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05/26/88 In Re Marriage of Joan Olsen and Charles Olsen

May 26, 1988

IN RE MARRIAGE OF JOAN OLSEN AND CHARLES OLSEN, APPELLEE


SUPREME COURT OF ILLINOIS

(Wayne Sanchez, Executor, Appellant)

528 N.E.2d 684, 124 Ill. 2d 19, 123 Ill. Dec. 980 1988.IL.823

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE CUNNINGHAM delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM

Wayne Sanchez, executor of the estate (hereinafter, the estate) of Joan Olsen (hereinafter, the deceased), filed this action in the circuit court of Du Page County against respondent, Charles Olsen, to recover one-half of the proceeds from respondent's pension due under a dissolution of marriage settlement agreement. The estate alleged that respondent had breached his agreement with the deceased and had "wilfully and contumaciously violated the decree of divorce, by converting all of his then existing shares in the pension stock plan to cash, withdrawing the proceeds of said conversion, and failing and refusing to deliver any portion thereof to Plaintiff." The estate also filed a motion for summary judgment. After a hearing, the circuit court denied the estate's motion and set the cause for trial. After the estate concluded its case at the trial, the circuit court granted respondent's motion for directed verdict, finding that the estate had failed to show any anticipatory breach or repudiation of the contract. The appellate court, with one Justice Dissenting, affirmed (156 Ill. App. 3d 540), finding that "[a]lthough he withdrew the stock and has not since repurchased the shares, he has not communicated any intention to refuse to deliver them upon his retirement." (156 Ill. App. 3d at 543.) The appellate court held that anticipatory repudiation was not shown. We allowed the estate's petition for leave to appeal under Supreme Court Rule 315 (107 Ill. 2d R. 315(a)).

On October 30, 1974, the circuit court entered an order for the dissolution of marriage between the deceased and respondent. The decree incorporated the terms of the oral settlement agreement between the parties, which provided, in part:

"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 and in reference to the pension stock there exists 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 defendant. The parties have agreed in reference to the 559.39 shares of stock at the time 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 respondent she waives all claims as to her one-half share of the 559.39 shares of stock."

Over a year later, on December 13, 1975, the deceased signed a written assignment of her interest in the supplemental pension plan.

In 1977, the Sears, Roebuck & Company stock in the pension fund split two for one, thereby increasing the number of shares covered by the agreement and decree from 559.39 to 1118.78 shares. Three years later, on September 18, 1980, respondent terminated his participation in the Sears pension stock plan and received a cash disbursement from Sears for the value of the shares held in the pension stock plan. On December 16, 1983, the deceased died. It is uncertain from the record whether or not the deceased had any knowledge of respondent's action. It was not until after the death of the deceased that the estate discovered the actions of respondent. Respondent at that time had not started another pension stock account similar to the one he had terminated and only maintained the supplemental pension stock plan which the deceased waived all rights to at the time of the dissolution. At the time of the deceased's death, she had not remarried.

Pursuant to section 502(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 502(a)), the court is empowered to promote amicable settlement of disputes between parties to a dissolution of marriage proceeding. In furthering the objectives of section 502(a), the court may accept an oral or written settlement agreement and incorporate that agreement into the divorce decree. When the agreement becomes a part of the decree, the court is authorized to enforce the terms of the agreement by all remedies available for the enforcement of a judgment and of a contract. Ill. Rev. Stat. 1985, ch. 40, par. 502(e).

The issue before this court is not whether respondent's action amounted to an anticipatory repudiation of the settlement agreement because, as this court finds, the doctrine cannot be applied in this case. The doctrine of anticipatory repudiation requires a clear manifestation of an intent not to perform the contract on the date of performance. The failure of the breaching party must be a total one which defeats or renders unattainable the object of the contract. (Lake Shore & Michigan Southern Ry. Co. v. Richards (1894), 152 Ill. 59, 84.) That intention must be a definite and unequivocal manifestation that he will not render the promised performance when the time fixed for it in the contract arrives. (B & C Electric, Inc. v. Pullman Bank & Trust Co. (1981), 96 Ill. App. 3d ...


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