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No. 2--03--0470

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

The marriage of petitioner, Carmen James Morreale, and respondent, Mary Ellen Morreale,n/k/a Mary Ellen Schumann, was dissolved on April 6, 1995. The dissolution judgment incorporatedthe parties' marital settlement agreement. On September 4, 2002, Carmen petitioned forpostjudgment relief. He alleged that, contrary to the agreement, Mary Ellen had failed to reportmaintenance payments as income on her 2000 tax return, resulting in a $10,000 assessment againsthim for taxes and penalties. Mary Ellen moved to dismiss the case, and the trial court granted themotion. On appeal, Carmen argues that the trial court failed to address all of the issues raised in hispetition and erred by granting the motion. We affirm.

The marital settlement agreement states in relevant part:

"6. LUMP SUM SETTLEMENT IN LIEU OF PROPERTY

CARMEN agrees to pay to MARY ELLEN and MARY ELLEN agrees toaccept as and for a lump sum settlement in lieu of property the sum of $140,011.00 payablein 72 equal installments of $1[,]945.00 commencing with the first day of the month followingthe sale and closing of the marital residence. *** The payments hereunder shall beterminable only in the event of the death of MARY ELLEN. In such event, any balance dueand owing will be paid into a trust to be established by MARY ELLEN for the benefit of theparties' children. All payments contemplated under this paragraph shall be deductible byCARMEN and taxable to MARY ELLEN on their respective income tax returns pursuant tothe applicable provisions of the Internal Revenue Code. ***

7. WAIVER OF MAINTENANCE

Except as otherwise provided for in Paragraph 6 hereinabove, both parties hereby waive all rights to support and maintenance from each other, past, present, and future. Any Judgment for Dissolution of Marriage entered herein shall contain a provision barringeach of the parties hereto from claiming any rights to support or maintenance.

8. DISTRIBUTION OF MARITAL PROPERTY

***

*** The parties agree that CARMEN shall retain all of his interest in Benefit Systems& Services Inc. with a stipulated value of $343,000 free and clear of any interest on the partof MARY ELLEN, except as otherwise provided for in Paragraph 6 hereof."

At the prove up for the dissolution proceeding, the trial court asked Mary Ellen if sheunderstood that "maintenance [would] be as provided in the marital settlement agreement." MaryEllen answered in the affirmative. Mary Ellen's attorney stated that the "maintenance provision" wasin paragraph six of the agreement and provided for $1,945 per month for 72 months.

In his postjudgment motion, Carmen alleged the following. The payments outlined inparagraph six of the settlement agreement were for the support and maintenance of Mary Ellen andthe parties' minor children. Contrary to the agreement, Mary Ellen failed to report the payments asincome on her 2000 income tax return. Therefore, the Internal Revenue Service (IRS) assessed taxesand penalties of $10,000 against Carmen. Because the agreements and subsequent orders"inadvertently" failed to state that the payments would terminate upon Mary Ellen's death, the IRSmade a preliminary finding that the payments were not deductible by Carmen or taxable to MaryEllen. Carmen requested that the trial court provide relief by: (1) amending the dissolution judgmentnunc pro tunc to state that the payments will terminate upon Mary Ellen's death; (2) ordering MaryEllen to "reimburse" Carmen for the taxes she avoided by not including the payments in her state andfederal income tax returns; or (3) issuing a rule requiring Mary Ellen to show cause why she shouldnot be held in contempt of court for failing to comply with the dissolution judgment. Carmenadditionally sought attorney fees.

Mary Ellen moved to dismiss the case under section 2--619 of the Code of Civil Procedure(Code) (735 ILCS 5/2--619 (West 2002)). She argued that Carmen was seeking to modify thejudgment under section 2--1401 of the Code (735 ILCS 5/2--1401 (West 2002)) but was barred bythe statute's two-year limitations period. The trial court granted the motion, and Carmen timelyappealed. We review de novo an appeal from a section 2--619 dismissal. We must determinewhether a genuine issue of material fact should have precluded the dismissal or, absent such an issueof fact, whether the dismissal is proper as a matter of law. Raintree Homes, Inc. v. Village of LongGrove, 209 Ill. 2d 248, 254 (2004). However, we may affirm the trial court's decision on any basissupported by the record, regardless of the reasoning employed by the trial court. Scassifero v. Glaser,333 Ill. App. 3d 846, 860 (2002).

