Appeal from the Circuit Court of Cook County; the Hon. FRED W.
SLATER, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Plaintiff appeals from that part of an order construing the portion of a divorce decree which provides that defendant pay as support for his two minor children "the sum of $145 per month or 25% of his net income after taxes."
In April 1965, three years after the entry of the decree, plaintiff filed a petition requesting that the defendant be ordered to produce certain financial books and records for the purpose of determining the amount by which 25% of his net income exceeded the sum of $145 per month for the years 1962 through 1964 and alleging that defendant had failed to comply with an agreed court order entered on December 10, 1964, that he render an accounting of his income for that period. Defendant moved to strike the petition on the ground that under the aforesaid provision he had the option of paying and had paid the lesser of $145 per month or 25% of his net income. Plaintiff filed an answer to the motion to strike and contended that under the provision the defendant was obligated to pay the greater of the aforesaid amounts. The trial court found that the defendant had the option of paying $145 per month or 25% of his net income; and that having paid the former, defendant need not account for or furnish information as to his income. In this appeal plaintiff contends that the provision is ambiguous and should be construed so as to require the defendant to pay for child support the sum of $145 per month or 25% of his net income after taxes, whichever is larger.
The evidence discloses the following:
Plaintiff and defendant were married on September 6, 1947, and were separated on August 11, 1961. Two daughters were born of the marriage. The parties were represented by counsel: plaintiff by her uncle (Frank Goldberg), and defendant by a family friend (Max Rittenberg). With the advice and consent of their respective clients these attorneys carried on negotiations with regard to effectuating a settlement of various rights and obligations including that of child support payments. In October 1961 counsel for the plaintiff received a memorandum of defendant's proposal for child support which provided as follows: "minimum $50 a week for both, based on $10,000 a year income gross (each year to date from Decree) and percentage of increase on some formula, with a maximum." Upon receipt of this memorandum, counsel for the plaintiff countered with the proposal that the $50 a week minimum should be based upon a $10,000 a year net income before income taxes with an additional 15% of income from $10,000 to $15,000 and an additional 10% of income from $15,000 to $20,000, with no further additional amounts due on income of over $20,000. After numerous conferences between counsel, the attorney for plaintiff was notified that defendant had agreed to the terms set forth in the aforesaid counter-proposal with the exception that he should pay, on net income of $10,000, a minimum of $25 per week for each child instead of $50 per week for both.
Shortly after the aforesaid series of exchanges the parties had a "blow-up," both attorneys withdrew from the case because of their relationship to the parties and other counsel were engaged. Subsequently a complaint for divorce was filed by the plaintiff but negotiations and discussions continued between the parties and their new counsel regarding settlement of the case. Finally, during a hearing before Judge Canel on a motion for temporary support, a settlement was reached. Counsel for the plaintiff, Stanton Ehrlich, was instructed by the court to prepare a decree "in conformity with that settlement."
Stanton Ehrlich testified in support of plaintiff's interpretation of the provision in question and stated that:
My understanding with reference to whether there was any minimum specified was that the figure that was named was the minimal figure for child support, and that the percentage figure was to have applied when the defendant had income from whatever sources against which the percentage figure could apply, but in no event would it be a lesser figure than the $145 amount that was listed. I had a conversation with Mr. Friedman [referring to defendant's attorney at that time] as to the reason for this provision in Mr. Sol Friedman's office at 77 West Washington Street. At the time there were present Joy Schwartz, my client, and Morton Schwartz, his client. We discussed many of the terms of this settlement, and the child support arrangement was one of them. We discussed this on the basis that we could not determine what a figure of child support should be other than a minimum figure, because the defendant was not then employed. He had previously been employed by the plaintiff's father, and he at that time was no longer so employed. Therefore, we did not know and could not tell what his income was going to be. My recollection as to what was said by Mr. Morton Schwartz at this meeting that we had, relative to this provision, is that Mr. Schwartz agreed that the figure of $145 a month as child support was agreeable to him, and that he further was agreeable to paying more money for child support when he had income, and it would be on the basis of twenty-five per cent of whatever his income was when he had employment, but in no event would it be less than $145 per month for the child support of these children.
Edwin Armstrong testified that he is a licensed attorney associated with the firm employed by defendant at the time of the entry of the decree and that he was present at the meeting described by Ehrlich. However, the witness did not contradict the testimony of Ehrlich with respect to the conversations at that meeting relating to child support. He testified that the parties went before Judge Canel in an effort to settle the case; that plaintiff and defendant, the two Goldbergs, Stanton Ehrlich, Sol Friedman (the attorney who was the principal representative of defendant at that time) and himself were present at that meeting; and that:
One of the things discussed was the question of child support, and it was Judge Canel's rule of thumb that he would order about 25% for child support. It was not in this case but in any case. It was one of his ideas or feelings. We pointed out that we didn't know what our man would make and he figured the 25% was on the basis of the accounts Morton Schwartz might be handling at the time.
Frank Goldberg testified in rebuttal regarding his conversation at that meeting with Sol Friedman and stated that:
He [Friedman] said "Well, take $145.00 because what Smokey [defendant] is making is subject to what his father-in-law gave him, as a bare minimum", and he said "If he makes more the 25% will attach", and I said "That will be hard but $145.00 is the bare minimum", and I said "It should still be $50.00 a week we all agreed to."
I said "You have two girls"; one was about 13, the other 14. "How can they exist on about $17.50 a piece a week?" I said "That is too damn small." and he said "That is the best I can do with Smokey at the time." He said "Leave it alone and let things adjust themselves."
This discussion I am talking about was in the presence of Judge Canel and in the presence of Mr. Schwartz, Mrs. Schwartz, Mr. Arthur Goldberg. Stanton Ehrlich was there, Sol Friedman was there, everybody who had any connection with the case. The word ...