APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
L. HUNTER, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 7, 1980.
This divorce litigation involves construction of a property settlement agreement concerning the payment to Kay H. Claflin (petitioner) of maintenance and also support for three children by Charles E. Claflin (respondent). The trial court found the agreement was ambiguous. After hearing testimony the trial court found the payments in question were to continue regardless of the fact that certain children had attained majority. Respondent appeals.
1 The petitioner-appellee has failed to file a brief in this court. We will decide the issues on the merits, as far as we are able under the record before us. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493.
2 The initial issue, not discussed in respondent's brief, is whether the Illinois Marriage and Dissolution of Marriage Act, effective October 1, 1977 (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), applies here. We conclude this new legislation is effective here. No judgment had been entered on the subject matter of the within litigation at the time the new Act took effect. (See Ill. Rev. Stat. 1977, ch. 40, par. 801(b). Compare West v. West (1979), 76 Ill.2d 226, 390 N.E.2d 880.) We will add that, in our opinion, the results hereinafter stated would be the same under the new divorce act or under the statute it supplanted.
On December 31, 1968, the parties, both represented by counsel, entered into a written property settlement agreement. Paragraph 2 of this agreement provided:
"The husband shall pay to the wife fifty per cent (50%) of his net annual income derived from all sources as and for her allowance for support and maintenance and that of the children. For purposes of this Agreement, `net annual income' shall be defined as gross annual income less deductions for payment of Federal Income Taxes and Social Security Taxes. Said sum shall be payable in fifty-two (52) equal weekly installments payable on the Friday of each week following the effective date of this Agreement."
This agreement also provided for payment to petitioner of 50 percent of the new amount of all bonuses which respondent might receive. It provided respondent was to submit to petitioner a verified copy of his individual tax return on or before April 15 each year. Credit was to be allowed respondent if his payments during the previous year exceeded the 50 percent mark and he was to make up any deficit. Minimum and maximum payments for any year were set at $10,000 and $22,500. On January 20, 1969, a judgment of divorce was entered which incorporated these provisions of the agreement.
It should be noted that on November 21, 1968, counsel for respondent wrote to counsel for petitioner and enclosed a preliminary draft of the property settlement agreement. This draft contained no mention of child support in its second paragraph. The draft was amended by the final agreement, above quoted, which added a specific provision that payments by respondent included child support.
The children of the parties are: Todd, born July 10, 1953 (21st birthday July 10, 1974); Bruce, born August 31, 1955 (21st birthday August 31, 1976); and Charles, born July 10, 1957 (21st birthday July 10, 1978).
On March 25, 1977, respondent filed a petition for an order clarifying or modifying his maintenance and child support obligations. The petition alleged the parties intended one-half of all payments by respondent were to constitute maintenance and one-sixth of all payments was for the support of each of the children. Respondent alleged that from time to time he had deducted, and petitioner had accepted, reduced payments as the children reached majority. Also, respondent had reduced payments at times when the children were living with him and he supported them.
On April 13, 1977, respondent requested that petitioner admit respondent's attorney wrote to petitioner's attorney on May 22, 1974, and stated the understanding of the parties that the settlement agreement was prepared so as "to maximize tax benefits" and the understanding of the parties was that as each of the children attained majority support payments would be reduced by one-sixth. Respondent was also asked to admit she was notified by her attorney of the contents of this letter shortly after its receipt and her attorney received no response from her concerning the contents. No response of any kind to this request was filed by petitioner. Ill. Rev. Stat. 1977, ch. 110A, par. 216(c).
On June 8, 1977, petitioner filed an answer to respondent's petition. This answer categorically denied the petition concerning the alleged intention of the parties.
On August 25, 1978, respondent propounded written interrogatories to petitioner regarding the date of her remarriage, if any, and other information on this subject. It appears from the record that petitioner did in fact remarry on or about April 12, 1978. Her present husband is one of her attorneys of record in this appeal. There seems to be some doubt about the exact date of remarriage. An affidavit by petitioner shows the date of remarriage as April 17, 1978. We will use that date in this opinion. Respondent took the position that petitioner had wilfully concealed this fact from the court. On September 14, 1978, respondent filed a motion to hold petitioner in contempt for this reason.
On August 22, 1977, the trial court heard testimony on the theory that the property settlement agreement was ambiguous. In due course briefs were filed by both parties. On November 14, 1978, the able trial judge filed a memorandum opinion. The trial court found the agreement was ambiguous. The trial court correctly noted that the agreement does not state any specific percentage of respondent's obligation to be allocated to child support or the effect upon the obligation of respondent of emancipation of the children. The trial court concluded the ...