APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
CROWN, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 30, 1976.
Pursuant to a petition brought by plaintiff, Barbara Jeanne Stevenson Tompkins, under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72), Judge John J. Crown of the circuit court of Cook County allowed a motion vacating a portion of a prior order entered by Judge Robert C. Buckley which had adjudged plaintiff to be in contempt of court. At the same time, Judge Crown refused to vacate that part of the prior order which had awarded defendant $2,000 in attorney's fees. Judge Crown awarded plaintiff $1,000 for attorney's fees in connection with the presentation of the section 72 petition. Defendant, Loring M. Stevenson, appeals from the orders vacating the finding that plaintiff was in contempt of court and awarding her attorney's fees. Plaintiff has filed a cross-appeal from the order denying her motion to vacate the prior award of attorney's fees to defendant. Because of the nature of the appeal, it is necessary to set forth the chronology of the proceedings in some detail.
On October 27, 1961, plaintiff obtained a divorce from defendant. Among other conditions, the decree of divorce ordered defendant to convey the marital residence to plaintiff. The decree also contained the following pertinent provision which had been agreed on by the parties:
(F) IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall also personally assume the responsibility for the payment of a note in the sum of $3,448.00 to Mrs. G.A. Stevenson, for improvements made to the aforementioned property. Said $3,448.00 is to be paid in full by the Plaintiff when the aforementioned real estate is sold. Said Plaintiff hereby agrees to save the Defendant harmless from any liability in connection with said obligation."
Mrs. G.A. Stevenson was defendant's mother.
On July 12, 1973, defendant filed a petition for a rule to show cause against plaintiff. The petition set forth the above paragraph of the decree; alleged that on March 1, 1973, plaintiff had sold the marital residence; that plaintiff, though requested to do so, wilfully refused to pay the $3,448 to Mrs. G.A. Stevenson; and that defendant had to retain counsel and was unable to pay attorney's fees. Plaintiff filed a motion to dismiss the petition for a rule on the grounds that defendant was not the payee on the note; that he had no interest in the note; that he had not demonstrated any damages; and that the statute of limitations had run on the note. After the court denied plaintiff's motion to dismiss the petition, she filed an answer in which she admitted the contents of the decree; further admitted that she had sold the residence on March 1, and that she had not paid Mrs. Stevenson. She denied that she had any duty to pay Mrs. Stevenson.
In response to plaintiff's request to admit facts, defendant filed an answer that he had seen a note dated August 1, 1957, payable to his mother for $4,000 at 4% interest payable at the rate of $25 per month; that he did not have the note in his possession; and that his mother had died subsequent to the last court hearing in July, 1973. On November 26, 1973, plaintiff's counsel filed a memorandum with the court reciting that the payee had not made a claim against plaintiff on the note; that now the payee was dead, and there was no access or evidence as to the note.
On December 18, 1973, a hearing was conducted on defendant's petition for a rule. Defendant testified that he had signed the note payable to his mother and had kept up the payments until the divorce. Plaintiff had not signed the note. After defendant had signed the note, he gave it to his mother and did not recall seeing it thereafter. Before July 1973, he had asked his mother about the note but she was unable to find it. After his mother died, defendant inquired of his mother's executrix about the note, but she could not find it. A memorandum book belonging to the mother and reflecting defendant's payments on the note prior to the divorce was introduced as secondary evidence. Defendant also testified that he had not been required to expend any further money on the note and that he did not know whether the note had been assigned or conveyed.
Plaintiff testified that the only demand for payment on the note had been relayed to her present husband by defendant. She had read the property agreement at the time of the divorce. When plaintiff's counsel observed that no action had been taken on the note, the trial judge replied that the $3,448 was to be paid in full by plaintiff when the real estate was sold.
On December 20, 1973, the trial court found plaintiff to be in contempt of court for the wilful failure to pay the $3,448 under the decree of October 27, 1961. Judge Buckley further ordered that plaintiff be taken into custody until she purged herself by paying the amount to the executrix of the estate of Mrs. Stevenson. The trial court stayed the mittimus, and a notice of appeal was filed by plaintiff on January 16, 1974.
On March 5, 1974, the trial court conducted a hearing on fees and awarded $2,000 in fees to defendant's attorney. At that hearing, defendant testified that he was entitled to one-third of his mother's estate. Subsequently, the trial court denied plaintiff's motion to vacate the award of fees to defendant, and, on May 1, 1974, another notice of appeal was filed by plaintiff. On November 7, 1974, this court dismissed plaintiff's appeals for failure to file a record on appeal.
On January 7, 1975, defendant filed a petition in the trial court requesting that plaintiff be taken into custody with mittimus to issue. On February 3, 1975, plaintiff filed a petition under section 72 of the Civil Practice Act to vacate the previous orders. The petition alleged that defendant had failed to set forth any claim upon which relief could be granted in that he was not the payee or holder of the note, and that he had no right or interest in the subject matter; that defendant had not suffered any loss and that any action was barred by the statute of limitations. The section 72 petition also alleged that there were new facts which if known to the trial court at the time of the entry of order of contempt would have precluded its entry. The petition, supported by affidavits, recited that the new facts were that after the dismissal of the appeal, plaintiff's counsel had telephoned defendant's counsel and requested the note in order that plaintiff might purge herself of contempt. The petition further stated that for the first time he was informed by defendant's counsel that the note was not available; that neither counsel nor defendant knew where the note was; that a search of the mother's possessions failed to disclose the existence of the note and it could not be tendered.
Defendant filed a motion to dismiss plaintiff's section 72 petition on the grounds that no new facts existed, and that all the facts alleged to be new were known to the trial court and to plaintiff before the entry of the contempt order. Defendant also filed a memorandum which stated that plaintiff was attempting to use a section 72 petition in lieu of an appeal; and that the court, on December 20, ...