## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of McLauchlan , 2012 IL App (1st) 102114

Appellate Court Caption In re MARRI AGE OF PATRI CI A C. McLAUCHLAN, Petitione rAppellee , and DAV I D C. McLAUCHLAN, Respondent- Appellant.

District & N o. First District, Second D ivision Docke t No. 1-10-2114

Filed Marc h 13, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Although the trial court’s finding that the decr ease in responde nt’s income war

rante d a modificat i on of his maintenanc e obligation was

s up p o rt ed by the rec ord, the deter mination that his “gross income” included money drawn from his retire ment acc ounts was improper, since the par ties had wa ived any

interest in the other ’s re tirement bene fits for
purposes of maintenanc e in the ir settlement agree ment, and under those circ umstances, responde nt’s withdrawa ls from his retire ment acc ounts could not be consid ere d in deciding whether to modify maintenanc e or chang e the awa

rd and allowing consideration of that fac tor would violate the parties’ orig inal intent and constitute a modification of the settlement
agree ment; there fore
, beca use the calc ulation of responde nt’s arr ear s was based on income that erroneously included withdrawa ls from his retire ment acc ounts, the cause was re manded.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 99-D-5397; the Hon. Pamela E. L oza, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Be erma nn Swerdlove L L P, of Chicag o (Howa rd A. L ondon, of counsel), for a ppellant.

Swanson, Martin & Be ll, L L P, of Chic ago (Steven H. Klein and Catherine B asque Weiler, of counsel), f

or appe llee.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion. Presiding J ustice Quinn and Justi ce Connors concur red in the judgme nt and opinion.

OP INION

¶ 1 Appellant David C. McL auchla n (David) appea ls the order of the circ uit court modifying his maintenanc e pay

ments to appellee
, Patricia C. M cLau chlan (Patricia)
, pursuant to a marital settlement agree ment signe d by the parties. On appe al, David c ontends that (1) the trial court abused i ts d i s cr etion by failing to terminate maintenance g iven hi s employ ment situatio n ; an d (2) the trial court err ed when it included withdrawa ls from his retire ment

acc ounts as income in calc ulating maintenanc e and arr ear ag es. For the following rea sons, we aff irm in part, re verse in part, and r emand f or fur ther proc eeding s.

¶ 2 J URI SDI CTI ON ¶ 3 The trial court issued an order on April 1 4
, 2 0 1 0
, b u t co n t i n ued the case to addre ss contempt and attorney fee s issues. The trial court enter ed a final order in the instant case on J une 14, 2010, and David filed his notice of appea l on J uly 13, 2010. Acc ording ly
, this court has jurisdiction pursuant to I llinois Supreme Court Rules 301 and 303 governing appea ls from fina l judgments e ntere d below. I ll. S. C t. R. 301 (eff. F eb. 1, 1994); R. 303 (ef f. May 30, 2008).

¶ 4 BA CKGROUND ¶ 5 The parties had been marrie d more than 30 y ear s when the trial court enter ed a judg ment for dissoluti on of marria g e on J uly 27, 2001. At t h e time, they had three children, two of which wer e over the ag e of 18. One adult child, Caroly n, is disabled and resides at Misericordia

. The marital settlement agree ment, which was incorporated into and made part of the judg ment for dissolution, provided in part as f ollows: “Commencing J anuar

y 1, 2001, Husband shall pay to Wife as and for maintenanc e, former ly known as alimony
, the sum of Four teen Thousand Dollars ($14,000) per month,
payable in two ins tallments the 1st and day 15th of ea ch month (‘Ma intenance ’). Af ter

-2-six y ear s (72 months) fr o m the eff ective date entry of J udg ment for Dissolution of marria g e, either party may petition a Court of competent jurisdiction and, subject to the

rema ining provisions of this para g raph, and annotations set forth below, Husband shall have the rig ht to petition a Court of competent jurisdiction *** to modify Maintenanc e. The Maintenanc e will only be modified upon written agree ment o f t h e parties, and/or order of Cour t , and will continue until modified by a Court of competent jurisdiction. Maintenanc e may

only be modi fied by Husband upon a showing*** of a material a nd substantial chang e/re duction i n Hu sband’s g ross income level. Maintenanc e may only be modified by Wife upon a showing by Wife of a materia l and substantial chang e/incre ase in Husband’s g ross income level (af ter the 72 month period). The parties
agree that W i fe may ear n up to, and including, fifty thousand dollars per y ear in employ ment income, in addition to income she may have on her investments, without her income level constituting a chang e in circ u m s t ances which could g ive rise to a modification of Maintena nce.” The marital settlement agree ment al s o i n cluded a proper ty settlement in which the parties distri b u t ed ri g hts in various retire ment acc ounts and pensions. Patricia rec eived half of David’s then-e x isting retire ment assets, which she invested. She also rec eived their vacation home in Key West, Florida
, and a portion of the proce eds from the sale of the marital home in Park Ridge
, I llinois

