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Breuer v. Breuer

FEBRUARY 22, 1972.

MILDRED R. BREUER, PLAINTIFF-APPELLEE,

v.

GRANT W. BREUER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY A. JONES, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Mildred R. Breuer (plaintiff) and Grant W. Breuer (defendant), were divorced by a decree entered in the Circuit Court of Cook County on October 16, 1964. The decree approved and incorporated therein a written property settlement agreement signed by the parties on October 9, 1964. By petition filed in the Circuit Court on September 8, 1969, plaintiff sought appropriate orders for payment by defendant of an alleged arrearage in child support. Defendant answered this petition. On September 21, 1970, the trial court entered an order requiring defendant to pay plaintiff an arrearage in the amount of $6250 and assessing fees for plaintiff's attorney in the amount of $1500. Defendant appeals from this order.

Defendant contends that the pleadings created an issue of fact on plaintiff's right to receive the alleged arrearage which the trial court failed to decide; that under a proper and reasonable construction of the settlement agreement no arrearage exists; and, finally, that the evidence was insufficient to warrant the award of attorney's fees. After a preliminary statement, these contentions will be considered in order.

The parties were married on January 27, 1945 and lived together until June 19, 1963. Three children were born to them. There were two boys, named Grant and Jeffrey, not concerned in this appeal, and a girl named Victoria Lee, now approximately 21 years old. The property settlement agreement contained a number of covenants not material here. It provited for payment of alimony to the wife and contained certain other provisions for her benefit. The parties agreed that the care, custody and education of the children should be vested in them jointly with right of reasonable visitation. Specific provisions for support of the children are contained in paragraph 6 of the agreement. Regarding the daughter, Victoria, we state in full paragraph 6(a) which is material here:

"6. That the husband shall pay for the support and maintenance of the said minor children the following items:

(a) With respect to Victoria Lee Breuer, the sum of Two Hundred Fifty Dollars (250.00) per month to the wife, commencing with the date of the entry of any decree for divorce and continuing for so long as the said child shall continue to reside in the home of the wife for the greater period of time and shall be pursuing her elementary, secondary, preparatory or college education, irrespective of her attainment of her majority, and regardless of whether she shall be attending a public or private school, and in addition thereto the cost of tuition, transportation, books, special tutoring, and other fees in connection with the education of the said minor child, and, in the event the said child expresses a desire therefor, and the parties agree, any and all expenses of her maintenance and education at a suitable private school, whether elementary, secondary, or preparatory, including, but not limited by, books, uniforms, room, board, transportation, special tutoring, laboratory fees, activity fees, and any and all other expenses usually and ordinarily incident to such education. The wife and children shall have the right to reside anywhere within the Continental limits of the United States."

It is undisputed that defendant made all payments required for support of his daughter until September, 1968. Commencing from that date, he did not pay the stipulated amount of $250 per month. As of September 1, 1970, the amounts unpaid have accrued to a total of $6250. Paragraph 6(e) of the agreement provides that if either of the sons of the parties "* * * shall be residing with the wife * * *" the defendant will pay to plaintiff for their support and maintenance $7.50 per day for each son residing with her, including periods during which they were pursuing college or university education. Counsel agreed on oral argument that defendant made a tender of payment to plaintiff under this section of the agreement for part of the time during which the daughter resided with plaintiff but this was rejected.

The first contention of defendant is that the record presents an unresolved issue of fact requiring further hearing. Paragraph 4 of plaintiff's petition filed September 8, 1969 provides:

"4. The said Victoria Lee Breuer is and has for some years been living with plaintiff petitioner and is pursuing her education."

The answer of defendant to this petition filed September 29, 1969 alleges:

"4. This defendant denies that Victoria Lee Breuer is residing in the home of the petitioner for the greater period of time but admits that that she is pursuing her education."

• 1, 2 The answer does not deny this allegation of the petition but instead denies a statement not contained in the petition concerning "the greater period of time." This is an evasive denial which does not fairly answer the substance of the allegation. (Ill. Rev. Stat. 1969, ch. 110, par. 40(3).) It follows that the allegation of the petition in this regard stands admitted by defendant. Guttman v. Salvaggio, 117 Ill. App.2d 375, 381. See also Kordik v. Kenar, 112 Ill. App.2d 371, 376. Consequently, we find no issue of fact regarding the status of the daughter as residing with plaintiff. The only issue presented by this record and decided by the trial court is that of a proper construction of the agreement between the parties. Construction of this document is solely a matter of law. (Scott v. Instant Parking, Inc., 105 Ill. App.2d 133, 137; La Salle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill. App.2d 188, 202.) Thus, the significance and effect of the words, "for the greater period of time" contained in paragraph 6(a) and in paragraph 4 of the answer of defendant, was a matter of law for determination by the trial court with appropriate review by this court.

• 3, 4 We proceed now to the second contention of defendant regarding the proper and reasonable construction of the property settlement agreement. Both sides to this controversy have attempted to inject equitable arguments and considerations into this appeal. In this regard, we adhere to the time honored maxim that Equity follows the Law. We cannot and will not write a new agreement for these parties. Robinhorne Const. Corp. v. Snyder, 113 Ill. App.2d 288, 297 citing Freeland v. Edwards, 11 Ill.2d 395, 401.

As might be anticipated, the briefs of both parties contain numerous citations of legal authorities. In a situation of this kind, none of these cases is specifically applicable. This agreement is sui generis. Its precise language presents a unique problem, necessarily of first impression. No case is cited, and probably none exists, which deals with the identical language and circumstances presented by this agreement. We can, however, state certain general and fundamental rules of construction which are applicable here and which have been advanced by able counsel for both sides.

• 5, 6 In construing this contract, our prime function is to ascertain the intent of the parties so that we may come to a proper and reasonable construction of the meaning of the written language used by them. (Martindell v. Lake Shore National Bank, 15 Ill.2d 272, 283. See also Harvey v. Rolands of Bloomington, Inc., 94 Ill. App.2d 444, 449.) In addition we should not limit our consideration to the single clause which presents the issue between the parties but we must consider the entire instrument in which the clause is ...


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