Appeal from the Circuit Court of Cook county; the Hon. JOHN E.
PAVLIK, Judge, presiding. Judgment reversed and cause remanded
JUDGE FRIEND DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 2, 1958.
This matter comes to us on a petition for leave to appeal within one year, as provided by statute, which was allowed. Plaintiff and defendant were married on February 15, 1936. One child, E. Bruce Whitney, now fourteen years old, was born of the union. On July 30, 1952 plaintiff filed his complaint for divorce against defendant, charging habitual drunkenness and adultery, and on December third of that year, the cause having been heard as a default matter by agreement of the parties, a decree of divorce was entered in favor of plaintiff on the ground of habitual drunkenness. Prior to the entry of the decree the parties had entered into the following stipulation:
"WHEREAS, a suit for divorce has been filed by E.C. Whitney, hereinafter called Emerson, against Helen G. Whitney, hereafter called Helen, and Emerson wishing to make provisions to aid in the support of Helen in the event a divorce is granted, and for the purpose of compromising and settling other differences, it is therefore hereby mutually agreed by and between the parties hereto as follows:
"1. Emerson agrees to pay to Helen immediately upon the signing of the decree of divorce the sum of twenty-five hundred and no/100ths ($2,500) dollars, said sum to be evidenced by certificates of deposit and interest thereon heretofore made as U.S. Postal Savings Deposits in the name of Helen by Emerson.
"2. Emerson also agrees to pay to Helen in lieu of alimony, dower, maintenance and support, . . . and of all rights of every kind and character which have or may accrue to Helen an additional sum in the amount of twelve thousand ($12,000) in equal monthly installments of one hundred ($100) dollars each upon the first day of each and every month for ten years, starting on the first day of the first month following the signing of the decree in the above entitled cause of action. In the event Helen remarries, then the amount to be paid to her under the terms of this paragraph shall decrease to one-half of the remainder then due and owing and the monthly payments thereafter shall similarly be reduced to one-half of the above amount. Said obligation and payments shall cease in the event either party to this agreement dies."
In consideration of the foregoing provisions each party released the other from all claims, interest in property, etc.
By the decree entered, the custody of the son was awarded to and has since remained with the plaintiff. The decree further provided "that plaintiff pay to the defendant the sum of $14,500 in full of all alimony, past, present and future, or any other rights defendant may have by virtue of the marriage relationship, said amount payable $2,500 upon signing of decree, and the balance of $12,000 at the rate of $100 per month until fully paid."
It should be noted that the decree did not contain the provisions of the stipulation that upon defendant's remarriage her gross award should decrease to one-half of the remainder then due and the monthly payments thereafter due should be similarly reduced to one-half or $50 per month, that on the death of either party payments and obligations should cease, nor that the $2,500 to be paid to defendant was "to be evidenced by certificates of deposit and interest thereon heretofore made as U.S. Postal Savings Deposits in the name of Helen by Emerson."
Subsequently, in March 1955, defendant remarried, and upon learning of her remarriage plaintiff, relying on the stipulation, reduced his payments, which had theretofore been regularly paid for approximately two and one-half years in the amount of $100 per month, to one-half that sum, or $50 per month.
On June 20, 1955, defendant filed her petition for a rule to show cause why plaintiff should not be held in contempt for failure to pay alimony in accordance with the original decree. She admitted under oath that he had complied strictly with the provisions of the decree up to the time of her remarriage, and also that additional payments totaling $125 had been paid after the remarriage. In reply to defendant's petition plaintiff filed his answer and counterpetition for relief from payments of alimony; in it he admitted the decree for divorce in his favor, averred that there had been a stipulation, relative to support money, signed by the parties and witnessed by defendant's father and sister, which had been exhibited to the trial court (Judge Roberts) and made an exhibit in the report of proceedings at the trial on November 6, 1952; he further averred that in its decree the trial court passed over the stipulation and in its place provided that defendant be awarded the sum of $14,500 "in full of all alimony past, present, and future"; that defendant had remarried in March of 1955 and was then being supported and maintained by her second husband; and that the only change of circumstances since the decree had been the remarriage of both the parties.