. Reg arding the retirement pl ans, t he settl ement agr eeme nt provided that “[e]ach party shall execute any and all documents nece ssary to waive any and all interests, or partial interest( s) in and to the r etireme nt plan( s) the other part

y is rece iving pursuant to terms of the Agreeme nt .” (Empha sis added.) ¶ 6 On November 26, 2007, David filed a petition to t er m i n at e m ai n t en an ce or, in the alternative, to modify maintenanc e an d for other relief

. Patricia filed a petition for rule to show cause and other relief on J anuar y 8, 2008, and a motion for summary judgme nt alleg ing that David failed to show a substantial reduc tion in g ros s i ncome in order to modify maintenanc e. Da v id filed a response to Patricia’s moti on and a cross-motion for summary judgme nt. Hea ri n g o n the petitions and motion trial beg an on Dec ember 16, 2009, befor e J udg e J ordan Kaplan. An agree d order for rea ssignm ent to a new judge was enter ed on J anuar y 11, 2010, and the case was a ssigne d to Judge Pamela L oza. F rom the time he filed his petition on November 26, 2007, to the trial court’s ruling on April 14, 2010, David paid $14,000 a month in maintenance in 2007, and $31,500 in 2008. ¶ 7 At hear ing, David testified that upon his graduation from law school in 1972, he beca me

an associate attorney with the law firm of L ord Bissell & Br ook. His law firm income for the five y ear s befor e the divorce
, befor e any reduc tions for individual retire ment acc ount (I RA), 401(k), and profit sharing or pension pay ments, aver ag ed $540,318. The aver ag e was $504,064 for the three y ear s befor e the divorce
, and David ear ned $474,388 in 2000, the last full y ear befor e the divorc e. ¶ 8 After the dissoluti on o f h is marria g e, his postdivorce income was compar able for the next five y ear s, aver ag ing over $550,000. He rema rried and purcha sed a town house with a balanc e due of $924,922 o n t h e m o rt g ag e. In 2006 David’s income dropped drama tically when he ear

ned only $371,746. In 2007, his firm merg ed wi t h a T exas firm and beca me L ocke, L ord, Bissell & L iddell and David’s y ear ly income dropped to $250,000. These

-3-substantial drops in David’s ear ned income forc ed him to borrow money from his dece ased fathe r’s estate and withdraw larg e amounts from his 401(k) and retire ment acc ounts in order
to continue to pay $14,000 per month in maintenanc e to Patricia and meet his obligations. In 2007 he had a g ross income of $361,226, including taxable income of $129,000 resulting from the ear ly withdrawa ls from his retire ment acc ounts. The 401(k) and retire ment acc ount withdrawa ls had the practica l effe ct of incr easing David’s taxable income f or the year , but in rea lity they repr esente d the depletion of his retire ment saving s ear ned in prior y ear s when maintenanc e pay

ments wer e paid to Patricia. His 2008 tax return shows a g ross income of $284,848, including tax able withdra wals of $116,477. ¶ 9 At the end of 2008, David was forc ed to resign from the firm. Nick DiGiovanni, a par tner and member of the executive committee at L ocke, L ord, Bissell & L iddell, testified that the committee d ec i d ed to terminate David due to his dwindling business, but the parties
neg otiated a proce ss wher eby David would instead resign at t h e end of 2008. After his resignation, David beg an his solo prac tice, the McL auchla n L aw Group L L C. In 2009, David lost approximately $162,000 trying to establish his prac tice. As of March 23, 2010, David had unbilled fe es of a

pproxi mately

$5,000. ¶ 10 I n order to meet expenses, David withdrew $695,000 from his L ocke L ord p en s i o n retire ment acc ount a

nd $36,000 from his 401( k) Fidelity acc ount in 2009. As of Marc h 20, 2010, he had withdrawn approximately $75,000 from his C h ar l es Schwab retire ment account. At that time, David had approximately $180,000 in his Schwab acc ount an d $37,000 in his Fidelity acc ount. David also had about $5,000 to $6,000 in his persona l chec king acc ount, $5,000 in a nonretire m en t Schwab acc ount and $3,000 in his law firm

acc ount. David’s total loan and mortg ag e debt is over $1.5 milli on, and he estimated that at the cur rent rate he would e x haust his remainingassets in about three to four months. ¶ 11 At the time David filed his petition, all of the parties’ chil dren had rea ched the ag e of majority

