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SIXTH DIVISION
NOVEMBER 9, 2000

This appeal is related to this court's decision of In re Marriage of Lehr, 217Ill. App. 3d 929, 578 N.E.2d 19 (1991), in which this court reversed an August 30,1988, order of the circuit court of Cook County reducing maintenance payments topetitioner Rosemarie Lehr and a July 19, 1989, order allocating attorney feesbetween Rosemarie and respondent Louis A. Lehr. This court held that: (1)Rosemarie's income could not be used as ground for reducing Louis's monthlyobligation of unallocated alimony and child support; (2) the emancipation of theparties' children, Rosemarie's completion of mortgage payments and employment didnot warrant modification of monthly obligation; and (3) the allocation of attorneyfees could not be reviewed until the amount of those fees was clear from therecord. The case was remanded for further proceedings consistent with thiscourt's opinion.

In this appeal, Louis contests an order of the circuit court of Cook Countyawarding Rosemarie maintenance she would have received but for the now-reversedAugust 30, 1988, order reducing maintenance. Louis also appeals the trial court'sdenial of Count III of a petition he filed on remand seeking reimbursement foralleged overpayments of unallocated alimony and child support.

The record in this appeal reveals the following facts. On remand, Rosemarie fileda Motion for Entry of Judgment in the amount of $40,350, largely representing thedifference in maintenance she received between September 1988 and January 1992 andthe sum she would have received had maintenance not been reduced on August 30,1988. Louis apparently moved to strike and dismiss Rosemarie's motion, though therecord citation provided by Louis does not correspond to such a motion. On August3, 1992, the trial court held a hearing on the motion stating in part that:

"This court finds that the Appellate Court, 1st District, delivered an opinion onJune 28, 1991, reversing and remanding the cause for hearing, 'a hearing on thereasonableness of Rosemary's [sic] attorney fees and the allocation of feesbetween the parties.' Said court also found that the trial court erred inreducing unallocated maintenance and support orders.

"The Appellate Court's decision in the case gave no directive to restore anyportion of the reduction made by the August 30, 1988, order. The judgment of thetrial court was reversed and remanded for further proceedings consistent with theAppellate Court's opinion.

"It is therefore ordered that the motion for entry of judgment is hereby strickenand dismissed and this matter shall be set for hearing on a date certain. Therewill be a hearing in accordance with the Appellate Court's finding."

Rosemarie's counsel and the trial court later engaged in the following exchange:

"MR. CARLSON: If I could state my objection, your Honor. It's my understandingthat the opinion only remanded the issue of fees, your Honor.

"THE COURT: That's not my opinion on what the opinion says, Mr. Carlson."

Louis's counsel and the trial court then engaged in the following exchange:

"MS. MARCUS: *** Your Honor, may we bring the order in later, your Honor?

"THE COURT: No, all I need is an order continuing it or setting this matter for --

"MS. MARCUS: For hearing. All right."

That same day, the trial court entered an order stating that Rosemarie's motion"is stricken" and setting the matter "for hearing in accordance with the ruling ofthe Appellate Court" at a later date certain.

Subsequently, the trial judge in this case retired; this matter was thentransferred to a second trial judge.

On October 7, 1992, Louis filed a Petition to Modify Judgment for Divorce andSubsequent Order (Petition). This Petition contained three counts, but the onlycount relevant to this appeal is Count III. In Count III, Louis sought reimbursement for $62,000 in alleged overpayments of unallocated alimony and child supportmade under the original judgment for divorce and a November 28, 1978, agreed ordermodifying that judgment.

On November 12, 1992, Rosemarie filed a Motion to Strike and Dismiss the Petition,arguing in part that Louis was misreading the judgment and agreed order and thatLouis's claim was barred by laches or estoppel. The trial court deniedRosemarie's motion on July 22, 1993.

On August 16, 1993, Rosemarie filed a second Motion for Entry of Judgment that wassubstantially similar to her prior motion. On October 8, 1993, Louis filed aMotion to Strike and Dismiss Rosemarie's second motion, and a Motion for SummaryJudgment on his Petition. On December 21, 1993, the trial court entered an orderfinding that Rosemarie was due $40,350 in maintenance from Louis, but that Louishad overpaid Rosemarie in the amount of $76,800, leaving a net amount due toRosemarie of $36,450. The trial court also allocated the obligation to pay theremaining balance of the attorney fees to Rosemarie.

