APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
CROWN, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The petitioner, Carol Mae Good (formerly Carol Mae Whetstone), appeals from an order of the circuit court of Cook County which required the respondent, Richard P. Whetstone, to pay $309 as child support arrearages. On appeal Good argues that the trial court erred in its construction of the child support and alimony provisions of the divorce decree and should have required Whetstone to pay over $10,000 in child support and alimony arrearages.
The parties were divorced on March 11, 1974. The parties' settlement agreement was incorporated into the judgment of divorce. The relevant portion of that agreement provides:
"III. That the Husband shall pay to the Wife the sum of $35 per week as and for child support for each child.
IV. That the Husband shall pay to the Wife the sum of $38.00 per week as and for alimony, which makes a total payment of $108.00 per week for alimony and child support. That the Wife shall have the right to work without prejudice to her rights to receive alimony, and any monies received by the Wife shall not be a basis for the reduction of her alimony. It is understood that the Wife is to receive 50% of the Husband's income for alimony and child support for the two children."
At the February 1974 hearing on the complaint for divorce, Good testified that Whetstone was then earning $414 net every two weeks. She stated that it was understood that she was to receive 50% of Whetstone's net income as child support and alimony.
On November 22, 1978, Good filed a petition seeking child support and alimony arrearages. Other issues not germane to this appeal were raised by the parties by petition and counterpetition. On June 21, 1979, the trial court ruled on Good's petition after considering certain documents which were stipulated to by the parties, including the deposition of each of them. The relevant portion of the order appealed from provides:
"The Court Finds as follows:
1. Paragraphs III and IV [of the parties' settlement agreement], are construed that Whetstone is, and was, obligated to pay the specific dollar sums 35°°/xx per week per child set forth therein and Whetstone was not obligated to pay to Good 50 percent of Whetstone's income for alimony and child support;
2. * * * as of the date of this order Whetstone owes for child support and alimony in the sum of $23,474.00, and, further, Whetstone has paid the sum of $23,165.00 to date, and that, therefore, Whetstone owes $309.00 for child support."
The following chart summarizes the amounts actually paid by Whetstone to Good, the amounts due under a percentage of income construction of the parties' agreement and the amounts due under the specific sum provision of the agreement.
Amounts under a percentage Amounts under of income the specific Actually paid. construction. sum provision.
1974 $5309 $5762 $5184 1975 6345 6898 5610 1976 5372 6362 4470 1977 4802 6790 3640 1978 1127 *fn1 7635 3640
Good first contends that the language of the settlement agreement is clear and unambiguous. She argues the language is susceptible to only one construction, that Whetstone is required to pay 50% of his income as child support and alimony and that the dollar amount was included ...