Roth v. Roth

• Decision Date: 16 October 1968
• Docket Number: Gen. No. 51326
• Citation: 101 Ill.App.2d 286,243 N.E.2d 718
• Parties: Eleanor B. ROTH, Counter Plaintiff-Appellant, v. G. Wallace ROTH, Counter Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 718

243 N.E.2d 718

101 Ill.App.2d 286

Eleanor B. ROTH, Counter Plaintiff-Appellant, v. G. Wallace ROTH, Counter Defendant-Appellee.

Gen. No. 51326.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 16, 1968.

As Modified on Denial of Rehearing Jan. 8, 1969.

Joseph I. Bulger, Chicago, for appellant.

Charles F. Short, Jr., Chicago, for appellee.

McCORMICK, Presiding Justice.

This is an appeal from an 'order and modification of a decree' entered February 8, 1966, Nunc pro tunc as of February 3, 1966. The order denied Eleanor B. Roth's motion to strike and dismiss the counter-petition filed by G. Wallace Roth, and allowed the prayer of the said counter-petition in part by relieving G. Wallace Roth from the obligation of complying with certain settlement provisions embodied in a decree of divorce entered on July 25, 1963.

On January 9, 1963, G. Wallace Roth (hereafter referred to as appellee) filed a complaint for divorce in which he charged Eleanor B. Roth (hereafter referred to as appellant) with desertion. On February 5, 1963, the appellant filed her answer to the complaint and a counterclaim for separate maintenance. The appellee filed his answer to the said counterclaim on February 25, 1963.

On July 23, 1963, the appellant filed an amended counterclaim for divorce. The divorce decree was entered on July 25, 1963. On November 4, 1964, appellant filed a petition alleging that the appellee had wilfully failed and refused to pay her the sum of $100 per month due on a note of $3,000, as provided by paragraph 2 of a property settlement agreement entered into by the parties. The agreement also contained the following paragraphs:

5. Wallace acknowledges that there is presently pending in the Probate Court of Cook County a certain cause #60 P 4473, Docket 616, Page 540 entitled In the Matter of the Estate of Norbert William Jeran and that the will, which has been duly admitted to probate, establishes a testamentary trust, described in said will as Trust B. Wallace further acknowledges that the Res of said Trust B consists of assets having a present market value of approximately Ninety Thousand Dollars ($90,000.00) and further that under the terms of said testamentary trust, he and his brother, Robert R. Roth, will each receive Fifty Percent (50%) of said Trust B upon the death of their mother, Lydia J. Roth, who has a life interest in the income therefrom.

Wallace agrees to execute an irrevocable assignment in favor of Eleanor directing the Harris Trust and Savings Bank (or its successor in trust) as trustee of the aforesaid trust to pay to Eleanor, upon the death of Wallace's mother, Lydia J. Roth, an amount equal to Fifty Per Cent (50%) of his then interest in Trust B aforesaid. Wallace further agrees to obtain from his brother, Robert R. Roth, a release of any and all claims which Robert may have or hereafter claim to have as a contingent remainderman with respect to said trust. In the event of Wallace's remarriage (if the parties hereto are divorced and Wallace thereafter remarries), he further agrees to enter into an antenuptial agreement containing a waiver and release by any such subsequent spouse to any and all right, title, claim, demand or interest in and to the foregoing assignment by Wallace of Fifty Per Cent (50%) of his aforesaid vested remainder.

In the event Wallace's brother, the aforesaid Robert R. Roth, predeceases his mother, Lydia J. Roth, leaving no spouse or issue him surviving, thereby enhancing Wallace's inheritance, Eleanor acknowledges that she has no claim to such additional increment and agrees not to assert any right, title, claim, demand or interest with respect thereto.

6. Wallace agrees to maintain insurance on his life in the sum of Twenty Five Thousand Dollars ($25,000.00) and to nominate and maintain Eleanor as the beneficiary thereof until the death of Wallace's mother, Lydia J. Roth.