. Caroly

n still resides at Misericordia
, to which David contributes approximately $3,000 per year . He a lso pay s $200 to $400 per month in expenses for Caroly n. ¶ 12 P at ri ci a t es t i fi ed t hat althoug h she is a colleg e g raduate with a degree in hospitalit y manag ement, she did not work outside the home during the marria g e. In 2010, afte r sear ching
two y ear s for employ

ment, she secur ed a part-time job as a cashie r/rec eptionist at $9.50 per hour. She has also taken classes to lear n Microsoft Offic e and acc o u nting. In 2008, afte r Da v i d b ega n making partial maintenanc e pay ments, Patricia cut back on her monthly
expen s es , fr o m $10,000 per month to betwee n $7,500 and $8,000 per month. During this time, she paid for these expenses out of saving s, retire ment acc ount withdrawa ls, and a home equity line of cre dit. Patricia beg an liquidating her assets and acc ruing debt. She stated that she has approximately $100,000 in a saving s acc ount and $600,000 in a retire ment acc ount. Starting in 2009, she has rec eived about $2,000 per month from her investment acc ount. She testified that she no long er lives the life style she wa s acc ustomed to during he r marriag e. ¶ 13 T he trial court deter mined that David had exp er i en ce d a s ub s t an t i al ch an ge i n circ umstances meriting a modification of maintenanc e to 20% of his gross i n co me, retroa ctive to 2008, from all source s. Fur thermore
, the clea

r and unambiguous terms of the marital settlement agree ment contemplated that money withdrawn from David’s retire ment

-4-acc ounts should be included as David’s income. The trial court did not termi nate

maintenanc e, observing instead that “[r]espondent has no impairment in his prese nt or future

ear ning capa city and he has the ability to ear n signific antly g reater fu t u re i n come than Patricia. Ba sed on David’s ability to pay and Patricia’s lack of education, job experience
, ag e and abilit y

to ear n substantial income ***, the leng th of the par ties’ m arr iag e and all other fac tors in 750 I L CS 5/504 and 5/510 the petitione r’ s obligation to pay maintenanc e to the responde nt will be modified to be 20% of the petitioner’s gross income fr om all sources.” ¶ 14 For

2009, the court found that David had total gross income of $731,340. T his income consisted entirely of retire ment acc ount withdrawa ls: $695,000 from his Charles Schwab

acc ount and $36,346.03 from his Fidelity acc ount. Although 20% of $731,340 computes to $146,268, the court found that David owed Patricia $168,000 for 2010. The order and the

rec ord does not explain this math discrepa ncy

. For 2010, the court found that David “ea rned” $75,000 for the first three months, an aver ag e of $25,000 per month, based up o n David’s estimate of these withdrawa ls althoug h these “ea rning s” consisted entirel y o f retire ment

acc ount withdrawa ls. The court also found David in contempt for failure to pay maintenanc e, and as a result he was in arr ear s of $32,469.60 for 2008, $168,000 for 2009, and $15,000 for

eac h month through Marc h 3 1
, 2 0 1 0

. I t en tere d a final order on J une 14, 2010, and David filed this timely

appea l.

¶ 15 ANALYSI S ¶ 16 David fi rs t co n t en d s t h at t h e trial court err ed in modifying, rathe r than terminating
, maintenanc e. The parties enter ed into a marital settlement agree ment that contained provisions for maintenanc e. The terms of their agree ment are binding on the parties and the
courts. Blum v. Koster
, 235 I ll. 2d 21, 32 (2009). I t provided that afte r six y ear s from the entry of judgme nt for dissoluti on of marria g e, “either party may peti t i o n a Court of competent jurisdiction to modify maintenanc e.” It further provided that David may petition
t o m o d i fy maintenanc e “upon a showing by [David] of a materia l and substantia l chang e/re duction in [ David’s] g ross income leve l.” ¶ 17 Section 504(a) of the I llinois Marr iag e and D issoluti on of Mar riag e Act (the Ac t) (750 I L CS 5/504(a) (West 2006)) lis ts rele vant factors to consider in deter mining maintenance, including: “(1) the i ncome and proper ty of each pa

