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In Re Marriage of Shelton



Appeal from the Circuit Court of Williamson County; the Hon. Robert Howerton, Judge, presiding.


At dispute in this appeal is whether petitioner Linda Lou Shelton receives 3.5 acres of land or is awarded its cash value of $3,185. The circuit court of Williamson County modified its judgment disposing of the property of the petitioner and respondent Samuel Edwin Shelton, and, as a result of that modification, she received the cash value of that land. We hold that the court was empowered to make that modification.

The original judgment of dissolution in this case, incorporating a settlement agreement entered into by the parties, was filed on April 28, 1978. Among other matters, it divided the parties' marital property, including a tract of approximately 31 acres of rural Williamson County land. The judgment stated that

"[t]he petitioner shall have as her sole and exclusive real property the house and ten (10) acres of land contiguous to that house to include the garage building, but not the barn building or the lake, located in the Northwest Quarter of Section 36, Township 8 South, Range Two East of the Third Principal Meridian, Williamson County, Illinois. The respondent shall have as his sole and exclusive real property the balance of twenty-one (21) acres, including the barn and the lake, located in the aforedescribed tract."

That tract, which is intersected by Interstate Highway 57, is represented by the diagram reproduced below.

On October 3, 1979, the petitioner filed a petition for rule to show cause, alleging that the respondent had not yet conveyed to her any of that land. The respondent admitted that this was true but contended, in his response, that the parties had been mistaken as to the dimensions of the land surrounding the house and garage. As he stated in his petition to modify the judgment, filed November 1, 1979, he and his counsel had assumed with the petitioner and her counsel that the house and garage were located on an approximately symmetrical 10 acres of land, "more or less in a square shape." In that petition, the respondent sought to modify the judgment to grant the petitioner the house, garage and 6.5 acres of land contiguous to the buildings. That land is identified as Tract A in the diagram.

The petitioner denied that 10 acres of land do not adjoin the house and that she was mistaken about the dimensions of the land. A hearing on the respondent's petition to modify was scheduled for March 7, 1980. At that hearing, surveyor Michael Wyant recalled that the respondent asked him to survey the 31-acre tract. The respondent instructed him to divide from the tract 10 acres, including the house and garage, but excluding the lake and barn. Wyant explained that he and the respondent intended to create a roughly rectangular 10-acre tract. Upon surveying the land, he discovered that the largest possible roughly rectangular lot he could establish would be Tract A.

The petitioner testified that when she negotiated the settlement agreement with the respondent, she did not know what the 10-acre tract awarded to her would look like. She denied assuming that it would be rectangular, and indicated that she did not care about the shape, as long as she received 10 acres. Following the petitioner's testimony, the respondent's attorney offered in open court a quitclaim deed to the petitioner from the respondent covering "ten contiguous acres in accordance with * * * that divorce decree." His offer did not specify which land would be conveyed, as the surveyor had left the courthouse. Pending possible acceptance of that offer, the court recessed the hearing.

Four days later, the petitioner moved to reconvene the hearing. In her motion, she alleged that the respondent had tendered a quitclaim deed to her, but the 10 acres conveyed, consisting of the 5.81-acre portion of Tract A known as Parcel 1, the 2.56-acre Tract C and the 1.63-acre Tract D, were not contiguous. Presumably, the house is located on Parcel 1. The respondent, in turn, filed a petition for rule to show cause based on the petitioner's failure to quitclaim her interest in the remaining 21 acres.

Repeated substitution of counsel delayed the reconvening of the hearing until July 10, 1981. The respondent testified that during negotiations with the petitioner and her counsel, he agreed to give her the house, the garage and 10 acres. When he had the land surveyed, however, he learned that it would be difficult to create a 10-acre tract including the house and garage. He then attempted to suggest alternative dispositions of the property, involving a grant of land and cash. The petitioner did not accept these suggestions.

At the conclusion of the hearing, the court granted the respondent's petition to modify. In a written order entered December 3, 1981, the court found "that all parties and their counsel did in fact mistakenly assume that there were 10 regularly shaped acres attached to the house and garage not including the barn or lake * * *." The court ordered the respondent to convey to the petitioner the 6.5-acre Tract A and pay her the reasonable value of 3.5 additional acres of the land. Three appraisals of the entire 31-acre tract were obtained, and, based on those appraisals, the court set the value of 3.5 acres of land at $3,185, in an order of May 6, 1982.

The petitioner attacked the court's modification of its original judgment in a petition filed under section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1401) on July 1, 1983. She asserted that it would have been possible for the respondent to give her 10 acres contiguous to the house and garage and that the court lacked jurisdiction to modify the distribution of the parties' property. This petition was denied without a hearing. Among other court action, to be discussed below, the petitioner challenges the denial of this petition.

The petitioner argues that the trial court did not have the authority to alter the award of 10 acres to one consisting of 6.5 acres and the cash value of 3.5 acres. Section 510(a) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)) states, "The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State." The respondent's petition to modify was filed more than 30 days after the entry of judgment, but within two years of that time. The standards used in reviewing the sufficiency of that petition are therefore those governing section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2-1401 of the Code of Civil Procedure. See In re Marriage of Redmer (1982), 111 Ill. App.3d 317, 320-21, 443 N.E.2d 1075, 1077.

• 1 The ground alleged in the petition, and found by the trial court, for reopening the judgment was that the parties were mistaken about the dimensions of the land. Relief is available under section 72 if a divorce decree incorporating a written agreement fails to express the real intentions of the parties because of mutual mistake concerning a property settlement. (Groak v. Groak (1965), 64 Ill. App.2d 439, 212 N.E.2d 139; see also Kelly v. Kelly (1982), 105 Ill. App.3d 136, 140, 434 N.E.2d 55, 58.) The court in Groak upheld the conclusion of the trial court that no mutual mistake had been shown. In proceedings on petitions for relief from judgments, the credibility of witnesses rests with the trier of fact, and we will not substitute our judgment for that of the trial court unless it is against the manifest weight of the evidence. (Collins v. Prestige Casualty Co. (1977), 54 Ill. App.3d 762, ...

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