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Carvallo v. Carvallo

OPINION FILED JULY 6, 1978.

EILEEN CARVALLO, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

EDWARD CARVALLO, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM E. PETERSON, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Eileen Carvallo, sought payment of alimony allowances claimed to be due her under the terms of the marital settlement agreement incorporated in her judgment for divorce. Defendant, Edward Carvallo, by petition for declaratory judgment, sought interpretation of the terms of the divorce judgment and a ruling that his obligation to pay alimony allowances had terminated.

After an evidentiary hearing, the trial court found for defendant. The court awarded attorney's fees to plaintiff's counsel. Plaintiff appeals, contending the trial court erred in its interpretation and construction of the terms of the divorce judgment. Defendant appeals, contending there was no legally proper basis for the award of attorney's fees to plaintiff's counsel.

We affirm the trial court.

The parties married in 1972 and separated in early 1976. No children were born to or adopted by the parties. In May of 1976, plaintiff filed suit against defendant for divorce. While the suit for divorce was pending, plaintiff's counsel began negotiations with defendant in an attempt to settle the parties claims against each other and resolve their respective alimony and property rights. The parties eventually executed a marital settlement agreement, drafted by plaintiff's counsel.

A judgment for divorce was entered on August 30, 1976, incorporating the marital settlement agreement. Among other things, plaintiff was awarded most of the personal property and the marital residence which had been held in joint tenancy. Defendant remained obligated to pay various debts and taxes. While unclear from the terms of the marital settlement agreement, it appears that the plaintiff was not obligated to exonorate the defendant from his continuing personal liability on the outstanding mortgage which encumbered the marital residence.

In addition, the judgment for divorce provided:

"ARTICLE II

1. The Husband shall pay to the Wife as and for her support and maintenance, the sum of $450 per month which approximates the current mortgage payment including principal interest and taxes on the marital domicile located at and commonly known as 7224 North Keeler, Lincolnwood, Illinois.

2. The Wife agrees that because of her present employment and ability and desire to be efficient in accordance with her current status and circumstances, to waive any other form of alimony not mentioned in paragraph one above.

3. The remarriage of the Wife shall terminate the alimony payments as provided in number one above and shall bar her right to any alimony whatsoever at any time ever from the Husband.

ARTICLE VII

MISCELLANEOUS PROVISIONS

* * * [T]hat nothing herein contained shall operate or be construed as a waiver or release by either party to the other of the obligation on the part of the other to comply with the provisions of this Agreement, or the rights of either party under this Agreement, particularly, the right of the Wife to seek alimony from the ...


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