APPEAL from the Circuit Court of Madison County; the Hon.
GEORGE MORAN, JR., Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
___ N.E.2d ___ The plaintiff, Mary Waggoner, appeals from an order entered in a post-divorce proceeding denying plaintiff's motion for enforcement of provisions of the divorce decree, finding defendant, John Waggoner, not in contempt of court, denying plaintiff's motion to reconsider the motion for enforcement and finding of contempt, and denying the motion to clarify, amend and/or modify the divorce decree nunc pro tunc.
On appeal the plaintiff requests that we interpret the following paragraph, especially the underscored provision, appearing in the property settlement agreement which was incorporated in the divorce decree:
"Plaintiff will retain the residence of the parties, the motor vehicle and the furnishings, subject to the indebtedness on said items, and the Defendant will upon request execute any necessary document to effect transfer of ownership to said items to Plaintiff and subject to the indebtedness thereon, * * *."
Plaintiff and defendant were married on December 2, 1972. One child, Jennifer, was born to them. In September 1974, the couple purchased a marital residence located at 974 North Wood River Avenue, Wood River, Illinois. In order to make the down payment on the residence the parties asked for, and subsequently received, $5000 from defendant's parents. After the down payment was made a balance of approximately $11,500 was owed to the bank and secured by a first mortgage on the property. The evidence is controverted as to whether the $5000 was a loan. The plaintiff testified that she believed the $5000 to be money previously earned by the defendant and given to his parents to save for him. She stated that the money was given to defendant's parents so that the defendant would not lose his academic scholarship. The plaintiff also testified that at the time the $5000 was given to them she did not think she had been asked by defendant or his parents to sign a promissory note for the money. The defendant and his mother, however, testified that the $5000 was a loan and that the plaintiff was asked to sign a note but that she insisted that the transaction was a family matter, done in good faith, therefore a note was not needed. A promissory note was not signed at that time.
The plaintiff, defendant, and defendant's mother testified that in addition to the $5000 given by defendant's parents to the plaintiff and defendant, additional smaller amounts had also been given to the parties during their marriage.
In 1976, the couple purchased, in defendant's name only, a fishing cabin on the Illinois River. A $5000 loan was needed for this purchase and the loan was secured by a second mortgage on the marital residence of the parties. Both parties acknowledged signing the second mortgage.
Sometime in October 1976, after marital disharmony had developed, the defendant left the plaintiff.
In November 1976, the defendant signed a promissory note in favor of his parents for approximately $7700. On December 8, 1976, the defendant's parents took judgment on the $7700 note plus costs of suit and recorded a memorandum of the judgment, thereby causing it to become a lien on the marital residence of the parties.
Divorce proceedings were initiated, and on February 23, 1977, the parties were granted a divorce by the circuit court of Madison County. Incorporated in the divorce decree was a written property settlement which was prepared by plaintiff's attorney and signed by both parties. Pursuant to a provision in the property settlement agreement the defendant, in April of 1977, conveyed by a quit-claim deed all of his interest in the former marital residence. Shortly thereafter, the plaintiff listed the residence with a real estate agency to sell for $24,500. The house was sold but delivery of title and transfer of funds did not occur because the plaintiff did not have clear title due to the judgment lien on the property and the second mortgage.
Plaintiff initiated the present proceedings in the trial court in an endeavor to compel the defendant to remove the judgment lien in favor of his parents and the second mortgage on the cabin as encumbrances upon the title to the former marital residence.
The question presented is whether the provision of the property settlement agreement, "plaintiff will retain the residence of the parties, the motor vehicle and the furnishings subject to the indebtedness on said items," subjects plaintiff's ownership interests in the marital residence to the lien of the second mortgage taken out to finance the purchase of the fishing cabin in defendant's name and the judgment lien secured by the defendant's parents against the defendant only.
The plaintiff asks us to amend, nunc pro tunc, the decree of divorce and property settlement agreement so as to limit the meaning of the phrase "subject to the indebtedness" to include only the first mortgage. For this proposition plaintiff cites Dauderman v. Dauderman (1970), 130 Ill. App.2d 807, 263 N.E.2d 708, asserting that the omission of the words "first mortgage" was a clerical error as to matter of form. We find that the Dauderman case is inapposite to the case at bar. In Dauderman the words "per month" were omitted from an alimony provision. There were written memoranda of counsel for both parties which clearly suggested that periodic, rather than a lump sum, alimony payments were intended. In the case at bar there was no such memorandum of counsel or any other indication to support the plaintiff's claim of an inadvertent omission as to a matter of form.
Neither do we believe that the provision "subject to the indebtedness" refers only to the ...