Rule 23 order filed 2022 IL App (5th) 210104
March 29, 2022.
Motion to publish granted NO. 5-21-0104
May 2, 2022.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
KELLY N. JONES, ) St. Clair County.
)
Petitioner-Appellee, )
)
and ) No. 13-D-147
)
MICHAEL P. JONES, ) Honorable
) Stacy L. Campbell,
Respondent-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court, with opinion.
Presiding Justice Boie and Justice Moore concurred in the judgment and opinion.
OPINION
¶1 Respondent, Michael P. Jones, appeals the trial court’s order that (1) granted in part and
denied in part respondent’s motion to dismiss petitioner Kelly N. Jones’s rule to show cause
petition and (2) removed paragraphs 3 and 6, after finding paragraphs 4 and 5 void for public
policy, from the parties’ agreed order. For the following reasons, we affirm in part and vacate in
part.
¶2 I. BACKGROUND
¶3 Kelly and Michael were married on September 9, 2000. Three children were born of the
marriage: B.J., born October 2, 2004, P.J., born October 27, 2006, and L.J., born June 29, 2009.
On February 28, 2013, Kelly filed a petition for dissolution of marriage.
1
¶4 Following a two-day hearing, on March 20, 2015, the trial court issued a joint parenting
order regarding the children. On the same date, the trial court also issued a 22-page judgment of
dissolution addressing the disposition of the parties’ assets and liabilities, child support,
maintenance, and dissipation. Relevant to this appeal, the judgment found that Kelly was a part-
time family physician earning $100,000 annually and Michael was an optical surgeon earning
$1,580,883 annually. The judgment awarded $8500 a month in maintenance to Kelly for 8½ years
beginning April 1, 2015. After reducing Michael’s net income by the amount of maintenance, the
trial court found that under the guidelines (32% for three children) Michael would have a child
support obligation of $20,236.29 but reduced the amount to $18,000 a month. Kelly would pay for
health insurance and put $500 a month into each child’s section 529 account. The trial court
awarded Kelly $65,806 for marital funds expended towards Michael’s business venture, $131,160
as reimbursement for dissipation, and $534,614 as part of the property division for a total amount
due of $731,580.
¶5 On April 14, 2015, Michael filed a motion for rehearing, retrial, or modification of the
judgment, addressing Michael’s net income and debt, the amounts for child support and
maintenance, the trial court’s finding of dissipation, and the division of assets. On May 20, 2015,
the parties entered an agreed order that reduced Michael’s obligation to Kelly from $731,580 to
$682,580, addressed transportation for parenting time, and reserved the remaining issues raised in
Michael’s postjudgment motion for ruling by the trial court. The trial court issued an order on May
22, 2015, that increased the amount Kelly would pay into the section 529 accounts from $500 to
$1000 per child, amended the language related to the section 529 accounts, and clarified that Kelly
would be responsible for health insurance, all extracurricular activity expenses, and all school-
related expenses, including tuition, in the event the minor children attended a private high school.
2
Michael appealed and the decision was affirmed by this court on June 29, 2016. See In re Marriage
of Jones, 2016 IL App (5th) 150212-U.
¶6 On December 19, 2017, Kelly filed a motion to enforce mediation, noting that “both parties
have requested, in writing, changes to the Joint Parenting Order,” which were unacceptable to the
other party. The pleading alleged that Kelly sought to mediate the future choice of schools for the
children and Michael sought to increase his parenting time.
¶7 On November 27, 2018, the parties entered an agreed parenting plan that increased
Michael’s parenting time, set forth the schools that the children would attend in the fall of 2020,
and allowed Kelly to relocate to St. Louis, Missouri. The parties submitted the agreed parenting
plan with an agreed order to the trial court. Paragraph 1 of the parties’ agreed order incorporated
the terms of the agreed parenting plan. Paragraph 2 allowed Kelly to relocate to St. Louis, Missouri,
and paragraph 3 reduced Michael’s child support obligation from $18,000 to $12,000 per month
effective 30 days after the entry of the order. The remaining terms of the agreed order stated:
“4. The parties agree that no further reduction or increase in child support shall
be requested by either party, with the exception of the emancipation of each child,
Michael’s loss of his employment or Michael suffering an accident or similar event
resulting in the substantial reduction of his income. Upon emancipation of the
oldest child, the parties agree that the child support shall be reduced to $8,000.00
per month. Upon emancipation of the second child, the parties agree the child
support shall be reduced to $4,000.00 per month. The child support herein shall be
payable until the child reaches the age of 19 or graduates from high school
whichever occurs first.