Rosemarie and Louis both filed motions to reconsider. The trial court did notrule on these motions until February 6, 1998. On that date, the trial courtentered an order vacating the findings that Louis had overpaid Rosemarie in theamount of $76,800, leaving a net amount due to Rosemarie of $36,450. Theremainder of the prior order, finding that Rosemarie was due $40,350 inmaintenance from Louis, remained in full force and effect. Louis asserts that thetrial court entered an order on March 5, 1999, dismissing Count III of hisPetition as barred by the doctrine of res judicata, but does not identify wherethis order appears in the record. However, the supplemental transcripts ofproceedings show that this was the opinion of the trial court on March 5, 1999.

Louis now appeals to this court. Louis does not identify where the Notice ofAppeal appears in the record. Louis has included a purported copy of the Noticeof Appeal in the appendix to his brief, but this document bears no date stamp fromthe circuit court of Cook County. This court's records show that Louis timelyfiled his Notice of Appeal on April 2, 1999.

I

Initially, Louis argues that the second trial judge erred in entering judgment forRosemarie because the first trial judge had already stricken a similar motion onAugust 3, 1992. Louis contends that after August 3, 1992, all that remained was afee dispute between Rosemarie and her attorneys. Thus, Louis concludes that theAugust 3, 1992, order was final and appealable. Louis argues that Rosemarie'sfailure to timely move for reconsideration rendered the order res judicata on theissue, or the law of the case. Indeed, Louis contends that the second trial judgelacked jurisdiction to enter judgment in favor of Rosemarie.

The issue is whether the August 3, 1992, order was final. Generally, an orderdismissing or striking a complaint is not final unless the language of the orderalso indicates that the litigation is terminated and that the plaintiff will notbe permitted to plead over. Miller v. Suburban Medical Center at Hoffman Estates,Inc., 184 Ill. App. 3d 545, 547, 540 N.E.2d 477, 478 (1989). Of course, substancerather than form may determine whether a general order of dismissal is a finaladjudication. Pfaff v. Chrysler Corp., 155 Ill. 2d 35, 62-63, 610 N.E.2d 51, 63(1992). Orders of a trial court must be interpreted from the entire context inwhich they were entered, with reference to other parts of the record including:the pleadings, motions and issues before the court; the transcript of proceedingsbefore the court; and arguments of counsel. P & A Floor Co., Inc. v. Burch, 289Ill. App. 3d 81, 88, 682 N.E.2d 107, 111 (1997). Orders must be construed in areasonable manner to give effect to the apparent intention of the trial court. Burch, 289 Ill. App. 3d at 88-89, 682 N.E.2d at 111.

In this case, the record on appeal, including the August 3, 1992, transcript,shows that the first trial judge did not believe that the attorney fee dispute wasthe only issue to be considered on remand. The record clearly shows that thetrial court intended to hold a hearing on the issues identified in this court'sprior opinion, including the unallocated child support issue. Thus, the August 3,1992, order was not final.

Louis argues in the alternative that the second trial judge erred in enteringjudgment for Rosemarie because the first trial judge's August 3, 1992, order wascorrect on the merits. As noted above, the record shows that the August 3, 1992,order was not directed at the merits of Rosemarie's claim for restitution. Nevertheless, this court will address Louis's arguments in turn.

Louis first relies on section 413(a) of the Illinois Marriage and Dissolution ofMarriage Act (Act), which provides in part that "[a]n order directing payment ofmoney for support or maintenance of the spouse or the minor child or childrenshall not be suspended or the enforcement thereof stayed pending the appeal." See750 ILCS 5/413(a) (West 1992). However, Louis provides absolutely no coherentexplanation of how a statute which prohibits a court from suspending or staying amaintenance order pending an appeal grants him a vested right in the reducedpayment on remand after an order reducing maintenance is reversed on appeal.

Louis next contends that the reduced payments should not be retroactivelydisturbed because they were made in accordance with a valid statute and courtorder. Louis has not identified any such statute, aside from section 413(a) ofthe Act, which is discussed above and does not seem relevant to this dispute. Thecourt order to which Louis refers was reversed by this court.

Louis's claims, considered together, are ultimately based on the premise that theoutcome of an appeal has no effect on the litigation. Yet this court is confidentthat Louis and his counsel understand that this court does not issue advisoryopinions. Louis's argument would permit him to retain the benefit of the trialcourt's erroneous order without showing any equitable reason for doing so. Theargument is ironic, given that it is Louis who now seeks relief from this court.

