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Gordon v. Joseph

OPINION FILED JULY 22, 1977.

SYLVIA GORDON, PLAINTIFF-APPELLEE,

v.

HOWARD JOSEPH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS H. FITZGERALD, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Defendant brought this action to vacate a confession of judgment entered on a note executed by him pursuant to a decree of divorce. Following a bench trial, the court denied his motion and reaffirmed judgment on the note. On appeal he contends that the court's finding was against the manifest weight of the evidence.

Plaintiff and defendant were divorced on May 18, 1959. Pursuant to the divorce decree, defendant delivered to plaintiff a $25,000 note, payable in minimum yearly installments of $1,500 with a final payment of $11,500 due on or before June 1, 1969. The decree also provided that: (1) plaintiff have custody of the three children subject to defendant's visitation rights; (2) defendant pay plaintiff the larger of $100 per week or 40% of his income in child support; (3) defendant pay the children's camp and extraordinary medical expenses, and one-half of their clothing and college costs; (4) defendant maintain a membership in the Covenant Club, major medical insurance, and $175,000 in life insurance; (5) plaintiff have the right to examine defendant's financial records, and; (6) plaintiff (should she remarry) have the right to change the children's names to which defendant could "not unreasonably withhold his consent."

Confession of judgment was entered on November 13, 1967. However, plaintiff did not file a citation to discover assets until May 29, 1973. Thereafter, defendant moved to vacate the judgment.

At trial defendant testified that on the evening of October 23, 1959, he visited plaintiff at her apartment. He told her that the burdens of the divorce decree were impossible for him to meet. Whereupon she offered to release him from every obligation of the decree except payment of $100 per week in child support, if he would waive all rights in the two younger children, Michael and Susan. After agreeing to the proposal, he specifically enumerated the rights she was relinquishing including payment on the note in question.

From October 1959, until he received the citation to discover assets, plaintiff made no demand for payment of the note. In fact, when he requested in September 1972 that she return the note, she claimed she had lost it. Nor did she demand that he comply with the other provisions in the decree, which she had waived, including those dealing with camp and clothing expenses. Moreover, none of her post-decree motions sought anything other than arrearages for child support of $100 per week. When she remarried in the fall of 1960, she changed the last name of the two younger children to Gordon. She did this without his consent.

Pursuant to their agreement he refrained from seeing Michael and Susan. In addition, he cancelled the insurance and the membership in the Covenant Club. After October 23, 1959, he paid plaintiff no more than $100 per week in child support.

In 1967, he and plaintiff orally agreed to reduce child support to $300 per month. He introduced into evidence a letter which plaintiff sent him on May 12, 1971. In it she mentions the $300 figure, noting that she "need[s] the money for Craig's [the oldest child] tuition."

On cross-examination defendant stated he has been an attorney since 1951. He acknowledged that at plaintiff's request he signed a consent to remove the children to Florida in December 1960. However, he insisted that at the time he questioned the need for it in light of their previous agreement.

He also admitted that on April 6, 1960, he filed a petition to modify the divorce decree. The petition recited the terms of the decree and requested relief from its provisions due to financial hardship. It specifically acknowledged the existence of the note and asked the court to relieve defendant "from the current payment of $1,500 * * * and all subsequent payments." However, it did not mention any prior oral modification. Further, it asserted that plaintiff had refused to allow defendant to visit "with his minor children in violation of the decree."

Plaintiff testified that she never agreed to relinquish any of her rights under the decree, including payment on the note. In fact, she frequently requested that defendant comply with the requirements of the decree.

In May 1960, September 1963, January 1964 and September 1964, she petitioned the court to enforce various provisions of the decree including those dealing with child support, insurance, and camp, clothing, and medical expenses.

Pursuant to these petitions the court entered several orders. On May 26, 1960, the court found arrearages of $2,156.53 in child support and clothing expenses. On October 1, 1963, the court found arrearages of $5,446.53 in child support, $300 in camp costs and $1,045.54 in clothing expenses. It further found that plaintiff should pay "at least" $100 per week child support and "that in all other respects the decree of divorce shall remain in effect." Two other orders entered February 13, 1964 and July 15, 1965, found arrearages of child support only. Plaintiff introduced into evidence certified copies of these petitions and orders. Defendant either signed the orders or stipulated to their entry.

On cross-examination she admitted that she never received more than $400 per month in child support. Most months she received less than that. Although she never agreed to reduce the monthly payments, she accepted less because "it was better to get less than nothing." She also requested defendant's tax ...


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