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    "primary_text": "2020 IL App (2d) 190929\n No. 2-19-0929\n Opinion filed December 29, 2020\n______________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nIn re MARRIAGE OF ) Appeal from the Circuit Court\nDAVID WIG, ) of Du Page County.\n )\n Petitioner-Appellee, )\n )\nand ) No. 17-D-1444\n )\nJUDITH WIG, n/k/a Judith Progo, ) Honorable\n ) Timothy J. McJoynt,\n Respondent-Appellant. ) Judge, Presiding.\n______________________________________________________________________________\n\n JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.\n Presiding Justice Bridges and Justice McLaren concurred in the judgment and opinion.\n\n OPINION\n\n¶1 The marriage of petitioner, David Wig, and respondent, Judith Wig, n/k/a Judith Progo,\n\nwas dissolved in August 2018. Incorporated into the dissolution judgment was the parties' marital\n\nsettlement agreement. The agreement provided a calculation to determine the amount of\n\nmaintenance that respondent would pay petitioner. The agreement also provided that, if a change\n\nin the law affected the tax consequences of the maintenance ordered in the agreement, the parties\n\ncould negotiate a change in the agreement. If those efforts failed, the parties would submit the\n\nmatter to the trial court for resolution. A few days after the parties' marriage was dissolved,\n\nrespondent lost her job. In September 2018, under the terms of the dissolution judgment, petitioner\n\nsubmitted a qualified domestic relations order (QDRO) to his former employer. Garnishment of\n 2020 IL App (2d) 190929\n\npetitioner's pension began in October 2018. Respondent obtained new employment in November\n\n2018, and in December 2018, petitioner moved to set maintenance. Effective January 1, 2019,\n\nsection 504(b-1)(1)(A) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS\n\n5/504(b-1)(1)(A) (West 2018)) (the 2019 version) was amended as to its formula for the initial\n\nsetting of maintenance. 1 The former version of section 504(b-1)(1)(A) was added by Public Act\n\n100-520, § 15 (eff. Jan. 1, 2018) and is found in the 2017 supplement to West's Illinois Compiled\n\nStatutes (the former version) (see 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017)).\n\n¶2 In February 2019, the QDRO concerning petitioner's pension was entered in the trial court.\n\nThereafter, the parties disagreed over which version of section 504(b-1) the trial court should\n\napply in setting the specific dollar amount of maintenance. The court chose the 2019 version but\n\napplied the provision on modification of maintenance, rather than the provision governing the\n\ninitial setting of maintenance. Compare 750 ILCS 5/504(b-1)(1)(A-1) (West 2018) with id.\n\n§ 504(b-1)(1)(A).\n\n¶3 Respondent timely appeals from that order. 2 For the reasons that follow, we affirm.\n\n 1\n The section amended by Public Act 100-923, § 10 (eff. Jan. 1, 2019) is found in the\n\n2018 version of West's Illinois Compiled Statutes.\n 2\n Respondent initially appealed while other matters remained pending in the trial court.\n\nThose matters have since been resolved, allowing us now to exercise jurisdiction over this appeal.\n\nSee In re Marriage of Knoerr, 377 Ill. App. 3d 1042, 1050 (2007) (if the trial court's jurisdiction\n\nhas lapsed, such that it is too late to file a timely notice of appeal, the appellant may invoke the\n\nsavings provision of Illinois Supreme Court Rule 303(a)(2) (eff. July 1, 2017), and the appellate\n\ncourt will give effect to the appellant's premature notice of appeal once the last pending claim is\n\n -2-\n 2020 IL App (2d) 190929\n\n¶4 I. BACKGROUND\n\n¶5 After almost 29 years of marriage, the parties' marriage was dissolved. The agreement\n\nincorporated into the August 22, 2018, dissolution judgment stated the parties' annual incomes,\n\ndivided the parties' marital assets and debts, and provided petitioner with maintenance.