Thomas A. McCaffrey then represented defendant; he had been retained to enforce her alleged claim of right to $100 a month and took the position that even if the stipulation, which was missing from the court files, along with the record of proceedings and other documents, should be produced, it could not be read to contradict the decree. He argued that the decree, which was silent as to defendant's rights in the event of remarriage, should be construed to entitle her to the full sum of $100 per month, notwithstanding her remarriage and notwithstanding the stipulation provision for reduction to one-half that sum.
At this state of the proceeding Friedman and Friedman entered the case as co-attorneys. It was about this time that defendant produced the missing stipulation. The only pleadings then before the court were the petition for a rule and the counterpetition for relief from further payments because of defendant's remarriage. No charge of fraud had been made by the defendant. Nevertheless, Friedman called plaintiff as a witness for cross-examination under section 60 of the Practice Act (Ill. Rev. Stat. 1955, ch. 110), and the court permitted him to adduce evidence as to plaintiff's finances and those of his mother (who was not a party to the suit) at the time of the divorce, and also their subsequent financial means. There was nothing in the pleadings as they then stood to warrant such procedure; the only questions before the court were (1) whether plaintiff was in default by reason of his failure to pay defendant $100 per month pursuant to the decree for divorce and this depended upon whether the decree or the stipulation was controlling; and (2) if the decree was held to be controlling, an interpretation of it to determine whether its provisions for the payment of $14,500 constituted a settlement in gross or alimony. There had been no request by defendant in the pleadings or otherwise for the acceleration of the unpaid balance due under the decree. Notwithstanding these circumstances, the court then permitted the parties to file a plethora of supplemental pleadings, affidavits and motions, too numerous and too lengthy to set out here in detail, and to adduce evidence thereunder, which extended the trial another five days, on extraneous issues which had nothing whatever to do with the controversy presented by the pleadings. In substance defendant's supplemental pleadings alleged threats and promises calculated to induce her to enter into the property settlement in an amount that was smaller than reasonable because, as she alleged, plaintiff concealed from her the fact that he was worth about a million dollars, and that the procurement of the settlement was therefore a fraud. Undoubtedly defendant knew that these charges were without merit, and if her present counsel had familiarized themselves with the circumstances leading up to the original decree for divorce, they too would have been aware that the charges of fraud and duress had no validity. The stipulation between the parties was part of the report of proceedings when Judge Roberts entered the decree. At first defendant denied that she had signed it. However, the record shows that she signed it twice, once in the presence of her father and her sister. In the latter part of November 1952 defendant, in discharging her first Chicago attorney (he had been preceded by a Florida attorney), stated in a letter sent to him that "I am perfectly satisfied with the settlement, which I negotiated entirely by myself after you refused to come to the evening meeting at my folk's home in order to assist me with the details." It is further disclosed by the record that during their married life defendant, who had been a legal stenographer before her marriage, had regularly assisted plaintiff in preparing his income tax returns and had also helped him prepare some of his mother's returns, indicating that she must have been thoroughly familiar with his finances and could not have been induced to sign the stipulation because plaintiff withheld from her the fact that he was worth about a million dollars. Moreover, she availed herself of the benefits of the decree by accepting from plaintiff, over a period of two and one-half years, monthly payments of $100 without any protest. It is significant that after hearings extending over six days, the court in its order of March 23, 1956, from which this appeal is taken, made no findings whatever as to the charges of fraud predicated upon threats, promises and duress, as set out in defendant's pleadings, but merely decided that the original decree was in full force and effect, and that it should not be modified or revised in any particular except that plaintiff pay defendant the sum of $11,675 within five days, allowed defendant fees for her attorneys Sol. R. Friedman, I.S. Friedman and Thomas A. McCaffrey in the sum of $1,000 and entered a rule against plaintiff to show cause why he should not be held in contempt of court for failure to comply with the original decree.
The first question presented is whether the provisions of the decree or the stipulation should prevail. Plaintiff had assumed that the decree incorporated the provisions of the stipulation; he had not seen a draft form of the decree before its entry because of his absence from the city, and it was not until after defendant had filed her petition for a rule to show cause that he learned that the decree required him to "pay to the defendant the sum of $14,500 in full of all alimony, past, present and future, or any other rights defendant may have by virtue of the marriage relationship." The decree makes ...