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Joseph v. Joseph

NOVEMBER 1, 1973.

DIANE JOSEPH, PLAINTIFF-APPELLANT,

v.

Z. ALBERT JOSEPH, DEFENDANT — (ADOLPH L. HAAS ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Diane Joseph, filed a petition for post-decree relief challenging the distribution of an escrow account held by respondents, her former attorneys, under the terms of a property settlement contained in a decree of divorce. The circuit court of Cook County dismissed plaintiff's petition and she prosecutes this appeal against respondents. Defendant, plaintiff's former husband, is not a party to the appeal.

Plaintiff's petition claimed that respondents had improperly disbursed funds which they held in escrow under the terms of the property settlement agreement. On March 25, 1970, the divorce decree, containing the agreement, was entered. In addition to an award of $140,000 to be paid to plaintiff in five annual installments in lieu of alimony, the agreement provided in paragraph 17 that defendant would deposit $50,000 with respondents as escrowees. Paragraph 17 went on to recite:

"The said escrowees shall pay from said sum bills incurred by the Wife as aforesaid subsequent to January 1, 1969, attorneys' fees and costs incurred by the said Wife as aforesaid, as well as certain other obligations for the benefit of the Wife. The Wife agrees upon the execution of this Agreement and upon the effective date of said Agreement to release the Husband from any and all liability or responsibility which he may have to see to the application of the said sum of Fifty Thousand Dollars ($50,000.00), and the Wife further agrees that she shall see to the said application of the funds so deposited to the escrowees. The Escrowees shall disburse the said funds as set forth on Exhibit E hereto attached and made a part hereof. The Wife further agrees to indemnify and save harmless the Husband from any liability whatsoever for any family expenses or other obligations which may have been incurred by the Wife subsequent to January 1, 1969 and in the event it becomes necessary for the Husband to pay any such obligations or to incur expenses in connection with payment thereof the Wife shall immediately reimburse the Husband from any such sums or the Husband shall have the right to deduct any such amounts so paid from the payments due the Wife from the Husband as and for a lump sum payment * * *."

Exhibit "E" consisted of three pages of bills in the amount of $8,740.38.

In 1971 plaintiff filed the instant petition charging that respondents had received the $50,000 from defendant, that they had not paid all the bills contained in Exhibit "E", and that they had refused to pay any of the household expenses subsequent to January 1, 1969. The petition also claimed that defendant had deducted approximately $7,000 from his settlement payment and sought a determination as to the propriety of that action. The petition asked that if defendant's action be deemed proper, then respondents should be liable to plaintiff for the deducted amount on the ground that they were obligated to pay the expenses from the escrow account.

Respondents filed an answer to the petition stating that they had discharged their only obligation under the decree by disbursing the funds as set forth in Exhibit E. They further stated that a court order of July 6, 1970 had found that respondents fully complied with paragraph 17 of the decree, thereby barring plaintiff's petition.

On June 9, 1970, respondents had filed a petition charging that defendant had deposited only one-half of the $50,000, and requesting that he be ordered to pay the remaining amount pursuant to the decree. On July 6, 1970, Judge Sidney A. Jones, Jr. entered an order reciting that defendant had turned over the remaining $25,000 to respondents. The order also stated that defendant charged that he was being harassed by certain creditors listed in Exhibit E, and respondents were directed to file with defendant's attorney evidence of payment of the bills listed in Exhibit E, and respondents' petition was dismissed. Respondents' copy of the order bore an "O.K." and apparently the initials of defendant's attorney.

On July 1, 1971, plaintiff's petition came up for assignment. Defendant's attorney asked the assignment judge for a continuance on the ground that he was not ready to proceed. Plaintiff's counsel joined in the request because he believed defendant was a necessary party to the hearing on the petition. The assignment judge, however, denied the motions for continuance, and the matter was referred to Judge Brown for hearing.

The parties appeared before the trial judge, and defendant's counsel again requested a continuance. Plaintiff's counsel joined in the request stating that the claims against defendant and respondents were inseparable. The judge asked what the issues were and a lengthy discussion, involving respondents, their attorney, plaintiff's counsel and defendant's counsel, ensued. The court sought to determine whether the matters were inseparable and whether testimony would be required since the petition was based on written documents. On behalf of plaintiff, counsel argued that respondents were required to pay all expenses incurred by the plaintiff subsequent to January 1, 1969, and that the payments were not restricted to the obligations enumerated in Exhibit E. It was plaintiff's position, therefore, that the settlement agreement was ambiguous so that testimony would be required.

Respondents replied that the matters against them were separable from the claim against defendant because the claim against respondents could be resolved by a determination of whether they as escrowees were required to pay any obligations other than those listed in Exhibit E. Respondents also brought to the attention of the court the existence of a supplemental agreement between them and plaintiff. Although it does not appear that this side agreement was ever introduced into evidence, a copy was attached to respondents' answer to plaintiff's petition. The agreement recited that respondents' agreed with plaintiff that they would pay from the $50,000 any bills which defendant would be permitted to deduct from the settlement. In court one of the respondents charged that the side agreement had been fraudulently altered after its execution, apparently by plaintiff. The trial court asked plaintiff to produce her copy of the side agreement later that day and the court recessed for lunch.

During the course of the proceedings that morning, no witnesses were sworn so no testimony actually was taken. The judge did indicate, however, that the issues in the petition which were directed against respondents were separable but that, in any case, the agreement was not ambiguous and would not require the taking of testimony. The court stated that the side agreement might create an ambiguity so as to require parol evidence.

When the proceedings resumed that afternoon, the court ascertained that plaintiff had not produced her copy of the side agreement. At that point, plaintiff's counsel orally moved for a change of venue on the ground of prejudice. The trial court denied plaintiff's motion because it was untimely in that the court already had made rulings on the merits of the case. The court learned from plaintiff's counsel that plaintiff's original copy of the side agreement was at the Chicago Bar Association. The matter was continued to July 9, 1971.

On July 8, 1971, plaintiff's counsel appeared before the court and presented a written motion for a change of venue on the ground that the judge could not give plaintiff an impartial hearing. The motion also recited that, while respondents were allowed to address the court at the previous hearing, plaintiff had been physically restrained from addressing the court or conversing with her counsel. Upon receiving the written motion for a change of venue, the judge cited plaintiff's counsel for direct contempt of court ...


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