In Re Marriage of Wassom

JUSTICE COOK,

dissenting:

I respectfully dissent.

This case presents three questions. First, does the language of article III, paragraph 2, require “Husband,” to pay for any health insurance coverage on “Wife”? Second, does the language require husband to pay for a portion of any health insurance coverage on the child? I suggest husband is not required to pay for wife’s health insurance but is required to pay a portion of any health insurance premium for the child. That leads to the third question: Is there any logical reason to require husband to pay for wife’s health insurance coverage in order to comply with the agreement that husband will he responsible for a portion of the child’s health insurance premium?

Marital settlement agreements are contracts and subject to the same rules of construction as are applied to any contract. The primary goal in construing a settlement agreement is to ascertain the intent of the parties. A court must consider the contract as a whole, rather than focusing upon isolated portions. In re Marriage of Ackerley, 333 Ill. App. 3d 382, 398, 775 N.E.2d 1045, 1059 (2002). “The intent of the parties to a contract must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases, but by viewing each part in light of the others.” La Throp v. Bell Federal Savings & Loan Ass’n, 68 Ill. 2d 375, 381, 370 N.E.2d 188, 191 (1977).

The marital settlement agreement here is divided into logical units, articles, that address such issues as custody, child support, maintenance, and other more particular issues. Article III is the article of interest in this case:

“ARTICLE III
SUPPORT OF CHILDREN AND RELATED MATTERS
1. HUSBAND will pay to WIFE child support based upon approximately 20 percent of his net income from his current employment. The exact amount of said child support at the current time is the sum of $200.00 [handwritten] per month [handwritten], [W 9 — 16—98.] [KGW 9 — 16—98.] WIFE acknowledges that the amount agreed on is less than 20 percent of his net income for the reason that it is contemplated that Jessie will spend a great deal of time with the HUSBAND.
2. WIFE will carry the child on her health insurance, and the parties will equally divide any uncovered medical, dental, or orthodontic expenses on a 50/50 basis. In the event she can no longer obtain health insurance through her employment, then HUSBAND will make every effort to obtain health insurance. In addition to the child support in [a]rticle III, [pjaragraph 1, the HUSBAND will reimburse the WIFE for 50 percent of the health insurance premiums currently being paid by the WIFE.”

Article III deals with child support and matters related to child support, such as insurance for the child. It does not deal with spousal support (maintenance) or matters such as insurance for the wife. Article III, paragraph 2, says that wife will “carry the child” on her health insurance and “any uncovered” expenses will be divided. That means uncovered expenses of the child, not uncovered expenses of the wife or the husband or the parties’ other relatives. If wife can no longer obtain health insurance through her employment, husband will attempt to obtain insurance — again, not insurance to cover the wife or others, but to cover the child, insurance related to child support. In addition to child support payments, “the HUSBAND will reimburse the WIFE for 50 percent of the health insurance premiums currently being paid by the WIFE.” What premiums are we talking about? Premiums for the wife, premiums for other members of her family, any other health insurance premiums she may currently be paying? No, premiums engendered by the requirement that “WIFE will carry the child on her health insurance” (emphasis added), the opening words of paragraph 2.

The majority picks out a part of a sentence, “HUSBAND will reimburse the WIFE for 50 percent of the health insurance premiums currently being paid by the WIFE,” and reads those words in isolation, without analysis, to summarily conclude that the agreement “clearly states that Kelly will reimburse Rita for half of any health insurance premiums Rita pays” regardless if those premiums were paid on behalf of Jessie or another. 352 Ill. App. 3d at 331. The majority violates the rule that the intent of the parties must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases, but by viewing each part in light of the other. According to its title, article III deals with child support and matters relating to child support. The sentence upon which the majority relies begins with a reference to child support. The majority ignores that language. Under the majority’s approach, if the child were switched to Kelly’s policy, would Rita still be entitled to a portion of her premiums?

It is also significant that Rita never raised this argument for five years, until Kelly requested a change in custody. The interpretation placed on their agreement by the parties is a significant factor that we should take into account. See also 810 ILCS 5/2 — 208 (West 2002) (course of performance or practical construction in commercial cases).

Getting to the third question, is there any logical reason to require husband to pay for wife’s health insurance coverage to comply with the agreement that husband will be responsible for 50% of the child’s health insurance premium? That might be the case if the premium was an undivided premium and the child’s coverage represented a substantial portion of that premium. That is not the case here, however. It is common knowledge that coverage for children represents only a very small portion of the premium in a parent’s health insurance policy. The majority concedes that there is no additional charge on Rita’s policy for the coverage of Jessie. “[T]he premium for this coverage remains the same regardless of the number of dependents.” 352 Ill. App. 3d at 329. Equity does not require that Kelly pay for a portion of Rita’s health insurance coverage.

The majority opinion does a real disservice to a fundamental policy, that dissolution-of-marriage cases are best resolved when the parties are able to work out an agreement resolving their differences. Litigants will not be encouraged to enter into agreements if their agreements are so easily torn apart. It is also important to note that Rita’s petition was filed in response to Kelly’s petition. When a postdissolution petition is filed, whatever its merits, it is not appropriate for the respondent to comb the record for some fanciful basis on which to file his or her own petition. The majority opinion encourages bad practice.