (Patricia), pursuant to a
        marital settlement agreement signed by the parties. On appeal, David contends that (1) the
        trial court abused its discretion by failing to terminate maintenance given his employment
        situation; and (2) the trial court erred when it included withdrawals from his retirement
        accounts as income in calculating maintenance and arrearages. For the following reasons, we
        affirm in part, reverse in part, and remand for further proceedings.

¶2                                        JURISDICTION
¶3          The trial court issued an order on April 14, 2010, but continued the case to address
        contempt and attorney fees issues. The trial court entered a final order in the instant case on
        June 14, 2010, and David filed his notice of appeal on July 13, 2010. Accordingly, this court
        has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals
        from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May
        30, 2008).

¶4                                       BACKGROUND
¶5          The parties had been married more than 30 years when the trial court entered a judgment
        for dissolution of marriage on July 27, 2001. At the time, they had three children, two of
        which were over the age of 18. One adult child, Carolyn, is disabled and resides at
        Misericordia. The marital settlement agreement, which was incorporated into and made part
        of the judgment for dissolution, provided in part as follows:
                “Commencing January 1, 2001, Husband shall pay to Wife as and for maintenance,
            formerly known as alimony, the sum of Fourteen Thousand Dollars ($14,000) per month,
            payable in two installments the 1st and day 15th of each month (‘Maintenance’). After

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         six years (72 months) from the effective date entry of Judgment for Dissolution of
         marriage, either party may petition a Court of competent jurisdiction and, subject to the
         remaining provisions of this paragraph, and annotations set forth below, Husband shall
         have the right to petition a Court of competent jurisdiction *** to modify Maintenance.
         The Maintenance will only be modified upon written agreement of the parties, and/or
         order of Court, and will continue until modified by a Court of competent jurisdiction.
         Maintenance may only be modified by Husband upon a showing *** of a material and
         substantial change/reduction in Husband’s gross income level. Maintenance may only
         be modified by Wife upon a showing by Wife of a material and substantial
         change/increase in Husband’s gross income level (after the 72 month period). The parties
         agree that Wife may earn up to, and including, fifty thousand dollars per year in
         employment income, in addition to income she may have on her investments, without her
         income level constituting a change in circumstances which could give rise to a
         modification of Maintenance.”
     The marital settlement agreement also included a property settlement in which the parties
     distributed rights in various retirement accounts and pensions. Patricia received half of
     David’s then-existing retirement assets, which she invested. She also received their vacation
     home in Key West, Florida, and a portion of the proceeds from the sale of the marital home
     in Park Ridge, Illinois. Regarding the retirement plans, the settlement agreement provided
     that “[e]ach party shall execute any and all documents necessary to waive any and all
     interests, or partial interest(s) in and to the retirement plan(s) the other party is receiving
     pursuant to terms of the Agreement.” (Emphasis added.)
¶6       On November 26, 2007, David filed a petition to terminate maintenance or, in the
     alternative, to modify maintenance and for other relief. Patricia filed a petition for rule to
     show cause and other relief on January 8, 2008, and a motion for summary judgment alleging
     that David failed to show a substantial reduction in gross income in order to modify
     maintenance. David filed a response to Patricia’s motion and a cross-motion for summary
     judgment. Hearing on the petitions and motion trial began on December 16, 2009, before
     Judge Jordan Kaplan. An agreed order for reassignment to a new judge was entered on
     January 11, 2010, and the case was assigned to Judge Pamela Loza. From the time he filed
     his petition on November 26, 2007, to the trial court’s ruling on April 14, 2010, David paid
     $14,000 a month in maintenance in 2007, and $31,500 in 2008.
¶7       At hearing, David testified that upon his graduation from law school in 1972, he became
     an associate attorney with the law firm of Lord Bissell & Brook. His law firm income for the
     five years before the divorce, before any reductions for individual retirement account (IRA),
     401(k), and profit sharing or pension payments, averaged $540,318. The average was
     $504,064 for the three years before the divorce, and David earned $474,388 in 2000, the last
     full year before the divorce.
¶8       After the dissolution of his marriage, his postdivorce income was comparable for the next
     five years, averaging over $550,000. He remarried and purchased a town house with a
     balance due of $924,922 on the mortgage. In 2006 David’s income dropped dramatically
     when he earned only $371,746. In 2007, his firm merged with a Texas firm and became
     Locke, Lord, Bissell & Liddell and David’s yearly income dropped to $250,000. These

