{ "id": 1580212, "name": "Jane L. Herhold, Plaintiff-Appellee, v. Frank F. Herhold, Defendant-Appellant", "name_abbreviation": "Herhold v. Herhold", "decision_date": "1970-04-16", "docket_number": "Gen. No. 52,814", "first_page": "293", "last_page": "298", "citations": [ { "type": "official", "cite": "123 Ill. App. 2d 293" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "111 NE2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "350 Ill App 37", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5108417 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill-app/350/0037-01" ] }, { "cite": "77 NE2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "399 Ill 196", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460720 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/ill/399/0196-01" ] } ], "analysis": { "cardinality": 443, "char_count": 7715, "ocr_confidence": 0.592, "pagerank": { "raw": 1.0196745745089801e-07, "percentile": 0.5449134293157631 }, "sha256": "df8474e9c1cc98fa80923e52d763f95e946cc084f782971fec0a0d3a3606218c", "simhash": "1:9d2b6e96ad19888b", "word_count": 1305 }, "last_updated": "2023-07-14T19:26:20.368977+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jane L. Herhold, Plaintiff-Appellee, v. Frank F. Herhold, Defendant-Appellant." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE DEMPSEY\ndelivered the opinion of the court.\nThe dispute in this case is over the terms of a property settlement incorporated into a divorce decree.\nJane Herhold filed a complaint for divorce alleging the desertion of the defendant, Frank Herhold. Herhold denied the desertion and demanded a jury trial. During the selection of the jury the parties reached an agreement and the jury was discharged. The plaintiff was the only witness at the hearing which followed. In proving up her case she testified as to the terms of the property settlement agreed to by herself and her husband. No evidence was adduced of the financial condition of either party but from the complaint, answer and other pleadings, it appears that both had substantial means and independent income. At the conclusion of the hearing the court stated that the plaintiff would be granted a divorce and instructed the parties to present an agreed decree.\nWhen a decree drafted by the plaintiff was shown to the defendant he objected that it did not conform to the agreement. The defendant prepared his own decree and both were submitted to the court. At the court\u2019s suggestion the parties and their attorneys testified as to their understanding of the settlement. The court accepted the plaintiff\u2019s version of the agreement and entered the decree tendered by her. It is from this that the defendant appeals.\nOnly one item of the property settlement was in dispute and the decrees submitted to the court were identical except as to this item: the terms of the defendant\u2019s will in regard to the children of the parties, who at the time of the hearing were 27, 23 and 22 years of age. The report of proceedings of the divorce hearing contains the following testimony by the plaintiff:\nPlaintiff\u2019s Attorney: \u201cNow, your husband has agreed that he will guarantee to leave to the children a minimum of $75,000 in his estate, the minimum of $75,000 or 50 percent, whichever would be greater?\u201d\nDefendant\u2019s Attorney: \u201cNot exactly.\u201d\nPlaintiff\u2019s Attorney: \u201cAll right. He guarantees to leave $75,000?\u201d\nThe Court: \u201cSuppose it should be less ?\u201d\nDefendant\u2019s Attorney: \u201cHe will guarantee $75,000.\u201d\nThe Court: \u201cI was just kind of joking a little bit here.\u201d\nThe Plaintiff: \u201cHe has it.\u201d\nDuring cross-examination the plaintiff testified:\nDefendant\u2019s Attorney: \u201cAH right. One other question. On this, Mr. Herhold plans to make a will in which he wHl guarantee to leave at least $75,000 to the three children, the total of that for the three children?\u201d\nPlaintiff: \u201cYou said a minimum.\u201d\nDefendant\u2019s Attorney: \u201cYes.\u201d\nPlaintiff: \u201cYes.\u201d\nDefendant\u2019s Attorney: \u201cBecause we don\u2019t know what market conditions and what will happen, but that\u2019s a commitment that he wiH make. O.K. nothing further.\u201d\nThe decree drafted by the plaintiff ordered the defendant to bequeath to his children:\na sum of money equal to one-half (50%) of his gross estate, but in no case to be a net sum of money less than $75,000.00, in which connection the term \u2018gross estate\u2019 shall mean the gross estate as computed for federal estate tax purposes, and also including one-half (50%) of the value of any property disposed of by way of gift or trust during his lifetime.