rty , including ma

rital proper

ty apportioned and non-ma

rital proper

ty assig ned to the par

ty seekingmaintenanc e; (2) the ne eds of e ach pa

rty ; (3) the pr esent a

nd future e arningcapa city of ea ch par

ty ; (4) any impairment of the prese nt and future ear ning capa cit y o f the party seeking maintenanc e due to that party devoting time to domestic duties or having fore g one or delayed educ ation, training , employ ment, or ca

ree r opportunities due to the mar riag e; (5) the time nece ssary to enable the party seeking maintenanc e to acquir e appropr iate education, training , and employ ment, and whe ther that party is able to support himself

or herse lf throug h appropr iate employ ment or is the custod i an of a child making it

-5-appropr iate that the c ustodian not seek employ ment; (6) the sta ndard of living esta

blished duringthe marr iag e; (7) the dur ation of the mar riag e; (8) the a g e and the phy sical and e motional condition of both parties; (9) the tax conseque nces of the proper ty division upon the respe cti v e ec o nomic circ umstances of

the par ties; (10) contributions and service s by the party seeking maintenanc e to th e education, training , car eer

or ca ree r potential, or lice nse of the othe r spouse; (11) a ny valid agree ment of the pa rties; and (12) a ny other fa ctor that the c ourt expressly finds to be just and equitable.” ¶ 18 Wh e n d e te r

min in g wh e th e r to mo dify a maintenanc e awa rd, courts consider the follow in g fac tors in addition to the factors listed in sec tion 504(a) a bove: “(1) any chang e in the employ ment status of either party and whether the chang e has been ma de in g ood faith; (2) the eff

orts, if any , made by the party rec eiving maintenanc e t o become selfsupporting, a

nd the re asonable ness of the e ffor ts where they

are appropr iate; (3) a ny impairment of the pr esent a nd future e arningcapa city of either party ; (4) the tax conseque nces of the maintenanc e pay ments upon the respe ctive economic circ umstances of

the par ties; (5) the duration of the maintenanc e pay ments previously

paid (a nd rema ining to be paid) re lative to the leng th of the marr iag e; (6) the proper

ty , incl u d i n g retirement benef its, awa rded to eac h party under the judgme nt of dissoluti on of marria g e, judgme nt of leg al s ep aration, or judgme nt of decla ration of invalidity

of marriag e and the prese nt status of the proper ty ; (7) the incre ase or decr ease of eac h party ’s income since the prior judgme nt or order from which a

revie w, modification, or ter mination is being sought; (8) the proper

ty acquir ed and curr ently owned by eac h party afte r t h e entry of the judgme nt of dissoluti on of marria g e, judgme n t o f leg al separ ation, or judgme nt of decla ration of invalidity

of marriag e; and (9) any other fac tor that the court expressly finds to be just and equitable.” 750 I L CS 5/510(a-5) (West 2010). ¶ 19 Where the rec ord establishes the basis for a maintenanc e awa rd, the trial court need not make expli cit finding s for eac h of the statutory fac tors. Blum
, 235 I ll. 2d at 38. A revie wing
court will not disturb the trial court’s decision to modify or terminate maintenanc e absent a clea r abuse of discretion. Blum
, 235 I ll. 2d 21. The trial court abuses its discretion when its “ruling is arbitra

ry , fanc if u l
, u n reasonable, or wher e no rea sonable person would take the view adopte d by

the trial cour

t.” People v . Hall , 195 I ll. 2d 1, 20 (2000). ¶ 20 David arg

ues that maintenanc e pay ments to Patri ci a s h o u l d be terminated due to the chang e in his employ

ment status and his dwindling re t i re ment acc ounts. Fur thermore
, Patricia has the home in Florida
, as well as $600,000 in investments and $100,000 in saving s

