Held v. Held

• Citation: 73 Ill.App.3d 561,29 Ill.Dec. 612,392 N.E.2d 169
• Decision Date: 19 June 1979
• Docket Number: No. 78-554,78-554
• Parties: , 29 Ill.Dec. 612 In re the Marriage of Tanna Jo HELD, Petitioner-Appellee, v. William Theodore HELD, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 169

392 N.E.2d 169

73 Ill.App.3d 561, 29 Ill.Dec. 612

In re the Marriage of Tanna Jo HELD, Petitioner-Appellee, v. William Theodore HELD, Respondent-Appellant.

No. 78-554.

Appellate Court of Illinois, Fifth District.

June 19, 1979.

Feirich, Schoen, Mager, Green & Associates, Carbondale, for respondent-appellant.

Kimmel, Huffman, Prosser & Kimmel, Carbondale, for petitioner-appellee.

KARNS, Justice:

Respondent, William Theodore Held, brought this action under section 72 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 72) in the Circuit Court of Jackson County to vacate various provisions of a judgment for dissolution of marriage based upon alleged fraudulent representations made by his ex-wife, petitioner Tanna Jo Held. The court refused to vacate these provisions but nevertheless granted respondent some relief by modifying certain portions of the judgment. Respondent appeals from those portions of the judgment not modified or vacated. Petitioner Tanna Jo Held has filed a cross-appeal for attorney's fees.

On January 4, 1978, Mrs. Held filed a petition for the dissolution of the parties' marriage in Jackson County. Mr. Held signed a form in which he waived the necessity of process and consented to a default judgment. Prior to the hearing on the petition, negotiations took place between the parties at the offices of petitioner's attorney Richard White. At that time, Mr. and Mrs. Held met with Barbara Cochran, Mr. White's secretary, who asked various questions concerning the dissolution of marriage and then typed the respective answers. The attorney subsequently advised both parties by letter of the date of the hearing on the petition and further advised Mr. Held that his presence was not necessary although he could attend if he so desired.

At the hearing on January 31, 1978, Mrs. Held testified as to the terms of an alleged agreement she made with her husband concerning the property distribution and custody and support of their three minor children. The ensuing judgment of dissolution of marriage reflected much of Mrs. Held's testimony. In part, the court ordered respondent to pay $500 per month child support; awarded the marital home to Mrs. Held; ordered respondent to pay marital debts amounting to $7333 while ordering petitioner to pay one marital debt of $250; directed the parties to each pay 50% Of all dental expenses incurred by the children; ordered respondent to maintain the existing medical policy through his employer until the children reached the age of 18 or completed their education, or to purchase a similar policy if the present one became unavailable; and required respondent to keep in full force the two small life insurance policies through Prudential Insurance Company, without encumbrance, for the benefit of his minor children and to name the minor children as beneficiaries on a $10,000 life insurance policy issued by Northwestern Mutual Life. Mr. Held, who did not attend the hearing, received a copy of the judgment two or three days after it was filed. Approximately two weeks later, Mr. Held remarried.

On May 3, 1978, respondent filed the present petition requesting that certain paragraphs of the judgment for dissolution of marriage be vacated because of fraud. Mrs. Held countered by filing a motion for attorney's fees, alleging that she had no funds with which to oppose her husband's petition.

In Mr. Held's petition and accompanying affidavit, he alleged that his ex-wife had made the following representations to him prior to the parties' dissolution of marriage, upon which the judgment was to be based: that he was entitled to no more than a 20% Interest in the marital home because he was one of five people living there; that the attorney was representing both parties; that each party would pay 50% Of the marital debts; and that the distribution of the equity in the marital home and the amount of child support would be decided after the marriage was dissolved. He further alleged that there was no agreement that respondent would be required to maintain the life insurance policy written by Northwest Mutual Life as provided in the judgment for the benefit of his children; nor, he claimed, was there any agreement that would require him to maintain medical insurance while unemployed. He claimed to have relied upon the misrepresentations of his ex-wife as to what the judgment would contain and therefore did not retain counsel or attend the dissolution hearing. Furthermore, he alleged that when he saw Tanna after the judgment she stated that its provisions would be corrected to reflect their agreement; however, the corrections were not made and the time to appeal expired.

At the hearing on the present petition, Mr. Held reiterated many of the above allegations. He added that he and his wife never agreed upon the distribution of the marital home or the amount of child support prior to their dissolution of marriage. He did not agree to pay all of the marital debts and it was his understanding that he could borrow against the life insurance policy issued by Northwestern Mutual Life and would only have to maintain the medical insurance through his employment.

Mrs. Held, however, testified that her husband unconditionally agreed to pay $500 per month as child support and to transfer title of the home to allow her to raise the children. It was also her understanding that her husband consented to pay all of the marital debts with the exception of one optometrist bill as he was working and could afford it. She further testified that she and her husband agreed that the children would be covered by his health insurance at all times, regardless of whether he was working. She added that the children would be the beneficiaries of the three insurance policies on his life, although he could borrow against the cash value of the Northwestern Mutual Life policy.

Barbara Cochran, the legal secretary, testified that Mr. and Mrs. Held came to the attorney's office prior to the dissolution proceedings to put the terms of their agreement in writing. At this meeting, Ms. Cochran typed a statement of the agreement from information supplied by the parties, which statement corroborated most of Mrs. Held's testimony. Cochran testified that the agreement established that child support would be $500 per month and that Mr. Held would carry health insurance even if he were not employed. She added that all life insurance policies on Mr. Held's life would remain in effect with Mrs. Held as beneficiary until either party remarried, at which time the policies would be for the benefit of the children. Furthermore, the marital home would be conveyed to the wife subject to the current outstanding mortgage. She concluded that the parties' agreement disclosed to her at the meeting conformed to the proposed dissolution order.

The trial court found no evidence of fraud on behalf of Mrs. Held and held that Mr. Held was estopped by his remarriage from vacating the judgment dissolving the marriage. Nevertheless, the court modified the original judgment based upon discrepancies it found between such judgment and the testimony of Mrs. Held at the dissolution proceedings as follows. It ordered Mrs. Held to pay all of the dental bills of the children; required Mr. Held to maintain a medical insurance policy but only through his employment; and authorized Mr. Held to obtain loans against the cash value of the insurance policies. Lastly, the court denied Mrs. Held's request for attorney's fees as the husband's petition to vacate the dissolution order "was not superfluous or harassing in any way."

On appeal, respondent argues that the agreement...