APPEAL from the Circuit Court of Cook County; the Hon. DAVID
LINN, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 12, 1976.
The defendant, Saul Bellow, appeals from a judgment of the Circuit Court of Cook County entered on July 25, 1974, setting aside the property settlement agreement with the plaintiff, Susan Bellow, which was incorporated in the judgment for divorce entered on February 14, 1968.
The issues for review are whether the findings of the court that the property settlement agreement was procured by fraud; whether awarding the plaintiff one-half of the funds withdrawn by the defendant from a joint account was against the manifest weight of the evidence; and whether the plaintiff is entitled to attorney's fees in an action to vacate a property settlement agreement under section 72 of the Civil Practice Act.
The property settlement agreement was executed on January 16, 1968, and gave the plaintiff, Susan Bellow, a lump sum amount of $115,000 in lieu of alimony, which included the $17,500 equity in their cooperative apartment and $7,000 in furnishings. The agreement was expressly based on a projected income of $30,000 per year for the defendant and a net worth of $250,000. In addition, the defendant agreed to pay $250 per month in child support for their four-year-old child, Daniel Bellow.
In December of 1971, Susan Bellow filed an amended petition under section 72 of the Civil Practice Act to set aside the property settlement portion of the divorce judgment. With respect to the contentions on appeal the plaintiff alleged that the agreement was predicated upon the fraud of the defendant in that he had knowingly and materially understated his projected income and net worth and also had misrepresented that he was the sole owner of the apartment when, in fact, he owned it with her in joint tenancy. She further alleged he had withdrawn the balance of $10,929.87 from their joint bank account even though she was the exclusive owner of one-half of that amount.
Property settlement negotiations with respect to the dissolution of the marriage began in 1967, and on October 10, 1967, the defendant's counsel wrote a letter to plaintiff's counsel indicating that Saul Bellow's income would fall off substantially in 1968 and succeeding years and proposed a lump sum tax-free settlement of $75,000 or alimony based on an income projection of $30,000 per year subject to adjustment for income fluctuations. The $30,000 figure was based on his University salary of $20,000 per year, a "dribble of royalties," and other miscellaneous items. The letter states in relevant part:
"You have been informed that Mr. Bellow's royalties from the sale of the book, HERZOG, have declined this year from the first check of $80,000 to the second check received recently in the sum of only $2,500. Except for a dribble hereafter, this is the extent of the income from HERZOG. The income from other publications for which he is entitled to royalties is so modest as to be unworthy of consideration in this situation. Certainly it will be accounted for and reported in his tax returns as it has been heretofore.
Mr. Bellow's future income is expected to be no more than approximately $30,000 per year beginning with the year 1968. This is made up from his salary from the University of Chicago of approximately $20,000, a dribble of royalties, income from investments and such other miscellaneous income as may come along such as an occasional appearance, other than his work at the University of Chicago, for which he is paid to lecture.
If the matter is not settled with a waiver of alimony, Mr. Bellow is willing to pay whatever we can agree upon that is reasonable or that a Court may decide should be the amount of alimony and child support based upon $30,000 per year and subject to fluctuation, as is all ordinary alimony in Illinois, depending primarily upon the fluctuation of Mr. Bellow's income, but also depending upon such income as Mrs. Bellow may have. * * *
Under the foregoing circumstances, it must be noted that the apartment in which Mrs. Bellow now resides with the child is the sole property of Saul Bellow and he feels justified in his desire to dispose of that asset at the earliest possible moment * * *"
The record shows the defendant earned the following amounts from his literary efforts in the first months and years subsequent to the property settlement: in January of 1968, he earned $4,488; in February, $10,238 (including a $10,000 advance for "Mosby's Memoirs," a book of short stories); in March, $2,771; in April, $50,869 (including a $50,000 advance for an untitled novel which was later named "Mr. Sammler's Planet"); in May, $10,106; and in June, $15,008. From all sources, he earned $149,631 in 1968; $163,622 in 1969; and $169,165 in 1970. Prior to the publication of "Herzog" in 1964, the most money Saul Bellow earned was the $16,895 he reported on his 1963 income tax return. With the success of "Herzog" his income jumped to $89,670 in 1964; $79,157 in 1965; $90,085 in 1966; and $128,104 in 1967.
The property settlement agreement erroneously recited the defendant was the sole owner of the apartment when, in fact, it was owned in joint tenancy with the plaintiff. All through the negotiations he maintained he was the owner of the apartment, and in the letter quoted above, his divorce ...