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Cimino v. Cimino

MARCH 27, 1968.

DONALD J. CIMINO, PLAINTIFF-APPELLANT,

v.

SUSAN HANLEY CIMINO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. A.F. WELLS and the Hon. NORMAN N. EIGER, Judges, presiding. Case No. 51,642 — reversed and remanded. Case No. 51,731 — reversed.

MR. PRESIDING JUSTICE SMITH DELIVERED THE OPINION OF THE COURT. The plaintiff-husband was granted a divorce on the grounds of adultery in a proceedings heard on complaint and answer. The wife did not testify. A property settlement contract and the divorce decree provided that the jointly-owned home should be sold and the net proceeds divided between the parties. Both likewise provided that each of the parties should bear his or her own attorney fees arising out of the divorce proceedings. The house was sold and a dispute then arose between the parties as to whether delinquent mortgage payments and taxes should be shared equally or whether they should all be charged to the plaintiff-husband. The sale of the property was consummated and the net proceeds of $4,321.91 was left with the lending agency of the buyer until a distribution of the proceeds could be determined by the court.

The husband filed his petition asking that the net proceeds be equally divided. The wife answered the petition stating that the husband had agreed to make the mortgage payment and real estate taxes which were delinquent and asked the court to so find. The wife offered in evidence on the hearing the testimony of the husband on cross-examination in the divorce suit which was as follows:

"Q. How much in arrears are you?

"A. About one year, Sir.

"Q. Did you pay the taxes for 1965?

"A. Partial payment. Two Hundred Fifty-four dollars.

"Q. The second installment is still due and owing?

"A. Yes.

"Q. In the event of the property being purchased, you will deduct these payments, both taxes and the mortgage payments from your net, is that correct?

"A. Correct."

The court accepted this statement as a proper construction of the contract and decree and entered an order charging the delinquent payments to the husband. He appeals. This appeal is docketed here as 51,642. The wife then moved for the allowance of attorney fees for the defense of the appeal and the court allowed $600. The husband gave notice of appeal from this allowance. On motion, the court then allowed an additional $200 to the wife for the defense of the second appeal. This appeal is docketed as 51,731. The cases were consolidated in this court.

In this court, the husband argues that the words "your net" used in the last question quoted above from the cross-examination was understood by him to be plural and referred to the dual or total net. The wife contends that its proper interpretation refers only to the net 50 percent of the husband. The trial court adopted the wife's interpretation. The written property settlement states:

"It is agreed that the home jointly owned by the parties hereto at 1836 - 75th Court, Elmwood Park, Illinois be sold at a price not less than $30,000.00 net, subject to the usual prorations and out of said sale there shall be paid ...


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