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Feldmann v. Feldmann

OPINION FILED MAY 4, 1978.

MARY FELDMANN, PLAINTIFF-APPELLEE,

v.

HOWARD FELDMANN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED E. WOODWARD, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 9, 1978.

The defendant below, Howard Feldmann, appeals from the denial of his motion to set aside an oral property settlement as well as a decree of divorce incorporating the provisions of that agreement. The denial of the motion and the decree were entered on February 2, 1977. The defendant also appeals from an injunction entered against him on February 3, 1977, prohibiting him from altering the beneficiaries of his survivor's benefits, as well as from transferring certain private annuities.

The issue here is whether an oral property settlement, which has been made part of the record in a divorce proceeding and acknowledged by both parties, may be repudiated by either party prior to the entry of the decree, solely upon allegations of unfairness and absent any showing of fraud or coercion.

• 1 In the proceedings before this court no argument has been submitted by the defendant regarding the injunction of February 3, 1977. Accordingly, we consider that any issues arising out of that injunction have been waived by the defendant. Ill. Rev. Stat. 1975, ch. 110A, par. 341(e)(7); Kenly v. Kenly (1977), 47 Ill. App.3d 694, 365 N.E.2d 379.

It would serve no purpose to set out in this opinion a complete summary of the facts present in this record. It suffices to say that on October 12, 1976, the plaintiff, Mary Feldmann, and the defendant appeared in the circuit court of Du Page county where they were both represented by counsel. This appearance was the culmination of 17 months of protracted divorce consultations and litigation. The plaintiff testified regarding the grounds for divorce as well as the terms of an oral settlement which had been reached by the parties immediately prior to the hearing. The defendant then was called to the stand where he acknowledged his wife's testimony regarding the grounds for divorce. The defendant also testified that he had heard all of the terms of the oral agreement set forth by his wife and was totally and voluntarily agreeable to them.

In their property settlement agreement the parties set forth the following provisions:

"a. The parties are the owners of five private annuities (Nos. R-10-00-81, R-11-39-22, R-12-01-37, 876-89-32 and 908-08-02) with the Mutual Life Insurance Company of New York which are held in the name of Howard Feldmann and have an approximate cash surrender value of $42,386.10. Husband agrees to cash in all those annuities and direct payment of the cash surrender value to the Wife. Husband agrees he will assume full responsibility for payment of any income tax liability which arises by virtue of the cashing in of said annuities.

b. The Husband shall assume sole liability for and pay the balance due on the Marshall Field account in the approximate amount of $364.34 plus all accrued finance charges.

c. The Husband shall pay or arrange to have transferred to his own Bank Americard charge account, the sum of $189.51, which was previously transferred to the Wife's account, plus accumulated service charges on that amount.

d. The Husband shall pay to the Wife the sum of $13,000.00 immediately. The Husband shall pay to the Wife the added sum of $3,600.00 in 12 equal installments of $300.00 each, commencing on the first day of the month following the entry of the judgment for divorce. Said payments constitute a return of property, not alimony.

e. The Husband shall irrevocably designate the Wife as beneficiary of all survivor benefits under the Husband's disability insurance policy No. 62X2-10-86.

f. The Husband releases any claim of right he may have in the condominium No. 1108 owned by wife located at 400 E. Randolph, Chicago, Illinois.

g. The Husband waives any claim of right he may have in the certificate of deposit held in the name of the Wife in the approximate amount of ...


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