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5. In the event that Michael chooses to seek a reduction in child support other
than as indicated herein, then Michael agrees that he shall, upon the filing of such
petition, pay to Kelly the difference between the original child support award
($18,000.00) and the agreed reduction contained herein, retro-active to each month
of reduced support after the entry of this Order.
6. Kelly’s requirement to contribute the sum of $1,000.00 per month to each
of the children’s 527 [sic] financial accounts is hereby reduced to $500.00 per
month per account effective 30 days after the entry of this order.
7. Michael shall pay the sum of $500,000.00 to Kelly within 30 days of the
entry of this Agreed Order. The parties acknowledge that said payment satisfies in
full, including all accrued interest, Michael’s obligations under the Supplemental
Judgment of Dissolution of Marriage and Order on Post-Trial Motions with regard
to the outstanding property issues.
8. All other terms of the prior Judgment of Dissolution of Marriage entered by
this Court on March 20, 2015, as modified by the Agreed Order of May 20, 2015,
and the Court’s order of May 22, 2015, remain in full force and effect except where
modified herein.
9. The Court having reviewed the terms of the agreement of the parties finds
same to be fair, reasonable, not unconscionable and in the best interest of the minor
children and hereby approves same.”
¶8 The trial court approved the agreed order on November 27, 2018. Thereafter, the parties
operated under the terms of the agreed order until May 6, 2020, when Michael filed an emergency
petition to modify child support and maintenance. Michael’s petition alleged that the COVID-19
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pandemic “prevented Respondent from working in his normal professional capacity.” As a result,
Michael claimed a substantial change in circumstances occurred in his ability to pay child support
and maintenance because his “sole source of employment income at this time was working at
Quantum Vision Center in Swansea, Illinois.” He stated he was a physician who performed
elective surgeries, including LASIK and cataract surgery, and that as “a result of the various
executive orders of the Governor of the State of Illinois and regulations of the Illinois Department
of Public Health in response to the COVID-19 pandemic, businesses such as Quantum Vision
Center have been unable to serve the public since March 13, 2020.” Michael claimed that he “has
been prohibited from performing elective surgery indefinitely and has been unable to be employed
at his usual profession since March 13, 2020.” He further stated that he was unsure when the
restrictions would abate and speculated that “even if allowed to resume surgeries only a small
fraction of the number previously performed will be allowed.” He claimed he “was currently
operating at a net monthly deficit of $4272.56” and requested a suspension or modification of his
maintenance and child support obligations retroactive to April 2020 through whenever he was able
to return to work.
¶9 On May 13, 2020, Kelly filed an answer to Michael’s motion denying that a substantial
change in circumstances occurred as to respondent’s ability to pay child support and maintenance
and further denying the allegations relating to Michael’s alleged reduction in income. She also
filed a petition for rule to show cause based on paragraphs 4 and 5 of the November 27, 2018,
agreed order claiming that due to Michael’s emergency petition to modify, he was now required
to pay her the sum of $6000 per month, for a total of $102,000 representing the period from
December 2018 through May 2020.
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¶ 10 On May 15, 2020, Michael filed a motion to dismiss Kelly’s petition for rule to show cause
claiming a portion of the provision in paragraph 4 and all of paragraph 5 of the parties’ November
27, 2018, agreed order were void as a violation of Illinois public policy because it restricted
Michael from exercising a statutory right or penalized him for exercising a statutory right. In the
alternative, Michael argued that he was not in violation of the agreed order because his pleading
was based on “an accident or similar event resulting in the substantial reduction of his income”
which was a triggering event in the agreed order.
