Appeal from the Circuit Court of La Salle county; the Hon.
LEONARD HOFFMAN, Judge, presiding. Reversed and remanded with
PRESIDING JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.
This is an appeal from an order of the Circuit Court of LaSalle County increasing from $100 to 140 per month support or alimony payments to be made by the defendant to the plaintiff. Previously, in April of 1952, the plaintiff had obtained a decree of divorce from defendant, which contained no provisions as to alimony, but approved a property settlement agreement which had been entered into between the parties on the same date the divorce decree was entered.
The property settlement agreement contained many provisions which indicated it was to be a complete settlement of property rights by the parties. It provided, in part, that defendant was to pay to the plaintiff the sum of $7,500 on the date of the decree and a sum of $5,000 within twenty months thereafter; that defendant was to convey to plaintiff title to the residence property and the latter was to retain the household goods; that defendant was to pay to plaintiff the sum of $50 per month for the support of each of their minor children, to pay medical and dental care, clothing expenses and to maintain an educational insurance policy. The provisions of the agreement which are now in dispute and which this court has been called upon to interpret in substance provided the following:
The husband agrees to convey to his wife an undivided one-half interest in a two-story business building at 227-229 West Main Street, Ottawa, Illinois. Concurrently therewith she is to assign to him all of the rent and income from this business building, and the right to rent and manage it.
The husband agrees to pay the wife $100 a month for her support and maintenance for and during her lifetime, or until she remarries, or until the further order of the Circuit Court of LaSalle County, Illinois. It is recited that this is in consideration of her assignment to him of the rentals and right to manage the business building located at 227-229 West Main Street, Ottawa, Illinois.
The parties agree not to sell the business property without the consent of both. If both fail to agree to sell the property then either may apply to the Circuit Court for an Order of Sale, and the proceeds of the sale are to be divided between them.
In the divorce decree the trial court made the following findings of fact in relation to the property settlement agreement:
"The court further finds that the parties hereto have entered into a property settlement agreement which has been admitted in evidence in this cause; that each of the parties hereto have been fully advised by their respective counsel as to their property rights; that said property settlement agreement so entered into between the parties hereto, as aforesaid, is in all respects fair and equitable and should be approved;"
In the second ordering clause of the decree with reference to the property settlement agreement, the court decreed the following:
"It is further ordered, adjudged and decreed by the court that said property settlement agreement, heretofore entered into between the parties hereto be, and the same is hereby approved, and that certain provisions thereof be and they are hereby made a lien against certain of said defendant's property in accordance with said property settlement agreement, heretofore entered into by and between the parties hereto."
In the instant case, the trial court after a hearing on petition for increase in payments for support and maintenance entered its order increasing the amount of support payments to $140 per month and held that the original payments in the amount of $100 per month provided for in the property settlement agreement were in consideration of plaintiff releasing her rights to the business property, and were strictly limited to the net rentals received from the business property, and further held and ordered that the payments of $140 per month were to be paid from the net rentals from said business property commencing on the 18th day of April, 1958, and continuing each and every month thereafter until the death of the plaintiff, or her remarriage, or the sale of said real estate or until the further order of the court.
On the hearing the trial court refused to hear any evidence concerning any change in circumstances or conditions of the parties since the entry of the original divorce decree or to hear any evidence about defendant's other property or income, but limited the evidence and its consideration to the income from the business property.
Plaintiff contends that the trial court erred in limiting her right to receive support payments or alimony from the defendant to the net rentals received from the business property, and in refusing to admit evidence in regard to any changed conditions and circumstances since the entry of the original divorce decree.
Defendant argues that the property settlement agreement was in full settlement and satisfaction of all claims for alimony and that in fact no provision was made for alimony payments in the divorce decree, and further contends that said property settlement agreement limited the plaintiff's right to ...