Stern v. Stern

• Decision Date: 19 April 1982
• Docket Number: No. 81-670,81-670
• Citation: 105 Ill.App.3d 805,434 N.E.2d 1164,61 Ill.Dec. 567
• Parties: , 61 Ill.Dec. 567 Thomas H. STERN, Plaintiff-Appellant, v. Myrna Y. STERN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1164

434 N.E.2d 1164

105 Ill.App.3d 805, 61 Ill.Dec. 567

Thomas H. STERN, Plaintiff-Appellant, v. Myrna Y. STERN, Defendant-Appellee.

No. 81-670.

Appellate Court of Illinois, Second District.

April 19, 1982.

Garry L. Smith, Chicago, for plaintiff-appellant.

Ward P. Fisher, Chicago, for defendant-appellee.

NASH, Justice:

Plaintiff, Thomas H. Stern, appeals from an order dismissing his complaint for declaratory judgment brought against his wife, defendant herein, Myrna Y. Stern.

The complaint sought a declaration of the rights of the parties under an agreed order entered by the trial court on September 9, 1981. It alleged that on that date the parties negotiated an agreement for settlement of an action for dissolution of their marriage which was then pending between them; that the agreement was in the form of a Partial Marital Settlement Agreement pursuant to sections 502 and 503(a)(4) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1979, ch. 40, pars. 502 and 503(a)(4)); that the terms of the agreement, which related to the disposition between them of certain of their property, were incorporated in the agreed order and a copy was attached to the complaint. The complaint further alleged the pending dissolution action had been dismissed by the trial court in accordance with the terms of the agreement, but that defendant had thereafter failed and refused to comply with its provisions.

Defendant filed a motion to dismiss the complaint on the grounds the agreement was void because, while purportedly made pursuant to section 502 of the Marriage and Dissolution of Marriage Act, no judgment dissolving the marriage had been entered. Defendant further alleged plaintiff's complaint was an effort by him to adjudicate marital rights and obligations outside of the framework of the Act.

After a hearing, the trial court granted defendant's motion to dismiss the complaint on the grounds that an action for declaratory judgment would not lie where it appears that to do so would not terminate the controversy or some part thereof and that further relief would likely become necessary in this case. Section 57.1 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 57.1) provides:

"(1) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any * * * contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding. * * * " (Emphasis added.)

In his complaint, plaintiff requested that the court declare the duties and obligations of the parties under the agreement of September 9, 1980, and specifically that it do so with respect to those interests in certain marital property (a residence and the beneficial interest in a land trust) which under the agreement were assigned to him. In support of the trial court's conclusion that such a judgment would not terminate the present litigation, defendant argues that the trial court may have believed that distribution of the parties' property should have been the subject of a dissolution of marriage proceeding rather than one for declaratory judgment. She also asserts that statements made by plaintiff's counsel at the hearing of the motion to dismiss that the dissolution action might be revived gave rise to the possibility that further litigation would be necessary to resolve the present controversy.

"The issue in an action seeking declaratory relief is whether, considering all the circumstances, under the facts alleged, there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of declaratory judgment." (Wood v. School District No. 65 (1974), 18 Ill.App.3d 33, 36, 309 N.E.2d 408, 411.) "It is well settled that a declaratory judgment should not be granted if to do so would entail a piecemeal litigation of the matters in controversy, nor unless the court can by such judgment dispose of the controversy between the parties. It is not the intent of the declaratory judgment statute to confer jurisdiction on the courts to be legal advisors." Farmers Insurance Group v. Harris (1972), 4 Ill.App.3d 372, 376, 279 N.E.2d 789, 791.

Inasmuch as the complaint pleaded the existence of an agreement in settlement of pending litigation and requested that the court construe the agreement's terms and declare the rights of the parties, it constituted a request for the construction of a contract and was properly brought in a suit for a declaratory judgment. While it has been established, in cases construing the former Divorce Act, that in the absence of a decree of divorce a court cannot determine as between husband and wife such questions as property rights, alimony or child custody (Ollman v. Ollman (1947), 396 Ill. 176, 71 N.E.2d 50; Bateman v. Bateman (1949), 337 Ill.App. 7, 85 N.E.2d 196), this rule does not appear to preclude the courts from enforcing otherwise valid agreements between spouses concerning ownership of their property. The mere possibility, always at least potentially present, that proceedings for dissolution of marriage might be commenced during the term of an agreement between spouses relating to their property or business dealings, should not preclude the availability of declaratory relief where an actual controversy has arisen with respect to the construction of the agreement. Thus, in Trossman v. Trossman (1960), 24 Ill.App.2d 521, 165 N.E.2d 368, involving an action for a declaratory judgment of an antenuptial agreement that the parties' property rights would be separate and distinct as though no marriage had taken place, regardless of whether the marriage were terminated by death or divorce, the reviewing court found that a spouse's assertion of the agreement's invalidity and announcement of intent to seek dower and intestate succession in the event of the other's death, gave rise to an actual controversy suitable for determination in a declaratory judgment case. The trial court's dismissal of the complaint for declaratory judgment was therefore reversed. Although Trossman may be distinguished on its facts from the case at bar, it demonstrates that a case of actual controversy exists between spouses when there has been a challenge to the validity of an agreement by which they had provided for the disposition of their property, notwithstanding that the time for performance of the agreement's terms had not yet arrived. By contrast, in the present case defendant raised her challenge to the agreement's validity after the time for performance of its terms had passed and after demand for performance had been made upon...