APPEAL from the Circuit Court of Macoupin County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
On February 6, 1969, a decree was entered in the Circuit Court of Macoupin County, awarding a divorce to plaintiff-appellant Randall L. Loveless. He was awarded custody of the children and directed to pay to his divorced spouse, defendant-appellee Mary L. Loveless, the sum of ninety thousand dollars ($90,000) as alimony in gross. The details of the decree as it pertained to the alimony were as follows:
The plaintiff shall pay the ninety thousand dollars ($90,000.00) to
the clerk of this court for the benefit of the defendant, in the following manner: $30,000.00 to be paid on February 28, 1969, and $6,000.00 on the 28th day of February of each year beginning on February 28, 1970, with the last $6,000.00 payment due on April 28, 1979.
On February 19, 1969, defendant filed a notice of appeal.
On February 28, 1969, the plaintiff came into open Court and tendered a check in the amount of thirty thousand dollars ($30,000) payable to the clerk of the court pursuant to the terms of the divorce decree.
On February 28, 1969, the judge, by docket entry, directed the clerk to file the check and retain the check as "* * * part of the file until further order of this Court.", and directed the clerk to forward a copy of the court's order to counsel for plaintiff and defendant.
Defendant's appeal was prosecuted to this Court where she urged that there was insufficient evidence to support the decree for divorce, that she should have been awarded custody of the minor children, that the award of alimony was insufficient, and that she was entitled to a one-half interest of a certain farm. We affirmed the decree of the trial court in Loveless v. Loveless, 128 Ill. App.2d 297, 261 N.E.2d 732.
On October 29, 1970, our mandate was filed in the trial court.
On December 23, 1970, the defendant filed a petition for rule to show cause, in the trial court, alleging that plaintiff had violated the court's decree in that he had failed to make any of the payments called for in the decree, and alleging that plaintiff owed interest at the rate of six per cent (6%) on the sum of thirty thousand dollars ($30,000) from February 6, 1969, and on six thousand dollars ($6,000) from February 28, 1970, according to the provision of section 3 of Chapter 74 of the Illinois Revised Statutes, 1969.
On January 5, 1971, plaintiff filed a cross-petition to modify decree to conform to intentions of the parties and the Court.
The cross-petition set up that at the time of rendering the original decree it was expressly understood by counsel, the parties, and the court, that the original schedule of payments (excerpted above from the original decree (would allow plaintiff tax benefits under the Internal Revenue Code (26 U.S.C.A. Secs. 71 and 215) in that the payments were allocated over a period ending more than ten years from the date of the decree as required by the code, and that since plaintiff refused to withdraw the thirty thousand dollars ($30,000) payment tendered in the year 1969, it made it impossible for plaintiff to obtain the tax relief intended and embodied in the decree of February 6, 1969, because the payments now would be compressed into nine years instead of ten years, and prayed that the court would modify the decree so as to afford the plaintiff the tax relief available under the decree as originally entered.
On February 10, 1971, the court made a docket entry which reads, in part:
"The Court finds that $30,000.00 under the original decree is due and payable now with interest at the rate of six per cent from February 28, 1969, to August 1, 1970; and that $6,000.00 under original decree is due and payable now with interest from February 28, 1970, to date, and that said payments with interest are so ordered. Original decree amended to provide for balance of $54,000.00 to ...