Appeal from the Circuit Court for the Sixteenth Judicial
Circuit of Kane County; the Hon. JOHN S. PETERSON, Judge,
presiding. Reversed and remanded with directions.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. This case originated as a divorce action wherein Leonard B. Rhodes was plaintiff and Marie M. Rhodes, defendant. During the course of the litigation, the defendant filed a separate maintenance suit in the Circuit Court of Cook County, which suit was transferred to the Sixteenth Judicial Circuit, Kane County, where the divorce action was pending.
The divorce proceeding was set for trial on March 14, 1966. Before it was called, the parties met outside of the courtroom and attempted to reach a verbal settlement as to their property rights, and apparently believed that they had done so. Counsel for the plaintiff, in the presence of defendant's counsel, then advised the court that an agreement had been reached, asked the court to continue the matter, and stated: "We will work it out within the next week." He further related that the case would be dismissed, and that all that the parties sought to accomplish was a settlement of their property rights.
The judge, before leaving the courtroom, asked that plaintiff's counsel dictate the terms of the agreement to the court reporter. Such counsel, with some assistance from defendant's counsel, then attempted to dictate the matters which said parties had agreed upon. The parties, apparently, were not present and the statement which was dictated to the court reporter, was essentially as follows:
"The pending lawsuit will be dismissed by stipulation between the parties without prejudice to either party filing an additional suit or subsequent suit should they ever elect to do so.
"However, we have agreed that we will settle the property rights, namely, all right, title, and interest which Mr. Rhodes might have in the property of Mrs. Rhodes will be relinquished by him, as will any rights he may have for support or alimony from her. Likewise, Mrs. Rhodes will relinquish any such similar interest in his property or any obligations for support resulting from the marriage.
"There was one exception to this, however. The agreement is to expressly contain a stipulation that she is not waiving any right, title, or interest which she might have by virtue of the Social Security Laws of the United States of America.
"In consideration of this, Mr. Rhodes is to pay to Mrs. Rhodes in full settlement, including his share of any attorneys' fees which she might have incurred, or expenses, or costs, the amount of $13,500.00 and agrees to and will execute any documents requested by them which would convey to her any interest in any property which she now owns which was her own and exclusive of anything she might have obtained of this marriage upon request. This would include any property in which she might have an interest as well as property in which she does have an interest.
"Mrs. Rhodes in return will execute a quitclaim deed to any real estate now owned by Mr. Rhodes alone or in joint tenancy with her. She will also convey to him all of her interest in any stock certificates which are now standing in their joint names or have in the past stood in their joint names."
Thereafter, the plaintiff submitted to the defendant a proposed written agreement embodying the terms of the oral agreement, as the plaintiff envisioned them. The defendant refused to sign the instrument on the ground that it did not provide for her the protection which had been agreed upon relative to her continued receipt of social security benefits.
The plaintiff then filed an amendment to his second amended complaint alleging that the parties had arrived at a settlement agreement; that its provisions were dictated to the court reporter, and a copy of parts of the "report of proceedings" containing this dictation was attached to the amended complaint; and that the plaintiff was ready and willing to perform said agreement, but that the defendant had failed and refused to do so. The plaintiff prayed for specific performance of this agreement.
The defendant answered this amendment, admitted that the parties had arrived at a settlement, and stated that under the terms thereof, she was to continue to receive the social security benefits which she was presently receiving, and which would result in a benefit to her during her lifetime of $50,000, but that the plaintiff refused to insert in the agreement certain necessary provisions to assure to her the continued receipt of such benefits. She further asserted, on information and belief, that the purported settlement agreement was a fraud and a sham in that, as soon as she conveyed certain property to the plaintiff pursuant to the terms of the written agreement, he intended then to immediately seek a decree of divorce; and that such decree would terminate the defendant's social security benefits.
The plaintiff, pursuant to section 45(5) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 45(5)), moved for a judgment on the pleadings relative to the property settlement agreement. The trial court granted the plaintiff's motion and ordered the defendant to sign the written agreement, which, according to the trial court, embodied the terms of the dictated property settlement agreement. This written agreement, which the court ordered the defendant to sign at that time, had not been made a part of any of the pleadings.
The defendant contends that the trial court erred in granting judgment on the pleadings without the benefit of evidence; that no final or binding agreement had been reached; that the defense of fraud was admitted for the purpose of plaintiff's motion; and that the Circuit Court of Cook County erred in transferring the separate maintenance action.
[1-3] It is well-settled that the court may consider only those allegations contained in the motion for judgment on the pleadings which are admitted by the other party. A.A. Erickson Bros., Inc. v. Jenkins, 41 Ill. App.2d 180, 188, 189, 190 N.E.2d 383 (1963); Dryz v. Bol, 19 Ill. App.2d 406, 409, 153 N.E.2d 859 (1958). All well-pleaded facts and all fair inferences which can be drawn from the other litigant's pleadings are taken as admitted by the moving party. Schmidt v. Landfield, 20 Ill.2d 89, 90, 169 N.E.2d 229 (1960); A.A. Erickson Bros., Inc. v. Jenkins, supra; Dryz v. Bol, supra. Where the pleadings put in issue one or more material facts, under the foregoing rules, evidence must then be taken to resolve such issue or issues of fact, and a ...