APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE BOROVIC, JR., Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
On October 17, 1973, Rebecca S. Mueller, plaintiff-appellee (hereinafter referred to as "wife"), filed her complaint in Du Page County for divorce, alleging cruel and unnatural treatment by her husband, Thomas J. Mueller, defendant-appellant (hereinafter referred to as "husband"). The husband was personally served and given notice of the December 7, 1973, hearing on the complaint. The husband did not enter an appearance on this date, and the court, after hearing the wife's and her sister's testimony, entered a default judgment for divorce.
There are two issues presented for review in this court: (1) Whether the trial judge's severing of the joint tenancy of the parties by compelling a conveyance of one party's one-half interest to the other party was proper; and, (2) Whether there was a proper basis, as a matter of law, to award attorneys' fees to the plaintiff (wife) in this cause.
The consent decree, entered on January 3, 1974, provided that the wife would be forever barred and foreclosed from alimony. The decree also provided, among other provisions, that the wife still desired to reside in the marital dwelling and would be permitted to continue residing there. In addition, the wife was to hold the husband harmless from all liability arising from the marital property for taxes, mortgages, insurance, or any other cause. The parties agreed that the value of the home was $29,000. The parties agreed that when the wife sold the property, she would turn over to the husband the sum of $14,500 after deducting all costs and expenses of the sale and paying off all mortgages or liens against the property. This sum was to represent the husband's full share of the property.
On July 1, 1975, the husband filed a petition for modification of the decree of divorce, alleging a substantial change in the circumstances of the parties. The petition alleged that in violation of the decree, the wife was no longer residing on the marital property and that said property was being rented to third parties. In the petition, the husband also denied ever approving the property division, and he denied ever signing the decree of divorce. The husband's petition prayed that the court compel the wife to sell the marital property and distribute the net proceeds equitably between the parties; or, in the alternative, have the wife compensate the husband for his interest in the property.
The wife's cross-petition alleged that the draftmanship of the divorce decree was such, due to a scrivener's error, that if the property were sold then, pursuant to the terms of the divorce decree, all the equity in the property would belong to the husband. This situation arose because there was a $19,000 mortgage on the marital property, and the wife was obligated to turn over $14,500 to the husband by the terms of the decree. Thus, the wife alleged the true intent of the parties was not effectuated by this consent decree and requested the court to vacate that portion of the decree that set forth the property rights of the parties.
Per stipulation of the parties, that portion of the decree pertaining to the joint marital property was vacated and a trial de novo was held.
There, the trial court entered an order requiring the wife to pay to the husband the sum of $3,081. The trial judge determined that this sum was one-half of the equities between the parties in the property after the deduction of all the credits for mortgages and other credits. The husband was required to quit claim all his right, title and interest in the marital property to the wife after he received the sum of $3,081 from her. The wife was further barred from all claims of alimony, and the husband was ordered to pay $400 towards the wife's attorney's fees. The husband appeals from the entry of these orders.
Both the husband and the wife are in agreement that an award of a conveyance of jointly owned property from one spouse to the other must be based either upon special equities or granted in lieu of alimony.
By statute, the trial court in hearing divorce matters can only order property to be conveyed from one party to the other in two specific situations. The first is under section 17 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 18), which provides:
"Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable."
In order to compel a conveyance of property under this section, special equities "must be specifically alleged in the complaint and established by competent evidence adduced at trial." Palacio v. Palacio (1975), 33 Ill. App.3d 1074, 1078, 339 N.E.2d 427, 430 citing Lawyer v. Lawyer (1974), 19 Ill. App.3d 571, 312 N.E.2d 7, and Overton v. Overton (1972), 6 Ill. App.3d 1086, 287 N.E.2d 47.
The second situation where the court may compel a conveyance of property in divorce matters from one party to the other is in lieu of alimony under section 18 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 19). It provides:
"* * * The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as ...