¶ 11 On July 15, 2020, Michael moved to dismiss his petition to modify child support and
maintenance because he “no longer wishe[d] to proceed with the costly litigation of his support
obligation.” 1 The motion was verbally granted by the trial court at the June 20, 2020, hearing. The
hearing was also used to argue Michael’s motion to dismiss Kelly’s petition for rule to show cause.
At that time, Michael’s counsel argued that portions of paragraph 4 and all of paragraph 5 in the
agreed order should be found void as being against public policy and the remaining language
should be left as written. Kelly’s counsel argued that the terms in paragraphs 4 and 5 did not restrict
Michael’s ability to modify the order and merely contained “a requirement that he pay back the
benefit he received if he chooses to modify.” Alternatively, Kelly’s counsel argued that if the terms
in paragraphs 4 and 5 were found to be void, the court should “find that the agreement as a whole
is void because this is an essential term that cannot be performed.” In support, counsel claimed
this would put the parties back where they were prior to entering the agreement and that Michael
would then owe Kelly an additional $6000 a month in child support back to December 2018.
Following argument, the trial court ordered the parties to further brief the issues. Michael’s
argument remained the same; however, while Kelly continued to argue that paragraphs 4 and 5
1
On appeal Michael’s counsel claimed that he dismissed his petition because he was able to return to work.
6
were not contrary to public policy, she now argued that if paragraphs 4 and 5 were found to be
contrary to public policy, only paragraph 3 should be stricken from the agreed order.
¶ 12 On December 15, 2020, the trial court issued an order finding, with regard to Michael’s
motion to dismiss for failure to state a claim, that although Michael’s petition to modify listed one
of the criteria set forth in the agreed order, the court required “an evidentiary hearing to determine
if in fact such a criteria existed.” The order further found that the November 2018 agreed order
“may, in fact, cause a party to hesitate to file a petition for modification, in this case child support,
and that the clause violate[d] public policy.” The trial court found that no further analysis regarding
the penalty provision was necessary because it too violated public policy. Thereafter, the court
noted that the only pleading on file at the time the agreed order was entered was Kelly’s motion to
enforce mediation and found that paragraphs 1 and 2 of the agreed order related back to the pending
pleading. The court found that paragraphs 3 through 6 dealt with a modification of child support
and was not supported by any pleading pending at the time of the agreed order. The trial court
further found that because no pleading requesting a modification of child support was pending at
the time of the issuance of the agreed order, paragraphs 3 and 6 were related to paragraphs 4 and
5 and “that the parties were not entitled to a modification of child support at the time of the entry
of the Agreed Order as there was no justiciable question invoked by the filing of a petition to
modify child support.” The court found paragraphs 3 through 6 were void and the remainder of
the agreed order should remain in force and effect. As such, the trial court’s order denied Michael’s
motion to dismiss Kelly’s petition for rule to show cause based on a failure to state a claim, granted
Michael’s alternative argument for dismissal related to paragraphs 4 and 5, struck paragraphs 3, 4,
5, and 6 from the agreed order, and left the remaining terms in effect. Based on the stricken
7
paragraphs, the court found Michael’s initial grounds for dismissal moot and dismissed Kelly’s
petition for rule to show cause.
¶ 13 On January 11, 2021, Michael filed a motion for reconsideration and modification arguing,
inter alia, that paragraphs 3 and 6 of the agreed order should not have been found void. On
February 8, 2021, Kelly filed a two-count petition for rule to show cause. Count I claimed that
Michael failed and refused to pay $18,000 in child support beginning in January 2021 and
requested the court determine the amount of child support arrearage owed and order Michael to
issue payment on the sum at a date certain. Count II claimed that based on the trial court’s
December 15, 2020, order, which struck paragraphs 3, 4, 5, and 6 as void from the November 27,
2018, agreed order, Michael was required to pay $18,000 in child support for the period from
December 1, 2018, through December 2020, instead of the $12,000 that he paid, the total amount
due remained unpaid, and Michael’s failure to comply with the March 20, 2015, order was willful
and without legal justification, and requested, inter alia, an order requiring Michael “to pay the
child support deficiency owed from December 2018 through and including December 2020 at the
rate of $6,000.00 per month for a total of $150,000.00 by a date certain.” At the hearing on
Michael’s reconsideration request, the trial court indicated that in addition to paragraphs 3 and 6
not having an underlying pleading, the terms in paragraphs 3 and 6 were essential to paragraphs 4
and 5. On March 22, 2021, the trial court denied Michael’s reconsideration, stating it was a final
and appealable order. Michael appealed on April 9, 2021.
