Appeal from the Circuit Court of Cook County; the Hon. HARRY
G. HERSHENSON, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified January 8, 1969.
This is an appeal from an "order and modification of a decree" entered February 8, 1966, nunc pro tunc as of February 3, 1966. The order denied Eleanor B. Roth's motion to strike and dismiss the counterpetition filed by G. Wallace Roth, and allowed the prayer of the said counterpetition in part by relieving G. Wallace Roth from the obligation of complying with certain settlement provisions embodied in a decree of divorce entered on July 25, 1963.
On January 9, 1963, G. Wallace Roth (hereafter referred to as appellee) filed a complaint for divorce in which he charged Eleanor B. Roth (hereafter referred to as appellant) with desertion. On February 5, 1963, the appellant filed her answer to the complaint and a counterclaim for separate maintenance. The appellee filed his answer to the said counterclaim on February 25, 1963.
On July 23, 1963, the appellant filed an amended counterclaim for divorce. The divorce decree was entered on July 25, 1963. On November 4, 1964, appellant filed a petition alleging that the appellee had wilfully failed and refused to pay her the sum of $100 per month due on a note of $3,000, as provided by paragraph 2 of a property settlement agreement entered into by the parties. The agreement also contained the following paragraphs:
5. Wallace acknowledges that there is presently pending in the Probate Court of Cook County a certain cause #60 P 4473, Docket 616, Page 540 entitled In the Matter of the Estate of Norbert William Jeran and that the will, which has been duly admitted to probate, establishes a testamentary trust, described in said will as Trust B. Wallace further acknowledges that the res of said Trust B consists of assets having a present market value of approximately Ninety Thousand Dollars ($90,000.00) and further that under the terms of said testamentary trust, he and his brother, Robert R. Roth, will each receive Fifty Percent (50%) of said Trust B upon the death of their mother, Lydia J. Roth, who has a life interest in the income therefrom.
Wallace agrees to execute an irrevocable assignment in favor of Eleanor directing the Harris Trust and Savings Bank (or its successor in trust) as trustee of the aforesaid trust to pay to Eleanor, upon the death of Wallace's mother, Lydia J. Roth, an amount equal to Fifty Per Cent (50%) of his then interest in Trust B aforesaid. Wallace further agrees to obtain from his brother, Robert R. Roth, a release of any and all claims which Robert may have or hereafter claim to have as a contingent remainderman with respect to said trust. In the event of Wallace's remarriage (if the parties hereto are divorced and Wallace thereafter remarries), he further agrees to enter into an antenuptial agreement containing a waiver and release by any such subsequent spouse to any and all right, title, claim, demand or interest in and to the foregoing assignment by Wallace of Fifty Per Cent (50%) of his aforesaid vested remainder.
In the event Wallace's brother, the aforesaid Robert R. Roth, predeceases his mother, Lydia J. Roth, leaving no spouse or issue him surviving, thereby enhancing Wallace's inheritance, Eleanor acknowledges that she has no claim to such additional increment and agrees not to assert any right, title, claim, demand or interest with respect thereto.
6. Wallace agrees to maintain insurance on his life in the sum of Twenty Five Thousand Dollars ($25,000.00) and to nominate and maintain Eleanor as the beneficiary thereof until the death of Wallace's mother, Lydia J. Roth.
To the petition the appellee filed an answer and counterpetition on January 18, 1965, in paragraphs 2, 3 and 4 of which he seeks modification of the decree insofar as it provides that he pay the appellant the amount due on the note and that he pay her the sum of $25,000 out of an inheritance from his uncle's estate. The reason assigned for the modification of the decree was that the appellant made "fraudulent, deceitful misrepresentations" for the purpose of having the provisions referred to incorporated in the decree. In his counterpetition appellee alleges that he agreed to the provisions in question because of certain representations allegedly made by the appellant as follows: a) What would she do in her old age? b) She might not be able to work forever. c) She had no marriage plans for the future. d) She felt insecure financially and needed some immediate supplemental income plus something for her future.
The counterpetition also stated that appellant had married a man of considerable means which eliminated the basis on which appellee had agreed to the certain provisions in the decree. On October 26, 1965, the appellee filed an amended petition in which he alleged that the appellant had voluntarily made misrepresentations on various dates on or about July 23, 1963, during pretrial conferences before the judge, including "a denial of marriage plans for the future," and that as a direct result of such representation "the Court prevailed upon Petitioner, through suggestions and admonitions, in reliance upon said misrepresentations, to enter into said property settlement agreement, particularly Paragraphs 2, 5 and 6 thereof, . . ."
In support of the counterpetition appellee filed an affidavit setting forth the representations heretofore mentioned, also appellant's statement, "It is ridiculous to think that I have any marriage plans. I do not have any marriage plans."
Appellant filed a motion to strike and dismiss the petitions. Later, appellant also filed a motion and amended petition for rule to show cause, in which amendment she asked, among other things, for attorney's fees for the prosecution of her petition.
On February 3, 1966, the court held a hearing and heard witnesses. The appellant at first objected to the hearing, but participated in it through her attorney and introduced documentary evidence. In McKinney v. Nathan, 1 ...