In Illinois, a reversal abrogates the decree and leaves the cause as it stoodprior its entry, restoring the parties to their original positions. WilliamsburgVillage Owners' Association, Inc. v. Lauder Associates, 200 Ill. App. 3d 474, 483,558 N.E.2d 208, 213 (1990) (and cases cited therein). It is well settled thatupon the reversal of a judgment, the party that received benefits is obliged tomake restitution. Buzz Barton & Associates v. Giannone, 108 Ill. 2d 373, 381-82,483 N.E.2d 1271, 1275 (1985). The trial court's right and duty to enforcerestitution is not dependent on any direct order by this court and should bepermitted even if it requires some latitude because of changed conditions pendingreview. Lauder Associates, 200 Ill. App. 3d at 483, 558 N.E.2d at 214 (and casescited therein); see also In re Marriage of Jones, 187 Ill. App. 3d 206, 220, 543N.E.2d 119, 129 (1989) (discussing method for addressing change of circumstancesfollowing remand).

Absent a showing of changed circumstances pending review, the effect of thiscourt's reversal was that Rosemarie should be placed in the position in which shestood prior to the entry of the August 3, 1992, order. Louis did not identify anysuch change in his brief or his motion to strike and dismiss Rosemarie's secondmotion for judgment. Thus, Louis's argument is unpersuasive.

Louis further contends that there was no authority for the trial judge to requirethat he retroactively repay additional maintenance. Louis is incorrect. When atrial court erred in denying a petition for increased child support, this courthas directed the trial court to conduct further proceedings and the entry of anorder retroactive to the date of the order from which the wife appealed. In reMarriage of Heil, 233 Ill. App. 3d 888, 895-96, 599 N.E.2d 168, 173-74 (1992). The reasoning of the Heil court seems equally applicable to maintenance payments. Although this court's prior opinion in this litigation did not expressly directthe court to award retroactive maintenance as restitution, this court was notrequired to do so for the obligation to arise. See Lauder Associates, 200 Ill.App. 3d at 483, 558 N.E.2d at 214.

In sum, the second trial judge did not err in entering judgment for Rosemarie,despite the August 3, 1992, order striking Rosemarie's initial motion forjudgment.

II

Louis next argues that the trial court erred in dismissing Count III of hisPetition, which sought reimbursement for alleged maintenance overpayments madeunder the original judgment for divorce and a November 28, 1978, agreed ordermodifying that judgment. The trial court ruled that res judicata barred Louis'sclaim. Res judicata bars the relitigation of an issue between the same partiesafter a final judgment on the merits has been rendered by a court of competentjurisdiction. In re Marriage of Connors, 303 Ill. App. 3d 219, 225-26, 707 N.E.2d275, 281 (1999). A maintenance award is res judicata as to those facts at thetime it is entered; changed circumstances justifying the modification ofmaintenance must occur after the award. In re Marriage of Waldschmidt, 241 Ill.App. 3d 7, 11, 608 N.E.2d 1299, 1302 (1993). Courts in modification proceedingsallow the parties to present only the evidence going back to the latest petitionfor modification to avoid relitigating matters already decided. In re Marriage ofPedersen, 237 Ill. App. 3d 952, 957, 605 N.E.2d 629, 633 (1992).

The judgment in this case was not final, because this court remanded the case withdirections for further proceedings that could result in the entry of an appealablejudgment. See Relph v. Board of Education, 84 Ill. 2d 436, 442-43, 420 N.E.2d147, 150 (1981). Where a judgment remains subject to the appellate process, it isnot to be given res judicata effect; rather, this court's mandate establishes thelaw of the case. Relph, 84 Ill. 2d at 442-43, 420 N.E.2d at 150. The doctrine ofthe law of the case provides that decisions of questions of law presented in aprior appeal are generally binding and will control in a subsequent appeal, unlessthe facts presented in the subsequent proceedings are substantially different. See Lubbers v. Norfolk & Western Ry. Co., 147 Ill. App. 3d 501, 511, 498 N.E.2d357, 365 (1986).

In this case, Louis seeks recovery of alleged overpayments dating back to eachchild's graduation. During their 25-year marriage, the parties had six children,two of whom had reached majority when the judgment for divorce was entered. Louisargues in the alternative that he is entitled to recovery of alleged overpaymentsaccruing following his 1992 petition, pursuant to section 510(a) of the Act. Generally, section 510(a) of the Act provides that "any judgment respectingmaintenance or support may be modified only as to installments accruing subsequentto due notice by the moving party of the filing of the motion for modification***." 750 ILCS 5/510(a) (West 1992). Louis does not argue that he falls withinany of the exceptions to this rule. Louis argues that the decision to allowretroactive modification is within the trial court's discretion, but the case hecites, In re Marriage of Zeman, 198 Ill. App. 3d 722, 739, 556 N.E.2d 767, 777(1990), clearly refers to making relief retroactive to the date the petition wasfiled.

