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Atwater v. Atwater

MARCH 1, 1974.

DOROTHY A. ATWATER, PLAINTIFF-APPELLANT, CROSS-APPELLEE,

v.

A.G. ATWATER, DEFENDANT-APPELLEE, CROSS-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. BUCKLEY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT: This is an appeal by plaintiff from the court's denial of her claim for interest on the unpaid installments of a property settlement agreement incorporated into a decree of divorce. Defendant cross-appealed from the judgment entered against him for $78,000, the past due property settlement payments.

On October 8, 1957, a decree of divorce was entered which included an agreement for payment of a lump sum settlement in lieu of alimony of $127,500, $49,500 of which was paid to plaintiff. The issues herein relate to the balance provided for in section 2(c) and 3 of that agreement.*fn1 The payments under those provisions were to begin four years from the date of the decree and were to be defeasible only upon the death or remarriage of the plaintiff prior to the time the monthly installments were to become "due and owing". Defendant stipulates that with the exception of one installment, no payments were made pursuant to this portion of the agreement.

In 1957, plaintiff met Alfred B. Mattson, and in August of 1958 she and Mattson traveled to Las Vegas, Nevada. There they applied for a marriage license, which was issued on August 11, 1958. Both plaintiff and Mattson testified, however, that no marriage was ever entered into. In support of this contention, plaintiff introduced affidavits from the recorder of Clark County, Nevada, which indicated that from 1956 to 1961 no marriage record existed for Alfred Mattson or Dorothy Atwater. Additionally, plaintiff introduced a completed marriage certificate which Mattson testified was a blank form and in which he inserted the fictitious names of a justice of the peace and two witnesses and the date of August 10, 1958. An additional affidavit from the county clerk of Clark County was offered at trial, wherein it was stated that in the year 1958 there was no justice of the peace in Clark County having the same name as that appearing in the Mattson's marriage certificate. All three documents were received in evidence.

After Mattson and plaintiff returned to Chicago they resided together and, between 1958 and 1971, held themselves out to be husband and wife. The most significant occurrence of this period took place in September of 1961, when plaintiff requested and had a meeting with defendant. At the meeting, plaintiff informed defendant that she had not married Mattson but was only living with him and, for that reason, payments under section 2(c) of the settlement agreement were to be made. Plaintiff testified that at the meeting defendant indicated he would not `pay a red cent' and, if she pursued her request, he would make trouble for plaintiff and her daughter by a previous marriage. Defendant, although not present at trial, stated in an affidavit filed in support of a motion for continuance, that he in fact had such a meeting with plaintiff wherein she informed him that she was not married to Mattson. However, in his affidavit defendant stated that in the absence of any proof to substantiate plaintiff's statements, he would continue to believe that she was married. Accordingly, a short time after the meeting, defendant's attorney sent a letter to plaintiff wherein he indicated that in view of plaintiff's "remarriage", all future payments under 2(c) were to cease. From 1961 to 1971, plaintiff and Alfred Mattson lived together and engaged in conduct designed to lead people to believe that they were husband and wife. *fn2

On March 8, 1971, plaintiff filed a petition seeking judgment for the unpaid sums of the settlement agreement plus interest of $28,470. Defendant, by his answer, admitted that he had made no payments under section 2(c) of the agreement but denied he owed any sums whatsoever. Defendant further denied plaintiff's allegation that she had not remarried and affirmatively raised the defenses of estoppel, laches, waiver and the statute of limitations.

After the denial of two motions by defendant for continuance, the trial proceeded and concluded with a finding that plaintiff had not remarried and therefore defendant was obligated to make payment pursuant to the aforementioned agreement. The court, however, refused to award the payment of interest on the unpaid amounts. It was from this order that both parties perfected appeals. Subsequent to the above trial, defendant has had conservators appointed for both his person and his estate.

OPINION

I.

Defendant contends that the trial court erred in denying him continuances on February 14 and 29, 1972. The first motion for a continuance was based upon the illness of defendant, and in support thereof an affidavit was filed containing a letter from a California doctor reciting defendant's inability to attend the trial. The motion was denied. After a continuance due to defendant's attorney being on trial elsewhere, the defendant moved for a continuance on the day set for trial. Again the motion for continuance was predicated upon defendant's illness, and in the supporting affidavit the following information was presented: (1) that defendant's physical condition prevented his attendance at trial and also prevented his testimony from being preserved by a deposition; (2) that if the continuance were allowed and defendant were able to appear in court, he would testify that plaintiff had represented to him that she was remarried; however, at the meeting held in 1961, plaintiff had informed him that she was not married but only living with Mattson. Defendant chose not to believe plaintiff, but requested that plaintiff demonstrate to him that she had not remarried; and (3) that defendant never received notification from plaintiff relating to the possibility that she was not remarried, despite the fact that defendant indicated his willingness to make payments if plaintiff brought information in support of her representations of non-marriage and stopped using the name of Mattson and discontinued representations to her daughter that she was married.

This motion was also denied. On appeal, defendant asserts that because of his absence at trial, he was denied the right to present evidence which was material to his defense.

The affidavit noted above indicates that at the 1961 meeting with plaintiff, defendant was made aware of the fact that plaintiff asserted she was not married to Mattson. Further, the affidavit states that defendant believed she was remarried and he, therefore, would not make any payments. Essential to the defendant's argument and necessary to avoid the dictates of the settlement agreement, is the establishment of plaintiff's remarriage. In the affidavit, defendant states nothing which, if offered at trial, would have (1) contradicted her statement to him that she was not remarried; or (2) established that she was remarried. As stated in People ex rel. Linton v. Barth, 267 Ill. App. 574, 575:

"It was incumbent upon appellant to show that he had a meritorious defense and the materiality of the facts which he expected to prove by the absent witness."

As further stated in North Federal Savings & Loan Ass'n v. Tokoph, 110 Ill. App.2d 254, 258, 249 N.E.2d 241:

"The unavailability of a prospective witness even though due to excusable cause such as illness, need not and should not be an appropriate reason for delay. It must also appear that the prospective witness's testimony would be material to the issues involved. Otherwise, the only conclusion warranted ...


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