Appeal from the Superior Court of Cook County; the Hon. JOSEPH
A. POPE, Judge, presiding. Reversed and remanded with directions.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Defendant appeals from two orders entered April 19 and April 26, 1961 which, in combination, entered judgment against him for $14,100 in favor of plaintiff, his former wife, on the basis of a divorce decree which had been entered on June 26, 1933, requiring defendant to pay to plaintiff $15 weekly "for the maintenance of herself and her two minor children." The judgments were entered, after hearing, on petition and answer, but without the taking of evidence, and were based on $15 per week from decree to date of judgment, less credit for payments made.
In the original divorce proceedings defendant had been personally served with summons, but failed to appear, and default was entered. Evidence was heard and decree was entered as outlined above.
Plaintiff's petition, filed December 14, 1960, alleges that defendant made payments in varying amounts, and with periodic omissions, until July 15, 1954, after which date no payments were made. This is conceded by defendant, but in his answer he raises alternative defenses against further payment.
First, defendant contends, in effect, that he and plaintiff had agreed, prior to the divorce, that he would pay $15 per week for child support and that she would waive alimony; that at the default divorce hearing plaintiff testified concerning this agreement, as appears from the transcript of evidence; that the words of the decree directing payments for maintenance of herself as well as of the children, were inserted by plaintiff in contravention of the agreement between the parties; that the decree should, therefore, be corrected to conform to the agreement; that plaintiff never having been entitled to any alimony, all payments made by defendant should, therefore, have been credited to child support; that the obligation to support the two children terminated as each reached majority; and that, on this basis, defendant is not in arrears as to any payments required of him by the decree.
In this position, defendant places reliance on the certificate of evidence which shows that plaintiff gave an affirmative answer to a question put to her by her attorney as follows:
"Have you entered into a settlement of agreement with your husband whereby he is to pay you $15.00 per week for the support and maintenance of the two children, Laverne Elizabeth and Carol Ann until the court sees fit to enter an order after the signing of the decree?"
Assuming that this testimony did correctly state the agreement of the parties, it was only one of the matters which would properly be taken into consideration by the chancellor in the exercise of his discretion in the matter of family maintenance. As stated by this court in Cahill v. Cahill, 316 Ill. App. 324, at pages 331-332, 45 N.E.2d 69, "The court is not controlled by the private agreement of the parties respecting alimony and may adopt it or reject it, as seems consistent and proper from the situation of the parties as disclosed by the evidence. (Herrick v. Herrick, 319 Ill. 146, . . . .)" Similar language descriptive of the court's discretion is to be found in the statute. (Ill Rev Stats, c 40, § 19.)
In further attempt to establish waiver of alimony, defendant contends that the inclusion of words in the decree contrary to the agreement of the parties, constituted a fraud which the court could rectify by treating defendant's answer to plaintiff's petition as a proceeding under Section 72 of the Practice Act (Ill Rev Stats, c 110, § 72). We consider defendant's allegations insufficient to establish fraud, but, in any event, the charge comes too late. It is true, as argued by defendant, that the two-year limitation of Section 72 is tolled during fraudulent concealment. The pleadings show, however, that defendant had knowledge of the terms of the decree at least as early as 1947, for in that year, pursuant to the alternate theory of the decree's requirements which he now advances, he discontinued all payment for child support, but continued paying $5 to plaintiff.
We shall, therefore, concern ourselves not with modification of the decree, but only with its interpretation and enforcement.
Defendant's alternate contention is that, since the decree did not divide the $15 payments among the wife and two children, the proper construction would be to allocate $5 to each; that, by such an interpretation, the size of the payments would properly have been reduced by $5 as each of the two children reached majority, requiring payments of only $5 for weekly alimony thereafter.
The pleadings disclose no special circumstances which would extend defendant's obligation to support his children into their majority. *fn1 (Ill Rev Stats, c 23, § 112.) We conclude, therefore, that defendant's obligation to support his daughters, Laverne and Carol, terminated on November 15, 1938, and June 15, 1947, respectively, the dates of their eighteenth birthdays.
The problem remains, however, as to whether proper reading of the decree permits the dividing of the $15 obligation into three equal parts, and permits the automatic reduction of the payments (without application to the court) by the amounts allocable to child support as the girls became emancipated. The pleadings disclose that this is what happened. After Laverne became eighteen and was married, defendant reduced his payments to $10 per week until June 15, 1947 (Carol's majority), when he reduced them further to $5 per week and continued at that rate until July, 1954, when he claims to have made a final settlement of alimony.
We are aware of the proposition, urged upon us by plaintiff, that past-due alimony becomes vested, and that relief from an alimony decree can be obtained only prospectively, on application for modification based upon equitable circumstances. (Craig v. Craig, 163 Ill. 176, 45 N.E. 153 and numerous cases since.) In the ...