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07/28/87 In Re Marriage of Russell A. Firestone

July 28, 1987

IN RE MARRIAGE OF RUSSELL A. FIRESTONE, JR.,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellant, and JANE WHITE FIRESTONE, a/k/a

Jane White Firestone Crosby, Respondent-Appellee

511 N.E.2d 895, 158 Ill. App. 3d 887, 110 Ill. Dec. 718 1987.IL.1076

Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Russell A. Firestone, Jr. (husband), appeals from a judgment of the circuit court of Lake County which dismissed, pursuant to section 2-619(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(4)), his petition to register a foreign judgment and enforce a settlement agreement made with his former spouse, Jane White Firestone (wife).

On June 22, 1982, a judgment was entered in the Fayette County circuit court in Lexington, Kentucky, which dissolved the marriage of these parties. The decree stated that a settlement agreement dictated into the court record by the husband's attorney was approved by the court, subject to the further division of the marital personal property and the payment of monies referred to in the agreement. That agreement provided that the husband would pay the wife $400,000, would pay certain marital debts which were to be identified later, and would pay the wife's attorney fees, moving expenses, and the court costs. The wife was to receive $2,500 each month as maintenance until her death or remarriage and the parties would each keep their own non-marital property and 50% of the marital property. It was agreed that the parties would later determine whether specific property was marital or nonmarital.

In January and November 1984, the wife brought two actions against the husband in the court of common pleas in Cuyahoga County, Ohio, in which she sought to enforce her rights to certain monies pursuant to the decree of dissolution entered in Kentucky. The husband responded with an answer and counterclaim. In his counterclaim the husband alleged that the wife had failed to return "certain valuable marital and non-marital property including certain priceless Firestone family heirlooms" which belonged to the husband, and that the wife's failure to return this personal property violated the oral property settlement agreement entered in the Kentucky dissolution proceeding. The husband sought specific performance of the property settlement agreement and consequential damages resulting from the wife's alleged wrongful conversion of his personal property.

On August 27, 1985, the decree of dissolution was made a final judgment in the Kentucky court. Incorporated by reference in the final judgment was a written settlement agreement entered into between the parties in April 1985, which stated that it constituted a full and final settlement of all claims between the parties, including the Ohio actions. The settlement agreement provided that the husband would pay the wife $272,500 and also contained a listing of furniture and art objects, indicating who owned each object. The agreement stated that the wife had in her possession two paintings, two Oriental rugs, and an Oriental pot which belonged to the husband, which she agreed to return, and that the wife "warrants and represents that she has none of the other items identified on the list as belonging to Mr. Firestone excepting those five items." The agreement further provided that the wife would return eight Chippendale chairs to the husband.

On May 3, 1985, the husband and wife agreed to a stipulated judgment order which incorporated by reference the written settlement agreement entered into in Kentucky and settled the Ohio litigation. The order dismissed the wife's claims in that action against the husband with prejudice, and also dismissed the husband's counterclaim against her.

On September 12, 1985, the husband filed a petition to register foreign judgment and to enforce settlement agreement in the circuit court of Cook County pursuant to section 12-601 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 12-601.) The cause was subsequently transferred by agreement to the circuit court of Lake County, where the wife resided.

In his petition to register foreign judgment and enforce settlement agreement the husband requested that the circuit court of Lake County register the August 27, 1985, final dissolution judgment entered in Kentucky and enforce the terms of the written settlement agreement. The petition's prayer for relief asked that the court order the wife to turn over those items of personal property which, in accordance with the written property settlement, belonged to the husband. The wife filed a motion for involuntary dismissal of the husband's petition pursuant to section 2-619(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(4)) in which she alleged that the husband was barred from relitigating a claim that the wife was in possession of any of his ...


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