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       substantial drops in David’s earned income forced him to borrow money from his deceased
       father’s estate and withdraw large amounts from his 401(k) and retirement accounts in order
       to continue to pay $14,000 per month in maintenance to Patricia and meet his obligations.
       In 2007 he had a gross income of $361,226, including taxable income of $129,000 resulting
       from the early withdrawals from his retirement accounts. The 401(k) and retirement account
       withdrawals had the practical effect of increasing David’s taxable income for the year, but
       in reality they represented the depletion of his retirement savings earned in prior years when
       maintenance payments were paid to Patricia. His 2008 tax return shows a gross income of
       $284,848, including taxable withdrawals of $116,477.
¶9          At the end of 2008, David was forced to resign from the firm. Nick DiGiovanni, a partner
       and member of the executive committee at Locke, Lord, Bissell & Liddell, testified that the
       committee decided to terminate David due to his dwindling business, but the parties
       negotiated a process whereby David would instead resign at the end of 2008. After his
       resignation, David began his solo practice, the McLauchlan Law Group LLC. In 2009, David
       lost approximately $162,000 trying to establish his practice. As of March 23, 2010, David
       had unbilled fees of approximately $5,000.
¶ 10        In order to meet expenses, David withdrew $695,000 from his Locke Lord pension
       retirement account and $36,000 from his 401(k) Fidelity account in 2009. As of March 20,
       2010, he had withdrawn approximately $75,000 from his Charles Schwab retirement
       account. At that time, David had approximately $180,000 in his Schwab account and
       $37,000 in his Fidelity account. David also had about $5,000 to $6,000 in his personal
       checking account, $5,000 in a nonretirement Schwab account and $3,000 in his law firm
       account. David’s total loan and mortgage debt is over $1.5 million, and he estimated that at
       the current rate he would exhaust his remaining assets in about three to four months.
¶ 11        At the time David filed his petition, all of the parties’ children had reached the age of
       majority. Carolyn still resides at Misericordia, to which David contributes approximately
       $3,000 per year. He also pays $200 to $400 per month in expenses for Carolyn.
¶ 12        Patricia testified that although she is a college graduate with a degree in hospitality
       management, she did not work outside the home during the marriage. In 2010, after searching
       two years for employment, she secured a part-time job as a cashier/receptionist at $9.50 per
       hour. She has also taken classes to learn Microsoft Office and accounting. In 2008, after
       David began making partial maintenance payments, Patricia cut back on her monthly
       expenses, from $10,000 per month to between $7,500 and $8,000 per month. During this
       time, she paid for these expenses out of savings, retirement account withdrawals, and a home
       equity line of credit. Patricia began liquidating her assets and accruing debt. She stated that
       she has approximately $100,000 in a savings account and $600,000 in a retirement account.
       Starting in 2009, she has received about $2,000 per month from her investment account. She
       testified that she no longer lives the lifestyle she was accustomed to during her marriage.
¶ 13        The trial court determined that David had experienced a substantial change in
       circumstances meriting a modification of maintenance to 20% of his gross income,
       retroactive to 2008, from all sources. Furthermore, the clear and unambiguous terms of the
       marital settlement agreement contemplated that money withdrawn from David’s retirement