¶ 14 II. ANALYSIS
¶ 15 On appeal, Michael contends that the trial court (1) erred in denying his motion to dismiss
by requiring an evidentiary hearing where the motion should have been decided based on facts
apparent from the face of the complaint and matters of which the trial court could have taken
8
judicial notice and (2) misapplied existing law to find paragraphs 3 and 6 of the November 2016
agreed order void.
¶ 16 Michael’s Motion to Dismiss
¶ 17 “A motion to dismiss under section 2-615(a) of the Code of Civil Procedure” (735 ILCS
5/2-615(a) (West 2020)) “challenges the legal sufficiency of a complaint by alleging defects on
the face of the complaint.” Rehfield v. Diocese of Joliet, 2021 IL 125656, ¶ 20. “[A] court must
determine whether the facts alleged in the complaint, viewed in the light most favorable to the
plaintiff and taking all well-pleaded facts as true, are sufficient to state a cause of action upon
which relief may be granted.” Id. We review de novo an order granting or denying a section 2-615
motion. Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003).
¶ 18 Michael contends that the trial court erred in finding that an evidentiary hearing was
required to determine Michael’s motion to dismiss. In support, Michael claims that in ruling on a
section 2-615 motion, the trial court may only consider those facts apparent from the face of the
complaint, matters of which the court can take judicial notice, and judicial admissions of the
record, not evidentiary material outside the pleadings. He claims the petition for rule to show cause
was legally insufficient on its face because it was undisputed that Michael was an ophthalmologist
who performed elective surgeries, complied with the Governor’s executive orders, and was unable
to be employed, which was a “loss of employment” as required by the agreed order. He further
claims that Kelly could not allege anything in her petition for rule to show cause that would entitle
her to relief.
¶ 19 In response, Kelly claims that the trial court did not improperly deny Michael’s motion to
dismiss because an evidentiary hearing was required. She claims her petition was legally sufficient
because issues of fact arose regarding whether Michael’s claims of a decreased monthly income
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and that he was operating with a deficit balance each month were true based on her answers to
Michael’s motion to modify. Kelly further claims that the court was not required to take judicial
notice of Michael’s claim that his income decreased, and that Michael refused to comply with
discovery related to the financial issues alleged in his motion to modify. 2
¶ 20 Here, we must determine whether Kelly’s petition for rule to show cause sufficiently stated
a cause of action. The petition was based on paragraphs 4 and 5 of the parties’ November 27, 2018,
agreed order and Michael’s May 6, 2020, emergency petition to modify child support and spousal
maintenance. The petition claimed that pursuant to the agreed order, Michael was required to pay
Kelly $6000 for each month that he took advantage of the reduced child support because Michael
filed a motion to modify child support. Kelly’s petition appears to claim that Michael’s petition to
modify did not fall within the limited exceptions set forth in paragraphs 4 and 5 that would allow
Michael to file a petition to modify. However, Kelly’s petition does not address any of the
exceptions set forth in the agreed order or state why she believed the exceptions did not apply.
Despite the lack of specificity, based on the response to Michael’s petition and the arguments
provided before the trial court, it is clear that Kelly was disputing Michael’s allegations of a loss
of his employment and, more specifically, a reduction in his income.
¶ 21 In response to Kelly’s petition, Michael filed a motion to dismiss. 3 The majority of the
pleading contended that portions of paragraph 4 and all of paragraph 5 were void for being contrary
to public policy and, therefore, unenforceable. Alternatively, Michael contended that his petition
was based on the language in the agreed order allowing for the filing of a modification for “an
2
While Kelly argues on appeal that Michael refused to comply with her discovery request, our review of the
record fails to reveal any certificate of service related to discovery as required by Illinois Supreme Court Rule 201(m)
(eff. July 1, 2014) or any motion to compel filed by Kelly.
