Roth v. Roth

• Decision Date: 24 March 1970
• Docket Number: No. 41958,41958
• Court: Illinois Supreme Court
• Parties: Eleanor B. ROTH, Appellee, v. G. Wallace ROTH, Appellant.

Page 838

256 N.E.2d 838

45 Ill.2d 19

Eleanor B. ROTH, Appellee, v. G. Wallace ROTH, Appellant.

No. 41958.

Supreme Court of Illinois.

March 24, 1970.

Robert A. Sprecher, Chicago, for appellant.

Schiff, Hardin, Waite, Dorschel & Britton, Chicago (W. Donald McSweeney, Byron E. Bronston and Barry L. Kroll, Chicago, of counsel), for appellee.

WARD, Justice.

This is an appeal from a judgment of the Appellate Court for the First District, which reversed but did not remand a judgment of the circuit court of Cook County. (Roth v. Roth, 101 Ill.App.2d 286, 243 N.E.2d 718.) The circuit court had denied the appellee Eleanor B. Roth's motion to strike and dismiss a counterpetition which the appellant G. Wallace Roth had filed. Also under the counterpetition the circuit court had modified in part its earlier decree, which provided for a property settlement agreed upon by the parties at the time of their divorce on July 25, 1963. We granted the appellant's petition for leave to appeal from the appellate court's judgment.

The appellee in November, 1964, filed a petition in the circuit court complaining that the appellant had wilfully refused to make payments of $100 per month to her under the terms of a note for $3,000, as the decree of divorce had directed. The appellant responded by filing an answer, and a counterpetition which sought to modify the decree insofar as it provided for the monthly payments under the note and for the assignment to the appellee of approximately $25,000 from an inheritance which the appellant was to receive from an uncle's estate. The modification of the decree was sought because the appellee allegedly had made 'fraudulent and deceitful representations' to obtain the property settlement. These representations, expressed during conferences which preceded the entering of the decree, included statements by the appellee that she had no plans to remarry, which were made at a time when the appellee allegedly had already planned to be remarried immediately upon obtaining a divorce. An amendment to the counterpetition further alleged that because of these representations, and in reliance upon their veracity, the trial court led the appellant to include in the property settlement the provisions in favor of the appellee regarding the note and the property he would take from his uncle's estate. The counterpetition also set forth that the appellee was remarried on August 26, 1963, 31 days after the entry of the decree.

The grounds for the appellee's motion to strike and dismiss the counterpetition were that a motion to modify or vacate a divorce decree cannot be brought under section 72 of the Civil Practice Act (Ill.Rev.Stat.1967, ch. 110, par. 72), that the filing of the petition had been barred by the two years limitation of section 72, and finally that the appellant did not set forth facts which would entitle him to the relief asked. When the trial court denied her motion, the appellee declared that she chose not to file an answer to the petition, but rather would stand on her motion to strike.

The court then conducted a hearing at which testimony was taken from the appellant and from the attorney who had represented him in the original proceeding. They testified that the appellee had stated during the pretrial conferences that she had no plans for remarriage and that because of this the appellant had been induced to include the described provision in the property settlement agreement which was subsequently incorporated in the decree. The testimony also was that the appellee, 31 days after the entry of the decree of divorce, had married George V. Brown, to whom she had been introduced by the appellant in 1948 or 1949. As stated, the counterpetition set forth that the appellee had plans for remarriage at the time she made contrary representations in the pretrial conferences. The appellant at the hearing did not specifically testify, nor did his former attorney, that the appellee had made such plans at the time of her pretrial statements.

The appellee did not offer evidence at the hearing and stated that she was standing on her motion to strike. She acknowledged to the court that the legal effect of this was to admit all the facts well pleaded by the appellant.

An order modifying the decree was then entered by the trial court. The order recited that representations by the appellee that she did not have any marriage plans' were false in that the appellee 'had prior to and during said pretrial conferences made plans to marry one George V. Brown of Cleveland, Ohio.' The order stated that these misrepresentations were a fraud on the court and constituted fraudulent inducements which resulted in the appellant's making the property settlement. The decree of divorce was modified to the extent that the appellant was relieved of the obligation of assigning to the appellee the interest he would receive from his uncle's estate.

The appellate court upon its review of the case held it had been proper for the appellant to have filed his counterpetition under section 72 of the Civil Practice Act. The circuit court judgment was reversed, however, upon a finding that no ground for modifying the original decree appeared in either the allegations of fact set out in the pleadings of in the evidence presented at the hearing. Roth v. Roth, 101 Ill.App.2d 286, 296, 243 N.E.2d 718.

The appellate court did correctly state that, assuming sufficient grounds, relief from a final divorce decree may be had through a petition filed under section 72 of the Civil Practice Act. (Collins v. Collins,14 Ill.2d 178, 151 N.E.2d 813; Van Dam v. Van Dam, 21 Ill.2d 212, 171 N.E.2d 594.) A decree of divorce procured through the fraud of either party may be vacated or modified under the section. (Van Dam v. Van Dam, 21 Ill.2d 212, 171 N.E.2d 594.) A misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and, in acting, the other party must rely on the truth of the statement. (Roda v. Berko, 401 Ill. 335, 81 N.E.2d 912.) The counterpetition alleged that the appellee's representations that she did not have any marriage plans were false when made, that at the time she made them she already had made plans to remarry, and that in reliance on these misrepresentations the court prevailed upon the appellant to agree to the described provisions in the property settlement which was incorporated into the decree. The petition was filed within two years after the...