\n\nConcerning the parties' incomes, the agreement indicated that respondent earned an annual salary\n\nof $54,000 and that petitioner, who was retired, received $19,260 in annual social security benefits\n\nand $18,123.96 in annual pension benefits. The parties' marital property and debts, which were\n\nnot large, were divided essentially equally. The section of the agreement addressing maintenance\n\nprovided:\n\n \"(a) Beginning immediately upon [respondent] receiving pension benefits from\n\n [petitioner's] pension (pursuant to QDRO), [respondent] shall pay maintenance to\n\n [petitioner] pursuant to statutory guidelines, subject to the 40% cap, based upon the\n\n following formula: Thirty percent (30%) of [respondent's] gross income, inclusive of\n\n benefits received from [petitioner's] pension minus twenty percent (20%) of [petitioner's]\n\n gross income, inclusive of Social Security benefits and pension benefits received by\n\n [petitioner] (exclusive of pension benefits paid to [respondent]). *** Upon entry of the\n\n QDRO dividing [petitioner's] pension, the attorneys for the parties shall immediately\n\n determine the parties' incomes and the dollar amount of maintenance and enter an order\n\n setting the dollar amount of maintenance.\n\n (b) Payments for maintenance shall be modifiable upon a showing of a substantial\n\n change in circumstances.\n\nresolved).\n\n -3-\n 2020 IL App (2d) 190929\n\n ***\n\n *** It is agreed and understood by the parties that all of the payments made by [respondent]\n\n to [petitioner] pursuant to this [s]ection *** of this [a]greement shall constitute\n\n maintenance payments which are imposed on or incurred by [respondent] under a written\n\n instrument within the meaning of Section 71 of the Internal Revenue Code, as amended,\n\n and as of now in effect, and of similar provisions of future laws, and that such payments\n\n will be includable in [petitioner's] gross income and deductible by [respondent] for federal,\n\n state, and local (if any) tax purposes. Inasmuch as this [a]greement has been negotiated and\n\n executed on the assumption that the payments made by [respondent] to [petitioner]\n\n pursuant to this [s]ection *** of this [a]greement will be deductible by [respondent] and\n\n taxable to [petitioner], if any or all of such payments are not so includable and deductible\n\n as a result of a final and binding judicial or administrative determination, or because of\n\n amendment or repeal of the applicable statutory provisions or their authoritative\n\n interpretation, then any such payment(s) otherwise due [petitioner] pursuant to this\n\n [s]ection *** of this [a]greement may be adjusted by an amount to be negotiated by the\n\n parties. In the event that the parties are unable to agree upon a readjustment of these\n\n provisions to take account of the changed tax impact, then this matter shall be submitted to\n\n the [trial court] for final and binding determination of the payments from [respondent] to\n\n [petitioner].\"\n\n¶6 The 30%-20% calculation in the agreement mirrored the formula in the former version of\n\nsection 504(b-1)(1)(A) of the Act for the initial setting of maintenance. See 750 ILCS 5/504(b-\n\n1)(1)(A) (West Supp. 2017).\n\n -4-\n 2020 IL App (2d) 190929\n\n¶7 Ten days after the parties' marriage was dissolved, respondent was fired from her job. At\n\nthe end of September 2018, petitioner delivered the required QDRO to his former employer. In the\n\nbeginning of October 2018, petitioner's former employer began garnishing petitioner's pension.\n\nAt the end of November 2018, respondent obtained new employment, with an annual income of\n\n$53,000. On December 11, 2018, after learning that respondent had obtained new employment,\n\npetitioner petitioned to set the dollar amount of maintenance.\n\n¶8 Effective January 1, 2019, before the trial court's hearing on the petition to set\n\nmaintenance, section 504 was amended in two respects pertinent here. First, an amendment to\n\nsection 504(b-1)(1)(A) (750 ILCS 5/504(b-1)(1)(A) (West 2018)) altered the formula for the initial\n\nsetting of maintenance. This amendment was in response to a change in federal law that eliminated\n\nthe deductibility of maintenance for federal tax purposes. See Pub. L. No. 115-97, 131 Stat. 2089\n\n(2017) (repealing 26 U.S.C. § 71).\n\n¶9 Second, section 504(b-1)(1)(A-1) (750 ILCS 5/504(b-1)(1)(A-1) (West 2018)) was added.