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In Re Marriage of Kolb

OPINION FILED AUGUST 31, 1981.

IN RE MARRIAGE OF LEONARD H. KOLB, PETITIONER-APPELLEE, AND SYBYL D. KOLB, RESPONDENT-APPELLANT.


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

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

The present appeal raises the issue of whether the annulment of a second marriage results in the revival or reinstatement of a first husband's obligation to pay monthly installments on an alimony in gross award pursuant to the terms of a divorce judgment which specifically provided for such payments to terminate upon the wife's death or remarriage. The trial court ruled that the first husband's alimony in gross obligation terminated upon the wife's remarriage and was not changed, altered, affected or reinstated by the annulment. Consequently, it ordered the wife to refund to the first husband all sums received from him as installment payments on the alimony in gross award following her remarriage, denied the wife's petition for a rule to show cause and denied the parties' respective petitions for attorneys fees.

For the following reasons, we affirm in part and reverse and remand in part.

The parties, Leonard H. Kolb (hereinafter petitioner) and Sybyl D. Kolb (hereinafter respondent) were married on June 20, 1965, and divorced on October 20, 1972. The judgment for divorce, rendered under the old divorce act (Ill. Rev. Stat. 1971, ch. 40, par. 1 et seq.), incorporated an oral agreement reached by the parties as to the distribution of property and alimony. It provided, inter alia:

"That counter-defendant shall pay unto counter-plaintiff as a lump sum settlement for alimony, past, present and future, the sum of One Hundred and Fifty Thousand ($150,000.00) Dollars, payable as follows: $2,000.00 on the day and date of hearing of this cause, namely, October 12, 1972, and $2,000.00 each and every month thereafter for a period of seventy four consecutive months until the said sum of $150,000.00 has been paid until [sic] counter-plaintiff by counter-defendant in full; that said payments shall cease upon the death or remarriage of counter-plaintiff if either event shall occur prior to the payment in full to her of the sum of $150,000.00, as provided herein * * *."

The agreement further provided for waiver of any rights to future alimony and for the petitioner to quitclaim his joint interest in the parties' marital home.

In the early part of August 1978, petitioner initiated post-decree proceedings alleging that respondent's remarriage terminated his obligation to make payments on the alimony in gross award pursuant to the divorce judgment. In this action petitioner sought the refund of $30,000 paid to respondent as alimony in gross after the remarriage and before petitioner became aware of respondent's remarriage, an order that his obligation terminated at the remarriage, and a rule to show cause why respondent should not be cited for contempt for her wilful and contumacious disregard of the judgment for divorce.

At the hearing on these petitions before the court, respondent testified that she was married in Las Vegas on February 12, 1977, to George Geiger, whom she had known for a couple of years. According to respondent's testimony, Geiger proposed to her only a couple of days before the ceremony took place. Directly after the ceremony a small reception occurred. At the reception, Geiger became involved in a heated argument, walked out of the reception and did not return to the hotel. As a consequence, the marriage was never consummated. Annulment proceedings were initiated by respondent in August 1977 in Nevada. Respondent saw Geiger once while she was still in Las Vegas and did not see him again after returning to Chicago. She did speak to him on the telephone once about the then pending annulment proceedings. At this time he told her that he did not want the annulment. After her marriage to Geiger, respondent still received and cashed petitioner's alimony in gross monthly installment payments.

Petitioner testified that respondent visited his medical office on March 8, 1977, approximately a month after her remarriage, and inquired whether he would be willing to give her one-half of the remaining balance on the alimony in gross award so that she could invest it in some real estate with a friend. He responded that he would have to consult his attorney as to the tax repercussions of such a deal. Petitioner also testified that Ruth Segal, an old friend of his, was in his office on March 8, 1977, and produced office records to substantiate her visit. Segal corroborated petitioner's testimony testifying that she went to petitioner's office on March 8, 1977, to have a cyst on her neck removed. She stated that while she was in petitioner's waiting room on that occasion she saw respondent leave petitioner's office and walk through the reception area. She had no opportunity to talk to respondent on this occasion because respondent walked out of the office. She acknowledged that she had known petitioner for about 25 years and that she and her husband were long-time friends of petitioner's.

