Atwater v. Atwater

• Decision Date: 01 March 1974
• Docket Number: No. 57668,57668
• Citation: 18 Ill.App.3d 202,309 N.E.2d 632
• Parties: Dorothy W. ATWATER, Plaintiff-Appellant Cross-Appellee, v. A. G. ATWATER, Defendant-Appellee Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 632

309 N.E.2d 632

18 Ill.App.3d 202

Dorothy W. ATWATER, Plaintiff-Appellant Cross-Appellee, v. A. G. ATWATER, Defendant-Appellee Cross-Appellant.

No. 57668.

Appellate Court of Illinois, First District, Fifth Division.

March 1, 1974.

Edward D. Rosenberg, Rosenberg & Kosin, Chicago (Ellis B. Rosenzweig, Chicago, of counsel) for plaintiff-appellant (cross-appellee)

Richard A. Makarski, Chicago (Chapman & Cutler, Chicago, of counsel) for defendant-appellee (cross-appellant).

SULLIVAN, Presiding Justice:

This is an appeal by plaintiff from the court's denial of her claim for interest on the unpaid installments of a property settlement agreement incorporated into a decree of divorce. Defendant cross-appealed from the judgment entered against him for $78,000.00, the past due property settlement payments.

On October 8, 1957, a decree of divorce was entered which included an agreement for payment of a lump sum settlement in lieu of alimony of $127,500.00, $49,500.00 of which was paid to plaintiff. The issues herein relate to the balance provided for in section 2(c) and 3 of that agreement. ¹ The payments under those provisions were In 1957, plaintiff met Alfred B. Mattson, and in August of 1958 she and Mattson traveled to Las Vegas, Nevada. There they applied for a marriage license, which was issued on August 11, 1958. Both plaintiff and Mattson testified, however, that no marriage was ever entered into. In support of this contention, plaintiff introduced affidavits from the Recorder of Clark County, Nevada, which indicated that from 1956 to 1961 no marriage record existed for Alfred Mattson or Dorothy Atwater. Additionally, plaintiff introduced a completed marriage certificate which Mattson testified was a blank form and in which he inserted the fictitious names of a Justice of the Peace and two witnesses and the date of August 10, 1958. An additional affidavit from the County Clerk of Clark County was offered at trial, wherein it was stated that in the year 1958 there was no Justice of the Peace in Clark County having the same name as that appearing in the Mattson's marriage certificate. All three documents were received in evidence.

to begin four years from the date of the decree and were to be defeasible only upon the death or remarriage of the plaintiff prior to the time the monthly installments were to become 'due and owing'. Defendant stipulates that with the exception of one installment, no payments were made pursuant to this portion of the agreement.

After Mattson and plaintiff returned to Chicago they resided together and between 1958 and 1971, held themselves out to be husband and wife. The most significant occurrence of this period took place in September of 1961, when plaintiff requested and had a meeting with defendant. At the meeting, plaintiff informed defendant that she had not married Mattson but was only living with him and, for that reason, payments under section 2(c) of the settlement agreement were to be made. Plaintiff testified that at the meeting defendant indicated he would not 'pay a red cent' and, if she pursued her request, he would make trouble for plaintiff and her daughter by a previous marriage. Defendant, although not present at trial, stated in an affidavit filed in support of a motion for continuance, that he in fact had such a meeting with plaintiff wherein she informed him that she was not married to Mattson. However, in his affidavit defendant stated that in the absence of any proof to substantiate plaintiff's statements, he would continue to believe that she was married. Accordingly, a short time after the meeting, defendant's attorney sent a letter to plaintiff wherein he indicated that in view of plaintiff's 'remarriage', all future payments under 2(c) were to cease. From 1961 to 1971, plaintiff and Alfred Mattson lived together and engaged in conduct designed to lead people to believe that they were husband and wife. ²

On March 8, 1971, plaintiff filed a petition seeking judgment for the unpaid sums of the settlement agreement plus interest of $28,470.00. Defendant, by his answer, admitted that he had made no payments under section 2(c) of the agreement but denied he owed any sums whatsoever. Defendant further denied plaintiff's allegation that she had not remarried and affirmatively raised the defenses of estoppel, Laches, waiver and the statute of limitations.