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       accounts should be included as David’s income. The trial court did not terminate
       maintenance, observing instead that “[r]espondent has no impairment in his present or future
       earning capacity and he has the ability to earn significantly greater future income than
       Patricia. Based on David’s ability to pay and Patricia’s lack of education, job experience, age
       and ability to earn substantial income ***, the length of the parties’ marriage and all other
       factors in 750 ILCS 5/504 and 5/510 the petitioner’s obligation to pay maintenance to the
       respondent will be modified to be 20% of the petitioner’s gross income from all sources.”
¶ 14       For 2009, the court found that David had total gross income of $731,340. This income
       consisted entirely of retirement account withdrawals: $695,000 from his Charles Schwab
       account and $36,346.03 from his Fidelity account. Although 20% of $731,340 computes to
       $146,268, the court found that David owed Patricia $168,000 for 2010. The order and the
       record does not explain this math discrepancy. For 2010, the court found that David “earned”
       $75,000 for the first three months, an average of $25,000 per month, based upon David’s
       estimate of these withdrawals although these “earnings” consisted entirely of retirement
       account withdrawals. The court also found David in contempt for failure to pay maintenance,
       and as a result he was in arrears of $32,469.60 for 2008, $168,000 for 2009, and $15,000 for
       each month through March 31, 2010. It entered a final order on June 14, 2010, and David
       filed this timely appeal.

¶ 15                                        ANALYSIS
¶ 16       David first contends that the trial court erred in modifying, rather than terminating,
       maintenance. The parties entered into a marital settlement agreement that contained
       provisions for maintenance. The terms of their agreement are binding on the parties and the
       courts. Blum v. Koster, 235 Ill. 2d 21, 32 (2009). It provided that after six years from the
       entry of judgment for dissolution of marriage, “either party may petition a Court of
       competent jurisdiction to modify maintenance.” It further provided that David may petition
       to modify maintenance “upon a showing by [David] of a material and substantial
       change/reduction in [David’s] gross income level.”
¶ 17       Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750
       ILCS 5/504(a) (West 2006)) lists relevant factors to consider in determining maintenance,
       including:
               “(1) the income and property of each party, including marital property apportioned
           and non-marital property assigned to the party seeking maintenance;
               (2) the needs of each party;
               (3) the present and future earning capacity of each party;
               (4) any impairment of the present and future earning capacity of the party seeking
           maintenance due to that party devoting time to domestic duties or having foregone or
           delayed education, training, employment, or career opportunities due to the marriage;
               (5) the time necessary to enable the party seeking maintenance to acquire appropriate
           education, training, and employment, and whether that party is able to support himself
           or herself through appropriate employment or is the custodian of a child making it


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           appropriate that the custodian not seek employment;
               (6) the standard of living established during the marriage;
               (7) the duration of the marriage;
               (8) the age and the physical and emotional condition of both parties;
               (9) the tax consequences of the property division upon the respective economic
           circumstances of the parties;
               (10) contributions and services by the party seeking maintenance to the education,
           training, career or career potential, or license of the other spouse;
               (11) any valid agreement of the parties; and
               (12) any other factor that the court expressly finds to be just and equitable.”
¶ 18       When determining whether to modify a maintenance award, courts consider the following
       factors in addition to the factors listed in section 504(a) above:
               “(1) any change in the employment status of either party and whether the change has
           been made in good faith;
               (2) the efforts, if any, made by the party receiving maintenance to become self-
           supporting, and the reasonableness of the efforts where they are appropriate;
               (3) any impairment of the present and future earning capacity of either party;
               (4) the tax consequences of the maintenance payments upon the respective economic
           circumstances of the parties;
               (5) the duration of the maintenance payments previously paid (and remaining to be
           paid) relative to the length of the marriage;
               (6) the property, including retirement benefits, awarded to each party under the
           judgment of dissolution of marriage, judgment of legal separation, or judgment of
           declaration of invalidity of marriage and the present status of the property;
               (7) the increase or decrease of each party’s income since the prior judgment or order
           from which a review, modification, or termination is being sought;
               (8) the property acquired and currently owned by each party after the entry of the
           judgment of dissolution of marriage, judgment of legal separation, or judgment of
           declaration of invalidity of marriage; and
               (9) any other factor that the court expressly finds to be just and equitable.” 750 ILCS
           5/510(a-5) (West 2010).
¶ 19       Where the record establishes the basis for a maintenance award, the trial court need not
       make explicit findings for each of the statutory factors. Blum, 235 Ill. 2d at 38. A reviewing
       court will not disturb the trial court’s decision to modify or terminate maintenance absent a
       clear abuse of discretion. Blum, 235 Ill. 2d 21. The trial court abuses its discretion when its
       “ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the
       view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20 (2000).
¶ 20       David argues that maintenance payments to Patricia should be terminated due to the
       change in his employment status and his dwindling retirement accounts. Furthermore,
       Patricia has the home in Florida, as well as $600,000 in investments and $100,000 in savings