\u201d\nThis provision was contrary to the agreement approved by the plaintiff in her testimony. The transcript shows that she understood her husband\u2019s will was to provide a minimum of $75,000 for their children. At no place in her examination did she indicate that more had been agreed upon. On the only occasion when a suggestion was made by her counsel that the defendant had agreed to leave the children one-half of his estate, the attorney for the defendant objected; her counsel backed away, saying, \u201cAll right\u201d and thereafter spoke only of $75,000.\nIn a written memorandum explaining his decision to accept the decree presented by the plaintiff, the chancellor stated that the transcript confirmed the plaintiff\u2019s contention about the terms of the agreement. But, as we have seen, it did not. Although the plaintiff\u2019s counsel had asserted that the report of proceedings was inaccurate, the charge was not substantiated. Supreme Court Rule 329 states that, \u201cThe record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule.\u201d The rule further provides that the record may be corrected by the trial court. Ill Rev Stats 1967, c 110A, par 329. In this case the trial court certified to the accuracy of the report of proceedings. The certification of the trial court is conclusive in a court of review. Gebhardt v. Warren, 399 Ill 196, 77 NE2d 187 (1948).\nThe divorce was uncontested only because the plaintiff and the defendant entered into an oral contract concerning the disposition of their property. If the contract had not been made, the trial would have continued, and there is no certainty that the plaintiff would have prevailed. If she was dissatisfied with its terms she could have withdrawn from the contract and the divorce proceeding would have reverted to its contested status. But she did not withdraw; she obtained the divorce and is bound by her contract. She does not claim that the contract was the result of fraud, misrepresentation or coercion. It was negotiated by her attorneys and confirmed by her in open court. She could not unilaterally change its terms, nor could the court do so on its own accord and order something it was powerless to decree.\nThe provision in dispute did not relate to alimony in gross or to a settlement in lieu of alimony. Ill Rev Stats 1967, c 40, par 19. It was not a provision subject to the court\u2019s control. The provision related to their children\u2014all of whom had reached their majority. The youngest, 22, a college senior, was within a few months of graduation. The defendant had agreed, and the decrees of both parties provided, that he would pay for her continued education. He was under no obligation to do more and he was under no legal obligation to leave his estate or any part of it to the children. Cooper v. Cooper\u2019s Estate, 350 Ill App 37, 111 NE2d 564 (1953). His obligation' to do so was created by the contract and only by the contract. The contract could not be altered without his consent and the court was without authority to modify it or to enter a decree contrary to it.\nThe decree presented by the plaintiff and entered by the court did not conform to the agreement upon which the uncontested divorce was predicated. The decree presented by the defendant carried out the agreement. It stated:\n\u201c(g) That the defendant shall leave in full force and effect at his death, and shall provide the plaintiff with a copy thereof, a legal, valid, and subsisting Last Will and Testament, devising and bequeathing to the then surviving children of the parties hereto, share and share alike, or in the event of the death of any one or all of the said children pri- or to the defendant\u2019s death, to their respective descendants (except the plaintiff herein), per stirpes and not per capita, a total sum of no less than $75,000.\u201d\nThe decree is vacated and the cause remanded with directions to substitute the above provision in the decree in place of the one submitted by the plaintiff. After this amendment is made the decree is to be reentered.\nReversed and remanded with directions.\nSCHWARTZ and McNAMARA, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE DEMPSEY" } ], "attorneys": [ "Westbrook, Jacobson and Brandvik, of Chicago (Lowell H. Jacobson and James A. Brandvik, of counsel), for appellant.", "Siebel and Siebel, Rinella and Rinella, of Chicago (Arthur Siebel and Owen L. Doss, of counsel), for appellee." ], "corrections": "", "head_matter": "Jane L. Herhold, Plaintiff-Appellee, v. Frank F. Herhold, Defendant-Appellant.\nGen. No. 52,814.\nFirst District, Third Division.\nApril 16, 1970.\nWestbrook, Jacobson and Brandvik, of Chicago (Lowell H. Jacobson and James A. Brandvik, of counsel), for appellant.\nSiebel and Siebel, Rinella and Rinella, of Chicago (Arthur Siebel and Owen L. Doss, of counsel), for appellee." }, "file_name": "0293-01", "first_page_order": 299, "last_page_order": 304 }