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10/19/87 In Re Marriage of Jacqueline M. Perdue

October 19, 1987

IN RE MARRIAGE OF JACQUELINE M. PERDUE, N/K/A JACQUELINE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Wesstrom, Petitioner-Appellee, and ROBERT J. PERDUE,

Respondent-Appellant

514 N.E.2d 1011, 162 Ill. App. 3d 126, 113 Ill. Dec. 99 1987.IL.1561

Appeal from the Circuit Court of Lake County; the Hon. George W. Pease and the Hon. William F. Homer, Judges, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Respondent, Robert J. Perdue, and petitioner, Jacqueline Perdue, n/k/a Jacqueline Wesstrom, were divorced in June 1980. They had entered into a separation agreement which was incorporated into the dissolution judgment and which purported to specify petitioner's interest in respondent's employer's profit sharing trust (the trust). Respondent appeals from the construction given the agreement by the circuit court of Lake County.

In addition to being an employee with a vested interest in the trust, respondent is a partial owner of the employer and was one of two trustees of the trust. In January 1984, respondent and his cotrustee decided to terminate the trust and to distribute the funds pro rata to the participating employees, including respondent. Upon learning of the proposed termination of the trust, Jacqueline filed a petition seeking reformation of the agreement to allow immediate disbursement to her of her portion of respondent's interest in the trust. After an evidentiary hearing, the trial court entered an order on March 12, 1984, finding that the provision did not accurately reflect the parties' agreement and reforming it to give petitioner a 50% interest in the trust as of the date of dissolution, plus interest and earnings attributable to her portion of the fund since that date, but not any portion of those attributable to subsequent contributions by respondent's employer. The court also held that petitioner's portion became payable when the funds were made available to respondent, and that each party was to be responsible for his or her own income taxes on receipt of the funds. Respondent did not immediately comply with the order, however, and on October 5, 1986, after a hearing on petitioner's motions to compel payment, the trial court assigned a dollar amount to petitioner's share of the trust, deducted the payments already made to her, and ordered immediate payment of the balance due. Respondent then filed this appeal.

The contested provision states:

"HUSBAND'S PROFIT SHARING TRUST : Upon the Husband's retirement or death, whichever shall first occur, the Wife shall receive fifty percent (50%) of a certain portion of the net distribution of the proceeds of the vested equity of the Husband in the Foster Supply Company Employees' Profit Sharing Trust ('net' being the amount remaining after the payment of Federal and State taxes thereon), with the Wife's portion to be arrived at by using the following formula:

First, it shall be determined what proportion his contributions made to the trust prior to the entry of a Judgment of Dissolution of Marriage bear to his total contributions at the time distribution is made;

The resulting proportion will then be applied to the amount of the net distribution made to the Husband in order to determine the portion thereof that will be subject to the Wife's 25% interest."

We note initially that there is a presumption that a written contract is the accurate reduction to writing of the agreement reached by the parties. (Sheldon v. Colonial Carbon Co. (1983), 116 Ill. App. 3d 797, 800.) Reformation of a contract is therefore only permitted where the plaintiff demonstrates by clear and convincing evidence that, due to a mutual mistake of fact, among other reasons, the writing does not accurately reflect the agreement reached. (See, e.g., National Ben Franklin Insurance Co. v. Davidovitch (1984), 123 Ill. App. 3d 88, 91; Beynon Building Corp. v. Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 765.) If a mutual mistake is proved, ...


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