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Newman v. Newman

JUNE 12, 1963.




Appeal from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Trial Judge, presiding. Reversed.


Rehearing denied July 31, 1963.

Plaintiff, Marshall Newman, appeals from an order modifying a divorce decree and granting permanent alimony to his former wife, Elaine Newman, defendant herein.

In February 1959, after four years of marriage and the birth of one child, the parties were divorced. Both parties were represented by counsel at all stages in the proceeding, and the case was heard as a default matter. Plaintiff testified to acts of physical violence by defendant, and he was cross-examined by defendant's counsel. Corroborative testimony was received. At no point in the proceeding was there raised any question with respect to defendant's mental capacity or competence, and at the time of the entry of the divorce decree, defendant had not been declared incompetent by any court.

The decree of divorce awarded custody of the minor child to plaintiff, and incorporated the provisions of a "property settlement agreement" which had been executed by the parties on November 3, 1958.

The "property settlement agreement" provided that plaintiff was to pay to defendant, "as and for her support and maintenance," specified weekly sums (totaling $17,030), over a period of three years commencing December 1, 1958. The agreement further provided that the payments were to cease when fully made "or upon the date of death of the Wife or her remarriage, whichever date shall first occur." The agreement also contained a "release" by defendant, whereby she agreed to relinquish "all claims whatsoever upon the Husband for alimony, support and maintenance, under the laws of the State of Illinois, . . . except the right to demand performance of all the undertakings of the Husband contained in this Agreement." The divorce decree approved and adopted the terms of this agreement, and further decreed that both parties were "forever barred from asserting any rights to dower, courtesy [sic] or alimony against each other, except as provided in the said property settlement agreement."

The decree was entered on February 6, 1959. On May 26, 1959, defendant was adjudged an incompetent, and her brother was appointed her conservator by the Probate Court. On September 18, 1959, defendant's next friend filed a petition asking for leave of court to appear as next friend for defendant, for the purpose of filing a petition on her behalf to vacate the decree of divorce. Plaintiff's motion to strike the petition of the next friend was referred to a master in chancery for hearing and recommendations.

On March 1, 1960, an order was entered giving leave to defendant's next friend to appear for her and to present her petition. The petition, filed pursuant to section 72 of the Civil Practice Act, alleged, in substance, that by reason of mental incapacity, defendant was incapable of exercising sufficient judgment to consent to the entry of the divorce decree or to agree to the property settlement, and thereby "was deprived of the opportunity to defend the suit for divorce." Defendant's petition alleged various instances of hospitalization and psychiatric treatment extending over the period from January 1955 to February 1959, and referred to suicide attempts and insulin shock treatments administered. Finally, the petition alleged that had defendant not been mentally disabled, she would have been able to interpose a meritorious defense to the divorce action, by proving herself not guilty of the acts of cruelty charged as grounds for the divorce. Plaintiff's answer denied a number of the factual allegations in the petition and alleged, in effect, that at all times relevant defendant had been competent.

On November 28, 1960, defendant's next friend filed a new petition, alleging that the petition to vacate the divorce decree, which had been referred to a master in chancery, was still pending and undetermined; that "said proceeding is fraught with many uncertainties and will involve considerable expense and certain principal witnesses required to support the said petition to vacate the decree herein are expect to be hostile to the incompetent." It was further stated that "a proposal of settlement has been made [by plaintiff] which, in view of all circumstances, petitioner believes to be the best in the interest of the incompetent defendant that can be obtained," and that upon filing of a petition for instructions to the Probate Court in the matter of the estate of the incompetent defendant, the Probate Court had entered an order on October 26, 1960, "instructing the next friend petitioner herein to proceed with such acts as may be necessary and proper to effectuate the settlement aforesaid and to petition this court to amend the said decree of divorce so as to adopt and approve the aforesaid settlement."

On November 28, 1960, the Circuit Court entered an order modifying the original decree of divorce, by incorporating therein the terms of the settlement offered by plaintiff and approved by the Probate Court on behalf of the incompetent defendant.

In its order modifying the decree, the Circuit Court expressly found that "a serious controversy existed as to the validity of said decree for divorce, which controversy would be protracted and expensive to both parties and fraught with difficulties, and that it is in the best interests of the Incompetent Defendant, the Plaintiff, and the minor child herein that the said settlement proposal be approved by this Court, and the Court finds that the said settlement is fair, equitable and just."

The modification order decreed that plaintiff pay to the incompetent defendant "the further sum of . . . $13,250, in addition to such amounts already paid in performance of the original decree herein," this sum to be payable in weekly installments of $25 for the period of 10 years and 10 weeks commencing the Monday next following entry of the modified decree. In addition, the $13,250 was made a charge against the estate of plaintiff in the event of his death prior to full satisfaction, and was further made non-defeasible by the death or remarriage of defendant.

On June 12, 1962, defendant filed a new petition, thereby commencing the instant proceeding. This petition alleged that, as she had "had her civil rights restored," and as she was no longer institutionalized, her financial needs had greatly increased. It was further alleged that plaintiff's income had increased since the entry of the modified decree, and that he was able to make "more adequate" provisions for defendant's needs. The petition referred to the $25 weekly payments provided for in the modified decree as "alimony" and prayed that "the Decree of Divorce herein and its modifying order be further modified" to require that plaintiff pay defendant an increased sum per week. Defendant's petition did not question the validity of the modifying order which incorporated the settlement accepted in her behalf by her next friend; she merely asked that these payments be increased to take account of her changed circumstances now that she was no longer an incompetent. Plaintiff answered and denied that court's jurisdiction to modify the decree again, on the ground that the decree provided for a property settlement in lieu of alimony.

Proceeding on the pleadings and record alone, the trial court held (1) that the modification of the decree was of no effect, since "the Probate Court has no jurisdiction here," and (2) that the original decree provided for alimony and not for a property settlement, and to that extent it was therefore modifiable. After hearing testimony as to the financial status of both plaintiff and defendant, the court entered an order modifying the decree by requiring plaintiff ...

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