Appeal from the Superior Court of Cook County; the Hon. JOHN
J. LUPE, Judge, presiding. Gen. No. 49,250. Judgment affirmed.
Hon. WILLIAM V. DALY, Judge, presiding. Gen. No. 49,271. Judgment
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Plaintiff, Mae Stritar, on August 8, 1962, filed two separate suits against her husband, Dr. Joseph E. Stritar, in the Superior Court of Cook County, one for divorce and the other for partition of jointly owned real estate. The actions proceeded separately to conclusion. Two appeals by the defendant husband were consolidated here. He seeks, in one, to vacate the divorce decree, and in the other, to reduce the partition suit attorneys' fees. For convenience and clarity, the appeals are disposed of separately.
In the divorce action, plaintiff alleged desertion by defendant on April 11, 1961. On August 15, 1962, by agreement, an order was entered allowing plaintiff $125 per week as temporary alimony and $2,500 to Louis Jaffe, her attorney, as temporary solicitor's fees. On September 4, 1962, defendant answered, denying desertion by him and charging plaintiff with desertion.
On September 24, 1962, new counsel was substituted of record for defendant, and the parties commenced negotiations which resulted in a settlement agreement dated October 12, 1962. The agreement provided for the disposition of the divorce and partition suits. The divorce action was to be heard on complaint and answer as a default matter. The agreement further provided that the defendant should deposit in escrow the attorneys' fees fixed by the court in the divorce case, including an amount for his attorney, Eugene C. Jach, equal to all the fees fixed for Louis Jaffe, plaintiff's attorney.
At the divorce hearing on November 8, 1962, Louis Jaffe appeared for plaintiff, and Eugene C. Jach appeared for defendant. The evidence includes the testimony of plaintiff and a corroborating witness. Plaintiff was cross-examined. The property settlement agreement was introduced into evidence, and a discussion was had between court and counsel about attorneys' fees. Counsel for defendant called the court's attention to the terms of the agreement in evidence that he was to be paid a sum equal to that of plaintiff's attorney, and the chancellor indicated approval.
The divorce decree was entered November 15, 1962, on the ground of defendant's desertion. The decree found defendant was a physician with an income of $26,000 to $30,000 a year. The property settlement agreement was found to be fair and reasonable and was incorporated in the decree. A total fee of $5,000 was ordered paid by defendant to plaintiff's counsel, and the same fee to defendant's attorney. It was further found that plaintiff and defendant owned jointly their Homewood residence, a vacant lot in Flossmoor, and a half interest in a medical building in Homewood. Defendant was decreed to be the sole owner of the three parcels of real estate and was directed to execute and deliver to plaintiff purchase money mortgages totaling $25,500, secured by the residence and vacant lot. The decree ordered permanent alimony payments of $100 per week for 17 weeks and $125 a week thereafter, and the court retained jurisdiction until the terms of the decree had been fully performed.
On December 14, 1962, an order was entered granting leave to defendant to file his petition to vacate the divorce decree and to substitute new counsel of record, his instant attorneys. Leave to answer the petition was granted to plaintiff and to respondent, Eugene C. Jach, defendant's former attorney.
The petition of defendant to vacate the decree of divorce alleges, in substance, (1) that he was not properly represented at the preliminary hearing on temporary allowances by his original attorneys, and that he was importuned to retain his second attorney by an office associate; (2) that plaintiff was guilty of desertion and not defendant, and that he was at all times a faithful and proper husband, and had forgiven numerous acts which would have given defendant the right to secure a divorce; and (3) that when he signed the property settlement, including the provision that the divorce action be heard as a default matter, he "did not realize the implications thereof and that the divorce might be invalid as a fraud on the court; and that if, by agreeing to a default hearing, it might be charged that he aided and abetted the securing of a fraudulent divorce, that he now wishes to purge himself thereof and hereby seeks to do so."
The petition further states that the answer filed by his first attorney set forth the true facts, and that he informed his second attorney of such facts; that his earnings and financial status were misrepresented, and the fees allowed the attorneys were exorbitant and unjust and the alimony allowance is inequitable and unreasonable. The prayer of the petition is that the divorce and partition suits be consolidated, and that the divorce decree be set aside and plaintiff's complaint be dismissed without costs, and no fees allowed to any attorney of record, or, in the alternative, (1) fix a reasonable fee for plaintiff's attorney; (2) fix no fee for Eugene C. Jach, defendant's former attorney; and (3) "reduce said alimony payments to a just and reasonable amount."
Both plaintiff and defendant's former attorney, Jach, filed detailed answers to defendant's petition to vacate. Plaintiff denied all of the allegations of defendant's petition and alleged that she had numerous other grounds to obtain a divorce, such as cruelty. The answer of Eugene C. Jach alleged that defendant was fully informed at all stages of the negotiations and proceedings, and it was determined that it was to the best interest of defendant "to work out a favorable property settlement agreement between the parties and to interpose no defense to the complaint in the form of testimony."
On March 15, 1963, defendant was granted a full and extended hearing on his petition to vacate. He was questioned at length by the court and then by Mr. Jach, his former attorney. Defendant stated that he was 60 years old, a medical doctor and a Ph.D. The agreement had been left with him for a full week, and he read it two or three times. He understood its financial aspects, although he denied knowing that equal fees were to be paid by him to the attorneys for both sides. He was told by Mr. Jach that if he chose to contest the action he could have won, but after discussing the extent and cost of the prospective litigation, he decided to enter into the agreement.
The chancellor refused to permit defendant "to put in some more testimony to show the actual state of the divorce here," because "we have gone thoroughly into the surrounding circumstances."
In considering the merits of this appeal, we note, initially, that on a motion filed within 30 days after the entry of a judgment, the decision to vacate or modify lies within the sound discretion of the trial court. It is only where there has been an abuse of discretion that a reviewing court ...