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Potocki v. Potocki

OPINION FILED JULY 17, 1981.

DOLORES POTOCKI, PLAINTIFF-APPELLEE,

v.

JAMES POTOCKI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES J. MEEHAN, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant James Potocki appeals from an order of the trial court in post-judgment proceedings following his divorce from plaintiff Dolores Potocki. The order required defendant to make continued maintenance payments to plaintiff and additionally to contribute toward the expenses of their only child's college education.

The issues raised on appeal are: (1) whether the trial court properly construed as ambiguous certain portions of the property settlement agreement entered into by the parties and incorporated into the divorce decree; (2) whether the order of the court was against the manifest weight of the evidence.

On July 19, 1976, in anticipation of their upcoming divorce, plaintiff and defendant executed a property settlement agreement. The agreement had been prepared by plaintiff's attorney, and its execution took place in the latter's office. Defendant was not represented by counsel at the signing, nor during any preliminary negotiations between the parties. The settlement agreement provided in pertinent part:

"3. The Defendant shall pay the Plaintiff the sum of ONE HUNDRED FIFTY and No/100 ($150.00) DOLLARS per week, which shall be a combination of alimony and child support."

The next day plaintiff filed suit for divorce. Defendant filed a pro se appearance. The parties stipulated that the cause was to be heard "as in the case of a default." A prove-up of plaintiff's complaint was had on September 9, 1976, and a decree incorporating the settlement agreement and approved by defendant and plaintiff's attorney was entered on November 1, 1976.

In September 1979, James S. Potocki, the only child born to the parties, enrolled as a full-time student at the University of Illinois at Champaign-Urbana. Defendant continued to make payments of $150 to the plaintiff but made no direct payments toward the college expenses incurred by their son.

On December 1, 1979, the son turned 18 years of age and defendant ceased making any payments to plaintiff. *fn1 Plaintiff filed a petition for rule to show cause alleging that as of January 18, 1980, defendant was in arrears of the sum of $1200. The petition also requested entry of an order requiring defendant to contribute to the college educational expenses of their son.

On January 29, 1980, defendant, represented by counsel, filed a petition to modify decree seeking termination of the alimony and child-support payment. Defendant contended that it was the intention of the parties that the $150 payment provided for in the settlement agreement was child support, terminable upon the son's majority. An ex parte hearing on both petitions was held on July 1, 1980, as neither defendant nor his counsel appeared. The court after hearing plaintiff testify entered an order finding for plaintiff on all issues. However, that order was subsequently vacated. Following additional hearings on both petitions, the court entered another order on September 18, 1980. In that order the court specifically found that the alimony and child-support provision of the settlement agreement was ambiguous; that defendant's contention of intent was not supported by the evidence; that defendant was in arrears of maintenance from December 1, 1979, totaling $6300 (42 weeks at $150 per week); that defendant's reasonable contribution toward his son's 1979-80 college expenses was $2200; and that defendant's reasonable contribution toward his son's future college expenses would be $70 per week. The court then ordered defendant to pay plaintiff $8500 in arrearages at $150 per month; $150 per week in maintenance; and $70 per week for a total of $3640 per year toward the son's college education. Defendant's petition to modify alimony was denied and the issue of plaintiff's attorney's fees reserved. Plaintiff appeals from this order.

OPINION

• 1 Preliminarily we note that although the parties' divorce decree was entered prior to the effective date of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.), that act applies to this post-decree proceeding. (Ill. Rev. Stat. 1979, ch. 40, par. 801(c); Lamp v. Lamp (1980), 81 Ill.2d 364, 410 N.E.2d 31.) Furthermore, the power of the court to modify periodic payments of maintenance and child support is not diminished because the amount of payments was fixed by a settlement agreement agreed to by the parties and incorporated in the decree. Lamp v. Lamp; Herrick v. Herrick (1925), 319 Ill. 146.

It was defendant's contention at trial and remains defendant's contention on appeal that paragraph 3 of the settlement agreement incorporated in the divorce decree is ambiguous because the $150 alimony and child-support payment is unallocated and further because the provision is silent as to the effect of the child's majority upon the payment of that sum. Defendant asserts that the $150 payment was intended to be child support only, completely terminable upon the child's majority.

Plaintiff countered at trial and continues to do so on appeal that the agreement was not ambiguous and the payments were to continue by operation of law as alimony upon the child's majority.

The trial court reserved its ruling on the alleged ambiguity of the provision and allowed extrinsic evidence to be introduced by both parties as to their intention in using the ...


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