\n\nThis section provided that the 30%-20% formula in the former version for the initial setting of\n\nmaintenance (which, again, was mirrored in the parties' agreement) would generally apply to\n\n\"[m]odification of maintenance orders entered before January 1, 2019, that are and continue to be\n\neligible for inclusion in the gross income of the payee for federal income tax purposes and\n\ndeductible by the payor.\" Id.\n\n¶ 10 On January 9, 2019, after the 2019 version of section 504 of the Act went into effect,\n\nrespondent answered the petition to set the dollar amount of maintenance. Respondent asserted\n\nthat she had not received any of petitioner's pension benefits to which she was entitled. The trial\n\ncourt continued the proceedings for the entry of the QDRO. On February 5, 2019, the QDRO was\n\n -5-\n 2020 IL App (2d) 190929\n\nentered in court. On April 1, 2019, respondent began receiving her share of petitioner's pension\n\npursuant to the QDRO.\n\n¶ 11 At the hearing on the petition, the parties disagreed over whether the former or 2019 version\n\nof section 504(b-1) applied to the calculation of maintenance. The parties did agree that, under the\n\nformer version, petitioner would receive $423 in monthly maintenance, but under the 2019 version,\n\nhe would receive only $3 in monthly maintenance. Petitioner asked the court to apply the\n\nagreement's maintenance formula, which, in effect, would be to apply the former version of section\n\n504 because the agreement's formula was borrowed from that version. See 750 ILCS 5/504(b-\n\n1)(1)(A) (West Supp. 2017). Petitioner also noted that applying the 2019 version of the Act would\n\nleave him with an absurdly small amount of maintenance. Respondent urged the court to apply the\n\n2019 version of section 504.\n\n¶ 12 The trial court held that our decision in In re Marriage of Carstens, 2018 IL App (2d)\n\n170183, required the court to apply the 2019 version of section 504. The court then considered\n\nwhether to follow section 504(b-1)(1)(A), which governed the initial setting of maintenance, or\n\nsection 504(b-1)(1)(A-1), which governed the modification of maintenance. The court decided to\n\napply section 504(b-1)(1)(A-1), reasoning that this was \"the better move\" because \"that's what\n\n[the parties] intended and [the court has] to give credence *** to the *** agreement.\" The court\n\ncontinued:\n\n \"[I]f the IRS says no, you're back, *** then it would seem to me the only alternative left\n\n for this Court is to apply [section 504(b-1)(1)(A)] of the maintenance statute, which\n\n provides for a formula without deductibility and deals with that income, but that's for\n\n another day and maybe a day we don't have to worry about if the IRS goes along with this\n\n provision.\"\n\n -6-\n 2020 IL App (2d) 190929\n\n¶ 13 In October 2019, the trial court, in line with its decision, awarded petitioner $423 in\n\nmonthly maintenance. The court also ordered that respondent pay petitioner $705.87. This sum\n\nrepresented the difference between $5076 in retroactive maintenance owed to petitioner from\n\nOctober 1, 2018, to October 1, 2019, and respondent's right to $4370.13 in pension benefits\n\naccrued between October 1, 2018, and April 1, 2019.\n\n¶ 14 II. ANALYSIS\n\n¶ 15 At issue in this appeal is what law governs the calculation of maintenance that petitioner\n\nsought in his December 2018 petition. This issue involves contract and statutory construction, both\n\nof which are pure questions of law that we review de novo. In re Application of the County\n\nTreasurer & ex officio County Collector of Kane County, 2018 IL App (2d) 170418, ¶ 22.\n\nMoreover, we may affirm the judgment of the trial court on any basis found in the record. In re\n\nMarriage of Heroy, 2017 IL 120205, ¶ 24.\n\n¶ 16 As we explain below, the change in the law did not affect the parties' agreement. Under\n\nsection 502(b) of the Act (750 ILCS 5/502(b) (West Supp. 2017)), the agreement is enforceable\n\nbecause neither party argued, nor did the trial court find, that the agreement is unconscionable.