Kohler v. Kohler

• Decision Date: 21 June 1945
• Docket Number: Gen. No. 44012.
• Citation: 61 N.E.2d 687,326 Ill.App. 105
• Parties: KOHLER et al. v. KOHLER.
• Court: United States Appellate Court of Illinois

326 Ill.App. 105

61 N.E.2d 687

KOHLER et al.

v.KOHLER.

Gen. No. 44012.

Appellate Court of Illinois, Fourth District.

March 5, 1945.

Rehearing Denied June 21, 1945.

Appeal from Circuit Court, Union County; Loyd M. Bradley, Judge.

Suit by Allie Kohler, individually and as guardian of Karl Kenneth Kohler and Robert Eugene Kohler, minors, against Sam H. Kohler to reform a property settlement agreement. From a decree directing defendant to contribute further for the care and support of one of the minors, and from supplementary decree requiring defendant to pay plaintiff a specified sum for necessary expenses and attorney's fees in defendant appeal from first decree, defendant separately appeals.

Original decree reversed and remanded, and supplemental decree reversed with direction to dismiss.Paul D. Reese, of Jonesboro, for appellant.

R. Wallace Karraker, of Jonesboro, for appellees.

STONE, Justice.

This is a suit in chancery wherein Allie Kohler, plaintiff-appellee (hereinafter designated as plaintiff), both in her individual capacity and as legal guardian of Karl Kenneth Kohler and Robert Eugene Kohler, her minor children, has brought an action against her former husband, Sam H. Kohler, defendant-appellant (hereinafter designated as defendant), to reform a property agreement, entered into during the pendency of a divorce suit between them. The purpose of the agreement was to settle property rights as between the parties and to make an adequate settlement for the support and maintenance of their two children during their minority.

The complaint alleged in substance that plaintiff is the legal guardian of Karl Kenneth Kohler and Robert Eugene Kohler, ages 7 and 16 years, respectively, the children of the parties hereto; that said parties were divorced by decree of the Circuit Court of Union County, October 25, 1941; that in the year 1938 or 1939, defendant while married to plaintiff began a notorious association with a woman and during such time was absent from home for more than a week when it was stated upon information and belief that he was in the company of said woman; that as a result of defendant's conduct plaintiff was greatly annoyed, under great mental anguish, her home disgraced and the lives of her minor children and herself made miserable; that while she was so distressed, she agreed to a divorce and property settlement agreement, which was then and there entered into between her and said defendant, and that she acted without deliberation or consideration, had no legal advice, and that the attorney who prepared said property agreement was employed by and acted as counsel for the defendant.

The complaint also alleged that defendant's income had increased and that he had inherited certain property since the settlement; that the property settlement made was grossly unfair and inadequate for the support of plaintiff and the two minor children, as it was the intention of all the parties and in the interest of said children that the principal of certain bonds given said children in the settlement remain intact and be delivered to them as they reached their legal majority and that only the interest on said bonds should be used. There is also an allegation that the real estate deeded to Robert Kenneth Kohler produced only a $30 a month income with expenses for repair and upkeep; that the income from the funds transferred to plaintiff is not sufficient to support and care for her and maintain a home for the said children; that the condition of her health is such that she fears that she will not be able to work much longer. The prayer of the complaint is that the said separation agreement be declared null and void, and that the court reopen all questions of property settlement between plaintiff and defendant and that defendant be further required to make an adequate property settlement for the care, maintenance and education of said minor children.

Attached to the complaint, as ‘Exhibit A’, is the contract between the parties hereto, which in substance provided that the wife had filed suit for divorce, and for the custody of the two minor children; the husband was desirous of conveying to the wife and to the two children, certain real estate and other property. The agreement further provided that the husband had placed certain United States Government bonds, totaling $7,600, together with 14 shares of C. I. P. S. Co. stock and warranty deed to certain real estate in the hands of the Anna State Bank, Anna, Illinois, in escrow, with directions to transfer the same to the said Allie Kohler; that he had placed certain United States Government bonds, totaling $3,000 together with deed to certain real estate, in the hands of the Anna State Bank, in escrow, with directions to transfer the same to the son Robert Eugene Kohler, a minor, Allie Kohler, his legal guardian; that he had placed deed to certain other real estate, together with United States Government bonds, totaling $3,000, in the hands of the Anna State Bank, with directions to transfer the same to the son Karl Kenneth Kohler, a minor, Allie Kohler, his legal guardian. By such settlement it was further provided that the defendant herein had by the agreement provided for the support and maintenance of the two children during their minority.

Upon a trial of the issues before the court, it was decreed that the only matter for the consideration of the court was whether proper provision had been made by the parties for the care and support of the two children, and as to this question the court found that proper provision had been made as to Robert Eugene Kohler, but that defendant had not properly contributed his share for the support of Karl Kenneth Kohler and that defendant should contribute further for his care and support the sum of $30 a month and that defendant pay the costs of...