In re Marriage of Adamson

Case Date: 11/22/1999
Court: 2nd District Appellate
Docket No: 2-98-1259

In re Marriage of Adamson, No. 2-98-1259

2nd District, 22 November 1999



In re MARRIAGE OF JAMES H. ADAMSON,

Petitioner-Appellant,

and

PHYLLIS M. COSNER, f/k/a Phyllis M. Adamson,

Respondent-Appellee.

Appeal from the Circuit Court of Du Page County.

No. 92--D--0066

Honorable Robert J. Anderson, Judge, Presiding.

JUSTICE HUTCHINSON delivered the opinion of the court:

Following the dissolution of their marriage, respondent, Phyllis Cosner, f/k/a Phyllis Adamson, petitioned the trial court to enter a rule to show cause against petitioner, James Adamson, for his failure to make maintenance payments to respondent. The trial court issued the rule and subsequently found petitioner in contempt. Petitioner moved to vacate the contempt orders, and the trial court denied his motion. Petitioner appeals, contending that the trial court lacked jurisdiction to enter the amended judgment of dissolution that created the maintenance obligation and that the trial court erred when it held that the obligation was not discharged by petitioner's subsequent bankruptcy. We affirm.

On December 22, 1992, the trial court entered a judgment dissolving the parties' marriage and incorporating a marital settlement agreement. In the provisions relevant to this appeal, the parties agreed that the marital residence had a value of $820,000 and was subject to a first mortgage of $189,400 and a home equity loan of $72,200. Petitioner agreed to release his interest in the residence to respondent, and she agreed to assume the first mortgage. Petitioner agreed to assume the home equity loan and refinance the loan in his own name. The parties also agreed to divide equally a money market account valued at approximately $25,000. Finally, each party agreed to a permanent and irrevocable waiver of maintenance.

On August 1, 1996, respondent petitioned the trial court for a temporary restraining order and preliminary injunction. In the petition, respondent alleged, inter alia, that after the parties signed the marital settlement agreement but before judgment was entered, petitioner increased the home equity loan on the marital residence to $125,000 and borrowed an additional $34,000 that he secured with a second mortgage on the marital residence. The petition further alleged that petitioner had defaulted on both loans and that the creditors had initiated foreclosure proceedings. Respondent moved the trial court to order petitioner to disclose his interest in various accounts, to freeze some of petitioner's assets, and to order petitioner to satisfy the encumbrances he had placed on the marital residence including the $125,000 home equity loan and the $34,000 second mortgage.

On December 12, 1996, the parties agreed to modify the judgment of dissolution. The modified agreement granted respondent possession of the marital residence subject to a $385,000 mortgage for which the parties were jointly liable. Respondent was responsible for a monthly mortgage payment of $2,785.19. Petitioner waived any interest he may have had in the money market account. Finally, petitioner agreed to pay respondent monthly maintenance of $1,379.10 for 139 months with a final payment of $635.10. The parties agreed that petitioner's obligation to pay maintenance would survive his death and would be binding on his estate unless he purchased life insurance sufficient to satisfy the maintenance obligation.

On February 13, 1997, at respondent's request, the trial court entered an order requiring petitioner to show cause why he should not be held in contempt for failure to pay maintenance and provide respondent with proof of insurance as required by the modified agreement. The matter was continued several times, and on April 30, 1998, the trial court found petitioner in indirect civil contempt and ordered him incarcerated in a work release program until he paid a purge amount of approximately $9,000. Petitioner subsequently filed an emergency motion to vacate the April 30 order. The trial court continued the matter for hearing and stayed the portion of its order that incarcerated petitioner.

Petitioner subsequently filed a motion to vacate pursuant to section 2--1301 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1301 (West 1998)). Petitioner asked the trial court to vacate all orders entered after July 7, 1997, and alleged that he had filed a petition for bankruptcy on that date and had received a discharge of all debts on November 11, 1997. Petitioner argued that the orders were void because they had been entered in violation of the automatic stay provisions of the Bankruptcy Code (see 11 U.S.C.