Appeal from the Circuit Court of Cook County, County
Department, Divorce Division; the Hon. NATHAN M. COHEN, Judge,
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant filed a petition under section 72 of the Civil Practice Act for relief from a divorce decree, which he alleged contained a "mutual mistake." After an extended hearing, the trial court denied relief, and defendant appeals.
The decree was entered April 30, 1962. The petition was filed on July 30, 1963, in the original divorce action. It alleges that a written agreement of the parties, included in and made a part of the divorce decree, contained erroneous language, i.e., "That said mutual mistake consisted of using the words `the husband will pay all extraordinary medical, dental and hospital bills incurred by the wife and said minor children,' in said written agreement to express the intention and meaning of said parties as to the payment by your petitioner of extraordinary medical, dental and hospital bills incurred by the plaintiff, instead of words and language of the following tenor and import, to-wit: `the husband will pay all extraordinary medical, dental and hospital bills incurred by the wife for said minor children." (Emphasis supplied.)
The trial court heard witnesses for both sides. The exhibits included: (1) the divorce decree entered by the court, which bears the approval of both parties and their attorneys, and included a "Memorandum of Agreement" and a written "Agreement," both documents signed by the parties and dated February 15, 1962; (2) the "Report of Proceedings had at the hearing" of the cause, heard on stipulation of the noncontested divorce action on April 6, 1962; and (3) various copies of the written agreement used by the parties during their negotiations, and correspondence between the attorneys.
In the order denying the petition, the court made a number of findings, which included:
"2. That said decree for divorce incorporated a certain property settlement agreement, which was designated as Exhibit `A' containing pages designated as A through H inclusive; that said decree was duly approved in writing by all of the parties to this action and their respective attorneys.
"3. That on April 2, 1962, at the prove-up hearing, plaintiff was directly interrogated in the presence of the court and all counsel of record with respect to paragraph 13 of Exhibit `A,' which interrogation appears on page 8 of the Report of Proceedings.
"4. That the terms of the Divorce Decree are clear and concise.
"5. That the demeanor while on the witness stand and the reasonableness of her testimony compels the conclusion that MURIEL GROAK testified truthfully and that the evidence offered in her behalf must preponderate.
"6. That petitioner, ADDISON GROAK, has failed to respond to the Notice to Admit Facts heretofore served upon him on November 7, 1963, and said facts are deemed to be admitted as true.
"7. That petitioner, ADDISON GROAK, has not sustained the allegations of his petition by the requisite degree of proof and is not entitled to the relief sought."
On appeal, petitioner contends: "(1) The finding of the trial court that the petitioner did not sustain the allegations of his petition by the requisite degree of proof is clearly against the weight of the evidence and was occasioned by the trial court's capricious disbelief of an unimpeached, disinterested witness whose testimony one of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth. (2) The trial court erred in refusing to permit the petitioner to give parol evidence concerning the terms of the separation agreement."
Upon proper grounds, relief from a final divorce decree after 30 days from the entry thereof may be had upon petition, as provided in section 72 of the Civil Practice Act. (Collins v. Collins, 14 Ill.2d 178, 151 N.E.2d 813 (1958); Van Dam v. Van Dam, 21 Ill.2d 212, 171 N.E.2d 594 (1961); Plavec v. Plavec, 30 Ill. App.2d 345, 348, 174 N.E.2d 578 (1961).) We believe a proper ground for relief to be a divorce decree which incorporates a written agreement which fails to express the real intention of the parties "through mutual mistake, or through mistake of one side and fraud on the other," and "where the proof clearly and convincingly shows that a mistake was made, and that it was mutual and common to both parties." Harley v. Magnolia Petroleum Co., 378 Ill. 19, 27, 28, 37 N.E.2d 760 (1941).
Defendant-petitioner's principal witness was the former attorney for plaintiff-respondent. The trial court sustained an objection to the testimony of this witness as to conversations between him and his client on the ground of attorney-client privilege. An offer of proof was made, and ...