3
Nothing in the motion specified whether Michael was seeking relief under section 2-615 (735 ILCS 5/2-615
(West 2020)), section 2-619 (id. § 2-619), or under both pursuant to section 2-619.1 (id. § 2-619.1).
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accident or similar event resulting in the substantial reduction of his income” due to the COVID-
19 pandemic.
¶ 22 On appeal, Michael claims that Kelly’s petition was insufficient as a matter of law because
his motion to modify fell within the exceptions set forth in paragraphs 4 and 5 of the agreed order
and his dismissal request could be granted upon review of the pleadings and by taking judicial
notice. We disagree. “Courts may take judicial notice of matters which are commonly known or
of facts which, while not generally known, are readily verifiable from sources of indisputable
accuracy.” (Internal quotation marks omitted.) Murdy v. Edgar, 103 Ill. 2d 384, 394 (1984).
Therefore, while a court may take judicial notice of a world-wide pandemic and the restrictions
promulgated by the Governor of Illinois and the Illinois Department of Health, a court cannot take
judicial notice of a party’s alleged reduction in income due to the pandemic and the ensuing
restrictions. One reason is due to the fact that the United States Department of the Treasury was
providing financial assistance to small businesses via COVID-19 loans pursuant to the
Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. No. 116-136 et seq. (eff.
Mar. 27, 2020)). More specifically, the Paycheck Protection Program (Pub. L. No. 116-139, § 1
et seq. (eff. Mar. 27, 2020)) was available to businesses with fewer than 500 employees per
physical location and provided loans up to $10 million, to cover payroll, benefits, and salaries, as
well as interest payments, rent, and utilities. As such, just because a business may have been
restricted from providing services during the initial stages of the pandemic, it might have received
funds to cover salaries from the government during that period.
¶ 23 Here, Kelly’s petition for rule to show cause alleged that Michael’s petition to modify
failed to fall within the restrictive terms found in paragraph 4 of the agreed order. The petition
raised a question of fact as to whether Michael actually suffered a “substantial reduction of his
11
income.” There is no dispute that Michael’s request for modification contained only allegations of
lost income with no evidence to support the claim. As such, taking the allegations set forth in
Kelly’s petition for rule to show cause as true, we cannot say, as a matter of law, that Kelly’s
petition failed to state a claim on which relief could be granted. Accordingly, we affirm the trial
court’s denial of Michael’s motion to dismiss on this basis.
¶ 24 The Agreed Order
¶ 25 Michael also claims that the trial court misapplied existing law as to the interpretation of
agreed orders and misconstrued the difference between void and voidable in striking paragraphs 3
and 6, in addition to paragraphs 4 and 5. In support, Michael argues that the trial court incorrectly
found that paragraphs 3 and 6 were related to paragraphs 4 and 5 instead of determining whether
paragraphs 3 and 6 were essential to the overall agreement. He further argues that the trial court
improperly exercised jurisdiction regarding Kelly’s request to set aside paragraph 3 as there was
no pending pleading and Kelly’s request was a collateral attack on a voidable provision, not a void
provision, of the order. Finally, Michael contends that the trial court incorrectly interpreted Illinois
law by finding the parties were not entitled to modification of child support in the agreed order
because neither party filed a petition or motion to modify.
¶ 26 In response, Kelly argues that Michael’s void versus voidable argument is irrelevant. She
claims that the trial court correctly found paragraphs 3 and 6, setting the child support obligations
and educational support, were “related to” paragraphs 4 and 5. Kelly contends that the question is
whether the stricken portion was essential to the bargain or if the parties would have entered into
the remaining agreement without the stricken portion. Kelly further contends that the trial court
found that the parties would have entered into the remaining agreement, related to moving, the
choice of schools, and visitation, even if child support was not addressed, and therefore the trial
12
court properly struck paragraphs 3 and 6. Finally, Kelly argues that the trial court correctly
interpreted Illinois law by finding the parties were not entitled to modification of child support at
the time the 2018 agreed order was entered because neither party filed a pleading to modify child
support at that time.
