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In Re Marriage of Arkin

OPINION FILED JULY 28, 1982.

IN RE MARRIAGE OF ARTHUR ARKIN, PETITIONER-APPELLEE, AND PATRICIA ARKIN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lake County; the Hon. Alphonse Witt, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The marriage of Patricia Arkin (now Patricia Frank) and Arthur Arkin was dissolved on October 13, 1977. Custody of their only child, a four-year-old son, was awarded to the wife, respondent herein. The dissolution judgment incorporated a property settlement agreement entered into by the parties on October 5, 1977. Respondent remarried on September 22, 1980, and vacated the marital home on or about October 14, 1980. Prior to that time, the home was listed for sale by petitioner, but it was not sold until May 15, 1981. Paragraph 6 of the incorporated agreement, at issue here, provides as follows:

"MARITAL RESIDENCE: That the wife shall have the right of exclusive possession of the marital residence commonly known as 1630 Portage Pass, Deerfield, Illinois and legally described on `Schedule A' attached hereto and made a part hereof through the month of September, 1984, or until the wife remarries if sooner. The wife shall pay all mortgage, insurance and real estate tax payments for said real estate which have accrued and are payable on October 1, 1977 until she terminates possession of said real estate, except that the husband shall pay the real estate tax installment due November 1, 1977. The husband shall be liable for the payment of mortgage, insurance and real estate tax payments accrued and payable in connection with said real estate prior to October 1, 1977 and subsequent to the wife vacating said real estate. Husband shall reimburse wife for any increased taxes in excess of the final assessed 1976 real estate taxes. That during the period of the wife's exclusive possession, the wife shall pay twenty-five percent of the cost of any necessary exterior decorating and major repairs to said premises, and the husband shall pay seventy-five percent of the cost thereof. In the event the parties can not agree relative to the necessity of any repairs or exterior decorating, - - - - - - - - - this Court reserves the right to adjudicate any such dispute.

That upon the wife vacating the aforesaid real estate, the husband shall pay to the wife twenty-five percent of the then net equity in said real estate in full settlement of the wife's property claims. In addition, the wife shall be reimbursed in an amount equal to one-half the reduction of mortgage principal for said premises from October 1, 1977 until she vacates same. Net equity as used in this paragraph shall be defined as the difference between the then fair market value of said real estate less the then outstanding balance on the mortgage in connection with same.

Should the husband sell the real estate at or about the time the wife vacates same, and should the husband at the time of vacation advise the wife of his intention to sell said real estate, net equity shall be defined as the difference between the sale price and mortgage and the normal selling expenses actually incurred, including title charges, broker's commission, if any, attorney's fees and prorations for real estate taxes."

On June 19, 1981, the husband, petitioner herein, filed a petition for a rule to show cause, for modification of child support and for other relief. Inter alia, the petition prayed that the court enter a rule to show cause why the respondent wife should not be held in contempt for a wilful violation of the terms of the judgment agreement, and that she pay immediately all past due realty taxes, mortgage payments and utility expenses as required therein.

On July 6, 1981, the wife also filed a petition for rule to show cause alleging, inter alia, that the petitioner had sold the marital residence and that she had not received her share of the proceeds as set forth in paragraph 6 of the agreement. Her petition further alleged that the attorneys for the petitioner had submitted "letters and documents concerning their determination of what they believed the quarter share to be, but their calculations do not follow the formula prescribed in Paragraph 6 of the [agreement incorporated in the] judgment for dissolution of marriage." Respondent then "suggested" the formula to be applied in order to determine what her quarter share should be as of October 14, 1980, and prayed that the court order the petitioner to pay her $25,145.75.

Following a hearing on the respondent's petition, the court entered its findings on July 20, 1981, inter alia, that paragraph 6 of the agreement was not ambiguous; that the respondent wife was not entitled to a reduction of mortgage principal during the term of her occupancy through date of closing on the sale of the home in question; that she was responsible for one-half the morgage payments from the date of her vacation of the home to the date the home was sold; and for realty taxes through January 31, 1981. Based on its findings, the court ordered, inter alia, that she receive a balance of $12,282.62 as her one-quarter net equity share.

Because certain other matters raised in the parties' petitions were reserved and/or continued, the court later ordered, on July 23, 1981, that there was no just reason for delaying the appeal or enforcement of the order, and the respondent timely filed a notice of interlocutory appeal.

Respondent seeks reversal of the court's findings that she: (1) is not entitled to one-half of the mortgage principal reduction in the amount of $2,713; (2) must pay one-half of the monthly mortgage payments from October 16, 1980, to May 15, 1981, in the amount of $1,120; and (3) must pay the real estate taxes from October 16, 1980, through January 31, 1981, in the amount of $749. She prays that the cause be remanded with directions that the petitioner pay her the total additional sum of $4,582.

The respondent first argues that the court erred in finding that paragraph 6 of the agreement is unambiguous, contending that the paragraph is susceptible to more than one interpreation; i.e., whether she was entitled to receive reimbursement for one-half the amount of the reduction of the mortgage principal for the premises during the period October 1, 1977, to October 14, 1980, and whether or not she was entitled to receive 25% of the fair market value of the premises at the time she vacated same if the property was not sold at or about the time she vacated. Since the contract is ambiguous, respondent argues, the court must look to evidence of extrinsic facts in order to clarify the intentions of the parties.

Despite its later finding, the record reveals the court initially determined there was ambiguity in the contract, and allowed the parties to testify. Respondent testified her understanding of the contract was that at the time she vacated the premises, whether or not the house was sold, she would receive 25% of the fair market value of the premises, plus an amount equal to one-half the amount the mortgage principal was reduced from October 1, 1977, to the date of the vacation of the premises.

The petitioner, Arthur Arkin, also testified, but he was not queried about his understanding of paragraph 6. He testified that he listed the property with a real estate broker for $180,000 in September 1980; that between that date and the date the house was sold, May 15, 1981, he lowered the listing price of the house from $180,000 to $169,000 and then to $150,000. He testified he did not discuss with the respondent the listing price or the fact of the signing of the real estate contract, nor did he advise her about the closing on May 15, 1981.

Respondent had testified previously, however, that petitioner knew in early August 1980, that she was going to be leaving, and that at the end of August 1980 there was a discussion between petitioner and his attorney, and respondent, her attorney and her fiance, about the house being put up for sale. Although there was no testimony at the hearing, the record reflects the filing on August 18, 1980, of a stipulation between the parties that the premises were to be placed for sale immediately, that the parties were to ...


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