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Herhold v. Herhold

APRIL 16, 1970.

JANE L. HERHOLD, PLAINTIFF-APPELLEE,

v.

FRANK F. HERHOLD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. BENJAMIN WHAM, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

The dispute in this case is over the terms of a property settlement incorporated into a divorce decree.

Jane Herhold filed a complaint for divorce alleging the desertion of the defendant, Frank Herhold. Herhold denied the desertion and demanded a jury trial. During the selection of the jury the parties reached an agreement and the jury was discharged. The plaintiff was the only witness at the hearing which followed. In proving up her case she testified as to the terms of the property settlement agreed to by herself and her husband. No evidence was adduced of the financial condition of either party but from the complaint, answer and other pleadings, it appears that both had substantial means and independent income. At the conclusion of the hearing the court stated that the plaintiff would be granted a divorce and instructed the parties to present an agreed decree.

When a decree drafted by the plaintiff was shown to the defendant he objected that it did not conform to the agreement. The defendant prepared his own decree and both were submitted to the court. At the court's suggestion the parties and their attorneys testified as to their understanding of the settlement. The court accepted the plaintiff's version of the agreement and entered the decree tendered by her. It is from this that the defendant appeals.

Only one item of the property settlement was in dispute and the decrees submitted to the court were identical except as to this item: the terms of the defendant's will in regard to the children of the parties, who at the time of the hearing were 27, 23 and 22 years of age. The report of proceedings of the divorce hearing contains the following testimony by the plaintiff:

Plaintiff's Attorney: "Now, your husband has agreed that he will guarantee to leave to the children a minimum of $75,000 in his estate, the minimum of $75,000 or 50 percent, whichever would be greater?"

Defendant's Attorney: "Not exactly."

Plaintiff's Attorney: "All right. He guarantees to leave $75,000?"

The Court: "Suppose it should be less?"

Defendant's Attorney: "He will guarantee $75,000."

The Court: "I was just kind of joking a little bit here."

The Plaintiff: "He has it."

During cross-examination the plaintiff testified:

Defendant's Attorney: "All right. One other question. On this, Mr. Herhold plans to make a will in which he will guarantee to leave at least $75,000 to the three ...


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