We first address whether the trial court erred in dismissing Carmen's first claim, that thedissolution judgment should be amended nunc pro tunc to provide that the payments will terminateupon Mary Ellen's death. Nunc pro tunc orders correct clerical errors in written orders to conformthem to the court's actual judgment; nunc pro tunc orders cannot be used to alter the court'sjudgment. In re Marriage of Breslow, 306 Ill. App. 3d 41, 50 (1999). Contrary to Carmen's allegation that the settlement agreement "inadvertently" fails to state that the payments will end uponMary Ellen's death, the agreement specifically provides that, upon her death, any remaining paymentswill be deposited into a trust fund to benefit the parties' children. We therefore agree with Mary Ellenthat Carmen sought to amend the judgment under section 2--1401.

Section 2--1401 allows a party to challenge a final judgment more than 30 days after its entryby bringing to the court's attention issues of fact outside the record which, if known when thejudgment was entered, would have affected the judgment. Clay v. Huntley, 338 Ill. App. 3d 68, 74(2003). A section 2--1401 petition may not be brought more than two years after the judgment'sentry. In computing this two-year period, time during which the petitioner was under legal disabilityor duress, or the ground for relief was fraudulently concealed, is not included. 735 ILCS 5/2--1401(c) (West 2002); see People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). Here, the judgment wasentered on April 6, 1995, and Carmen did not bring the action until September 4, 2002. Carmenmaintains that the limitations period should be tolled because Mary Ellen fraudulently concealed thefact that she had not reported the payments as income on her 2000 income tax return. However, thisalleged fraudulent concealment occurred long after the two-year limitations period had alreadyexpired. Accordingly, we hold that the trial court did not err in dismissing Carmen's first claim asuntimely.

Carmen argues that, even if the trial court correctly dismissed his first claim, his remainingclaims do not involve section 2--1401, because they sought to enforce the judgment rather thanmodify it. Carmen's second claim sought a "reimbursement" for the money Mary Ellen saved by notpaying taxes on the payments in 2000. Carmen maintains that he is entitled to this money becauseMary Ellen breached the settlement agreement, which, according to Carmen, clearly provides that thepayments are maintenance and that Mary Ellen is required to pay taxes on them. He alternativelycontends that the agreement is ambiguous as to whether the payments are maintenance or a propertysettlement, and that the case should be remanded so that the trial court can consider extrinsicevidence. Mary Ellen argues that the agreement clearly shows that the payments are a propertysettlement and, therefore, are not income for tax purposes.

The interpretation of a marital settlement agreement is a matter of contract construction, andthe court should ascertain and give effect to the parties' intent. The best indication of that intent isthe contract's language. When a settlement agreement's language is ambiguous, the trial court shouldconsider parol evidence to determine the parties' intent. In re Marriage of Carrier, 332 Ill. App. 3d654, 658 (2002). In this case, the agreement is ambiguous as to whether the payments are a propertysettlement or maintenance. The following provisions support a property settlement interpretation. The payments are listed in paragraph six under the heading, "LUMP SUM SETTLEMENT IN LIEUOF PROPERTY," and the paragraph states that Mary Ellen was accepting the payments as such. Paragraph eight states that Carmen was to retain his $343,000 interest in a company, "free and clearof any interest on the part of MARY ELLEN, except as otherwise provided for in Paragraph 6hereof."

On the other hand, the agreement also contains language supporting an interpretation that thepayments are maintenance. Paragraph seven of the agreement, entitled "WAIVER OFMAINTENANCE," states that the parties waived all maintenance "[e]xcept as otherwise providedfor in Paragraph 6." Paragraph six states that the payments are deductible by Carmen and taxable toMary Ellen, indicating that the parties wanted the tax treatment available for maintenance payments. See 26 U.S.C.