Section 510(a) also generally requires that the party seeking modification show asubstantial change in circumstances. See 750 ILCS 5/510(a) (West 1992). Thiscourt ruled in the prior appeal that Louis had failed to show changedcircumstances warranting a modification of his monthly obligation in part becausethe emancipation of the parties' children was a circumstance already anticipatedand addressed in an agreed order entered in 1978. Lehr, 217 Ill. App. 3d at 938,578 N.E.2d at 25. This court also noted that Louis chose not to fully disclosehis finances and stipulated that he had the ability to pay. Lehr, 217 Ill. App.3d at 938-39, 578 N.E.2d at 25. This court noted the rule that all relevant factsshould be presented to the trial court for a proper assessment of the parties'current circumstances. Lehr, 217 Ill. App. 3d at 939, 578 N.E.2d at 25. Indeed,this court noted that a full disclosure of both parties' finances would have beennecessary for the trial court to make an equitable determination as to anyreduction in Louis's monthly obligation. Lehr, 217 Ill. App. 3d at 938, 578N.E.2d at 25.

Nevertheless, on remand, Louis sought a retroactive reduction of his monthlyobligation without any disclosure of his finances. This course of action issimilar to Louis's objection to paying restitution to Rosemarie, insofar as bothsuggest a belief that this court's opinion in the first appeal had no effect onthe litigation. However, for all of the reasons stated above, this court's prioropinion is in fact controlling on remand, absent substantially changedcircumstances. Louis was free to arrange his affairs to avoid disclosing hisfinances on the record, but he cannot later complain of the resulting inability ofthe trial court to make decisions that would require such information.

Louis has not pointed to any other circumstance which has changed. The judgmentfor divorce and the November 28, 1978, agreed order modifying that judgment hadnot changed. Paragraph 3 of the parties' Settlement Agreement, which wasincorporated into the judgment, allowed a monthly deduction per child attendingcollege of between $150-$200. The 1978 agreed order additionally allowed for amonthly deduction "by the amount of $200 per child upon the attaining of themajority (provided the child is not attending college or university)" or upon theemancipation or death of a child. On remand, Louis specifically claimed he wasentitled to a $400 monthly deduction. However, the plain language of thesedocuments does not permit Louis to continue taking the deduction for each childattending a college or university after those children graduate; indeed, thisappears to explain why the parties sought to amend the judgment with the languagecontained in the 1978 agreed order.

In sum, Louis's claim in this case runs contrary not only to this court's prioropinion, but also to the statutory and case law Louis cited in this matter.

Moreover, the general rule is that no credit is given for voluntary overpaymentsof child support, even if they are made under the mistaken belief that they arelegally required. In re Marriage of Rogers, 283 Ill. App. 3d 719, 721, 670 N.E.2d1154, 1156 (1996). Although this case technically involved unallocated alimonyand child support, the deductions sought by Louis were expressly tied to thestatus of their children. Exceptions to the rule regarding voluntary overpaymenthave been recognized where the equities of the circumstances so demand and whereallowing the credit will not work a hardship. Rogers, 283 Ill. App. 3d at 722,670 N.E.2d at 1156. As noted above, Louis has, by his own choice, precluded anysuch equitable determination. The case cited by Louis in support of his argument,N.K. Fairbank Co. v. City of Chicago, 153 Ill. App. 140 (1910), isdistinguishable, as it has nothing to do with child support.

A court of review may affirm a trial court's judgment upon any grounds appearingin the record, regardless of whether it was relied upon by the trial court andregardless of whether the reasoning of the trial court was correct. E.g., Wilderv. Finnegan, 267 Ill. App. 3d 422, 426, 642 N.E.2d 496, 500 (1994). Thus, weconclude that while the trial court relied on the doctrine of res judicata, itcertainly did not commit reversible error in denying Louis's claim for aretroactive double deduction from his monthly obligation.

For all of the aforementioned reasons, the judgment of the circuit court of CookCounty is affirmed. Moreover, this court notes that Rosemarie (who the recordshows was at least 61 years old by the time of this court's 1991 opinion) wasforced to defend against Louis's baseless attempt to recover a large retroactivereduction in sums paid in support of the parties' children. Louis's arguments andactions in making such a claim in this case and forcing this appeal were withoutcompelling cause or justification. Accordingly, this case is remanded to thetrial court for a calculation of attorney fees to be paid by Louis to Rosemarie orher counsel pursuant to section 508(b) of the Act. See In re Marriage of Clay,210 Ill. App. 3d 778, 782, 569 N.E.2d 280, 282 (1991).

Affirmed and remanded for further proceedings.

BUCKLEY, J., and GALLAGHER, J., concur.