-6-from which to draw income. The trial court took these fac tors int o ac co u nt, as well as the

fac tors list ed in sections 504(a) and 510(a- 5). I t acknow ledg ed David’s chang e in employ ment status and found cr edible Mr. DiGiovanni’s testimony that David did not voluntarily quit his job at L ocke, L ord, Bissell & L iddell. I t also found a substantial decr ease in David’s ear

nings. Howeve r, the trial court noted that “[r]espondent ha s not modifie d his standard of living to a ccommodate his c hang e in job status” and “has no impairment in his
prese nt or future ea

rningcapa city

and he has the abili ty to ear n signific antly g reater future income than responde nt.” Patricia on the other hand, due to the leng th of the marria g e, lacke d the educa tion and job experience to ear n substantial income. There fore
, the court did not terminate ma intenance but instead modified i t downwar d to 20% of David’s gross income from all source s. The source s include, but are not limit ed to, David’s interest in his fathe r’s

revoc able trust, retire ment acc ounts, and the McL auchla n L aw Group L L C, from J anuar y 1, 2009, to date. The trial court considere d t h e re l evant fac tors and the rec ord supports its decision to modify , rathe r than ter minate, maintenanc e. ¶ 21 David conte n d s, howeve r, t hat t he trial court erre d in deter mining that “gross income” ref err ed to in the marital settlement agree m en t i ncludes withdrawa ls from his retire ment

acc ounts. The parties’ marital settlement agree ment contained a provision for the settlement of marital proper

ty

. Such proper

ty included rea l estate, as well as interests in investments and retire ment acc ounts acquir ed during the marria g e. “[ A] proper ty settlement *** which ha s been approve d by the court and incorp o ra t ed in the judgme nt of dissoluti on[ ] become s merg ed in the judgme nt, a nd the rig hts of the parties there afte r rest on the judgme nt.” In re Marriage of Hoffman
, 264 I ll. App. 3d 471, 474 (1994). I f the pa rties dec ide to settle their
proper ty rig hts by mutual agree ment rathe r than by statute, they are bound t o t h e t er ms of their agree ment. Chodl v. Chodl
, 37 I ll. App. 3d 52, 53 (1976). A court must construe such

an agree ment i n a manner that g ives eff ect to the parties’ intent, and if its terms are unambiguous, the languag e used is the sole indicator of that intent. In re Marriage of Sawyer
, 264 I ll. App. 3d 839, 846 (1994). A proper ty settlement agree ment approve d b y t h e court cannot be set aside or modified absent “proof that t h e agr ee m ent was secur ed by fra ud or

coer cion or is contra

ry to any rule of la w, publ ic pol icy , or morals.” Chodl , 37 I ll. App. 3d
at 53. We revie w the interpre tation of a marital settlement agree ment de novo

. Blum
, 235 I ll. 2d at 33. ¶ 22 This court’s prec ede n t s s et o u t in In re Marriage of Munford
, 173 I ll. App. 3d 576 (1988), are instructive h ere. The parties in Munford executed a proper ty settlement
agree ment, which was incorpora ted into the dissoluti on of marria g e judgme nt. Solomon Munford was order ed to pay his ex-wife, J essy e, $300 per month as maintenanc e. As part of the proper

ty settlement, J essy e was awa rded financ ial as s et s wo rth $29,500, as well as a “ ‘Va cation Key Plan’ ” in L ake Gene va, Wis consin, and all th e fu rn i shings and fix tures contained in the marital home. In turn, J essy e agree d to pay Solomon $3,500 for his interest in their joint proper

ty and she “wa i v ed ‘ a n

y a n d a l l claims that she may have in and to Solomon’s pension and/or profit sharing plans.’ ” (Emphasis in orig inal.) Munford
, 173 I ll. App. 3d at 577. ¶ 23 Solomon subsequently filed a petition to terminate maintenanc e, an d J es s y e fi l ed a p et i t i o n to incre ase her maintenanc e due to a substantial chang e in circ umstances. Sh e

-7-claimed that while her health was failing
, resulting in incre ased m ed i ca l ex penses and her

inability to work, Solomon’s income had incre ased due to his rec eipt of retire ment benef its. Solomon’s g ross annual income one y ear prior to dissoluti on of marria g e was $17,066, and his annual in co m e five year s later (one y ear prior to filing his petition to modify) was $37,544.64, which consisted of about $15,0 0 0 i n ordinary income and $22,553.28 in retire ment benef

its. The trial court g rante d J essy e’s petition, finding that J essye’s waiver of
any interest in Solomon’s retire ment benef its was not a waiver of the income g ener ated from those benef

