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Jacobson v. Jacobson

JUNE 23, 1964.




Appeal from the Superior Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. Orders affirmed. MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.

Rehearing denied August 3, 1964.

A decree of divorce entered in the Superior Court of Cook County on August 18, 1960 contained the following provision which is the basis of this appeal:

"The Court further finds that the parties have entered into a settlement agreement subject to the approval of this Court, as follows:

"1. Defendant shall pay to the plaintiff the sum of $15,000 as a lump sum settlement in lieu of all alimony, support, dower, property rights, rights of inheritance, and all other such rights, payable as follows:

$4,000 upon the entry of this Decree; $1,750 on June 1, 1961; $1,750 on December 1, 1961; $1,750 on June 1, 1962; $1,750 on December 1, 1962; $2,000 on June 1, 1963; and a final installment of $2,000 on December 1, 1963.

"The said payments shall be paid to the plaintiff without contingency of any kind, and shall abate for no reason whatever, and shall expressly be payable notwithstanding her remarriage or the death of the defendant; but, in the event of the prior death of the plaintiff before the said total sum shall have been fully paid, the unpaid installments, as they become due, shall be paid by the defendant to the aforesaid two minor children of the parties hereto, or, in the alternative, shall be deposited in individual bank accounts for the said two minor children."

The issue is whether defendant's obligation to pay the $15,000 specified in the decree is a settlement in lieu of alimony (sometimes called alimony in gross) or ordinary alimony. All the payments due and accruing to plaintiff Delores Jacobson under the decree prior to December 1, 1962 have been paid to her by defendant Stanley Jacobson. At some date prior to December 1, 1962 plaintiff was remarried and is now known as Delores Jacobson Phillips.

On December 10, 1962 defendant filed a petition in the Superior Court of Cook County wherein he alleged the remarriage of plaintiff and requested that he be absolved from making further payments to her. Plaintiff filed an answer to defendant's petition. In a subsequent pleading defendant prayed that an order be entered directing him to pay to the two minor children of the parties the future installments due and accruing under the aforesaid decretal provision. Plaintiff then filed a petition seeking an allowance of attorney's fees relative to the post-decree proceeding, to which defendant filed an answer.

On February 1, 1963 the chancellor filed a memorandum decision denying both defendant's petition and plaintiff's counterpetition, and on February 6, 1963 he entered a formal order to that effect. Both parties moved for a reconsideration of the order; on March 12, 1963 the chancellor denied defendant's motion but allowed plaintiff's motion and awarded to her the sum of $850 for attorney's fees. Subsequent to defendant's perfecting his appeal from the aforesaid orders, plaintiff filed her petition asking for an award of additional attorney's fees and costs to cover legal services and expenditures relative to the defense of the appeal. On April 26, 1963 the chancellor entered an order awarding to plaintiff the additional sum of $800 attorney's fees plus $200 for appeal costs. Defendant took a separate appeal from this latter order. The two appeals have been consolidated, pursuant to order of this court.

Both parties agree that their rights are to be resolved by an interpretation of section 19 of the Divorce Act (Ill Rev Stats 1963, c 40), the relevant sentence of which provides:

"A party shall not be entitled to alimony and maintenance after remarriage; but, regardless of remarriage by such party or death of either party, such party shall be entitled to receive the unpaid instalments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree. . . ."

The problem lies in defining what constitutes a "settlement in lieu of alimony." The method of payment, as well as the terms and labels used by the parties and those used in the decree, is not conclusive in determining the nature of the settlement. As the court in Walters v. Walters, 341 Ill. App. 561, 574, 94 N.E.2d 726 (1950), affd 409 Ill. 298, 99 N.E.2d 342 (1951), said:

"It is not the label placed by decree upon payments which constitutes them either alimony or lump sum property settlements; it is the elements inherent in the case as a whole, the record of which the decree is a part, which determine to what category such payments belong."

See also: Notes, Lump Sum Settlement in Lieu of Alimony and Effect of Remarriage Thereon, 45 Ill L Rev 803 (1950-1951). The problem is a factual one — whether the payments stem from the natural and legal duty of a husband to support his wife or from the legal and equitable interests the wife may have in property accumulated by the parties during ...

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