After the denial of two motions by defendant for continuance, the trial proceeded and concluded with a finding that plaintiff had not remarried and therefore defendant was obligated to make payment pursuant to the aforementioned agreement. The court, however, refused to award the payment of interest on the unpaid amounts. It was from this order that both parties

perfected appeals. Subsequent to the above trial, defendant has had conservators appointed for both his person and his estate.

OPINION

I.

Defendant contends that the trial court erred in denying him continuances on February 14 and 29, 1972. The first motion for a continuance was based upon the illness of defendant, and in support thereof an affidavit was filed containing a letter from a California doctor reciting defendant's inability to attend the trial. The motion was denied. After a continuance due to defendant's attorney being on trial elsewhere, the defendant moved for a continuance on the day set for trial. Again the motion for continuance was predicated upon defendant's illness, and in the supporting affidavit the following information was presented: (1) that defendant's physical condition prevented his attendance at trial and also prevented his testimony from being preserved by a deposition; (2) that if the continuance were allowed and defendant were able to appear in court, he would testify that plaintiff had represented to him that she was remarried; however, at the meeting held in 1961, plaintiff had informed him that she was not married but only living with Mattson. Defendant chose not to believe plaintiff, but requested that plaintiff demonstrate to him that she had not remarried; and (3) that defendant never received notification from plaintiff relating to the possibility that she was not remarried, despite the fact that defendant indicated his willingness to make payments if plaintiff brought information in support of her representations of non-marriage and stopped using the name of Mattson and discontinued representations to her daughter that she was married.

This motion was also denied. On appeal, defendant asserts that because of his absence at trial, he was denied the right to present evidence which was material to his defense.

The affidavit noted above indicates that at the 1961 meeting with plaintiff, defendant was made aware of the fact that plaintiff asserted she was not married to Mattson. Further, the affidavit states that defendant believed she was remarried and he, therefore, would not make any payments. Essential to the defendant's argument and necessary to avoid the dictates of the settlement agreement, is the establishment of plaintiff's remarriage. In the affidavit, defendant states nothing which, if offered at trial, would have (1) contradicted her statement to him that she was not remarried; or (2) established that she was remarried. As stated in People ex rel. Linton v. Barth, 267 Ill.App. 574, 575:

'It was incumbent upon appellant to show that he had a meritorious defense and the materiality of the facts which he expected to prove by the absent witness.'

As further stated in North Federal Sav. & Loan Ass'n v. Tokoph, 110 Ill.App.2d 254, 258, 249 N.E.2d 241, 243:

'The unavailability of a prospective witness even though due to excusable cause such as illness, need not and should not be an appropriate reason for delay. It must also appear that the prospective witness's testimony would be material to the issues involved. Otherwise, the only conclusion warranted would be that delay is being sought for its own sake and not to avoid prejudice.'

In addition, the affidavit contained no information indicating that, if the continuance were granted, defendant would appear within the reasonable future or that his testimony would be procured. The law requires the affidavit to set forth the facts on which the expectation is based that the witness will be present or that his attendance will be procured. It is not erroneous to refuse a continuance where there is no reasonable prospect of obtaining the desired evidence at some future time. (Cairo Lumber Co., Inc. v. Corwin, 325 Ill.App. 319, 60 N.E.2d 110). These inadequacies in the affidavit, considered in the light of the apparent deterioration of defendant's condition, amply support the trial court's denial of the motion for continuance.

Finally, we believe that defendant lacked diligence in memorializing his testimony via a deposition. In the early case of Mantonya v. Huerter,35 Ill.App. 27, the defendant, suffering from nervous prostration, was advised by his physician to take a European trip and, as a result, was unable to attend his trial. Further, his testimony was not preserved by the taking of a deposition. The court, in responding to defendant's argument that the trial court erred in denying his motion for a continuance, stated at pages 28 and 29:

'Nothing sworn to in these affidavits is inconsistent with the supposition that Mantonya's deposition might, and should have been taken before he departed for Europe. The suit was begun December 15, 1887, and the issues were formed February 3, 1888, so that there was ample time for taking the depositions if the circumstances warranted that course. The affidavits are very vague as to the length of time Mantonya had been ill before the trial. One physician swears he had been suffering 'for some time past from nervous prostration which has assumed a serious aspect during the past few months;' the other, that 'he has, for a considerable time, and still is suffering from nervous prostration;' while the attorney...