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       from which to draw income. The trial court took these factors into account, as well as the
       factors listed in sections 504(a) and 510(a-5). It acknowledged David’s change in
       employment status and found credible Mr. DiGiovanni’s testimony that David did not
       voluntarily quit his job at Locke, Lord, Bissell & Liddell. It also found a substantial decrease
       in David’s earnings. However, the trial court noted that “[r]espondent has not modified his
       standard of living to accommodate his change in job status” and “has no impairment in his
       present or future earning capacity and he has the ability to earn significantly greater future
       income than respondent.” Patricia on the other hand, due to the length of the marriage, lacked
       the education and job experience to earn substantial income. Therefore, the court did not
       terminate maintenance but instead modified it downward to 20% of David’s gross income
       from all sources. The sources include, but are not limited to, David’s interest in his father’s
       revocable trust, retirement accounts, and the McLauchlan Law Group LLC, from January 1,
       2009, to date. The trial court considered the relevant factors and the record supports its
       decision to modify, rather than terminate, maintenance.
¶ 21        David contends, however, that the trial court erred in determining that “gross income”
       referred to in the marital settlement agreement includes withdrawals from his retirement
       accounts. The parties’ marital settlement agreement contained a provision for the settlement
       of marital property. Such property included real estate, as well as interests in investments and
       retirement accounts acquired during the marriage. “[A] property settlement *** which has
       been approved by the court and incorporated in the judgment of dissolution[ ] becomes
       merged in the judgment, and the rights of the parties thereafter rest on the judgment.” In re
       Marriage of Hoffman, 264 Ill. App. 3d 471, 474 (1994). If the parties decide to settle their
       property rights by mutual agreement rather than by statute, they are bound to the terms of
       their agreement. Chodl v. Chodl, 37 Ill. App. 3d 52, 53 (1976). A court must construe such
       an agreement in a manner that gives effect to the parties’ intent, and if its terms are
       unambiguous, the language used is the sole indicator of that intent. In re Marriage of Sawyer,
       264 Ill. App. 3d 839, 846 (1994). A property settlement agreement approved by the court
       cannot be set aside or modified absent “proof that the agreement was secured by fraud or
       coercion or is contrary to any rule of law, public policy, or morals.” Chodl, 37 Ill. App. 3d
       at 53. We review the interpretation of a marital settlement agreement de novo. Blum, 235 Ill.
       2d at 33.
¶ 22        This court’s precedents set out in In re Marriage of Munford, 173 Ill. App. 3d 576
       (1988), are instructive here. The parties in Munford executed a property settlement
       agreement, which was incorporated into the dissolution of marriage judgment. Solomon
       Munford was ordered to pay his ex-wife, Jessye, $300 per month as maintenance. As part of
       the property settlement, Jessye was awarded financial assets worth $29,500, as well as a
       “ ‘Vacation Key Plan’ ” in Lake Geneva, Wisconsin, and all the furnishings and fixtures
       contained in the marital home. In turn, Jessye agreed to pay Solomon $3,500 for his interest
       in their joint property and she “waived ‘any and all claims that she may have in and to
       Solomon’s pension and/or profit sharing plans.’ ” (Emphasis in original.) Munford, 173 Ill.
       App. 3d at 577.
¶ 23        Solomon subsequently filed a petition to terminate maintenance, and Jessye filed a
       petition to increase her maintenance due to a substantial change in circumstances. She

