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In Re Marriage of Lowe

OPINION FILED NOVEMBER 3, 1981.

IN RE MARRIAGE OF MARY ELLEN LOWE, PETITIONER-APPELLEE, AND ANDREW C. LOWE, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Lake County; the Hon. ALPHONSE F. WITT, Judge, presiding.

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

This appeal arises from an order of the circuit court of Lake County finding that a marital settlement agreement was not ambiguous and denying a petition seeking a declaration that payment of $17,500 under the terms of the agreement was maintenance. The only issue for our review is whether the settlement agreement was so ambiguous on its face as to require an evidentiary hearing on the issue of whether the $17,500 payment should be considered a property settlement or future maintenance.

The parties to this appeal, Mary Ellen Lowe (Mary Ellen) and Andrew C. Lowe (Andrew), were divorced in 1975. The judgment incorporated a written settlement agreement which provided in pertinent part:

"3. The Plaintiff agrees to Quit-Claim all interest in:

a. Family home in Wildwood, Ill.

b. Vacant lot adjacent to family home in Wildwood, Ill.

c. House at 5629 S. Natoma, Chicago, Ill.

d. Forty acre farm in Franklin Parish, Louisiana

4. For and in consideration of the Quit-Claims in Par. 3 (above) the Defendant agrees to pay to the Plaintiff the following sums:

a. $10,000 as soon after the filing of the Complaint for Divorce as possible. Actually paid July 11, 1975.

b. An additional sum of $10,000 to be paid by 90 days after the signing of the Decree for Divorce.

c. An additional sum of $17,500 to be paid when the youngest boy reaches 18 years of age, except that if the Plaintiff remarries some one other than the Defendant at which time this $17,500 shall be waived."

On July 29, 1980, Andrew Lowe filed a petition in the circuit court of Lake County seeking a judgment finding the unpaid $17,500 to be maintenance and terminating his obligation to pay it. The petition alleged that since 1977, Mary Ellen Lowe had cohabited with another person on a resident, continuing conjugal basis and that section 510(b) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(b)) terminates the obligation to pay future maintenance upon the occurrence of such an event. Mary Ellen Lowe filed a response to the petition denying all material allegations and asking that the cause be dismissed.

Subsequently, Andrew Lowe filed a petition praying "for a hearing on the issue of [the settlement agreement's] ambiguity and the allowance of the Petitioner's testimony regarding parol evidence to determine the intention of the parties." This was opposed by a petition of ...


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