its. Munford
, 173 I ll. App. 3d at 579. I t there fore incre ased Solomon’s maintenanc e obliga

tion to $750 per month for a one-year period. Munford
, 173 I ll. App. 3d at 578. ¶ 24 This c ourt reve rsed the trial court, finding that the order to inc rea se maintenanc e base d

on Solomon’s retire ment income “wa s actua lly a modification o f t he parties’ proper ty settlement agree ment rathe r than a modificatio n o f t he maintenanc e provision of the dissoluti on judgme nt based on a substantial chang e in circ umstances.” Munford
, 173 I ll. App. 3d at 579. Fur

thermore
, “[w]hi le maintenanc e provisions are modifiab l e up on a showing of a substantial chang e in circ umsta n ce s , proper ty settlement provisions are not [citations]
, unless a court finds the exis tence of conditions that j u stify the reope ning of a judgme nt.” Munford
, 173 I ll. App. 3d at 579. Reopening a judgme nt to set aside a proper ty set t l em en t agreement is proper only if the agree ment was executed “by some element of fra ud, coer cion or misrepre sentation.” Id. J essy e did not alleg e that the settlement agree ment

was obtained by fra u d
, co ercion or misrepre sentation, nor did she contend that the parties intended “to distinguish betwee n waiver of the plans and the income derive d there from.” Id.
at 580. There fore
, the trial court’s d et er m i n ati on “improper ly rewrote and modified the parties’ proper

ty settlement agree ment” and its finding s wer e ag ainst the manifest weight of the evidenc e. Id. ¶ 25 He re, Patricia also agree d in the proper ty settlement agree ment “to waive any an d al l interests, or partial interest(s) in and to the retire m en t p l an (s) the other party is rec eiving pursuant to terms of the Ag ree ment.” Pursuant to Munford
, the court may not subsequently modify the proper

ty settlement agree ment by awa rdi n g m ai ntenanc e based upon David’s withdrawa ls from retire ment plans in which Patricia had waived any and all interests without

a showing that t h e agree ment was acc ompanied by some element of fra ud, coer cion or misrepre sentation. Patricia does not alleg e such fra ud, coer cion or misrepre sentation, nor is there any indication in the clea r languag e of the agr ee m en t t hat the parties intended to distinguish betwee n waiver of the plans and waiver of the income derive d from those plans. In light of David and P atricia having mutually waived any and all interest in and to the other’s retire ment plans, the court’s finding that the clea r and unambiguous terms of the marital settlement agree ment contemplated that money withdrawn from David’s retire ment

acc ounts should be included as income for purposes of setting maintenanc e is contra ry to the
terms of the agree ment and the parties’ expressed intent. Patricia had waiv ed any and all interest or partial interest in David’s retire ment plans. The trial court’s including David’s withdrawa ls from his retire ment plans as income in deter mining maintenanc e is an improper modification of the pa

rties’ prope rty

settlement agree ment. ¶ 26 Patricia disag ree s and argues that this court has held that retire ment funds awa rded as par

t

-8-of t he marital settlement ag ree ment can be reg arde d as i ncome. As support, she cites In re

Marriage of Eberhardt
, 387 I ll. App. 3d 226 (2008), In re Mar r i a g e o f L i ndman
, 356 I ll. App. 3d 462 (2005), and In re Marriage of Klomps
, 286 I ll. App. 3d 710 (1997). These case s, howeve r, are dis t i n gu i s h ab l e from the case at bar. First, the fac ts in the cases do not show
t h at t h e parties waived any and all interest in the other party ’s retire ment benef its in thei r respe ctive proper

ty settlement agree ments. Second, the pertinent issue in all three case s was the calc ulation of child support pursuant to the Act, rathe r than t h e d et ermination of maintenanc e and the interpre tation of a mutually agree d-upon waiver provision contained in the settlement agree ment. As we stated in Klomps
, the “prima ry o b j ec tive” in the “unfor tunate event of a dissoluti on” is to provide sufficie nt support for the children. (Interna l quotation marks omitted.) Klomps
, 286 I ll. App. 3d at 714. To that end, section 505(a) of the Act broadly define s net income f or child support purpose s as “the total of all income from all source s.” 750 I L CS 5/505(a)( 3) (West 2006). To fur t h er protec t the interests of the children, the Act also prohibits a settlement agree ment from expressly prec luding or limit ing the modification of “ter