\n\nThe agreement provides unambiguous terms for the calculation of maintenance. Because petitioner\n\nasked the trial court to set maintenance under that formula rather than to modify the agreement,\n\nthe agreement controls exclusive of statutory provisions on maintenance.\n\n¶ 17 Before we address the agreement, we acknowledge the relevant differences between the\n\nformer and 2019 versions of section 504(b-1). The versions differ on how to set guideline\n\nmaintenance, which is an award of maintenance based on the Act's delineated calculations. 750\n\nILCS 5/504(b-1)(1)(A) (West 2018); 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). The former\n\nversion of section 504(b-1)(1)(A) provides that \"[t]he amount of [guideline] maintenance *** shall\n\n -7-\n 2020 IL App (2d) 190929\n\nbe calculated by taking 30% of the payor's gross annual income minus 20% of the payee's gross\n\nannual income.\" 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). The 2019 version of section\n\n504(b-1)(A) changed this, providing that \"[t]he amount of [guideline] maintenance *** shall be\n\ncalculated by taking 33⅓% of the payor's net annual income minus 25% of the payee's net annual\n\nincome.\" 750 ILCS 5/504(b-1)(1)(A) (West 2018). As noted, this amendment was in response to\n\na change in federal law that eliminated the deductibility of maintenance for federal tax purposes.\n\nSee Pub. L. No. 115-97, 131 Stat. 2089 (2017) (repealing 26 U.S.C. § 71). The 2019 version also\n\nadded section 504(b-1)(1)(A-1), which provides that\n\n \"[m]odification of maintenance orders entered before January 1, 2019 that are and continue\n\n to be eligible for inclusion in gross income of the payee for federal income tax purposes\n\n and deductible by the payor shall be calculated by taking 30% of the payor's gross annual\n\n income minus 20% of the payee's gross annual income.\" 750 ILCS 5/504(b-1)(1)(A-1)\n\n (West 2018).\n\nThis 30%-20% formula was identical to the formula specified in the former version of section\n\n504(b-1)(A) and adopted by the agreement.\n\n¶ 18 In August 2018, when the dissolution judgment was entered, section 502(a) of the Act\n\nprovided that \"[t]o promote amicable settlement of disputes between parties to a marriage attendant\n\nupon the dissolution of their marriage, the parties may enter into an agreement containing\n\nprovisions for *** maintenance of either of them.\" 750 ILCS 5/502(a) (West Supp. 2017). Section\n\n502(b) provided:\n\n \"The terms of [an] agreement, except those providing for the support and parental\n\n responsibility allocation of children, are binding upon the court unless [the court] finds,\n\n after considering the economic circumstances of the parties and any other relevant evidence\n\n -8-\n 2020 IL App (2d) 190929\n\n produced by the parties, on their own motion or on request of the court, that the agreement\n\n is unconscionable.\" Id. § 502(b).\n\n¶ 19 The parties' agreement pertained to spousal maintenance, not child support or parental\n\nresponsibility. Therefore, the agreement was binding absent a finding of unconscionability.\n\nUnconscionability is assessed based on the facts existing immediately after the agreement is made\n\n(In re Marriage of Nilles, 2011 IL App (2d) 100528, ¶ 13), and \"involves at least two separate\n\nconsiderations: one, the conditions under which the agreement was made, and two, the economic\n\ncircumstances of the parties resulting from the agreement\" (In re Marriage of Riedy, 130 Ill. App.\n\n3d 311, 313-14 (1985)). Under the second consideration, an agreement is unconscionable if \"no\n\nman in his senses, not under delusion, would make [it], on the one hand, and *** no fair and honest\n\nman would accept [it] on the other.\" Id. at 317.\n\n¶ 20 Neither party has contended that the agreement is unconscionable, and the trial court did\n\nnot so find. Interestingly, although no one is claiming that the agreement is unconscionable, we\n\nnote that interpreting the agreement consistent with section 504(b-1)(1)(A) of the 2019 version\n\nwould render the agreement unconscionable. Both parties agreed that, under the 2019 version,\n\npetitioner would receive monthly maintenance of only $3. No sensible person would offer, and no\n\nfair-minded person would accept, $3 in monthly maintenance.