Appeal from the Circuit Court of McHenry County; the Hon.
Susan Fayette Hutchinson, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
This appeal by respondent, John Dodge, arises from orders entered in post-dissolution of marriage proceedings instituted by petitioner, Georgeann Dodge, n/k/a Georgeann Sanders, which set child support at $150 per week, found that respondent owed petitioner $5,934.07 for real estate taxes after declaring that the parties' agreement to release respondent from this obligation was against public policy as it placed a restraint upon the remarriage of petitioner, and awarded petitioner partial attorney fees of $2,297.80 to be paid by respondent.
The judgment of dissolution of marriage entered March 3, 1980, dissolved the marriage of the parties, awarded custody of the three minor children of the parties to petitioner, and incorporated a marital settlement agreement. The agreement provided, in pertinent part, that respondent would pay petitioner $600-per-month child support to be adjusted automatically January 1 of each year based on the consumer price index, that respondent would purchase a $20,000 certificate of deposit to insure that petitioner would have the necessary funds to pay the mortgage on the marital home, held as part of a joint-venture agreement between the parties, that respondent would pay the real estate taxes on the property until the youngest child, Jennifer, reached her 18th birthday, and that, if the home should be sold, petitioner would use the proceeds from the sale for the maintenance and education of the three children.
On October 24, 1984, petitioner filed a motion for a determination of child-support arrearages based on the provision in the agreement that support be adjusted automatically based on the consumer price index, stating that such arrearages totaled $2,864.19. She also requested her attorney fees incurred in presenting this motion. Respondent filed motions November 8, 1984, requesting that petitioner's motion for child-support arrearages be dismissed and that child support be allocated as to each child of the parties. On March 12, 1985, petitioner filed a motion for rule to show cause why respondent should not be held in contempt for failure to pay the real estate taxes on the marital home for 1981 to the present in accordance with the terms of the original judgment. She also requested attorney fees.
Respondent filed an answer to the rule to show cause on April 2, 1985, stating, as an affirmative defense, that the parties had entered into a "stipulation" on November 30, 1981, that respondent would be relieved of his obligation to pay the taxes upon petitioner's remarriage, and that petitioner had remarried on February 18, 1982. Respondent also stated that he inadvertently paid petitioner $2,000 during the property settlement and that this should be considered as payment for the 1981 real estate taxes. A copy of the agreement was not attached to his answer, but was filed on June 14, 1985, with respondent's motion to enter an order in accordance with the agreement. The agreement is dated November 30, 1981, signed by both parties, notarized, and states:
"It is agreed between JOHN DODGE and GEORGEANN DODGE, formerly husband and wife and now divorced, that if Georgeann Dodge ever marries, then John Dodge will be released from his obligation to pay taxes on the real property located at 3406 N. Oakdale, McHenry, Illinois."
Respondent also filed an answer to the motion for child-support arrearages on May 16, 1985, stating that he had been paying $150 per week since the entry of the judgment of dissolution of marriage, resulting in a total excess payment of over $2,650.
On May 23, 1985, after only hearing the arguments of counsel on the alleged child-support arrearage, the court ordered that, based on the increase in the consumer price index, respondent should be paying $733.98 per month as child support to begin in June 1985. Judgment was also entered for petitioner in the amount of $804.84, the amount determined to be the total arrearage through May 1985 based on cost of living increases and offset by respondent's excess payments of $150 per week instead of $600 per month. The other pending issues were continued.
Petitioner filed a "response to affirmative defense" on May 31, 1985, alleging that the purported "stipulation" regarding real estate taxes is of no legal force and effect as it was executed without consideration, was never delivered by petitioner to respondent, was executed at a time when petitioner was under severe emotional distress and duress, and was executed by use of coercion over petitioner. She also filed a motion for an increase in child support based on an increase in respondent's income and the increased costs and needs of the minor children. Respondent filed a counterpetition on June 10, 1985, requesting a decrease in child support because the oldest child had become emancipated by entering the armed forces on June 5, 1985, and another child was residing with his grandparents in Kentucky.
