Dendrinos v. Dendrinos

• Court: Appellate Court of Illinois
• Writing for the Court: STAMOS
• Citation: Dendrinos v. Dendrinos, 374 N.E.2d 1016, 58 Ill.App.3d 639, 16 Ill.Dec. 241 (Ill. App. 1978)
• Decision Date: 28 March 1978
• Docket Number: No. 77-1063,77-1063
• Parties: , 16 Ill.Dec. 241 Angela DENDRINOS, Plaintiff-Appellant, v. Gerasimos DENDRINOS, Defendant-Appellee.

Page 1016

374 N.E.2d 1016

58 Ill.App.3d 639, 16 Ill.Dec. 241

Angela DENDRINOS, Plaintiff-Appellant, v. Gerasimos DENDRINOS, Defendant-Appellee.

No. 77-1063.

Appellate Court of Illinois, First District, Second Division.

March 28, 1978.

Nicholas Zagone and Anna Kioutas, Chicago, for plaintiff-appellant.

Harold E. Collins & Associates, Ltd., Chicago, for defendant-appellee.

STAMOS, Presiding Justice:

Plaintiff, Angela Dendrinos, appeals from an order of the circuit court of Cook County denying her petition to set aside a property settlement agreement with defendant Gerasimos Dendrinos, which was incorporated in a decree of divorce entered on November 6, 1976. The trial court also denied plaintiff's request for award of attorney's fees and alimony pending her prosecution of this appeal.

From entry of these orders plaintiff appeals and contends: (1) that the trial court denied plaintiff's petition without benefit of an adequate evidentiary foundation; and (2) that the trial court improperly refused plaintiff's request for alimony and attorney's fees pending appeal.

A review of the record indicates that plaintiff, a foreign national, and defendant, a United States citizen, were married on December 22, 1974 at Aigion, Greece. Upon their return to Chicago, Illinois, the couple lived together as husband and wife for approximately 10 months before plaintiff sued for divorce alleging that defendant had been guilty of extreme and repeated cruelty. Defendant filed a counter-claim alleging similar grounds for dissolution of their marriage. No children were born to or adopted by the parties.

After various continuances, this cause was set for disposition on the contested trial call of October 6, 1976. It appears that prior to this date the parties arrived at an oral agreement settling and disposing of the alimony and property rights stemming from the marital relationship. A prove-up hearing ensued during the course of which testimony was elicited from both plaintiff and defendant. Plaintiff testified through an interpreter fluent in the Greek language.

Plaintiff testified that pursuant to the oral agreement (1) she would receive a lump sum property settlement of $15,000 payable in an initial installment of $5,000 and followed by payments of $2,000 per year for 5 years; (2) she would waive her alimony rights; (3) defendant would release any and all claims against plaintiff for any debts which the parties might have jointly incurred; and (4) she would release any and all claims and property interests against defendant by quitclaim deed. The trial court inquired of plaintiff whether she had voluntarily entered into the agreement. Plaintiff responded, "I'm doing it on my own," "I agree to it. Nobody pressured me into it."

A decree of divorce was entered on November 5, 1976. The decree bears the signature of defendant's counsel, but neither plaintiff nor plaintiff's attorney executed same although some provisions have been initialed by both counsel. Plaintiff subsequently discharged that attorney and retained new counsel who filed a petition to substitute attorneys and vacate the decree. In support of this petition, plaintiff alleged, inter alia, that prior to the prove-up hearing defendant answered written interrogatories propounded by plaintiff relative to certain parcels of real estate in which defendant maintained an interest; that defendant falsely answered such interrogatories by stating that plaintiff had no interest in such properties; that plaintiff maintained throughout these proceedings that she was a joint owner of such real properties but that defendant, through his attorney, assured all parties that plaintiff's name was not on the title nor was she a beneficiary under the trust that held title to certain parcels of real estate; and that the settlement was arrived at prior to the prove-up hearing and was based upon the premise that plaintiff, being foreign and uneducated, was mistaken as to her interests in said real estate. Subsequent investigation apparently suggests that plaintiff does hold an interest in the properties at issue. On appeal, plaintiff proposed that it must be presumed that she acquired such interests as a gift from her spouse.

Defendant filed an answer to this petition denying the alleged concealment of assets and asserted that "the interest of the Plaintiff, if any, and (sic) any property of the Defendant was merely that of a nominee and created in connection with financing relative to any such property and that the Defendant has never authorized nor consented to the creation of any interest, legal or equitable, in the Plaintiff with reference to any of his property."

The issues having thus been drawn, the cause was set for a hearing. It was not requested and the court did not direct that witnesses be sworn and testimony be taken. However, following statements, comments and observations of counsel, which contained many disputed allegations of fact and conclusions of law, the trial court noted:

"You must understand this; I had conducted a pretrial, I tried to make sure, as I do in all cases although I cannot specifically zero in on this one, that everyone understood what was going on, and that is the reason for having interpreters, and we had that, but I cannot see anything in here at the moment to show frad (sic), because it was thoroughly explained. * * * The motion to vacate is denied."

Modification of a divorce decree rests in the sound discretion of the trial court, and courts of review will not disturb its findings unless the evidence clearly so requires. (Edwards v. Edwards (1970), 125 Ill.App.2d 91, 259 N.E.2d 820.) Amicable settlement of property rights is viewed with favor and the law is reluctant to disturb a decree based thereon. (Walters v. Walters (1951), 409 Ill. 298, 99 N.E.2d 342.) The burden of proving fraud or concealment is on the party asserting it, and that burden is more onerous when a party seeks to vacate or modify a property settlement incorporated in a divorce decree, all presumptions being in favor of the validity of the settlement. (Lagen v. Lagen (1973), 14 Ill.App.3d 74, 302...