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12/12/89 In Re Marriage of Mary E. Taylor

December 12, 1989

IN RE MARRIAGE OF MARY E. TAYLOR, N/K/A MARY E. VALDES,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Petitioner-Appellant, and PAUL E. TAYLOR,

Respondent-Appellee

548 N.E.2d 106, 191 Ill. App. 3d 648, 138 Ill. Dec. 876 1989.IL.1930

Appeal from the Circuit Court of Monroe County; the Hon. Dennis J. Jacobsen, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. GOLDENHERSH and HOWERTON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

On September 9, 1987, the respondent, Paul Taylor, filed a petition seeking to modify a judgment of dissolution of marriage entered by the circuit court of Monroe County on May 23, 1979. On March 28, 1988, the circuit court granted the respondent's prayer for relief. The petitioner, Mary Taylor, subsequently filed this appeal. We affirm.

The May 1979 judgment of dissolution awarded respondent, inter alia, one-half of the equity in the marital residence, and awarded petitioner, inter alia, maintenance of $500 per month and 40% of respondent's retirement benefits. On January 22, 1981, petitioner and respondent entered into an oral agreement. The alleged terms of this agreement were that the respondent transferred his interest in the marital residence to petitioner in consideration for petitioner's releasing him from future payments.

On April 4, 1987, respondent retired from his employment with the Federal civil service, and he began receiving his pension benefits from his former employer later that summer. Upon his discovery that his former wife was receiving a significant portion of his pension benefits, and based upon his belief that he was entitled to all of those benefits, respondent filed this action on September 9, 1987, seeking modification of the judgment of dissolution to release him from the judgment's provision requiring him to provide 40% of his pension benefits to petitioner.

In its order of March 28, 1988, the circuit court, based on the testimony of the parties given at a hearing on March 7, 1988, determined that both petitioner and respondent intended for the oral agreement entered into between the parties in January of 1981 to release respondent from his obligation to provide any and all future payments to petitioner, including the payment of pension benefits. The court then modified the judgment of dissolution to conform to the oral agreement, relieved the respondent of his obligation -- effective retroactively to January 22, 1981 -- to provide a portion of his pension benefits to petitioner, and ordered the petitioner to notify the Federal government that she was no longer entitled to share in those benefits.

The petitioner contends on this appeal that: (1) the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress; and (2) the trial court's determination that the parties had entered into an oral agreement which divested the petitioner of pension benefits was against the manifest weight of the evidence.

The petitioner initially contends that the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress. The lower court modified the judgment to conform to an oral agreement entered into between the parties in January of 1981. We disagree with petitioner's contention that the trial court lacked the authority to modify the judgment, and we hold that the circuit court's determination to modify the judgment was not erroneous.

Both of the issues in this cause center around the oral agreement reached between the parties in January of 1981. Both parties are in accord that they entered into an agreement, although the parties differ in their interpretations of the terms of the agreement. Although the agreement was not reduced to writing, the intended effect of the agreement -- to finalize the severance of the relationship between the parties -- was sworn to by both petitioner and respondent at the hearing on March 7, 1988. At that hearing, respondent testified that "I gave this property for all future indebtedness. I asked her three times. I believed her to be a very honest person, and we shook hands on it, ...


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