\n\n¶ 21 We recognize that section 504(a) lists \"any valid agreement of the parties\" as one of a\n\nmultitude of factors for the trial court to consider in setting the amount and duration of\n\nmaintenance. 750 ILCS 5/504(a)(13) (West 2018); 750 ILCS 5/504(a)(13) (West Supp. 2017).\n\nHowever, as noted, the 2018 version of section 502(b) clearly states that an agreement not\n\npertaining to child support and parenting is enforceable if it is not unconscionable. If an agreement\n\ngoverning maintenance is just a factor for the court to consider in setting maintenance, parties\n\n -9-\n 2020 IL App (2d) 190929\n\nwould have little incentive to enter into such agreements. Thus, making agreements enforceable\n\nunless they are unconscionable advances section 502's stated goal of fostering settlement of\n\ndisputes in connection with marital dissolution.\n\n¶ 22 Given the validity of the agreement, we turn now to interpreting its maintenance terms.\n\nInterpreting an agreement involves principles of contract construction. In re Marriage of Dundas,\n\n355 Ill. App. 3d 423, 425-26 (2005). Courts must give effect to the parties' intent, which is best\n\ndetermined by examining the language used in the parties' agreement. Id. at 426. When the\n\nlanguage used in the agreement is unambiguous, the agreement's terms must be given their plain\n\nand ordinary meaning. Id.\n\n¶ 23 Here, the parties' agreement unambiguously provides that respondent shall pay petitioner\n\nmaintenance amounting to 30% of her gross income minus 20% of petitioner's gross income. The\n\nagreement also unambiguously provides that the maintenance payments are includable in\n\npetitioner's gross income and deductible by respondent for any tax purposes. Given that the\n\nagreement clearly and unambiguously provides how maintenance is calculated, it must be\n\nfollowed. 750 ILCS 5/502(b) (West Supp. 2017); see also Olson v. Olson, 58 Ill. App. 3d 276, 279\n\n(1978) (\"Only if [an] agreement, when taken as a whole, fails to sufficiently define [the parties']\n\nrights and duties is it necessary or indeed justifiable to determine the form of [maintenance]\n\ninvolved and the corresponding rights and duties which the law prescribes for that form.\").\n\n¶ 24 In two respects, the agreement contemplates modifications of its terms. First, the agreement\n\nstates that \"[p]ayments for maintenance shall be modifiable upon a showing of a substantial change\n\nin circumstances.\" Second, the agreement provides that, if the tax consequences of maintenance\n\npayments are changed, \"payment(s) otherwise due to [respondent] *** may be adjusted by an\n\namount to be negotiated by the parties\" or by court order if negotiations fail. Since the agreement\n\n - 10 -\n 2020 IL App (2d) 190929\n\nprovides no criteria for modification of the agreement, a court considering a request for\n\nmodification would resort to the maintenance factors of sections 504 and 510 of the Act (750 ILCS\n\n5/504, 510 (West 2018); 750 ILCS 5/504, 510 (West Supp. 2017); Blum v. Koster, 235 Ill. 2d 21,\n\n31-32 (2009)). This, of course, would raise the question of which version of those sections would\n\napply.\n\n¶ 25 However, we need not decide which statutory version applies, because the petition to set\n\nmaintenance did not seek a modification of the agreement's maintenance formula, but rather a\n\ncalculation using that formula. Under the agreement, respondent would begin paying maintenance\n\nimmediately upon receiving petitioner's pension benefits. Before respondent began receiving her\n\nshare of petitioner's pension benefits (in April 2019), respondent lost her job and started a new\n\none. Since respondent's duty to pay maintenance was not yet triggered, her change in employment\n\nwas not a \"change in circumstances\" contemplated by the agreement but rather a revised baseline\n\nfor the initial calculation of maintenance.