ms conce rning the support, custody or visitation of children.” 750 I L CS 5/502(f) (West 2006). I n that context this court in Eb er h ardt
, Lindman
, and Klomps h el d t hat for child support purposes, net income includes monies derive d from source s orig inally distributed in a proper

ty settlement agree ment. ¶ 27 We also note, howeve r, that the F ourth District in In re M arriage of O’Daniel , 382 I ll. App. 3d 845, 849 (2008), disag ree d with Lindman
, finding that a former spouse’s postdecre e withdrawa ls from self-f

unded I R As s h o u ld not be included as income for child support purposes. O’Danie l rea soned that Lindman did “not adequately take into acc ount that I RAs

are ordinarily self-f

unded by the individual possessing the retire ment acc ount. Ex cept for the
tax benef its a person g ets from an I RA and the penalties he or she will incur if he or she withdraws the money ear ly
, an I RA basica lly is no differ ent than a saving s acc ount ***. The
money the individual place s in an I RA alre ady belong s to that individual. When an individual withdraws money he place d into an I RA, he does not g ain any thing as the money was alre ady his.” O’Danie l
, 382 I l l

. App. 3d at 850. O’Danie l ’s observation “that I RA distributions should not be considere d income beca use they are o n l y as s et s t hat alre ady belong to the

rec ipient seems di fficult to dispute.” R euben A. Be rnick, W hen Property

Bec omes Inc ome i n Post-Judgme nt Divorce Liti gation
, 98 I ll. B.J. 310, 313 (2010). L ike an I RA or sav i n gs

acc ount, the withdrawa l of pension funds is corr ectly identified as a return of capital and not income. ¶ 28 M o s t i mportantly the issue befor e us conce rns maintenanc e, not child s up p o rt

. T h e parties’ children have all rea ched majority ag e and the rec ord i n d i ca t es that David is providing for the car e of Caroly n. Section 502(a) of t h e Act expressly provides that the parties may enter into a settl ement agr eeme nt containing provision s fo r t he dis tribution of
proper ty , which is binding on the parties and the courts. See Blum
, 235 I l l

. 2 d at 32. Fur thermore
, the parties may in their settlement agree ment expressly waive their interests in the other party ’s retire ment benef its for purposes of maintenanc e. See Munford
, 173 I ll. App. 3d at 580. We a

re not persua ded that the child support case s Eberhardt
, Lindman
, Klomps
, and ou r re cent opinion In re Marriage of McGrath
, 2011 I L App (1st) 102119, provide support for P at ri ci a’s position as reg ards the maintenanc e issues here

. The child support

-9-case s that hold it proper to include the return of capital withdrawa ls from retire ment benef its

as “gross income” are well founded on the court’s obliga tion to protec t the best interests of children and public policy determinations that pare nts financ ially support their children. Those interests an d p ub l ic policy deter minations are not applicable in deter mining a modification of maintenanc e. When deter minin g main

te n a n c e , w it h d r a w a ls f r o m a li q uidated
asset in which the other p ar t y h ad previously waived any future interest do not constitute income. ¶ 29 There fore
, we hold the rec ord supports the trial court’s deter mination to modify David’s maintenanc e obligation. Howeve r, the tr i al court’s finding that “gross income” includes monies drawn f

r o m David’s retire ment benef its when modifying maintenanc e was improper. We hold that absent fra

ud, coer cion or misrepre sentation, wher e the parties have enter ed into

a proper ty settlement agree ment wher ein eac h has waived any and all interests in and to the retire ment plan(s) of the ot her party
, the parties are bound to the t erms of their agr eeme nt. Under such circ umstances neither I llinois case law nor section 504(a) permits the trial court to consider withdrawa ls from retire ment acc ounts when deciding whether t o m o d i fy maintenanc e and in setting the amount of a new maintenanc e awa rd. Allowing the trial court to do so violates the parties’ orig inal intent when contra cting and repr esents a modification of the parties’ proper

ty settlement agree ment rathe r than a m odification of maintenanc e provisions of the dissolution j udg ment based on a substantial chang e in circ umstances. ¶ 30 For the fore go i n g re as o n s , t h e j u d gment of the circ uit court is aff irmed in part a

nd

reve rsed in part. As the trial court’s calc ulat ion of arr ear s was based on income that

err oneously included David’s retire ment plan withdrawa ls, we rema nd th e cause for
proce eding s consistent with this opi nion.

¶ 31 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

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