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06/16/87 In Re Marriage of Joan Olsen

June 16, 1987

IN RE MARRIAGE OF JOAN OLSEN, PETITIONER, AND CHARLES


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

OLSEN, Respondent (Wayne Sanchez, Ex'r,

Petitioner-Appellant; Charles Olsen,

Respondent-Appellee)

509 N.E.2d 766, 156 Ill. App. 3d 540, 109 Ill. Dec. 105 1987.IL.830

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH, J., concurs. JUSTICE INGLIS, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Wayne Sanchez, executor of the estate of Joan Olsen, brought this action against Charles Olsen to recover certain stock allegedly due to Joan Olsen under the terms of a judgment of dissolution. The circuit court of Du Page County found that petitioner was not yet entitled to the stock and granted respondent's motion for judgment in his favor at the close of petitioner's case in chief. We affirm.

The marriage of Charles Olsen and Joan Olsen was dissolved by a decree entered October 30, 1974. The decree incorporated a property settlement agreement which, in relevant part, provides as follows:

"7. That in reference to their joint and mutual property rights the parties hereto have entered into an oral property settlement agreement, pursuant to which it has been agreed:

(b) The Husband has a pension stock plan and a supplemental pension fund in connection with his employment. [ sic ] and in reference to the pension stock there exists [ sic ] 559.39 shares of Sears Roebuck stock and it has been agreed that the plaintiff waive [ sic ] all claims as to the supplemental pension and retirement funds of the defendant. The parties have agreed in reference to the 559.39 shares of stock that at the time the defendant retires he shall deliver to the plaintiff one-half of the 559.39 to be her sole property provided in the event plaintiff remarries prior to the retirement of defendant she waives all claims as to her one-half share of the 559.39 shares of stock."

Joan Olsen died December 16, 1983, without having remarried. The executor of her estate, Mr. Sanchez, soon thereafter discovered that respondent had withdrawn the stock on September 18, 1980, Mr. Sanchez then filed this action to recover the stock, contending that respondent violated the terms of the decree by withdrawing the stock at a time when Joan Olsen was still alive and not remarried. Respondent answered that the stock was actually meant to be deferred maintenance, rather than a property settlement, which abated on Joan Olsen's death. In the alternative, respondent argued, even if the stock was a property settlement, the time of performance had not arrived since he had not retired.

A hearing was held at which respondent and Sanchez testified. Respondent admitted that the Sears stock had split two-for-one in 1977 and that he had withdrawn all the shares in 1980. He also admitted that he had not delivered any of the stock to Joan Olsen or her estate, but testified he still works for Sears. Sanchez testified that Joan Olsen had not remarried before her death in 1983. Respondent moved for a judgment in his favor at the close of petitioner's case in chief. ...


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