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Roberts v. Roberts

DECEMBER 18, 1967.

ANITA ROBERTS, PLAINTIFF-APPELLANT,

v.

HARRY ROBERTS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, Divorce Division; the Hon. ROBERT L. HUNTER, Judge, presiding. Judgment affirmed.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

The parties to this cause were divorced in 1963. In 1966, the wife filed a petition for post decree relief. Of the three counts in her petition, only the third one is involved in this appeal. Count III sought a declaration from the court that certain provisions of the property settlement agreement incorporated as a part of the divorce decree are null and void. The agreement called for a lump-sum settlement in lieu of alimony, payable in weekly installments. The agreement went on to provide that payments would terminate upon death or remarriage of the wife. The argument is that such provisions are repugnant to section 18 of the Divorce Act (Ill Rev Stats 1965, c 40 § 19) and to the public policy of the State of Illinois. The court found these provisions to be valid and not void. Plaintiff was granted a rehearing on this ruling and memoranda of law were submitted to the trial court by both sides. The trial judge adhered to his original decision and this appeal follows.

Reviewing plaintiff's pleading we find that she set forth the relevant provisions of the divorce decree, section 18 of the Divorce Act, and two additional paragraphs which conclude that the parties may not contract in any way contrary to the statute and that the agreement is void insofar as it violates the statute or public policy. Plaintiff then prays that such provisions of the agreement be declared null and void ab initio.

The pleadings contain no allegation that there is an actual controversy between the parties. There is no allegation that plaintiff is contemplating remarriage, that she is suffering from an incurable terminal disease, or any other allegation that would demonstrate a need for the declaration of rights.

[1-3] Under the declaratory judgment provisions of The Civil Practice Act (Ill Rev Stats 1965, c 110 § 57.1) declarations of rights can only be made in cases of actual controversy. Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill.2d 419, 129 N.E.2d 1 (1955). While the complaint on its face does not appear to plead an actual controversy, the Declaratory Judgment Act is to be liberally construed and not restricted by technicalities. Central Ice Cream Co. v. Universal Leaseway System, 20 Ill. App.2d 145, 155 N.E.2d 324 (1959). We believe that there is an actual controversy in the instant case. There are adverse legal interests. Although no wrong has yet been committed, such is not necessary to obtain declaratory relief. The mere existence of a claim, assertion or challenge to plaintiff's legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff's rights or status, damages plaintiff's pecuniary or material interests and establishes a condition of justiciability. Trossman v. Trossman, 24 Ill. App.2d 521, 165 N.E.2d 368 (1960). Plaintiff in the instant cause has the right to know whether she will continue to receive the weekly payments of the lump-sum alimony and an action for declaratory judgment is proper.

Turning to the merits, the settlement agreement, which was incorporated into the divorce decree, provides as follows:

"(T)he parties hereto consider it to their best interests to settle between themselves, now and forever, the questions of alimony and support for Anita; the custody of the two minor children; the respective rights of property and dower of the parties; and any and all rights of property and otherwise, growing out of the marital or any other relationship now or previously existing between them, or which either of them now has or may hereafter have or claim to have against the other, and all rights of every kind, nature and description which either of them now has or may hereafter have or claim to have against the other, or in or to any property of the other, of every kind, nature and description, whether real, personal or mixed, now owned or which may hereafter be acquired by either of them.

"Harry (defendant-appellee) agrees to pay Anita (plaintiff-appellant), as a lump sum settlement in lieu of alimony, the sum of $____, payable in . . . equal weekly installments, . . . provided, however, (a) if the parties hereto are hereafter divorced and if Anita remarries thereafter, the obligation and requirement of Harry to make any further payments to Anita under the terms of this paragraph 2 of this Agreement for the weeks subsequent to Anita's remarriage, shall terminate absolutely; and (b) if Anita dies prior to the termination of Harry's obligation under the terms of this paragraph 2 hereof, irrespective of whether Anita shall have remarried during her lifetime, the obligation of Harry to make any payments subsequent to the death of Anita under the terms of this paragraph 2 hereof shall terminate absolutely."

The relevant portion of section 18 of the Divorce Act, (Ill Rev Stats 1965, c 40 § 19), upon which plaintiff relies to sustain the assertion that the above proviso in the property settlement agreement is void, states as follows:

"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 installments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree."

No case in Illinois deals with the precise issue of the effect of a proviso in a property settlement agreement which terminates the installments of a lump-sum settlement upon the death or remarriage of the wife. *fn1 In dealing with the issues of this case, we must bear in mind that there are two distinct types of alimony, lump-sum alimony, sometimes referred to as alimony in gross, or a property settlement, and ordinary alimony or periodic alimony. Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342 (1951); Jacobson v. Jacobson, 50 Ill. App.2d 244, 200 N.E.2d 379 (1964). There are many cases which turn on the question of whether the "alimony" award was gross alimony or periodic alimony. Typical of such cases are Jacobson v. Jacobson, supra; Whitney v. Whitney, 15 Ill. App.2d 425, 146 N.E.2d 800 (1958); Maybaum v. Maybaum, 349 Ill. App. 80, 110 N.E.2d 78 (1952); Stromsem v. Stromsem, 344 Ill. App. 530, 101 N.E.2d 742 (1951).

[4-6] The negotiated settlement agreement here provided for "a lump-sum settlement in lieu of alimony." Both parties have presented this case as one involving a property settlement (gross alimony). The court fully recognizes that the terms and labels used by the parties and incorporated in the decree are not conclusive in characterizing the alimony payment as gross or periodic. Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342 (1951). The fact that the payments provided for are payable in installments does not negate a property settlement. Walters v. Walters, 341 Ill. App. 561, 94 N.E.2d 726 (1950). Nor do we feel that the provision terminating the installment payments upon the death or remarriage of the wife change the settlement agreement to one for periodic alimony. Language to the contrary in Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504 (1940), is only in reference to the specific language of the agreement in that case. Plaintiff here has waived her right to alimony and agreed to be forever barred from the same. The intention of the parties before us, as it appears from the above quoted portions of the agreement, was not to place a dollar limit on the amount of alimony, but to enter into a property settlement in lieu of alimony as well as all other claims. In Adler, the wife had no marital property rights other than alimony. Thus the award of "alimony" was construed by the court to be periodic alimony and the case is, consequently, inapplicable here.

In a periodic alimony situation, the rule has always been that remarriage will terminate the right to receive alimony payments. Stillman v. Stillman, 99 Ill. 196 (1881). This general rule was made part of section 18 of the Divorce Act in 1933, and has been uniformly applied. See Adler v. Adler, supra; Balasa v. Balasa, 11 Ill. App.2d 103, 136 N.E.2d 594 (1956); Coleman v. Coleman, 341 Ill. App. 462, 94 N.E.2d 507 (1950).

In Banck v. Banck, 322 Ill. App. 369, 54 N.E.2d 577 (1944) and Hotzfield v. Hotzfield, 336 Ill. App. 238, 83 N.E.2d 605 (1948), the courts construed settlement agreements using the phrases "gross alimony" and "full lump-settlement of all such rights including the right to alimony," respectively, as providing for periodic ...


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