By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
www.sdflaw.com; dschiller@sdflaw.com
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
www.malfamilylaw.com; michelle@malfamilylaw.com.
Trial court erred in applying 2019 version of IMDMA maintenance statute, but error was harmless because the correct calculation was applied. The Second District addressed the question of which version of the maintenance statute under the IMDMA applied to a December 2018 petition to set maintenance based on language in a marital settlement agreement (MSA) entered in August 2018. Wife was ordered to pay husband maintenance, but days after the judgment was entered, wife lost her job. Months later she obtained new employment with a salary consistent with her former employment and husband filed a motion to set maintenance based upon the language in the MSA which delineated how maintenance was to be calculated. The language in the MSA provided for the use of the 2018 maintenance formula and for the includability/deductability of maintenance on the parties’ respective tax returns. The parties stipulated that under the 2018 version of the statute husband would receive $423 in monthly maintenance, and $3 per month under the 2019 version. The trial court ruled that the 2019 statute was the correct statute to apply, but treated the proceeding as a modification proceeding under 504(b-1)(A-1) so that the 2018 guideline formula applied to the calculation. The Appellate Court disagreed and held that the plain language of the MSA clearly and unambiguously provided how maintenance was to be calculated, and therefore that language must be followed. The petition to set maintenance filed by husband was not a modification proceeding, but rather a petition to set maintenance in accordance with the terms the parties had agreed to in the MSA. The trial court’s error in reasoning was harmless, however, because it ultimately reached the right calculation, and therefore the judgment was affirmed.