All In The Family: Fungible deadline…Are review and extension orders becoming obsolete?
Published in Chicago Lawyer Magazine, September 2022
By Daniel Stefani
The 2nd District Appellate Court of Illinois has recently expanded an ex-spouse’s ability to request an extension of maintenance even when the court order establishes a deadline for filing for such extension.
In the April 18 opinion of In Re the Marriage of Watson and Cox, 2022 IL App (2d) 210137, the panel reversed and remanded a trial court order dismissing with prejudice a post-divorce Petition to Extend and Increase Maintenance. Essentially, the trial court dismissed the exwife’s petition because she failed to timely file her petition (18 days after the deadline). The trial court’s order awarding her “maintenance” in a fixed amount per month was for a period of additional 24-months beginning Sept. 10, 2018. The court further ordered that said maintenance “will terminate” as of Sept. 10, 2020, “unless a petition seeking an extension of same is filed on or before the termination date.”
While the order did not use the term “reviewable maintenance,” the record at the Sept. 10, 2018, trial indicated the trial judge referenced an extension or future review of maintenance would be contemplated, and that in part, the ex-wife was expected to demonstrate what jobs she had sought and establish a good faith effort to secure employment.
On appeal, the appellate panel felt the trial court abused its discretion by dismissing ex-wife’s petition with prejudice without considering the merits of the case. Despite the ex-husband’s argument that the judge ordered in 2018 a nonreviewable or a fixed-term maintenance award and that she should be forever barred from a maintenance review if she didn’t file a timely petition, the panel disagreed. Specifically, the panel found that because the 2018 order permitted the ex-wife to file a future petition for review, the trial court “unmistakably ordered reviewable maintenance.” The panel also distinguished the trial court’s order from the statutory definition of “fixed-term maintenance,” which bars a request for an extension of maintenance after the fixed-term. The panel also relied on the line of case law that has historically found that the substance of a maintenance award controls its character versus the specific label. These cases also noted that except for a few exceptions like maintenance in gross and fixed-term maintenance, nearly all maintenance awards are implicitly reviewable and modifiable. The court here primarily relied on In Re the Marriage of Kuyk, 2015 IL App (2d) 140733. But it further extended the approach of Kuyk to make it virtually impossible to have a termination of any kind of maintenance except for maintenance in gross and fixed-term maintenance regardless of language that we’ve all seen through the years of a termination date if a petition to extend is not timely filed.
In Kuyk, unlike here, the Order on Appeal stated the ex-husband would pay the ex-wife a sum certain of “maintenance” for a period of 60-months “at which time the maintenance shall be reviewable upon the filing of petition prior to the termination of the maintenance.” Like here, the Kuyk trial court found the maintenance terminated at the end of the 60-month period and ex-wife’s failure to file her review petition before that period “denied the court’s jurisdiction to continue hearing the matter.” The Watson panel reversed and remanded stating that regardless of whether the maintenance was barred by a settlement agreement or prior judgment because the petition for maintenance not timely filed, the trial court “will always have subject matter jurisdiction to address a party’s post-decree petition … because the [trial] court is where post-dissolution matters are heard.”
Kuyk further justified its reversal and remand by stating, in part, the parties’ settlement agreement was ambiguous as to whether the maintenance became reviewable at the 60-month period or terminated. Because the agreement was drafted by the husband, it was construed against him, so the court justified that the maintenance became reviewable after 60-months and did not terminate.
The ex-husband also argued he would be prejudiced if the ex-wife was allowed to refile her extension petition. The panel rejected the argument, stating that maintenance was essentially a matter of equity.
Unless there is a specific language that it is either maintenance in gross, or maintenance of a fixed duration, the award is basically always reviewable. As such if there is any doubt, the payor’s attorney may want to consider filing their own motion to terminate if nothing has been filed by the end of the ordered review period.
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.