Stromsem v. Stromsem

• Decision Date: 05 November 1951
• Docket Number: No. 45293,45293
• Citation: 101 N.E.2d 742,344 Ill.App. 553
• Parties: STROMSEM v. STROMSEM.
• Court: United States Appellate Court of Illinois

Page 742

101 N.E.2d 742

344 Ill.App. 553

STROMSEM v. STROMSEM.

No. 45293.

Appellate Court of Illinois, First District, First Division.

Nov. 5, 1951.

Rehearing Denied Nov. 20, 1951.

Rothbart & Rosenfield, Chicago, Edward Rothbart, Julius M. Rosenfield ahd Joseph Stein, all of Chicago, of counsel, for appellant.

George C. Rabens, Chicago, for appellee.

FRIEND, Justice.

March 13, 1946 Evahlyn Stromsem filed a complaint for divorce against Harold J. Stromsem, joining as defendants his father and mother, Henry and Maggie Stromsem. Prior to the hearing, which was uncontested, the principal parties had made an agreement in writing as to their respective property rights which was approved by the chancellor as fair and reasonable. Before the decree was entered on May 2, 1947 plaintiff testified that she understood the terms of the agreement, the payments that were to be made to her, the security to be given for the performance thereof, and the Federal-tax implications involved. Under the terms of the agreement defendant Harold J. Stromsem undertook to pay plaintiff $100,000 in the following manner: (1) $35,000 cash in payment of the undivided one-half interest in and to the real estate and household furnishings and effects at 1035 Park avenue, River Forest, Illinois, where the principal parties had resided and which was held by them in joint tenancy; (2) $55,000 in lieu and in bar of alimony, dower and any other rights plaintiff had or might have had in the property of Harold J. Stromsem, to be paid in 122 monthly installments commencing thirty days after date of the final decree, 121 of said installments in the sum of $450 and a final payment of $550; and (3) $10,000 as her attorneys' fees, $5000 to be paid in cash, and the balance to be evidenced by a note to her counsel due six months after date of the final decree; all the notes, including the note for attorneys' fees, were to be secured by a first mortgage on their home in River Forest as well as on farm property in the State of Michigan, were to bear interest at six per cent after maturity, and to be signed by Harold J. Stromsem, and by Henry and Maggie Stromsem as comakers. Following the entry of the decree plaintiff received $35,000 as agreed, $5000 was paid to her attorneys, and the note for $5000 which they received was paid at maturity. Thereafter Harold J. Stromsem paid plaintiff $450 each month until September 1949, when he filed his verified petition asking to be relieved from further monthly payments by reason of the remarriage of plaintiff. October 14, 1949 plaintiff made a motion to strike Stromsem's petition, and at the same time filed her verified petition alleging that she had been obliged to retain counsel, that Harold J. Stromsem was a man of substantial wealth and able to pay for the services of her counsel, and asking that he be required to pay her attorney's fees. Pursuant to a brief hearing in which plaintiff's counsel testified that he had spent in excess of seventy-five hours in defense of Stromsem's petition, the court entered an order allowing $2500 as attorney's fees. Stromsem took an appeal from the order striking his petition to relieve him from further payments by reason of plaintiff's remarriage, and also from the award of attorney's fees. After the appeal had been perfected plaintiff filed another petition for the allowance of attorney's fees in connection with the appeals, and on June 22, 1950 a third order was entered allowing her the sum of $250 for costs and expenses relative to the defense of the appeal and $2500 attorney's fees, from which Harold J. Stromsem also appeals. August 14, 1950, cause No. 45293, being an appeal from the aggregate award of $5000 attorney's fees and $250 costs, was consolidated with cause No. 45267, which embodies the principal controversy between the parties.

The controlling question presented is whether the amount of $55,000 required to be paid by defendant in installments over a period of approximately ten years constituted a settlement and therefore became a vested property right of plaintiff upon the entry of the decree or whether it was merely a provision for the payment of periodic alimony which because modifiable under section 18 of the Divorce Act as to installments accruing after plaintiff's remarriage. The applicable provision of the Divorce Act (Ill.Rev.Stat.1945, ch. 40, par. 19, sec. 18) touching upon the rights of a husband or wife to receive alimony and maintenance when a divorce is decreed, provided that a party 'shall not be entitled to alimony and maintenance after remarriage.' In determining whether the $55,000 payment constituted a property settlement between the parties or payment of alimony, the authorities are in accord, and counsel upon oral argument agreed, that the entire record must be examined and each case determined upon the existing facts. In plaintiff's amended complaint, upon which the decree of divorce was entered, she alleged that defendant Harold J. Stromsem was the owner of property valued at more than $500,000; that he was a partner in the Kinzie Manufacturing Company; that he had an interest in a mercury mine in Arizona and in the Florola Nut Oil Company in Florola, Alabama; that he was engaged in cattle raising in the Upper Michigan peninsula and elsewhere; that he had an annual income in excess of $50,000; that there were in existence various trusts for his benefit; that plaintiff had a joint tenancy interest in the home in River Forest, Illinois, the value thereof being approximately $100,000; that defendant had deprived her of a certain automobile which was her property; and that there was a conspiracy on the part of Henry and Maggie Stromsem, defendant's parents, to alienate his affections, and a conspiracy on the part of all three to conceal his real and personal property.

In the petition filed May 26, 1947 by Harold J. Stromsem he refers specifically to a 'settlement' of $100,000 without in any manner or form relating the same to the payment of alimony, and on the hearing before the chancellor, with reference to the agreement made by the parties prior to the entry of the divorce decree, plaintiff was specifically asked by defendant's attorney: 'You are to execute such release [referring to a release of dower and other rights that she may have had against defendant's interests] as part of the consideration for this settlement?' to which she answered 'Yes.' This in itself would seem to indicate that the provision for the payment of $55,000 was not one related to the payment of alimony, but rested upon considerations of substantial value and independent of any claim for alimony. Moreover, under the findings of the decree the payments were to be secured by mortgage and notes made not only by defendant Harold J. Stromsem but also by his parents Henry and Maggie Stromsem who were codefendants in the suit and who were undoubtedly interested in securing a release of the claim against them for alienation of affections and concealment of the assets of Harold J. Stromsem. Of course they were not and could not be required to pay alimony, and their obligation on the notes must therefore be recognized as based upon other considerations. There is also the provision in the agreement for interest after maturity of any unpaid installments. Unless the payment of $55,000 is to be regarded as a vested right, it is...