\n\n¶ 26 Respondent, however, contends that because maintenance was not calculated until April\n\n2019 when petitioner began receiving her share of the pension, the 2019 version of section 504(b-\n\n1) should apply here. We disagree. The parties set a formula for maintenance in August 2018,\n\nwhen the agreement was executed and incorporated into the dissolution judgment. See In re\n\nMarriage of Maher, 95 Ill. App. 3d 1039, 1042 (1981) (agreement binding when approved by trial\n\ncourt). What remained undetermined in August 2018 was the dollar amount of monthly\n\nmaintenance that petitioner would receive based on the parties' income. That calculation was not\n\na contingency that had to occur before respondent became entitled to maintenance. See id.\n\n(agreement not effective when entered if parties \"subjected [agreement's] effectiveness to the\n\n - 11 -\n 2020 IL App (2d) 190929\n\noccurrence of other contingencies\"). Because respondent's entitlement to maintenance was not in\n\nquestion when the 2019 version of the Act became effective, that version does not govern here.\n\n¶ 27 The trial court relied on Carstens in applying the 2019 version of section 504(b-1). The\n\nparties discuss Carstens as well as In re Marriage of Cole, 2016 IL App (5th) 150224, and In re\n\nMarriage of Kasprzyk, 2019 IL App (4th) 170838. All three cases differ materially from the facts\n\nhere.\n\n¶ 28 In Cole, the parties secured a judgment of legal separation in 2009 and incorporated into\n\nthat judgment a separation agreement, which required the husband to pay the wife maintenance.\n\nCole, 2016 IL App (5th) 150224, ¶ 3. Thereafter, the husband petitioned to dissolve the parties'\n\nmarriage, and the wife asked that the terms of the legal separation be incorporated into the\n\njudgment dissolving the marriage. Id. ¶ 4. The trial court held a hearing on the dissolution petition\n\nin 2014, but it did not enter its order until February 2015. Id. In that order, the court found that the\n\nagreement's provision making maintenance nonmodifiable was unconscionable, and the court\n\nreduced maintenance due to an increase in the wife's income. Id. The husband moved the court to\n\nreconsider, arguing that the court failed to apply the statutory guidelines that went into effect on\n\nJanuary 1, 2015. Id. ¶ 5; see Pub. Act 98-961 (eff. Jan. 1, 2015) (adding 750 ILCS 5/504(b-1)).\n\nUnder these guidelines, the husband's maintenance obligation would be further reduced. Cole,\n\n2016 IL App (5th) 150224, ¶ 5. The court found that those guidelines did not apply, because,\n\namong other things, the hearing on maintenance was held, and all evidence was received, in 2014.\n\nId.\n\n¶ 29 The appellate court agreed. Id. ¶ 7. In reaching that conclusion, the court noted that the\n\nmere fact that the case was taken under advisement and not ruled on until 2015, after the law\n\n - 12 -\n 2020 IL App (2d) 190929\n\nchanged, did not warrant the application of the 2015 version of the law, as \"[t]he rights of the\n\nparties should be determined by the facts of the case, not by the timing of the final order.\" Id. ¶ 9.\n\n¶ 30 This court had the opportunity to consider Cole in Carstens. There, the parties executed an\n\nagreement that was incorporated into the 2004 judgment dissolving their marriage. Carstens, 2018\n\nIL App (2d) 170183, ¶ 4. The agreement provided that the husband would pay the wife\n\nmaintenance. Id. The Act's provisions on maintenance were amended effective January 1, 2016.\n\nId. ¶ 29. Almost two months after the amendments went into effect, the husband petitioned to\n\nterminate or reduce maintenance. Id. ¶ 10. In ruling on the petitions, the trial court found, among\n\nother things, that it was not bound to follow the Act's amendments. Id. ¶ 17.\n\n¶ 31 We reversed the trial court and held that the Act's amendments applied. Id. ¶ 36. We noted\n\nthat, though the husband's petition sought modification of an order entered before the amendments\n\nwent into effect, his petition was filed after the effective date. Id. ¶ 29. Thus, the husband's petition\n\nfell squarely within section 801(c) of the Act. Carstens, 2018 IL App (2d) 170183, ¶ 29 (citing\n\n750 ILCS 5/801(c) (West 2016) (the Act applies to \"all proceedings commenced after its effective\n\ndate for the modification of a judgment or order entered prior to the effective date of this Act \")).