Appeal by defendant from the Superior Court of Cook County;
the Hon. JULIUS J. HOFFMAN, Judge, presiding. Heard in the second
division of this court for the first district at the June term,
1949. Decretal order affirmed. Opinion filed April 4, 1950.
Released for publication April 21, 1950.
MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT.
On July 11, 1947, Marie San Fillippo, petitioner, in suit No. 47 S 9539, obtained a decree for divorce from Louis A. San Fillippo, respondent, on grounds of extreme and repeated cruelty. The decree provided, by stipulation of the parties, that respondent shall pay to petitioner the sum of $50 per week for her support and that he shall also pay "all outstanding obligations of the parties hereto." After the entry of the decree respondent remained wholly in default in the matter of the payment of alimony, and on March 1, 1948, after due notice, petitioner filed a petition which alleged, inter alia, that respondent, although well able to do so, has wilfully failed to comply with the court's orders in the divorce decree, and that there was then due petitioner a total arrearage of $2,316, consisting of accumulated and unpaid alimony of $1,420, and of unpaid "outstanding obligations" of $896, and she prayed for a rule upon respondent to show cause. On the day petitioner's petition was filed JUDGE GEORGE M. FISHER entered the following order:
"Marie San Fillippo | CHANCERY ORDER | STAMP HERE > SUPERIOR COURT < vs.="" |="" |="" mar.="" 1-1948=""> of Cook County < louis="" a.="" san="" fillippo="" |="" no.="" 47="" s="" 9539="">
"On Motion of Attorney for Plaintiff for a Rule to Show Cause and the Plaintiff and Defendant agreeing to settle & dispose of the matter with reference to alimony arrearage, past, present, & future and any other claims outstanding at present time; And the Defendant offering sum of $500.00 in full of all alimony and attorneys fees, past, present, & future. And the Plaintiff is willing to accept the sum of $500.00 in full of all Alimony, past, present & future; And the Court having jurisdiction over parties and the subject matter:
"It is hereby ordered that the sum of $500.00 tendered to Plaintiff by Defendant & the acceptance of said sum by Plaintiff is in full of all claims for alimony, past, present & future herein.
"Enter GEORGE M. FISHER "Judge.
"Marie San Fillippo "Plaintiff
"Louis San Fillippo "Defendant.
At the time this order was entered there was no application of any kind by respondent or on his behalf for any relief under Section 18 of the Divorce Act [Ill. Rev. Stat. 1949, ch. 40, par. 19; Jones Ill. Stats. Ann. 109.186], and no application was ever filed by respondent. Petitioner concedes that at the time of the entry of the order by JUDGE FISHER she received $500 from respondent. She thereafter retained new counsel, and on April 6, 1949, she filed a verified petition which recites the divorce decree, the provisions contained therein, and avers that on March 1, 1948, respondent was in arrears in the payment of alimony in the aggregate sum of $2,316; avers the entry of the order on March 1, 1948; that she has received no payment from respondent on the alimony and support award provided in the decree excepting the $500 she received upon the entry of the order of March 1, 1948; alleges that JUDGE FISHER was without jurisdiction to enter the order of March 1, 1948, or to vary, change or alter the terms of the divorce decree except pursuant to Section 15 (Section 18) of the Divorce Act of the Statute of Illinois. Petitioner further states that the payment of $500 in full of a substantially larger accrued alimony indebtedness, as was in said order of March 1, 1948, provided, was wholly without good and valuable consideration for the discharge of the unpaid balance of said delinquent indebtedness, or of any continuing future installments of alimony under said award in said decree of July 11, 1947; that said order of March 1, 1948, "is invalid, unjust, inequitable to petitioner, and was entered without jurisdiction, and in fraudulent violation of the vested and proprietary rights of petitioner; and, further, said order of March 1, 1948 was approved by petitioner without a proper and sufficient understanding by her as to her said lawful rights in the premises, as will appear upon the hearing on this petition; and, further, that this Court, by operation of law and by the terms of said Section 15
of said Divorce Act of the Statutes of Illinois, and otherwise by virtue of equity and good conscience, retains and reserves jurisdiction, on the hearing of the petition, and in this cause, to vacate, modify and set aside said order of March 1, 1948," and petitioner prays for an order or decree "vacating, modifying or setting aside said order of March 1, 1948, so herein entered, and that in lieu of said order all of the terms in the said decree for divorce, of July 11, 1947, be duly enforced, pursuant to law and equity." Petitioner asks that said $500 paid to her by respondent, pursuant to said order of March 1, 1948, be applied on account of the entire unpaid delinquency or arrearage of said indebtedness on said alimony and support award under said decree of July 11, 1947; that a rule be entered against respondent to show cause why he should not be held in contempt of court for failure to comply with the terms of said divorce decree and with the orders thereunder heretofore entered herein, and for general relief. On April 11, 1949, upon notice duly served, JUDGE HOFFMAN entered an order that respondent be directed to show cause within ten days from April 11, 1949, why he should not be held in contempt of court for failure to comply with the terms of the divorce decree entered in the cause, and directing him to plead or answer said petition within ten days from April 11, 1949, and that hearing on said petition be set for April 25, 1949, at 10 A.M. without further notice. On April 20, 1949, the following appearance was filed:
"NOW COMES respondent, Louis A. San Fillippo, and enters his special appearance herein and the special appearance of Vent & Vent, his attorneys, limited to the filing of his Motion to Dismiss the Petition of Marie San Fillippo, now known by her maiden name, Marie ...