¶ 27 Here, although Kelly argued before the trial court that paragraphs 4 and 5 were not void,
such argument was discarded in this appeal leaving only the issue of whether the trial court erred
when it severed paragraphs 3 and 6 after finding paragraphs 4 and 5 void. Review of a motion to
reconsider based solely on the trial court’s purported misapplication of existing law is de novo.
In re Marriage of Vondra, 2013 IL App (1st) 123025, ¶ 9 (citing Bank of America, N.A. v. Ebro
Foods, Inc., 409 Ill. App. 3d 704, 709 (2011)).
¶ 28 Section 184 of the Restatement (Second) of Contracts (1981) states:
“(1) If less than all of an agreement is unenforceable under the rule stated in
§ 178, a court may nevertheless enforce the rest of the agreement in favor of a party
who did not engage in serious misconduct if the performance as to which the
agreement is unenforceable is not an essential part of the agreed exchange.
(2) A court may treat only part of a term as unenforceable under the rule stated
in Subsection (1) if the party who seeks to enforce the term obtained it in good faith
and in accordance with reasonable standards of fair dealing.”
¶ 29 This section of the Restatement Second was endorsed by our supreme court in Kinkel v.
Cingular Wireless, LLC, 223 Ill. 2d 1, 47 (2006). In Kinkel, the court stated that to determine what,
if anything, should be stricken, the court first looked to see if the offending paragraph was an
essential term of the contract.
13
¶ 30 “Whether the performance is an essential part of the agreed exchange depends on its
relative importance in light of the entire agreement between the parties.” Restatement (Second) of
Contracts § 184(1) cmt. a (1981). “The rationale for this rule is obvious; complex, multipart
agreements on which there may have been significant reliance should not be void as a whole solely
because some small part is against public policy.” People v. McNett, 361 Ill. App. 3d 444, 448
(2005). “If the performance to which the agreement is unenforceable is an essential part of the
agreed exchange, the inequality will be so great as to make the entire agreement unenforceable.”
Restatement (Second) of Contracts § 184(1) cmt. a (1981).
¶ 31 Here, while Kelly’s counsel claimed the offensive language was an essential term of the
contract, there is no language in the agreement supporting such claim. “When a contract is
ambiguous or silent on a disputed issue, a court may, in order to determine the intent of the parties
at the time of contracting, consider the contemporaneous or subsequent acts of the parties to the
contract.” Vole, Inc. v. Georgacopoulos, 181 Ill. App. 3d 1012, 1021 (1989). Based on the parties’
actions in the 15 months following the entry of the agreed order, it is our belief that the parties’
intent at the time of contracting was to enter into an agreement addressing the multiple issues that
arose following the completion of their initial dissolution proceeding rather than initiate or
continue litigation. Such action should be commended as there is a strong public policy supporting
such agreements as evidenced by the statute allowing for same. 750 ILCS 5/502 (West 2018). As
such, we note the strong public policy interest in upholding the agreement.
¶ 32 In considering whether the stricken provisions were essential, we note that the language in
paragraph 4 prohibited both parties from requesting a “further” reduction or increase in child
support. Similarly, the penalty language in paragraph 5 was only triggered if Michael sought “a
reduction in child support other than as indicated herein.” The unenforceable language applied
14
only to potential future events. Conversely, the remaining terms in the agreed order and agreed
parenting agreement related solely to actions taking place immediately or within 30 days after the
order was entered. As such, we do not find that inequality would arise, to either party, if the
unenforceable language was severed.
¶ 33 We find it relevant that both parties fully performed their obligations pursuant to the agreed
order and therefore incurred both the burdens and benefits stemming from the agreed order. Kelly
relocated to Missouri, enrolled the children in new schools, received full payment of Michael’s
remaining debt stemming from the original judgment, and received a reduction in her obligation
to fund the section 529 accounts. Michael received additional parenting time with the children,
closure related to the debt stemming from the original judgment, and a reduction in his child
support.