\n\nWe found the analysis in Cole flawed, in that the court there failed to consider the impact, if any,\n\nthat section 801 of the Act had in that case. Id. ¶¶ 32-33.\n\n¶ 32 In Kasprzyk, 2019 IL App (4th) 170838, ¶¶ 3, 6, the parties' 25-year marriage was\n\ndissolved in 2014. In the order dissolving the marriage, the trial court awarded the wife two years\n\nof maintenance, but it determined that the wife could seek to extend maintenance before that two-\n\nyear period expired. Id. ¶ 7. In 2016, the legislature added guidelines for trial courts to consider in\n\nsetting the duration of maintenance. Id. ¶ 28. That same year, the wife petitioned to extend\n\nmaintenance. Id. ¶ 8. In 2017, the court held a hearing and granted the wife's petition based on the\n\n - 13 -\n 2020 IL App (2d) 190929\n\n2016 amendments to the Act. Id. ¶¶ 9, 16. The husband moved to reconsider, arguing that the trial\n\ncourt should not have applied the 2016 version of the law. Id. ¶ 17. The trial court denied the\n\nmotion, noting that \"there had ‘been a finality and then there [are] new circumstances that\n\narrive[d].' \" Id. ¶¶ 18-19.\n\n¶ 33 On appeal, the court characterized the wife's proceeding as one for review, rather than\n\nmodification, of maintenance; both review and modification proceedings are avenues for\n\nreconsideration of maintenance. Id. ¶ 23 (distinguishing review and modification proceedings).\n\nThe court considered Cole and Carstens in deciding whether the new or old version of the law\n\napplied. Id. ¶¶ 29-30. In following Carstens, the court observed that Cole involved an initial\n\nmaintenance award, while Carstens involved proceedings seeking to modify a maintenance award.\n\nId. ¶¶ 31-34. As in Carstens, the wife in Kasprzyk asked the trial court to reconsider the terms of\n\na maintenance award entered before the new law's effective date. However, she filed her petition\n\nto extend after the new law's effective date, the evidence supporting her petition concerned matters\n\narising after the new law's effective date, and the hearing on her petition was held after the new\n\nlaw went into effect. Id. ¶ 34. As in Carstens, the court found that the case fell within section\n\n801(c) of the Act. Thus, the new version of the law applied in considering the wife's petition to\n\nextend maintenance. Id. ¶ 38.\n\n¶ 34 Cole, Carstens, and Kasprzyk are all distinguishable from the present case. Carstens\n\ninvolved a modification proceeding, and Kasprzyk involved a review proceeding. In each case, the\n\nparties had an agreement on maintenance that did not provide criteria for modification or review;\n\nhence, the question was not whether statutory criteria applied to fill the void, but rather which\n\nversion applied. See Blum, 235 Ill. 2d at 31-32 (statutory factors govern proceedings for\n\nmodification or termination of maintenance unless the parties' agreement provides specific terms\n\n - 14 -\n 2020 IL App (2d) 190929\n\nto govern such proceedings). As for Cole, even if that case is rightly described as involving \"an\n\ninitial maintenance award\" (Kasprzyk, 2019 IL App (4th) 170838, ¶ 31), it was an award that the\n\ntrial court determined by applying statutory factors after declaring the parties' agreement\n\nunconscionable.\n\n¶ 35 By contrast, the proceeding here was for an initial calculation of maintenance using a\n\nspecific formula provided in the parties' agreement, which neither party claimed, nor the trial court\n\nfound, was unconscionable.\n\n¶ 36 We note that, if we were to entertain the question of which version of the Act applies, we\n\nwould hold that the former version applies. The formula for calculating maintenance was set in\n\n2018. Moreover, petitioner executed his QDRO in 2018, his pension was garnished in 2018,\n\nrespondent obtained new employment in 2018, and petitioner moved to set the dollar amount of\n\nmaintenance in 2018. All that occurred in 2019 was the filing in court of the already effective\n\nQDRO, the hearing on petitioner's petition, and the trial court's ruling on that petition. These 2019\n\nevents were not pivotal in calculating the dollar amount of maintenance that petitioner was owed\n\npursuant to the parties' agreement.