Appeal from the Superior Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding. Orders reversed and cause
remanded with directions.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Two Superior Court cases are involved in this appeal and are being considered jointly because of their consolidation by Judge Dieringer, divorce case No. 57 S 965 and personal injury suit No. 56 S 1947.
On November 14, 1955 Mildred Henley (n/k/a Mildred Henley Wobschall), the then wife of Earl Henley, was involved in an automobile accident, and as a result thereof she filed suit against John P. Houck, Detroit-Pittsburgh Motor Freight Corporation, and a third party who was subsequently dismissed as a defendant. On January 21, 1957, while the personal injury suit was pending, Mildred Henley instituted suit for divorce against her husband. A stipulation was filed to have it heard as a default matter, and the case was assigned to Judge Adesko. At the hearing plaintiff testified that she had read and understood the property settlement agreement entered into between the parties. She also testified that subsequent to the execution of the said agreement she had consented to accept, in lieu of alimony, an additional $500 from the proceeds of her personal injury suit. She expressly waived alimony in open court. The property settlement agreement was admitted in evidence as plaintiff's exhibit No. 1. In response to the court's questions, her attorney stated that plaintiff was to receive $500 in cash in lieu of alimony at the time of the signing of the decree; that in consequence of a pending personal injury suit which she had brought as the result of having been injured in an accident, she and Earl Henley had agreed that each would take one-third of any amount she might recover, inasmuch as he had already paid out a considerable amount of money to cover her medical bills and provided that he would continue to pay all the medical bills arising from the accident, leaving one-third of the amount for the attorneys; and that out of his one-third defendant was to pay an additional $500 to plaintiff.
On May 1, 1957 Judge Adesko entered a decree for divorce which recited the material portions of the parties' agreement and specifically ordered, adjudged, and decreed "that the Plaintiff agrees to assign and pay over to the Defendant, one-third of the gross amount collected by suit, settlement or otherwise," from her claim for personal injuries.
On May 2, 1957, in accordance with the terms of the divorce decree, Mildred Henley executed and delivered to Earl Henley an instrument entitled "Assignment." She did not object to signing the agreement to assign one-third of the proceeds to Earl Henley nor did she appeal from Judge Adesko's order providing for the assignment. Her second marriage was made possible by the divorce decree which she had sought and obtained, and she accepted other benefits of the decree, including the assumption by Earl Henley of the mortgage on their home, the award of all the household furniture and equipment, payment of her medical and hospital expenses, as well as an award to her of $500 in lieu of alimony at the time of the signing of the divorce decree all in consideration of the agreement to which she had expressly consented in open court. At no time did she appeal from the decree of 1957, but five years later, in 1962, she sought to attack its validity collaterally in the personal injury suit. Under the established rule in this state she is estopped from doing so. In McDonald v. Neale, 35 Ill. App.2d 140, 182 N.E.2d 366 (1962), the wife, who like plaintiff here had entered into a subsequent marriage, more than eleven years after the entry of a divorce decree, challenged its validity, especially with reference to the property settlement. The court held (150, 151) that plaintiff, in remarrying in reliance on the validity of the divorce decree, had accepted its benefit and was therefore estopped from attacking it. "This rule of estoppel," said the court (151), "has been followed repeatedly by courts of this and many other states," and, after citing authorities, it continued:
"Petitioner accepted the proceeds of the property settlement and put them to her own use. As respondent had died when petitioner filed her claim, no question of her status as a wife is involved. All she seeks is an additional portion of respondent's assets. Petitioner remarried in 1956 thereby relying upon and asserting the validity of the divorce decree. Her second marriage continued to exist in all respects at the time she filed this petition in 1958. She had not annulled it, nor had she disavowed it in any way at any time other than in the instant suit which was filed solely for the purpose of obtaining part of respondent's estate. The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights as petitioner has here attempted. . . ."
In an earlier case, Guelzo v. Guelzo, 292 Ill. App. 151, 10 N.E.2d 881 (1937), plaintiff, approximately a year after a decree of divorce was entered, sought to have it vacated on the ground that there was a lack of evidence that she was a resident of the State of Illinois for the required statutory period, but the court held as follows (156):
"The decree was entered on June 5, 1935, which provided for the payment of the amount of alimony which had been agreed upon, and this court has a right to assume that the $50 per week alimony has been received by the plaintiff, for the reason that there is no complaint in her petition, nor does her testimony show that the amount agreed upon was not received by her during this time. By the acceptance of the benefits provided for in the decree the petitioner is estopped by her acts from the relief prayed for in her petition."
It was Mildred Henley's contention in the suit pending before Judge Dieringer that the assignment of part of the proceeds of the personal injury suit to Earl Henley was void as against public policy. We need not pass upon this contention since we hold that by accepting the benefits of the decree she is estopped from thereafter attacking its validity.
Mildred Henley's personal injury action came on for trial before Judge Dieringer and a jury. On October 19, 1962 the jury returned a verdict in her favor in the amount of $50,000, on which Judge Dieringer entered judgment. A post-trial motion was filed, and thereafter, on January 2, 1963, by agreement between the parties in the personal injury suit, the judgment was reduced by remittitur to $45,000.
On November 19, 1962 Earl Henley, believing that Mildred Henley would not abide by the terms of the divorce decree, sought the enforcement thereof under Rule 12.4(c) of the Uniform Rules for the Circuit Court and Superior Court of Cook County. He obtained an injunction from Judge Hershenson, the divorce court motion judge, without notice and without bond, restraining the American Casualty Company, the insurance carrier of defendant in the personal injury case, and John P. Carlin and John G. Phillips, attorneys for Mildred Henley in her personal injury suit, from paying out any monies to Mildred Henley on the judgment she obtained in the personal injury suit.
On December 11, 1962 Mildred Henley, John P. Carlin, and John G. Phillips filed a motion before Judge Cohen (then sitting in the place and stead of Judge Hershenson) to dissolve the injunction. On December 20, 1962 the insurance carrier filed its motion before Judge Cohen to dissolve the injunction as to it on the ground that it wished to satisfy the judgment in the personal injury case in open court. On January 2, 1963 Judge Cohen entered an order which found that the decree for divorce was valid and that its provisions should be enforced. His order provided that the insurance carrier was to pay over to the clerk of the court $45,000 in full satisfaction of the judgment, and that the clerk was to distribute the sum as follows:
a) $19,643.04 to John G. Phillips and John P. Carlin in satisfaction of their ...