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Goldberg v. Goldberg





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


Rehearing denied February 17, 1982.

Plaintiff Edward Goldberg appeals from a final order of the circuit court of Cook County granting the motion of defendant, Ila Goldberg, to strike and dismiss his amended complaint to remove cloud on title. On April 11, 1979, plaintiff filed his original complaint in chancery. The relevant facts, as set forth in this complaint, follow. The parties to this action were married on January 25, 1953, in Tucson, Arizona. On April 28, 1975, the circuit court of Cook County entered a judgment for divorce dissolving their marriage. This judgment incorporated as part of its terms a property settlement agreement entered into by the parties. Subparagraph J of the agreement as set forth in paragraph 6 of the judgment for divorce provided:

"J. That the Defendant shall immediately execute a Quit Claim Deed in and to the marital residence, commonly known as 6650 Kostner Avenue, Lincolnwood, Illinois, and legally described as follows:

[Legal description.]

and that said deed shall be recited in such a way so that when it is recorded, it shall recite the fact that transference and real estate is subject to the provisions of this Decree, and the Defendant is given an interest in the marital residence in the amount of TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00), and that if Defendant does not receive that amount on or before May 1, 1976, then the principal sum shall bear simple interest at the rate of FIVE PER CENT (5%) simple interest until received by the Defendant; it is further agreed that the Defendant shall receive the TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00) at the earliest of the following contingencies:

(1) remarriage of the Plaintiff;

(2) sale of the home;

(3) forty two (42) months from the date of May 1, 1975."

The complaint further alleges that plaintiff, pursuant to the terms of subparagraph J of paragraph 6, immediately executed a quit-claim deed to the marital residence; that the quit-claim deed was dated May 15, 1975, and recorded in the office of the recorder of deeds on June 3, 1975; that defendant has not remarried; that the real estate involved has not been sold; that the 42-month contingency expired on November 1, 1978; that plaintiff has repeatedly requested defendant to pay the $12,500.00 plus interest, but defendant failed and refused to pay the sum requested; that in view of defendant's arbitrary and willful refusal to fulfill the terms of said oral settlement agreement, the plaintiff has been defrauded of his one-half interest in said real estate; that plaintiff relied on such false and fraudulent oral representations of defendant and believed them to be true, and because thereof entered into the oral settlement agreement with defendant; and that the plaintiff elects to rescind the agreement because of the fraud upon him, as well as upon the court. Plaintiff's complaint also offered to do equity by canceling the indebtedness of $12,500 plus interest and stated that plaintiff did not have an adequate remedy at law. In his prayer for relief, plaintiff asked that the oral settlement agreement as it related to the real estate be rescinded, declared null and void, and set aside as a cloud upon the title of plaintiff, that the quit-claim deed be declared null and void and set aside as a cloud upon plaintiff's title, and that plaintiff be declared an undivided one-half owner of said real estate with defendant.

On May 17, 1979, defendant filed her motion to dismiss asserting that the complaint failed to state a cause of action, *fn1 and that plaintiff had an adequate remedy in the domestic relations division of the circuit court of Cook County. On October 10, 1979, Judge Richard L. Curry of the chancery division entered an order denying the motion to dismiss and transferring the cause to the domestic relations division. On November 21, 1979, Judge Willard J. Lassers of the domestic relations division, entered an order granting defendant's motion to dismiss for failure to state a cause of action and granting plaintiff leave to file an amended complaint. Plaintiff then filed his amended complaint to remove cloud on title. The allegations of the amended complaint were identical to those of the original complaint, except that the former added the following allegations:

"16. That the said deed was delivered by the plaintiff to the defendant pursuant to the terms and conditions of said Judgment for Divorce only upon, and specifically upon, the said terms and conditions, and therefore said delivery was conditional, which conditions the defendant, ILA SUE GOLDBERG, has failed and refused to meet and comply with as set forth in the Judgment for Divorce by November 1, 1978, and therefore said Quit Claim Deed is void; and, in the alternative, if voidable at the option of the grantor, plaintiff herein, said plaintiff elects to have it voided."

In response, defendant filed a motion to strike plaintiff's amended complaint which asserted that it also failed to state a cause of action. On April 17, 1980, Judge James J. Meehan, entered an order allowing defendant's motion to strike and dismiss the amended complaint and finding that there was no just cause for delay in the enforcement of or appeal from the order. Plaintiff appeals.

• 1 We first address plaintiff's contention that Judge Lassers erred in holding a hearing on defendant's motion to dismiss after that motion to dismiss had been denied by Judge Curry. He asserts that Judge Lassers was, in essence, acting as an appellate court. We find that this contention is without merit. Judge Curry, in a single order, both denied the motion to dismiss without giving a reason and transferred the cause from the chancery division to the domestic relations division. It would appear from this that the order was not a ruling on the merits of the motion. Moreover, before entry of a final order, a trial judge is not bound by an order ...

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