Appeal by defendant from the Superior Court of Cook county;
the Hon. JOSEPH A. GRABER, Judge, presiding. Heard in the second
division of this court for the first district at the April term,
1952. Decree affirmed. Opinion filed December 30, 1952. Rehearing
denied January 27, 1953. Released for publication January 28,
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 27, 1953
Plaintiff filed her complaint against defendant in the superior court of Cook county praying that a final judgment of divorce entered in the superior court of the State of California which adopted and made a property settlement agreement a part thereof be established here as a foreign judgment to be enforced by appropriate equitable remedies. Plaintiff asked judgment here against the defendant for certain monthly installments and past-due installments under the provisions of the alleged property settlement agreement and for reasonable attorney's fees. Defendant filed his answer setting up the remarriage of plaintiff as a basis for terminating further payments. The court found the issues for the plaintiff, dismissed the cross-complaint, entered judgment for $8,700 as the amount past due under the property settlement and entered a decree establishing the California decree in this jurisdiction as a foreign judgment.
The question with which we are here confronted is whether the agreement between the parties entered into December 9, 1940 and made part of the decree is a property settlement agreement or merely an agreement for alimony. Depending upon the answer to this question, the remarriage of the plaintiff either fails to affect, or terminates, the installment payments falling due subsequent to remarriage.
Both parties agree that the law of California, where this contract was made, should govern our deliberations. That law applicable to this case is substantially the same as in Illinois, the general rule being that remarriage of the wife affords grounds for cancellation of all alimony payments not accrued at the time of the remarriage, but has no effect on continuing obligations created under a property settlement agreement made part of a divorce decree. Cohen v. Cohen, 150 Cal. 99, 88 P. 267; Atlass v. Atlass, 112 Cal.App. 514, 297 P. 53; Parker v. Parker, 203 Cal. 787, 266 P. 283; McClure v. McClure, 4 Cal. (2d) 356, 49 P.2d 584; Codorniz v. Codorniz, 34 Cal. (2d) 811, 215 P.2d 32; Hough v. Hough, 26 Cal. (2d) 605, 160 P.2d 15; Walters v. Walters, 341 Ill. App. 561, affirmed 409 Ill. 298; Stromsem v. Stromsem, 344 Ill. App. 530.
The pertinent provisions of the agreement in the instant case are as follows:
"Whereas, the parties hereto are desirous of making a full, complete and final settlement and adjustment of their respective property rights in and to all property, both separate and community, now owned by them, or which may be acquired hereafter by them, providing for the support and maintenance of the party of the second part, and providing for the custody of said minor child during her minority;
"Now, Therefore, in consideration of the premises and of the mutual covenants herein contained, it is agreed as follows, to-wit:
"1. [Paragraph 1 disposes of household effects and life insurance policies, the indicated value of which is $5,000.]
"4. As and for the support and maintenance of the party of the second part, party of the first part agrees to pay party of the second part the sum of Twenty-Five Thousand ($25,000.00) Dollars cash, lawful money of the United States, as follows:
"One Thousand ($1,000.00) Dollars thereof on the execution hereof, receipt whereof being acknowledged;
"One Hundred and Fifty ($150.00) Dollars on account thereof during December, 1940, and a like sum of One Hundred and Fifty Dollars each and every month thereafter until said total sum of $25,000 has been paid in full without interest. Any and all payments received by party of the second part as contingent beneficiary under said insurance policies, as aforesaid, shall be payments pro tanto on account of the last maturing installments payable hereunder, as aforesaid.
"5. The parties hereto, and each of them, do hereby waive and relinquish and surrender any and all claims and rights to inheritance from the other * * * and each party hereby releases and relinquishes to the other party * * * all claims, demands, right to family allowance, homestead and interests against, in or to the estate of the other upon the death of the other, save and except the covenants of Paragraph 4 hereof shall be binding upon the estate of party of the first part.
"6. The parties hereto have hereby settled and adjusted by and between themselves all present and future property rights and earnings of every kind or nature, whether community or separate property wheresoever the same is, or may be located, and all other rights and claims which either may have, or claim to have, against the other insofar as their property rights are concerned; and, in addition thereto, the parties hereto do hereby settle and adjust, and have settled and ...