\n\n¶ 37 In reaching this conclusion, we must comment on this court's determination in Carstens\n\nthat the reasoning in Cole was flawed because the court failed to address the pertinence of section\n\n801 of the Act. Section 801 controls the applicability of amendments to the Act. See 750 ILCS\n\n5/801 (West 2018). We do not comment on how, if at all, section 801 applied in Cole. We are\n\ncontent simply to hold that section 801 does not apply here, because the setting of maintenance is\n\ncontrolled entirely by contractual terms; hence, there is no need to determine whether the former\n\nor 2019 version of the maintenance factors applies. And if that question were pertinent here, we\n\nwould hold that the former version of section 504(a) applies. Section 801(b), which has remained\n\n - 15 -\n 2020 IL App (2d) 190929\n\nunchanged since January 1, 2016 (see Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016)), states that the\n\nAct applies \"to all pending actions and proceedings commenced prior to its effective date with\n\nrespect to issues on which a judgment has not been entered.\" 750 ILCS 5/801(b) (West 2018).\n\nCourts considering this language have determined:\n\n \" ‘[T]he legislature attempted through section 801(b) to allow only those issues which had\n\n not been fully litigated prior to the effective date of the new [A]ct to be decided under the\n\n new law. It is not this section's intent to require the relitigation of issues already decided\n\n under the previous law simply because post-trial motions are pending or filed after the\n\n effective date of the new [A]ct.' \" West v. West, 76 Ill. 2d 226, 234 (1979) (quoting Staub\n\n v. Staub, 67 Ill. App. 3d 1004, 1007 (1978)).\n\n¶ 38 The issue of maintenance was determined in August 2018 when the trial court issued its\n\ndissolution judgment incorporating the agreement, which specified a formula for calculating\n\nmaintenance. What remained as of January 1, 2019, was the calculation of that maintenance. Thus,\n\nthe former version of section 504 would apply here.\n\n¶ 39 Moreover, even if the 2019 version applied, the trial court's judgment could be seen as a\n\nproper award of nonguideline maintenance. Under either the former or the 2019 version of section\n\n504(b-1)(2) of the Act, the trial court was allowed to impose nonguideline maintenance if it found,\n\nafter considering the delineated factors, that imposing guideline maintenance under the specified\n\ncalculations was inappropriate. 750 ILCS 5/504(b-1)(2) (West 2018); 750 ILCS 5/504(b-1)(2)\n\n(West Supp. 2017). Here, although the trial court may not have properly stated that it was deviating\n\nfrom awarding guideline maintenance under the 2019 version of the law (750 ILCS 5/504(b-2)\n\n(West 2018)), it was apparent that the trial court gave great deference to the delineated factor that\n\nthe parties had a valid agreement (id. § 504(a)(13), (b-2)(1)). The court recognized that following\n\n - 16 -\n 2020 IL App (2d) 190929\n\nsection 504(b-1)(1)(A) of the 2019 version of the law would result in petitioner receiving only $3\n\nin monthly maintenance (id. § 504(b-2)(2)).\n\n¶ 40 For the above-stated reasons, we hold that the trial court erred in applying the 2019 version\n\nof section 504(b-1)(1)(A-1) in calculating maintenance. The error, however, was harmless because\n\nthe court ultimately applied the same 30%-20% formula that was specified in the parties'\n\nagreement. See id. § 504(b-1)(1)(A-1).\n\n¶ 41 III. CONCLUSION\n\n¶ 42 We affirm the judgment of the circuit court of Du Page County.\n\n¶ 43 Affirmed.\n\n - 17 -\n 2020 IL App (2d) 190929\n\n No. 2-19-0929\n\nCite as: In re Marriage of Wig, 2020 IL App (2d) 190929\n\nDecision Under Review: Appeal from the Circuit Court of Du Page County, No. 17-D-\n 1444; the Hon. Timothy J. McJoynt, Judge, presiding.\n\nAttorneys Chantelle Porter, of A. Traub & Associates, Ltd., of Lombard, for\nfor appellant.\nAppellant:\n\nAttorneys Richard Ian Conner, of Kollias P.C., of Winfield, for appellee.\nfor\nAppellee:\n\n - 18 -",
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