Nogle v. Nogle
| Decision Date | 01 December 1964 |
| Docket Number | Gen. No. 10568 |
| Citation | 53 Ill.App.2d 457,202 N.E.2d 683 |
| Parties | Kermit V. NOGLE, Plaintiff-Appellee, v. Ruth M. NOGLE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Philip C. Zimmerly, Burt Greaves, Champaign, for appellant.
Reno, O'Byrne & Kepley, Champaign (Donald M. Reno, Champaign, of counsel), for appellee.
The Circuit Court of Champaign County, on plaintiff's motion, dismissed with prejudice defendant's amended petition to vacate and set aside a divorce decree.
A decree of divorce was granted plaintiff-appellee, Kermit V. Nogle, on February 8, 1960, on the ground that defendant-appellant wilfully deserted plaintiff without reasonable cause for a period of more than one year prior to the filing of the complaint.
A written agreement dated February 5, 1960, was entered into by and between the parties determining their property rights, custody of children and support and maintenance. This settlement agreement was incorporated in the decree.
The pleadings previously filed in this cause are of importance. Courts take judicial notice of their own records and facts established therein. Borin v. Borin, 335 Ill.App. 450, 82 N.E.2d 70; City of East St. Louis v. Touchette, 14 Ill.2d 243, 150 N.E.2d 178.
On September 16, 1962, (two years and five months after entry of the decree) defendant petitioned the court for a modification of the decree, alleging in part that the alimony and support payments were grossly inadequate and should be increased because of a change of circumstances.
In this same petition, defendant stated that she was informed and believed that at the time of the divorce negotiations plaintiff deliberately or inadvertently concealed his true assets and income from her.
On September 17, following a hearing on the petition to modify the decree, leave was asked and granted defendant to file an amended petition. The amended petition, filed on September 24, 1963, (three years and seven months after entry of the decree) amounted to a petition to vacate and set aside the decree and for other relief under Section 72 of the Civil Practice Act (Ill.Rev.Stats., Chap. 110, Sec. 72). In the main it alleged that plaintiff fraudulently concealed his true worth at the time of the negotiations which culminated in the settlement agreement. This petition was devoid of any allegations that following entry of the decree incorporating the settlement agreement defendant was under legal disability or duress or the ground for relief was fraudulently concealed.
On October 31, 1963, on plaintiff's motion, the Court dismissed defendant's amended petition to vacate the decree. Among the grounds urged in support of plaintiff's motion to dismiss was the assertion that the cause of action was barred by the two year limitation period provided in Section 72 of the Civil Practice Act and that the amended petition set forth no facts to toll the running of the limitation period.
Upon further leave asked and granted, defendant filed on December 24, 1963 (three years and nine months after the entry of the decree) another amended petition under Section 72 of the Civil Practice Act, which petition alleged that she had been falsely advised in the negotiations for the settlement agreement. Additionally, it set forth certain acts and conclusions of fraudulent concealment of the grounds for relief.
A hearing was had upon this amended petition on March 24, 1964, and on April 14, 1964, on plaintiff's motion the court dismissed with prejudice defendant's amended petition to vacate and set aside the decree of divorce.
Defendant contends on appeal that the court erred in dismissing the amended petition of December 24, 1963, and states that she alleged therein a cause of action entitling her to the relief prayed or at least some part of it. She also urges that the settlement agreement was void in that it was conditioned expressly upon obtaining a divorce, was a stimulus to divorce, was grossly insufficient, was tainted by fraud, and was the result of a breach of a fiduciary relationship.
The parties were living separate and apart, prior to their execution of the settlement agreement. The record further discloses that the defendant had deserted the plaintiff for a period of time in excess of a year, that negotiations for a separation and settlement agreement had been carried on, and that upon arriving at a tentative agreement some five weeks before the entry of the decree of divorce plaintiff's counsel referred her to another well-known and able attorney to represent her in the divorce proceedings and the settlement agreement.
The record also indicates that since February of 1958, indeed as late as the morning of the hearing on the complaint and answer, plaintiff had attempted to effect a reconciliation and reestablish the marital relationship.
Defendant argues that the settlement agreement is void on its face because of the express conditions of Paragraph 19. She also states that the intent, purpose or meaning of Paragraph 19 is further supported by her allegations in the amended petition that for several months before the divorce her husband badgered, pestered and cajoled her to obtain a divorce or to permit him to obtain one. It is asserted that he told her he would be unable to make provision for her support and that of the children if he were not given his freedom.
The settlement agreement provided in part:
It is not against public policy for a husband and wife to contract with each other as to their mutual property rights prior to or pending divorce proceedings. Shankland v. Shankland, 301 Ill. 524, 134 N.E. 67. Rather, property settlement agreements entered into by husband and wife pending, or in contemplation of, proceedings for divorce are to be commended. Walters v. Walters, 409 Ill. 298, 99 N.E.2d 342; 27 B C.J.S. 'Divorce' § 301(1) b.
Settlement agreements between a husband and wife are void as against public policy where it is apparent that the contract was entered into for the purpose of stimulating a divorce between the parties or for the purpose of purchasing a decree of separation, or where it amounts to collusion between the parties to secure a decree of divorce. People v. Walker, 409 Ill. 413, 100 N.E.2d 621; Shankland v. Shankland, 301 Ill. 524, 134 N.E. 67.
Paragraph 19 is an often-used provision in like agreements suggested by Weinberg in his work entitled Illinois Divorce, Separate Maintenance and Annulment. In Doose v. Doose, 198 Ill.App. 387, it was held that an agreement between parties to a divorce proceeding as to the division of their property in the event of a decree of divorce did not amount to collusion and thus was not against public policy.
In Kohler v. Kohler, 316 Ill. 33, 146 N.E. 476, it was held that a settlement agreement wherein it was stated that if either of the parties should institute proceedings the wife would not ask for alimony and solicitor's fees, did not indicate that a separation was induced by such a consideration or that the separation was not itself a consideration for the contract.
We conclude that there is nothing in the separation agreement or the action of the parties that would lead us to the conclusion that the instant contract was entered into for the purpose of stimulating or inducing one party or the other to institute divorce proceedings or for the purpose of purchasing a decree of separation, or amounts to collusion between the parties to secure a divorce decree which would render the contract void as against public policy.
This petition having been filed under Section 72 of the Civil Practice Act (Ill.Rev.Stats., Chap. 110, Sec. 72), we must look to the provisions of that section.
Section 72 of the Civil Practice Act pro vides in part:
'(2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. * * *
Plaintiff has suggested that inasmuch as the petition was filed more than two years after the entry of the decree, the same is barred by the statute of limitations appearing in subparagraph 3 of Section 72 of the Civil Practice Act. We agree with this contention.
Defendant does not contend that the...
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