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       claimed that while her health was failing, resulting in increased medical expenses and her
       inability to work, Solomon’s income had increased due to his receipt of retirement benefits.
       Solomon’s gross annual income one year prior to dissolution of marriage was $17,066, and
       his annual income five years later (one year prior to filing his petition to modify) was
       $37,544.64, which consisted of about $15,000 in ordinary income and $22,553.28 in
       retirement benefits. The trial court granted Jessye’s petition, finding that Jessye’s waiver of
       any interest in Solomon’s retirement benefits was not a waiver of the income generated from
       those benefits. Munford, 173 Ill. App. 3d at 579. It therefore increased Solomon’s
       maintenance obligation to $750 per month for a one-year period. Munford, 173 Ill. App. 3d
       at 578.
¶ 24        This court reversed the trial court, finding that the order to increase maintenance based
       on Solomon’s retirement income “was actually a modification of the parties’ property
       settlement agreement rather than a modification of the maintenance provision of the
       dissolution judgment based on a substantial change in circumstances.” Munford, 173 Ill.
       App. 3d at 579. Furthermore, “[w]hile maintenance provisions are modifiable upon a
       showing of a substantial change in circumstances, property settlement provisions are not
       [citations], unless a court finds the existence of conditions that justify the reopening of a
       judgment.” Munford, 173 Ill. App. 3d at 579. Reopening a judgment to set aside a property
       settlement agreement is proper only if the agreement was executed “by some element of
       fraud, coercion or misrepresentation.” Id. Jessye did not allege that the settlement agreement
       was obtained by fraud, coercion or misrepresentation, nor did she contend that the parties
       intended “to distinguish between waiver of the plans and the income derived therefrom.” Id.
       at 580. Therefore, the trial court’s determination “improperly rewrote and modified the
       parties’ property settlement agreement” and its findings were against the manifest weight of
       the evidence. Id.
¶ 25        Here, Patricia also agreed in the property settlement agreement “to waive any and all
       interests, or partial interest(s) in and to the retirement plan(s) the other party is receiving
       pursuant to terms of the Agreement.” Pursuant to Munford, the court may not subsequently
       modify the property settlement agreement by awarding maintenance based upon David’s
       withdrawals from retirement plans in which Patricia had waived any and all interests without
       a showing that the agreement was accompanied by some element of fraud, coercion or
       misrepresentation. Patricia does not allege such fraud, coercion or misrepresentation, nor is
       there any indication in the clear language of the agreement that the parties intended to
       distinguish between waiver of the plans and waiver of the income derived from those plans.
       In light of David and Patricia having mutually waived any and all interest in and to the
       other’s retirement plans, the court’s finding that the clear and unambiguous terms of the
       marital settlement agreement contemplated that money withdrawn from David’s retirement
       accounts should be included as income for purposes of setting maintenance is contrary to the
       terms of the agreement and the parties’ expressed intent. Patricia had waived any and all
       interest or partial interest in David’s retirement plans. The trial court’s including David’s
       withdrawals from his retirement plans as income in determining maintenance is an improper
       modification of the parties’ property settlement agreement.
¶ 26        Patricia disagrees and argues that this court has held that retirement funds awarded as part

