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12/07/89 Mary Givens, v. Givens

December 7, 1989

MARY GIVENS, PLAINTIFF-APPELLEE

v.

VIRGINIA GIVENS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

548 N.E.2d 571, 192 Ill. App. 3d 97, 139 Ill. Dec. 186 1989.IL.1904

Appeal from the Circuit Court of Cook County; the Hon. Harry R. Buoscio, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Defendant, Virginia Givens, appeals from an order of the circuit court of Cook County which confirmed a settlement contract entered between plaintiff, Mary Givens, and defendant, Virginia Givens. Judgment was entered against defendant in the amount of $5,950. The following issues are presented for review: (1) whether the trial court had subject matter jurisdiction; (2) whether plaintiff states a cause of action against defendant; (3) whether plaintiff states a claim upon which relief may be granted against defendant; (4) whether the trial court erred in not granting defendant's motion to dismiss; (5) whether defendant was denied her constitutional right to be present at trial; and (6) whether the judgment against defendant was against the manifest weight of the evidence.

On August 30, 1976, Robert Givens, adoptive father of plaintiff and spouse of defendant, was killed in an accident which arose in and out of the course of his employment. On December 23, 1977, the Industrial Commission of Illinois (hereinafter Commission), approved a settlement between the decedent's employer and designated beneficiaries of the decedent. The designated beneficiaries were defendant, plaintiff, David and Gerald Givens (minor children of decedent), and Adonis and Rex Givens (adult children of decedent).

Pursuant to the contract, a total lump sum of $65,000 was set aside as a complete and final settlement in release of all claims and liability under the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq. (hereinafter the Act), for the alleged accidental death of decedent. A schedule was attached to the contract which allocated a portion of the $65,000 to each of the designated beneficiaries. Although the beneficiaries were to be given proportional shares of the award, the amounts allotted to the minor children, including plaintiff, were to remain with defendant until such minor children reached 18 years of age. Decedent's adult children received their allotted share of the award when it was first distributed.

According to the schedule attached to the settlement contract, plaintiff, who was approximately 17 1/2 years of age at the time the agreement was entered, was to receive $7,145.66. Plaintiff resided with defendant, her adoptive mother, from the time of her adoptive father's death on August 30, 1976, until her eighteenth birthday on June 9, 1978.

Plaintiff moved from defendant's home on her eighteenth birthday. At that time, defendant wrote plaintiff a letter in which she stated that she could not give plaintiff the money she had set aside because defendant felt that it would "destroy all the good in [plaintiff] now and reduce [her] chances of knowing a Godly future."

Plaintiff filed a complaint against defendant on August 6, 1986, alleging that defendant had not given plaintiff her portion of the award. In her complaint, plaintiff requested $7,145.66, plus accrued interest. After a bench trial, plaintiff was awarded $5,945.56, out of the $7,145.66, plus costs. Defendant was given credit for six months of support to plaintiff. It is from this order that defendant appeals.

Defendant first contends that the trial court did not have subject matter jurisdiction. Defendant argues that the complaint should have been filed with the Commission, which has exclusive jurisdiction to modify this award. As support for this contention, defendant cites to section 7(e) of the Act, which provides in pertinent part, that "[an] order or award may be modified from time to time by the Commission in its discretion with respect to the person to whom shall be paid the amount of the order or award remaining unpaid at time of the modification." Ill. Rev. Stat. 1985, ch. 48, par. 138.7(e).

Plaintiff in the instant case, however, does not seek to amend or modify the settlement contract that was approved by the Commission. Plaintiff seeks to enforce the settlement. We, therefore, find that this section of the Act, insofar as it pertains to modification, is inapplicable as plaintiff does not seek to modify the existing contract.

Defendant also cites to Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, as support for her proposition that the circuit court had no subject matter jurisdiction to hear this matter. We find Ahlers inapposite to defendant's proposition. In Ahlers, the Illinois Supreme Court held that the approval of a settlement agreement by the Commission constitutes a decision and is the equivalent of an award by the Commission. (Ahlers, 73 Ill. 2d at 265.) However, the court went on to hold that an action on the approved settlement agreement may be properly commenced in the circuit court. (Ahlers, 73 Ill. 2d at 265.) Although Ahlers concerned claims made by the plaintiff under section 19(g) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(g)), we find those same principles applicable to plaintiff's ...


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