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06/02/87 In Re Marriage of Nell Coufal

June 2, 1987

IN RE MARRIAGE OF NELL COUFAL, N/K/A NELL LEWIS,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Petitioner-Appellee, and JAMES R. COUFAL,

Respondent-Appellant

510 N.E.2d 25, 156 Ill. App. 3d 814, 109 Ill. Dec. 404 1987.IL.730

Appeal from the Circuit Court of Cook County; the Hon. Jill K. McNulty, Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Respondent husband appeals from a rule to show cause and adverse judgment finding him $53,341.04 in arrears on monthly payments of a lump-sum distribution under a divorce judgment and owing $9,756.51 in attorney fees and costs. He raises as issues whether the circuit court erred in: (1) finding that respondent failed to establish the terms of an alleged oral modification of a divorce property settlement by clear and unequivocal evidence; (2) failing to apply equitable estoppel, laches, or accord and satisfaction as bars to petitioner's action seeking periodic property settlement payments allegedly due; and (3) awarding petitioner interest and attorney fees.

Respondent, James Coufal, and petitioner, Nell Lewis, were married on September 7, 1952. They had one child, a son born in 1960. They were divorced on April 30, 1970. They agreed to the property settlement incorporated into the judgment which provided that respondent would: pay petitioner $115,200 "in lieu of alimony" in periodic monthly payments of $800 for 12 years; quitclaim the marital home to petitioner; and pay for their son's college education, provided he was in good scholastic standing and respondent was financially able.

In 1974 the parties orally modified their agreement allowing respondent to make smaller monthly payments ($550) over a longer period of time.

In the spring of 1978, respondent agreed to pay the entire cost of his son's college education at Washington and Lee University (between $7,000 and $9,000 per year), in accordance with the original divorce agreement. Respondent informed petitioner, however, that he could not afford to pay her $550 per month and pay for their son's education. Respondent alleged that petitioner then orally agreed to waive all future monthly payments in exchange for respondent's paying for the son's college education. Petitioner contends that she merely agreed to postpone the payments while respondent was paying for the son's college if he paid all then current arrearages.

In September 1979, respondent paid petitioner $4,400 in arrearages, thereby allegedly satisfying all owed monthly payments through July 1978, the date that the son started college. The son attended Washington and Lee for two years and then either dropped out or was dismissed in the spring of 1980, relieving respondent of any need to make continued tuition payments. He also allegedly believed himself free of the monthly lump-sum distribution payments. Petitioner apparently made no immediate demand for the resumption of the monthly payments; instead, after learning that respondent's financial situation had changed, she filed a petition for rule to show cause on April 10, 1984. After respondent filed his response to the petition and an exchange of memoranda, the circuit court held in petitioner's favor and entered a rule to show cause on May 24, 1985.

Respondent thereafter filed a motion for reconsideration and clarification and petitioner filed a motion for attorney fees and interest. On August 23, 1985, after an extensive hearing, the court denied respondent's motion for reconsideration, granted petitioner's motion for interest, and allowed discovery on the attorney fees. On November 15, 1985, the court entered a $53,341.04 judgment in petitioner's favor for monthly lump-sum distribution payments due plus accumulated interest. Three days later, on November 18, 1985, the court assessed attorney fees and costs of $7,239.91, against respondent. At that time, the court added as an additional party defendant respondent's current wife, Judith Swafford Coufal.

On December 5, 1985, respondent appealed to this court, which was dismissed. On April 25, 1986, the circuit court issued a judgment of $2,516.60 for supplemental attorney fees. Thereafter, respondent filed the current appeal from that judgment and the previous ...


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