Another petition for rule to show cause was filed by petitioner on August 22, 1985, alleging that respondent was still paying $150-perweek child support and not the $733.98 per month as ordered on May 23, 1985, which resulted in an arrearage of $368.44, and requesting attorney fees. An amended petition was later filed which also alleged that respondent had contumaciously failed to pay the $804.84 arrearage he was ordered to pay May 23, 1985. Respondent filed a response October 4, 1985, stating that his failure to pay the judgment was not contumacious, but that he was waiting for the conclusion of all matters before the court.
A hearing was held on the various motions. We shall set forth only the evidence pertinent to the issues raised on appeal as we resolve those questions hereinafter. Following the hearing, the trial judge filed a memorandum determining the various issues before her, and subsequently filed an order which, in pertinent part, found that the November 30, 1981, agreement relieving respondent of his obligation to pay the real estate taxes on the former marital home upon the marriage of petitioner was void as against public policy because it placed a restraint upon her remarriage, granted respondent's motion to decrease child support and set support at $150 per week retroactive to the date of the emancipation of the parties' oldest son, and awarded petitioner her attorney fees concerning the matters of the agreement regarding respondent's obligation to pay the real estate taxes and the petition for adjustment of the cost of living index applicable to child support. The award of attorney fees was specifically based upon her inability to pay these fees and respondent's ability to pay the fees.
Respondent maintains that the agreement of the parties which stated that he was released from his obligation to pay the real estate taxes if petitioner married is not violative of public policy in Illinois and that the trial court's determination that respondent owed petitioner for those taxes should be reversed. Respondent states that he agrees that a total restraint on remarriage, with limited exception, is void as contravening public policy. He contends, however, that the agreement here was a forfeiture upon remarriage, which is valid and not prohibited by the policy underlying the Illinois Marriage and Dissolution of Marriage Act, citing cases which state that parties may agree between themselves to alter their obligations under an original agreement.
• 1 It is a broadly stated general rule of law that provisions in contracts, deeds and wills that are in total or general restraint of marriage are contrary to public policy and void. (52 Am.Jur.2d Marriage sec. 172 (1970).) This rule was recognized in Illinois in Shackelford v. Hall (1857), 19 Ill. 212, which, while determining that a will provision which provided for a forfeiture if any of the testator's children married before the age of 21 was not an invalid restraint on marriage, stated that a testator could impose reasonable and prudent restraints upon the marriage of the objects of his bounty, but could not, with one single exception, impose perpetual celibacy. 19 Ill. 212, 214.) The exception was noted and applied in Glass v. Johnson (1921), 297 Ill. 149, 130 N.E. 473, which held that a testator may rightfully impose a condition of forfeiture upon his wife's subsequent marriage. 297 Ill. 149, 152, 130 N.E.2d 473.) Also, in Fletcher v. Osborn (1917), 282 Ill. 143, 118 N.E. 446, an oral agreement between cousins where one cousin agreed to stay and work for his cousin and was promised that he would inherit all of his cousin's property also contained a provision that the cousin would remain unmarried during his period of service. This provision was found not to render the contract void as against public policy because the provision was merely an incident to the main object of the contract, and the parties did not contract expressly for a restraint upon the cousin's marriage. 282 Ill. 143, 156-57, 118 N.E. 446.
The rule that general restraints against marriage are void has a major exception, apparently as old as the rule itself, to the effect that in the absence of statute, the rule does not apply to a second or subsequent marriage. (52 Am.Jur.2d Marriage sec. 176 (1970).) However, the case relied on by the trial court, Shackleton v. Food Machinery & Chemical Corp. (7th Cir. 1960), 279 F.2d 919, held that, based on Illinois law, a provision to pay royalties to plaintiff "provided she shall not have theretofore remarried" was void as against public policy, quoting dicta in Shackelford which it stated firmly established that Illinois is committed to the rule that total restraint on marriage imposed as a condition subsequent is void as contravening the public policy of Illinois. (279 F.2d 919, 921.) The court further stated "that in cases where spouses are not involved the rule in regard to restraint upon remarriage should not vary from that applicable to the case of marriage." (279 F.2d 919, 922.) A well-reasoned dissent in the ...