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Nogle v. Nogle

DECEMBER 1, 1964.

KERMIT

v.

NOGLE, PLAINTIFF-APPELLEE,

v.

RUTH M. NOGLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding. Order affirmed.

SPIVEY, J.

The Circuit Court of Champaign County, on plaintiff's motion, dismissed with prejudice defendant's amended petition to vacate and set aside a divorce decree.

A decree of divorce was granted plaintiff-appellee, Kermit V. Nogle, on February 8, 1960, on the ground that defendant-appellant wilfully deserted plaintiff without reasonable cause for a period of more than one year prior to the filing of the complaint.

A written agreement dated February 5, 1960, was entered into by and between the parties determining their property rights, custody of children and support and maintenance. This settlement agreement was incorporated in the decree.

The pleadings previously filed in this cause are of importance. Courts take judicial notice of their own records and facts established therein. Borin v. Borin, 335 Ill. App. 450, 82 N.E.2d 70; City of East St. Louis v. Touchette, 14 Ill.2d 243, 150 N.E.2d 178.

On September 16, 1962, (two years and five months after entry of the decree) defendant petitioned the court for a modification of the decree, alleging in part that the alimony and support payments were grossly inadequate and should be increased because of a change of circumstances.

In this same petition, defendant stated that she was informed and believed that at the time of the divorce negotiations plaintiff deliberately or inadvertently concealed his true assets and income from her.

On September 17, following a hearing on the petition to modify the decree, leave was asked and granted defendant to file an amended petition. The amended petition, filed on September 24, 1963 (three years and seven months after entry of the decree), amounted to a petition to vacate and set aside the decree and for other relief under Section 72 of the Civil Practice Act (Ill Rev Stats c 110, § 72). In the main it alleged that plaintiff fraudulently concealed his true worth at the time of the negotiations which culminated in the settlement agreement. This petition was devoid of any allegations that following entry of the decree incorporating the settlement agreement defendant was under legal disability or duress or the ground for relief was fraudulently concealed.

On October 31, 1963, on plaintiff's motion, the Court dismissed defendant's amended petition to vacate the decree. Among the grounds urged in support of plaintiff's motion to dismiss was the assertion that the cause of action was barred by the two-year limitation period provided in Section 72 of the Civil Practice Act and that the amended petition set forth no facts to toll the running of the limitation period.

Upon further leave asked and granted, defendant filed on December 24, 1963 (three years and nine months after the entry of the decree) another amended petition under Section 72 of the Civil Practice Act, which petition alleged that she had been falsely advised in the negotiations for the settlement agreement. Additionally, it set forth certain acts and conclusions of fraudulent concealment of the grounds for relief.

A hearing was had upon this amended petition on March 24, 1964, and on April 14, 1964, on plaintiff's motion the court dismissed with prejudice defendant's amended petition to vacate and set aside the decree of divorce.

Defendant contends on appeal that the court erred in dismissing the amended petition of December 24, 1963, and states that she alleged therein a cause of action entitling her to the relief prayed or at least some part of it. She also urges that the settlement agreement was void in that it was conditioned expressly upon obtaining a divorce, was a stimulus to divorce, was grossly insufficient, was tainted by fraud, and was the result of a breach of a fiduciary relationship.

The parties were living separate and apart, prior to their execution of the settlement agreement. The record further discloses that the defendant had deserted the plaintiff for a period of time in excess of a year, that negotiations for a separation and settlement agreement had been carried on, and that upon arriving at a tentative agreement some five weeks before the entry of the decree of divorce plaintiff's counsel referred her to another well-known and able attorney to represent her in the divorce proceedings and the settlement agreement.

The record also indicates that since February of 1958, indeed as late as the morning of the hearing on the complaint and answer, plaintiff had attempted to effect a ...


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