¶ 34 We also note that when the parties were initially divorced, child support was based solely
on Michael’s income as the noncustodial parent and the number of children involved. 750 ILCS
5/505 (West Supp. 2015). Pursuant to statute, Michael was required to pay 32% of his net income
in child support. The trial court, however, reduced the amount, so Michael’s obligation was only
28.5% of his net income. In 2018, when the agreed order was entered, the statutory guidelines
were no longer the same; the child support calculation was now based on the incomes of both
parents (including amounts received for and paid toward maintenance), the amount of parenting
time the children had with each parent, and who was paying for health insurance, or any other
extraordinary costs related to the children. 750 ILCS 5/505(a) (West 2018).
¶ 35 We do not find it a coincidence that, despite the statutory change and both parties being
represented by counsel, neither the agreed order nor the parenting agreement addressed the income
of either Michael or Kelly after her relocation to Missouri, whether the tuition at the private schools
15
where the children would be enrolled in Missouri was reduced, stayed the same, or increased
pursuant to the relocation, the amount paid for health insurance, or provided any child support
calculation related to the parties’ parenting time with the children. Instead, we believe the
agreement was fully negotiated and intended to address all the issues that would immediately stem
from Kelly’s relocation from Illinois to Missouri.
¶ 36 Finally, we note that, while the trial court found the child support addressed in paragraphs
3 and 6 was directly related to paragraphs 4 and 5, such finding failed to consider the statutory
relationship between child support, parenting time and payment of extraordinary school expenses,
extracurricular activity expenses as well as health insurance. We also find the trial court’s reliance
on the lack of pleadings on file at the time the agreed order was entered unsound. As noted above,
Illinois has a strong public policy supporting amicable settlement of disputes. A trial court has
authority to enter an agreed order despite the lack of an underlying petition to modify (In re
Marriage of Nau, 355 Ill. App. 3d 1081, 1085-86 (2005)) if the court is satisfied that entry of the
order is in the best interest of the children. In re Marriage of Smith, 347 Ill. App. 3d 395, 400
(2004). Stipulations, such as those found in an agreed order, “simplify, shorten, or settle litigation
between parties” and therefore such acts should be “encouraged.” People ex rel. Gibbs v. Ketchum,
284 Ill. App. 3d 70, 78 (1996).
¶ 37 Accordingly, we find that the language prohibiting either party from requesting an increase
or reduction in child support found in paragraph 4 and the language providing a penalty if a
reduction in child support was requested was properly severed from the agreed order and further
find that the prohibited paragraphs did not include essential terms of the contract. As such, we
affirm the trial court’s severance of paragraphs 4 and 5 of the agreed order but vacate the trial
court’s severance of any other language from the agreed order.
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¶ 38 III. CONCLUSION
¶ 39 For the reasons stated herein, we affirm the trial court’s order denying Michael’s motion
to dismiss Kelly’s petition for rule to show cause as failing to state a cause of action, affirm the
trial court’s finding that the restrictive language in paragraphs 4 and 5 was void as being contrary
to public policy, affirm the trial court’s severing of that language from the agreed order, and vacate
the trial court’s severance of paragraphs 3 and 6 from the agreed order.
¶ 40 Affirmed in part and vacated in part.
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No. 5-21-0104
Cite as: In re Marriage of Jones, 2021 IL App (5th) 210104
Decision Under Review: Appeal from the Circuit Court of St. Clair County, No. 13-D-147;
the Hon. Stacey L. Campbell, Judge, presiding.
Attorneys John J. Kurowski, Candice Compton Kusmer, Manning Gross +
for Massenburg LLP, 1405 North Green Mount Road, Suite 400,
Appellant: O’Fallon, IL 62269, for appellant.
Attorneys Charles W. Courtney, Jr., Jayni D. Lintvedt, Courtney Clark Law,
for P.C., 104 South Charles Street, Belleville, IL 62220-2212, for
Appellee: appellee.
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