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01/12/88 Mary Rae (Waggoner) v. John D. Waggoner

January 12, 1988

MARY RAE POLLARD, PLAINTIFF-APPELLANT

v.

JOHN D. WAGGONER, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

519 N.E.2d 18, 165 Ill. App. 3d 501, 116 Ill. Dec. 428 1988.IL.20

Appeal from the Circuit Court of Madison County; the Hon. George Filcoff, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON, P.J., and CALVO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The instant appeal is from a judgment entered subsequent to the parties' divorce, in which the trial court construed a provision of the divorce decree awarding the parties' marital residence to the plaintiff "subject to the indebtedness on said [property]" as imposing the obligation to pay the indebtedness on the plaintiff. The plaintiff, Mary Pollard (formerly Waggoner), and the defendant, John Waggoner, were divorced in February 1977, and, following protracted litigation regarding the indebtedness in question, the defendant paid the indebtedness and brought the instant suit to recover the amount paid from the plaintiff. The trial court found that the provision awarding the marital residence to the plaintiff "subject to the indebtedness" thereon included an obligation on the part of the plaintiff to pay the outstanding second mortgage on this property and ruled in favor of the defendant. We reverse.

In September 1976, approximately five months before entry of the parties' divorce decree, they borrowed $5,500 from the First National Bank of Wood River (Bank) and, in return, executed a "collateral installment note" for the amount of $7,504.20 payable to the Bank. The promissory note was secured by a second mortgage on the parties' marital residence and a lien on the parties' 1973 International Scout automobile. The money obtained from the loan was used to purchase a lease of a fishing cabin on the Illinois River. The loan was to be repaid in monthly payments of $125.07.

The parties separated in October 1976. The husband thereafter paid the first six monthly payments on the promissory note, making two payments in December 1976 and four payments in February 1977. On February 23, 1977, a divorce decree was entered which incorporated the settlement agreement prepared by the plaintiff's attorney and agreed to by the defendant, who was not then represented by an attorney. Paragraph 4 of the settlement agreement read as follows:

"4. Plaintiff will retain the residence of the parties, the motor vehicle and the furnishings, subject to the indebtedness on said items . . .."

Although not specifically provided for in the agreement, the defendant retained the fishing cabin on the Illinois River and the parties' 1973 International Scout automobile, upon which the Bank held a lien to secure repayment of the loan obtained for the lease of the fishing cabin. The agreement made no provision for payment of the parties' debts.

Following entry of the parties' divorce decree, the defendant continued to make monthly payments on the promissory note until more than a year later on March 1, 1978. He ceased making payments at that time upon his attorney's instructions.

On October 11, 1977, after the parties' divorce but before the defendant ceased making payments on the note, the defendant caused his parents to sign the promissory note as additional co-makers in order to obtain a release of the lien on the 1973 International Scout automobile. At some time after the parties' divorce, the defendant sold his interest in the lease of the fishing cabin for $4,000. He retained the proceeds of that sale for himself.

When the plaintiff was unable to sell the marital residence after the parties' divorce, at least in part because of the second mortgage on the residence, she commenced a proceeding to have this mortgage removed as an encumbrance upon the title. The trial court denied the plaintiff the relief she requested, and this judgment was affirmed on appeal (see Waggoner v. Waggoner (1978), 66 Ill. App. 3d 901, 383 N.E.2d 795; Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5), with the supreme court holding that the trial court had no jurisdiction to consider the post-judgment motions filed by the plaintiff.

After the defendant ceased making the monthly payments on the second mortgage on March 1, 1978, the Bank filed a complaint to foreclose the second mortgage on the plaintiff's residence. The plaintiff's present husband, Lee Pollard, paid off the second mortgage, took an assignment of the promissory note against the defendant and his parents, and obtained a confessed judgment against them in the amount of $6,623.01. This judgment was affirmed on appeal, and the defendant and his parents subsequently paid Lee Pollard the amount of $9,572.02, which included interest on the confessed judgment. The defendant then commenced the instant case by filing a pleading entitled "Citation" on May 9, 1985, in which he sought to have the plaintiff held in ...


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