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       of the marital settlement agreement can be regarded as income. As support, she cites In re
       Marriage of Eberhardt, 387 Ill. App. 3d 226 (2008), In re Marriage of Lindman, 356 Ill.
       App. 3d 462 (2005), and In re Marriage of Klomps, 286 Ill. App. 3d 710 (1997). These cases,
       however, are distinguishable from the case at bar. First, the facts in the cases do not show
       that the parties waived any and all interest in the other party’s retirement benefits in their
       respective property settlement agreements. Second, the pertinent issue in all three cases was
       the calculation of child support pursuant to the Act, rather than the determination of
       maintenance and the interpretation of a mutually agreed-upon waiver provision contained in
       the settlement agreement. As we stated in Klomps, the “primary objective” in the
       “unfortunate event of a dissolution” is to provide sufficient support for the children. (Internal
       quotation marks omitted.) Klomps, 286 Ill. App. 3d at 714. To that end, section 505(a) of the
       Act broadly defines net income for child support purposes as “the total of all income from
       all sources.” 750 ILCS 5/505(a)(3) (West 2006). To further protect the interests of the
       children, the Act also prohibits a settlement agreement from expressly precluding or limiting
       the modification of “terms concerning the support, custody or visitation of children.” 750
       ILCS 5/502(f) (West 2006). In that context this court in Eberhardt, Lindman, and Klomps
       held that for child support purposes, net income includes monies derived from sources
       originally distributed in a property settlement agreement.
¶ 27       We also note, however, that the Fourth District in In re Marriage of O’Daniel, 382 Ill.
       App. 3d 845, 849 (2008), disagreed with Lindman, finding that a former spouse’s postdecree
       withdrawals from self-funded IRAs should not be included as income for child support
       purposes. O’Daniel reasoned that Lindman did “not adequately take into account that IRAs
       are ordinarily self-funded by the individual possessing the retirement account. Except for the
       tax benefits a person gets from an IRA and the penalties he or she will incur if he or she
       withdraws the money early, an IRA basically is no different than a savings account ***. The
       money the individual places in an IRA already belongs to that individual. When an individual
       withdraws money he placed into an IRA, he does not gain anything as the money was already
       his.” O’Daniel, 382 Ill. App. 3d at 850. O’Daniel’s observation “that IRA distributions
       should not be considered income because they are only assets that already belong to the
       recipient seems difficult to dispute.” Reuben A. Bernick, When Property Becomes Income
       in Post-Judgment Divorce Litigation, 98 Ill. B.J. 310, 313 (2010). Like an IRA or savings
       account, the withdrawal of pension funds is correctly identified as a return of capital and not
       income.
¶ 28       Most importantly the issue before us concerns maintenance, not child support. The
       parties’ children have all reached majority age and the record indicates that David is
       providing for the care of Carolyn. Section 502(a) of the Act expressly provides that the
       parties may enter into a settlement agreement containing provisions for the distribution of
       property, which is binding on the parties and the courts. See Blum, 235 Ill. 2d at 32.
       Furthermore, the parties may in their settlement agreement expressly waive their interests in
       the other party’s retirement benefits for purposes of maintenance. See Munford, 173 Ill. App.
       3d at 580. We are not persuaded that the child support cases Eberhardt, Lindman, Klomps,
       and our recent opinion In re Marriage of McGrath, 2011 IL App (1st) 102119, provide
       support for Patricia’s position as regards the maintenance issues here. The child support

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       cases that hold it proper to include the return of capital withdrawals from retirement benefits
       as “gross income” are well founded on the court’s obligation to protect the best interests of
       children and public policy determinations that parents financially support their children.
       Those interests and public policy determinations are not applicable in determining a
       modification of maintenance. When determining maintenance, withdrawals from a liquidated
       asset in which the other party had previously waived any future interest do not constitute
       income.
¶ 29        Therefore, we hold the record supports the trial court’s determination to modify David’s
       maintenance obligation. However, the trial court’s finding that “gross income” includes
       monies drawn from David’s retirement benefits when modifying maintenance was improper.
       We hold that absent fraud, coercion or misrepresentation, where the parties have entered into
       a property settlement agreement wherein each has waived any and all interests in and to the
       retirement plan(s) of the other party, the parties are bound to the terms of their agreement.
       Under such circumstances neither Illinois case law nor section 504(a) permits the trial court
       to consider withdrawals from retirement accounts when deciding whether to modify
       maintenance and in setting the amount of a new maintenance award. Allowing the trial court
       to do so violates the parties’ original intent when contracting and represents a modification
       of the parties’ property settlement agreement rather than a modification of maintenance
       provisions of the dissolution judgment based on a substantial change in circumstances.
¶ 30        For the foregoing reasons, the judgment of the circuit court is affirmed in part and
       reversed in part. As the trial court’s calculation of arrears was based on income that
       erroneously included David’s retirement plan withdrawals, we remand the cause for
       proceedings consistent with this opinion.

¶ 31      Affirmed in part and reversed in part; cause remanded.




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