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In Re Marriage of Dowty

OPINION FILED AUGUST 20, 1986.

IN RE MARRIAGE OF JANICE R. DOWTY, PETITIONER, AND RONALD L. DOWTY, RESPONDENT (DAVID H. KEAY, EX'R OF THE ESTATE OF JANICE R. DOWTY, DECEASED, PLAINTIFF-APPELLANT; RONALD L. DOWTY, DEFENDANT-APPELLEE).


Appeal from the Circuit Court of Du Page County; the Hon. Edmund Bart, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, David H. Keay, administrator of the estate of Janice R. Dowty, deceased, appeals from an order of the circuit court which denied plaintiff's petition to enforce a judgment for dissolution of marriage. By the petition, plaintiff sought a declaration that decedent's estate was entitled to a one-half interest in real estate held in joint tenancy at the time of her death by decedent and her former husband, defendant Ronald L. Dowty. Plaintiff contends that the judgment of dissolution, and the property settlement agreement of the parties incorporated therein, severed the joint tenancy at the time of the dissolution of the marriage and that the estate is entitled to enforce the terms of the dissolution judgment and the contractual rights of decedent, which survived her death. Defendant contends that the joint tenancy was not thus severed and, as surviving joint tenant, he became owner of all interest in the real estate at the time of Janice Dowty's death and is not required to sell it to carry out the terms of the settlement agreement.

The marriage was dissolved in an uncontested hearing held May 15, 1981. A written property settlement agreement which had been entered into by the parties was offered in evidence with a request that it be incorporated into the dissolution judgment. Its terms provided that the agreement was in settlement of all property rights between them, including all rights or claims either party may have in any property owned by the other. As relevant to the real estate in issue in this case, which was their former family home, the agreement provided:

"2. That the husband agrees to pay to the wife and the wife hereby agrees to accept the sum of $300.00 per month for a period of 30 months, commencing on the 1st day of the first month following the entry of Judgment of Dissolution. If the marital residence is not sold at the end of 30 months, payments will continue until the home is sold. However, husband shall be released from the obligation of payment as to any payment falling due subsequent to the

a) death of wife.

b) remarriage of wife.

3. That upon the sale of the marital residence, the husband and wife shall share the proceeds of such sale equally subject to the following:

a) Husband will receive credit for all principal payments made to reduce the mortgage, as of the date of Judgment.

b) Wife shall receive 50% of the value of the Retirement Trust after tax consequences, as of the date of Judgment, which amount is Three Thousand Three Hundred & Eighty-Two ($3,382.00) Dollars.

c) Said credits shall be made at the time of closing of the marital residence.

6. That husband shall pay $600.00 towards wife's attorney's fees — to be paid at the time of closing of the marital property — and all court costs.

8. That all other property rights of the parties have been settled by and between the parties and none have been left unsettled."

The agreement also provided that each party waived and released all right or interest either party may have in any real or personal property of the other, whether by way of joint tenancy, homestead, dower, or other interest.

Janice Dowty was the only witness to testify at the dissolution hearing and was examined by both her counsel and counsel for her husband, defendant herein. Mrs. Dowty identified the property agreement and its signatures, stating it was the agreement she had made with her husband to resolve their ...


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