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In Re Marriage of Donnellan

OPINION FILED NOVEMBER 26, 1980.

IN RE MARRIAGE OF JUDITH DONNELLAN, PETITIONER-APPELLEE, AND JOHN J. DONNELLAN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. MONICA D. REYNOLDS, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Petitioner, Judith Donnellan, initiated post-judgment divorce proceedings which sought past due child support and unpaid debts enumerated in a stipulation agreement incorporated in the parties' judgment for divorce. Respondent, John Donnellan, appeals from the trial court's denial of his affirmative defense that these debts had been discharged by the Federal Bankruptcy Court for the Northern District of Illinois and contends that the final order of the bankruptcy court must be recognized in State court proceedings. There is no issue regarding past due child support.

The events leading up to this appeal are not in dispute: the parties were married August 5, 1961, in Chicago Heights, Illinois, and were subsequently divorced August 7, 1974, in Cook County, Illinois. The judgment for divorce incorporated a stipulation agreement, which provided in part:

"11. That the Defendant shall be responsible for the payment of all outstanding indebtedness incurred by the parties hereto during the course of this marriage. That said debts include, but are not limited to the following:

1. Sears Roebuck & Company $400.00 2. Montgomery Wards $1,000.00 3. Riverdale Bank (Car Loan) $107.00 Mo. 4. Jorden Seskin, M.D. $200.00 5. Bank Americard $200.00 6. Borden's Milk Company $200.00

12. That the mortgage payments on the second mortgage due the Ashland Bank in Beverly, Illinois, on the real estate located at 11 E. Glengate, Chicago Heights, Illinois, have fallen in arrears for the months of December, 1973, January, February, March, April, May and June, 1974, or a total of $1,200.00 @ of $200.00 per month. That the Defendant hereby agrees to bring the said second mortgage payments current and to pay off same, and shall hold the Plaintiff harmless from the payment of said mortgage.

13. That the Defendant shall continue to pay, and keep on a current basis, the mortgage payments on the First Mortgage payable to the Chicago Heights National Bank, until such time as the Entry of Decree for Divorce. That, upon entry of decree and after the payment of same, the Plaintiff shall hold Defendant harmless from the payments to the Chicago Heights National Bank in the future."

Thereafter, respondent filed a petition for voluntary bankruptcy in the United States District Court for the Northern District of Illinois, Eastern Division, case No. 78 B 5587, in which he scheduled petitioner as a creditor with respect to the debts enumerated in paragraphs 11-13 of the stipulation agreement.

Respondent then commenced adversary proceedings to determine the dischargeability of these debts by filing a complaint and serving notice on petitioner pursuant to section 17(c) of the then applicable provisions of the Bankruptcy Act. (11 U.S.C. § 35 (c) (1976), (current version at 11 U.S.C. § 523(a)(5) (1979).) After petitioner failed to appear or answer, the bankruptcy court noted jurisdiction over the parties and subject matter and found the debts arising from paragraphs 11-13 of the Stipulation Agreement to be in the nature of a property settlement and not in the nature of alimony and consequently discharged these debts on October 26, 1978.

Petitioner commenced post-judgment divorce proceedings seeking arrearages of child support and the payment of certain enumerated debts. Her petition in part provided:

"c. The defendant has failed to satisfy certain obligations which the Decree required him to pay and which payment has been made by the Petitioner as follows:

(1) The sum of $261.71 paid to the Chicago Heights National Bank;

(2) The sum of $450.00 paid to the Baldwin Co.;

(3) The sum of $200.00 to the Borden ...


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