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Hubbard v. Hubbard

OPINION FILED JUNE 5, 1980.

MONTELL J. HUBBARD, PLAINTIFF-APPELLEE,

v.

PHYLLIS

v.

HUBBARD, DEFENDANT-APPELLANT.



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

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 26, 1980.

Phyllis V. Hubbard, defendant, appeals from the order of the circuit court of Cook County directing the sale of her one-half interest in certain real estate to her former husband, Montell J. Hubbard, plaintiff.

On appeal defendant contends: (1) the trial court's ex parte order of sale is void since it was entered without notice to her; (2) the trial court lacked statutory authority to direct the sale; and (3) the trial court improperly denied the motion to vacate the sale order. We affirm.

The parties were married in 1944, separated in 1975, and on November 18, 1977, after a noncontested hearing, a judgment of dissolution of marriage, in form approved by the respective parties and their counsel, was entered.

The dissolution judgment incorporated the terms and provisions of an oral property-settlement agreement. Essentially, the incorporated agreement provided for the allocation and award of certain personal property, the equal division of securities and savings accounts and the sale and equal division of the proceeds of jointly owned real estate which included the marital residence in Chicago, Illinois, vacant lots in Bitely, Michigan, and improved real estate in Lawrence, Michigan. The only controversy before us relates to the Lawrence real estate, a 12.3-acre tract improved with a 1 1/2-story house and a two-car garage. With respect to this property, paragraph 5(c) of the dissolution judgment states:

"The parties hereto further agree that they own jointly a piece of property in Lawrence, Michigan, which shall be appraised and sold, after normal costs, commission, deductions and prorations, net figure is to be divided equally between the parties hereto, * * *."

The record discloses that following the entry of the dissolution judgment on November 18, 1977, the parties sought to sell the Lawrence property. On June 13, 1978, the defendant, contending that the plaintiff was uncooperative in promoting a sale of the property, filed her petition in the trial court seeking certain relief. Among other things, the defendant's petition alluded to the need for injunctive relief to prevent the plaintiff from interfering with a sale of the realty; asserted that the plaintiff, contrary to the agreement of the parties, was bringing personal effects into the home and had planted a garden in the back yard; contended that certain repairs were required because of the past winter damage to the property; referred to an attached appraisal of the realty; *fn1 and asked that the court allow the defendant to take charge of the sale.

Pursuant to the defendant's petition, the trial court entered an order, initialed and designated as "agreed." The order placed substantial control in the defendant to effectuate a sale of the property and set forth "that Phillis Hubbard shall take charge of the sale thru [sic] the local Century 21 office for which the parties hereto have signed a listing agreement."

The order of June 13, 1978, required that defendant obtain a written estimate of repair costs and also stated that "all costs in connection with the sale of the property shall be paid from the proceeds from the sale prior to dividing the balance between the parties hereto * * *." The order further provided that a status hearing before the court was to take place on July 6, 1978 (later deferred to July 27, 1978).

It appears the listing with the Century 21 agency originally had been entered into by the parties on January 6, 1978, and established a sale price of $48,000. On June 12, 1978, the parties extended the listing to November 30, 1978, at a sale price of $43,000.

On July 27, 1978, the parties and their counsel appeared before the trial judge. The order entered on that date called for the continued cooperation of the parties in concluding a sale of the property and also required the parties "to accept the best offer submitted in this courtroom as of 10:30 a.m. on Friday, August 4, 1978, and the parties shall be present in court at that time." The order was drawn and submitted by defendant's counsel. No appeal from that order was taken.

The record further discloses that on July 26, 1978, Susie Johnson executed an offer to buy the Lawrence property for the sum of $43,000, subject to various conditions including the ability to effect a sale of her home in Florida and to obtain necessary bank financing with which to purchase the subject real estate. While the record shows that the parties signed a separate acceptance of the Johnson offer, the record also discloses the transaction was abandoned sometime prior to August 31, 1978.

In accordance with the court order of July 27, 1978, on August 4, 1978, the parties and their counsel again appeared before the trial court. The transcript of the hearing on that date indicates clearly that the parties, at that time, expressed the desire to effect a prompt sale of the property; they also called attention to needed repairs and acknowledged the contingent nature of the Johnson offer of $43,000. The transcript also referred to defendant's knowledge of plaintiff's offer to pay defendant $19,000 net for her interest in the property if the sale to Johnson for $43,000 could not be implemented by August 31, 1978.

After the hearing on August 4, 1978, the trial court entered an order which was prepared and submitted by defendant's counsel. The August 4 order, referring to the Johnson offer, states that the parties, in open court, had executed a contract to sell the property for $43,000. The order also provides:

"C. That in the event said sale is not ready to be closed on 8/31/78, allowing time for appropriate title work to be completed, then the plaintiff shall pay to the defendant the sum of $19,000.00 for her interest in said property."

No appeal from this order was taken.

On August 31, 1978, plaintiff and his counsel appeared before the trial judge. Counsel for plaintiff represented to the court that the defendant was not present and that her counsel had notified him that his representation of the defendant had been terminated at the defendant's direction. The case was held until the end of the call, and when the defendant did not appear, the court entered its order in conformity with its previous orders of July 27, 1978, and August 4, 1978. The trial judge found that because no other buyer of the property was presented, the plaintiff was required to deposit with the clerk of court the sum of $19,000 as payment for the defendant's interest in the subject property. The order detailed the legal description of the property and directed an associate judge of the land title division to execute the deed of conveyance in the event the defendant failed to execute and deliver her deed to the plaintiff within 10 days. Thereupon, plaintiff deposited with the clerk of the court the sum required of him.

On September 29, 1978, defendant, through new counsel, presented her petition to the trial court seeking to vacate the order of August 31, 1978. In defendant's petition to vacate, defendant contended that: (1) she had no notice or knowledge of a hearing being set before the trial court on August 31, 1978; (2) the parties had a signed contract with Susie Johnson to sell the property to her for $43,000 (a copy of the agreement was attached to the petition); (3) the sum of "$1001.00 [sic]" did not represent one-half of the fair cash market value of the real estate; (4) the property, if properly repaired, could be sold for $48,000; and (5) the listing agreement with the real estate broker extended to November 30, 1978. After hearing on October 18, 1978, the trial court entered its order denying defendant's petition to vacate the order of August 31, 1978. On November ...


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