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Volid v. Volid

JUNE 28, 1972.

PETER VOLID, PLAINTIFF-COUNTER-DEFENDANT, APPELLANT,

v.

RITA W. VOLID, DEFENDANT-COUNTER-PLAINTIFF, APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. HUNTER, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT: Rehearing denied July 26, 1972.

This is an appeal from an order of the Circuit Court directing plaintiff, Volid, (1) to pay temporary alimony in the amount of $1,250 per month to his wife, Rita W. Volid, (2) permitting Rita Volid to remain in the marital home pending proceedings for divorce and separate maintenance, and (3) requiring Peter Volid to pay the expenses of the home exclusive of utilities. The trial judge specifically found that there was no just reason for delaying enforcement or appeal of the order, and the plaintiff appeals.

The parties were married on December 31, 1965. At the time of the marriage, Peter Volid was a wealthy 60 year old man who had been married three times previously and who had children and grandchildren. Rita Volid was a 40 year old school teacher who had never been married before. Three days before the marriage, on December 28, 1965, with the advice of their respective counsels they entered into and executed an antenuptial agreement.

The preamble to the agreement recites that the parties who were contemplating marriage desired to maintain their respective properties for the benefit of themselves and their families. It concludes: "WHEREAS, both parties hereto have been advised by legal counsel concerning this Agreement, their respective rights hereunder, and their prospective rights and obligations as husband and wife under the laws of the State of Illinois," the parties in consideration of their marriage enter into this covenant and agreement.

Paragraph 4 provides in relevant part:

"The parties hereto agree that in the event that a Decree of Divorce or Separate Maintenance shall be entered in a proceeding between them, First Party [Peter Volid] may have an obligation under such Decree to pay reasonable alimony or support to Second Party [Rita Volid]. In the event a Decree so provides, it is agreed that the First Party shall pay to Second Party as and for an equitable lump sum settlement in lieu of all rights to alimony or support, and in lieu of all property rights, if any, and in settlement of her rights, if any, of dower, homestead, inheritance, and all and every other such right which may have arisen as a result of their marriage * * * the sum of FIFTY THOUSAND DOLLARS ($50,000.00) * * * if such decree shall be entered within three (3) years from the date hereof; if such Decree shall be entered on a date more than three (3) years from the date hereof, then First Party shall pay to Second Party as and for a lump sum settlement in lieu of the rights referred to above, the sum of SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) payable at the rate of SIX HUNDRED DOLLARS ($600.00) per month for One Hundred Twenty-Five (125) successive months, commencing one (1) month after the entry of such Decree * * * The parties further agree that the purposes of this paragraph 4 are to promote marital harmony and to discourage either party from obtaining monetary benefits by a breach of the marital relationship and the institution of a legal proceedings for separation or divorce."

Paragraph 8 states:

"Each of the parties hereto has made a full and complete disclosure to the other of the assets owned by such party at the present time, and the waiver, release and relinquishment of the rights of each party, as hereinabove set forth, has been made with full knowledge of the extent of the wealth of the other party. A schedule of all of the properties, real, personal and mixed, now owned by First Party and the estimated values thereof and a statement of his income have been examined by the Second Party and her Attorney."

The agreement was subscribed to by both parties. The signature of Peter Volid was witnessed by his attorney, Harry Adelman, and the signature of Rita Wilkes (now Rita Volid) was witnessed by her attorney, Henry Kenoe. According to a notarized certificate attached to the agreement, Rita Volid on the day the agreement was executed stated under oath that (1) she was aware of Peter Volid's wealth and income and the share of it to which she would be entitled upon marriage if the agreement were not executed, (2) that she was satisfied with the provisions in the agreement made for her, and (3) that the agreement was executed as a free and voluntary act by her for the purposes stated therein.

On August 7, 1969, more than three years after the marriage, Peter Volid filed a complaint for divorce in the Circuit Court of Cook County based upon the alleged mental cruelty of his wife. Rita Volid in answering the complaint denied the allegations of mental cruelty toward her husband. She counter-claimed for separate maintenance and sought temporary support. After hearing evidence, the court granted her request for temporary alimony and possession of the marital home.

On appeal, the plaintiff contends (1) that the antenuptial agreement is a valid and enforceable contract which limits and specifies the amount of temporary alimony to be granted, (2) that the amount of alimony granted during the pendency of proceedings should not exceed the amount to be awarded permanently, and (3) that all funds paid as temporary alimony should be credited against any permanent award.

The defendant in response argues (1) that the provisions in the antenuptial agreement limiting the husband's duty to support his wife are void as against public policy, (2) that the antenuptial agreement does not apply to temporary allowances, and (3) that Section 15 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 16) expressly empowers the court to make temporary allowances.

The agreement in the preamble and in Paragraph 8 recites that the parties were represented by counsel and were aware of their rights and respective wealth. The certificate attached to the agreement states that the execution of the agreement was a knowing, understanding, and voluntary act. Evidence was introduced concerning the circumstances surrounding the execution of the agreement. This testimony and the documentary evidence was sufficient to show that Rita Volid was not induced to sign the agreement through fraud, duress, or coercion and that she was fully aware of her rights upon marriage, of the extent of Peter Volid's wealth, and of the terms of the agreement.

The principal contentions of both the plaintiff and the defendant center about the relationship between Paragraph 4 of the antenuptial agreement and the award of temporary support, and it is therefore necessary to consider the scope of Paragraph 4 of the agreement and its applicability prior to the entry of a decree of divorce or separate maintenance. Paragraph 4 in essence provides that "in the event that a Decree of Divorce or Separate Maintenance shall be entered" more than three years from December 28, 1965, Peter Volid will pay to Rita Volid "in lieu of all rights to alimony and support * * * the sum of SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) ...


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