APPEAL from the Circuit Court of St. Clair County; the Hon.
ROBERT BASTIEN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal from a denial by the circuit court of St. Clair County of a section 72 petition (Ill. Rev. Stat. 1973, ch. 100, par. 72). It was filed by defendant, Charles B. Hellige, to set aside and vacate a property settlement and support agreement that was incorporated in a decree of divorce entered August 29, 1975, in favor of defendant Charles Hellige's wife, plaintiff-appellee Linda Hellige. Appellant Charles Hellige was not represented by counsel during the divorce, and did not appear at the hearing. He did sign an entry of appearance on August 13, 1975, which incorporated the property and support provisions he now protests. The defendant argues two grounds in support of his petition to vacate. He first claims that the agreement was procured by fraud. He also urges that the agreement was not reasonably fair in light of the station in life and the circumstances of the parties.
Additionally, the defendant appeals from the trial court's order holding him in contempt of court and sentencing him to a 30-day jail term.
Charles and Linda Hellige were married in 1964, and had three children by that marriage. On July 4, 1975, the defendant left the family home after a disagreement with his wife, and moved in with his paramour. The next day he voluntarily admitted himself to a hospital and stayed there for a week. When he was released, he returned to his paramour's home, where he established residence. He was working at that time at his job as a field representative (salesman) for an insurance company. He and his wife talked over the phone during this period, and defendant continued to support the family.
The plaintiff filed for divorce on July 15, 1975, and the defendant was served with a copy of the summons in that action on July 18, 1975. The defendant conversed by phone at least once with the plaintiff's attorney regarding the property agreement. The defendant negotiated directly with the plaintiff for a $12,000 share of the equity in the house if it were sold.
The plaintiff's attorney mailed an entry of appearance to the defendant on July 31, 1975, which incorporated the property and support agreement. The defendant testified that he received the document and read it. He also stated that he told the plaintiff's attorney that he would not sign it until he had a lawyer look at it. On August 7, 1975, the defendant informed the plaintiff's attorney's secretary that he had arranged to meet with an attorney, would do so on August 11, 1975, and would get back to them. The defendant then returned to the plaintiff's attorney's office on August 13, 1975, and signed the entry of appearance and incorporated agreement. At that time, the defendant asked that he be advised of the hearing date, and he did receive a letter dated August 13, 1975, stating that the final hearing was set for August 29, 1975, at 9 a.m.
The decree was entered in the case August 29, 1975, and the plaintiff's attorney mailed a copy of the decree to the defendant on September 2, 1975.
The defendant was arrested September 21, 1975, for harassing the plaintiff. He retained his first attorney of record September 22, 1975, for the dual purpose of representing him in the criminal proceedings charging him with disorderly conduct and trespass, and to review the divorce decree to see if anything could be done to modify or gain some relief from its terms. However, no motion for relief was filed at that time.
The defendant next appeared before the court in November 1975 to respond to the plaintiff's petition for a rule to show cause, for injunction, and for limitation of visitation. As a result of the hearing, visitation was modified, and both parties were ordered to cease harassing the other. The defendant was represented by his second attorney of record at this hearing.
The defendant filed his petition to set aside the original decree on February 24, 1976. A hearing on that petition and on the plaintiff's second petition for an order to show cause why he should not be held in contempt for striking, beating, choking and kicking the plaintiff on May 30, 1976, and May 31, 1976, was held June 8, 1976. The court found the defendant in contempt and sentenced him to 30 days with a stay of sentence if he observed the injunction terms faithfully for one year. The sentence would be permanently stayed at the end of one year.
The defendant's first contention on appeal is that the original decree was obtained by fraud, and that he was mislead by the plaintiff to believe that the parties were going to reconcile. She had filed two previous times, and later reconciled, and the defendant testified that he thought that this would happen again. For that reason, the defendant argues, the decree was obtained fraudulently, even though he was made aware of the progress of the action, read the entry of appearance before he signed (after having the same for 13 days), and negotiated some terms of the agreement dealing with equity in the house. The defendant also argued that the plaintiff's attorney's secretary called him, told him he had to sign some papers (the entry of appearance), and misrepresented the effect and terms of the same to get him to sign. Also, the defendant alleges in his petition, and testified at trial, that he did not have notice of the final hearing date. After being confronted by the plaintiff's attorney with a letter dated August 13, 1975, the defendant admitted receiving the letter which set forth the date of the hearing.
In Stoller v. Holdren (1964), 47 Ill. App.2d 81, 82-83, 197 N.E.2d 492, the court said of section 72 relief:
"To vacate a valid judgment after 30 days from its entry under Sec. 72 of the Civil Practice Act defendants must show reasonable excuse for failure to defend within the appropriate time or that they were prevented from so doing by the fraud, act or concealment of the opposing party, accident, excusable mistake or one or more of the grounds traditionally relied upon for equitable relief from judgments. The defendants must also state ultimate facts showing a meritorious defense. This section cannot be used to avoid the consequence of a defendant's negligence."
In Leach v. Leach (1975), 26 Ill. App.3d 241, 244, 325 N.E.2d 19, the court discussed the general nature of the ...