To the petition the appellee filed an answer and counterpetition on January 18, 1965, in paragraphs 2, 3 and 4 of which he seeks modification of the decree insofar as it provides that he pay the appellant the amount due on the note and that he pay her the sum of $25,000 out of an inheritance from his uncle's estate. The reason assigned for the modification of the decree was that the appellant made 'fraudulent, deceitful misrepresentations' for the purpose of having the provisions referred to incorporated in the decree. In his counter-petition appellee alleges that he agreed to the provisions in question because of certain representations allegedly made by the appellant as follows: a) What would she do in her old age? b) She might not be able to work forever. c) She had no marriage plans for the future. d) She felt insecure financially and needed some immediate supplemental income plus something for her future.

The counter-petition also stated that appellant had married a man of considerable means which eliminated the basis on which appellee had agreed to the certain provisions in the decree. On October 26, 1965, the appellee filed an amended petition in which he alleged that the appellant had voluntarily made misrepresentations on various dates on or about July 23, 1963, during pre-trial conferences before the judge, including 'a denial of marriage plans for the future,' and that as a direct result of such representation 'the Court prevailed upon Petitioner, through suggestions and admonitions, in reliance upon said misrepresentations, to enter into said property settlement agreement, particularly Paragraphs 2, 5 and 6 thereof, * * *'

In support of the counter-petition appellee filed an affidavit setting forth the representations heretofore mentioned, also appellant's statement, 'It is ridiculous to think that I have any marriage plans. I do not have any marriage plans.'

Appellant filed a motion to strike and dismiss the petitions. Later, appellant also filed a motion and amended petition for rule to show cause, in which amendment she asked, among other things, for attorney's fees for the prosecution of her petition.

On February 3, 1966, the court held a hearing and heard witnesses. The appellant at first objected to the hearing, but participated in it through her attorney and introduced documentary evidence. In McKinney v. Nathan, 1 Ill.App.2d 536, the court said at page 543, 117 N.E.2d 886, at page 889:

'The parties may, by the introduction of evidence or their conduct in the trial, waive formal pleadings or form their own issues on the evidence introduced, and they may voluntarily present under the evidence issues not presented by the pleadings. An objection that a certain matter is not an issue under the pleadings or that it is not denied or properly denied may be waived by a party where he introduces or brings out evidence bearing on the subject, or tries the case as if the matter were not (sic) in issue.'

This rule goes back to the rule prevailing under the common law pleading practice in Illinois. Puterbaugh, Common Law Pleading and Practice, 10th edition, section 120; Unity Co. v. Equitable Trust Co., 204 Ill. 595, 599, 68 N.E. 654; Head v. Wood, 20 Ill.App.2d 97, 103, 155 N.E.2d 348; Mooney v. Underwriters at Lloyd's, London, 33 Ill.2d 566, 570, 213 N.E.2d 283.

In the instant case the appellee's former attorney was one of the witnesses at the hearing, and he testified that during the conference prior to the entering of the original decree, Mrs. Roth, had stated, among other things, that 'she had no plans and intentions of remarrying, and requested that a substantial settlement be afforded for her for the foregoing reasons. She denied that she had any marriage plans.'

The attorney-witness then testified that the court had stated that since Mrs. Roth had denied any intention of remarrying, the attorney for appellee had no basis for relying on an argument that the settlement was inequitable by reason of the likelihood of a remarriage. The judge of the court then said he wished to give his recollection of what transpired at the conferences, and this was objected to by the attorney for appellant. The attorney further testified that the judge stated that in his judgment, unless those matters or provisions were included there was no likelihood or possibility of settling the matter. ^*

It is worthy of note that the decree of divorce was entered on July 25, 1963, and that in December of 1963 the appellee remarried. Thirty-one days after the decree of divorce the appellant married George V. Brown. The appellee testified that he had known Brown since 1947 and had introduced him to the appellant in 1948 or 1949; that he had worked with Brown as an attorney.

The court stated: '* * * within a period of 30 days from the date of the entry of this decree, Mrs. Roth married a mutual friend whom they had both known and with whom Mr. Roth had worked, and from the testimony here of Mr. Roth now, evidently she knew him from 1948 on.' The court further stated that had the appellant intimated or advised the court that she intended to marry Mr. Brown he would certainly not have induced the appellee to sign the property agreement.

The order was then...