Pursuant to this testimony, the court entered an order on December 1, 1978, giving "full force and effect to the Nevada annulment decree" and denying refund of the payments made to respondent after her marriage on the basis that petitioner was still obligated for the balance of the alimony in gross award. Petitioner filed a motion to reconsider the December 1, 1978, order, arguing that the trial court had not considered the issue of whether the Las Vegas marriage was void or voidable. Shortly thereafter respondent filed a second petition for a rule to show cause. In that the first trial judge had retired from the bench, the presiding judge of the domestic relations division of the circuit court of Cook County heard these motions and vacated the December 1, 1978, order, assigning the cause for trial before another judge.

In the subsequent hearing before the trial judge, the same three witnesses who had testified earlier again testified. The testimony of petitioner and Segal closely paralleled their earlier testimony. Respondent testified as to her marriage and divorce from petitioner and as to her marriage and annulment from Geiger. She also answered questions concerning alleged inconsistencies between the complaint filed in the annulment proceeding, her testimony in that proceeding and her deposition testimony in the present proceeding. The complaint and respondent's testimony in the Nevada annulment proceeding indicated that Geiger failed and refused to consummate the marriage over 12 days while the couple were in Las Vegas and that he also withheld information as to his receiving psychiatric treatment for an emotional problem. Respondent testified that she had been told by Geiger's son subsequent to the marriage of Geiger's mental condition. She also testified that she did not advise petitioner of her remarriage and continued to accept monthly alimony in gross payment checks from him. She reiterated her earlier testimony as to her visit once to petitioner's office either in December 1976 or January 1977 prior to her marriage to Geiger.

On April 15, 1980, the court entered the order appealed from. It found that under the parties' divorce judgment petitioner's alimony obligation would terminate upon respondent's remarriage, that petitioner had married Geiger on February 12, 1977, and that consequently petitioner's alimony obligation terminated such that respondent was not entitled to any further payments and that this result was not altered by the September 5, 1978, annulment of the Geiger-Kolb marriage. The court noted that based on its findings it was unnecessary to rule on whether the annulment was a sham or a fraud. Based on these findings, the trial court declared petitioner's alimony obligation terminated and ordered respondent to repay petitioner $30,000, which sum represented the total of the alimony in gross installment payments paid to respondent by petitioner subsequent to her remarriage. Interest from the date of each payment's receipt was also required. The trial court also dismissed respondent's petition for a rule to show cause and denied the petitions for attorneys fees. Respondent filed a timely appeal from the above order as did respondent's attorneys. Petitioner filed a cross-appeal from the trial court's finding that it was unnecessary to consider whether the annulment was a sham and a fraud.

The respondent admits that the issue of whether her first husband's support obligation terminated upon her remarriage and was not reinstated by its subsequent annulment is governed by a 1922 decision of this court in Lehmann v. Lehmann (1922), 225 Ill. App. 513. Respondent, however, would have this court overrule that decision on the basis that it produces unconscionable results and that it conflicts with Illinois public policy. After reviewing the parties' briefs, the cases cited therein and the record on appeal, we decline to depart from the Lehmann rationale under the circumstances of this case.

In Lehmann, the parties' divorce decree, which incorporated the parties' written settlement agreement, as well as several agreements entered into subsequently by the parties, provided for the husband to pay a total of $800 as support for his wife and daughter and his wife's daughter by a previous marriage. They made clear, however, that the husband's obligation to provide support to the wife in the amount of $400 existed only until she remarried, at which time he would no longer be obligated for her support. Within three months of the entry of the divorce decree, the wife remarried in a ceremony performed in New Jersey, and she cohabited with this second husband for a period of approximately 15 months in the States of New York and Maine. She subsequently filed for an annulment of this marriage in Illinois based on an Illinois statutory provision which, at that time, prohibited marriages contracted within a year after the entry of a divorce decree. The trial court found the New Jersey marriage void in Illinois and, therefore, held that the wife had not remarried under the terms of the divorce decree or written agreements. Hence it concluded that the wife had not forfeited her right to alimony ...


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