{ "id": 2827954, "name": "Betty Webb, Plaintiff-Appellee, v. Wallace Webb, Defendant-Appellant", "name_abbreviation": "Webb v. Webb", "decision_date": "1970-12-03", "docket_number": "Nos. 69-187, 70-43, 70-95, 70-109, cons.", "first_page": "618", "last_page": "623", "citations": [ { "type": "official", "cite": "130 Ill. App. 2d 618" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "48 Ill.App.2d 232", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5272543 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/48/0232-01" ] }, { "cite": "85 Ill.App.2d 98", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2552928, 2551992 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/85/0098-02", "/ill-app-2d/85/0098-01" ] }, { "cite": "94 Ill.App.2d 233", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2478583 ], "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0233-01" ] }, { "cite": "25 Ill.App.2d 319", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5784580 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0319-01" ] }, { "cite": "144 Ill. 588", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3081030 ], "opinion_index": 0, "case_paths": [ "/ill/144/0588-01" ] }, { "cite": "120 Ill.App.2d 263", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1583515 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/120/0263-01" ] }, { "cite": "30 Ill.2d 440", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826986 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0440-01" ] }, { "cite": "35 Ill.App.2d 140", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5264540, 5262902 ], "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/35/0140-02", "/ill-app-2d/35/0140-01" ] }, { "cite": "125 Ill.App.2d 190", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1577256 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/125/0190-01" ] } ], "analysis": { "cardinality": 612, "char_count": 11033, "ocr_confidence": 0.745, "pagerank": { "raw": 1.2189354087527805e-07, "percentile": 0.5977350416954811 }, "sha256": "0cde5fbb71354de9b446b102d3639393e71d7a705544de0c9ef09c37d48c7e12", "simhash": "1:afbef12c38cbe5d5", "word_count": 1839 }, "last_updated": "2023-07-14T21:36:32.959960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Betty Webb, Plaintiff-Appellee, v. Wallace Webb, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court:\nA divorce proceedings between the plaintiff and defendant forms the basis for four separate appeals which have been consolidated for review.\nOn February 15, 1965, plaintiff filed a complaint for divorce alleging defendant\u2019s extreme and repeated cruelty. On December 28, 1966, defendant filed a counter-claim alleging plaintiff\u2019s desertion. During the hearing, defendant withdrew his counter-claim and chose not to contest the complaint. The cause proceeded and on March 30, 1967, at the conclusion of plaintiff\u2019s evidence, the court granted the divorce to the plaintiff, at which time the defendant was still present in court. On the following day, upon agreement of the parties and counsel, the court awarded the custody of the three children to the plaintiff. The question of support, alimony and property rights were reserved for later determination.\nPursuant to the court\u2019s instruction counsel for the plaintiff prepared a written decree which the court signed on December 20, 1967, to be entered nunc pro tunc as of March 30, 1967. On plaintiff\u2019s petition, the court resumed hearings on April 8, 1968, with regard to alimony and property rights.\nOn June 30, 1969, the defendant filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 72) to vacate the decree of divorce. The petition alleged that the decree was procured by fraud. After hearing and the submission of briefs, the court ruled that the petition was not filed within the two year limitation provided in the section. Defendants first appeal is from this order (69-187).\nOn January 7, 1970, a supplemental decree was entered which determined questions of permanent alimony, child support and attorney\u2019s fees. A second appeal (70-43) is from that order. The third appeal taken (70-95) is from an order entered February 24,1970, awarding temporary alimony and child support to the plaintiff pending appeal as provided under Section 15 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 16). The fourth appeal (70-109) has been taken by the plaintiff from an order entered April 20, 1970. During oral argument, this last appeal, 70-109, was dismissed by stipulation of the parties.\nDefendant contends that the court erred in dismissing his petition under Section 72 on the grounds that it was not filed in apt time. He argues that since the court entered the draft decree on December 20, 1967, nunc pro tunc as of March 30,1967, his time for the purpose of the section should commence at the time the draft order was entered.\nThe record discloses that the court at the close of the evidence on the divorce portion of the complaint announced its decision in the presence of the defendant. At many hearings subsequently had, the record further discloses that the defendant was completely aware that his marriage was terminated as of March 30, 1967. He was expressly reminded of this by the court on the day following the decree. The matter has been and still is in continuous litigation before the trial court.\nIn addition, while this matter was pending before us, plaintiff moved to dismiss defendant\u2019s appeal No. 69-187. The motion alleges that the defendant has remarried after the decree of divorce was entered, is the father of a child born legitimately on June 23, 1970 and that he is thereby estopped from further seeking a vacation of the divorce decree. The facts of the motion are admitted by the defendant but he urges that such facts have no effect on the merits of his appeal.\nWe disagree with the defendant. He seeks reinstatement of a petition to vacate the decree of divorce while acting as husband and father in a subsequent marriage, lawful under the statutes of this State. The subsequent marriage was consummated in reliance upon the validity of the instant decree of divorce, the benefits of which he has accepted, and he is therefore estopped to vacate the same. The rule that a person who has accepted the benefits of a divorce decree should not be permitted to attack the same, is a rule of estoppel followed repeatedly by courts of this and many other states. The rule was recently stated by this Court in Goodman v. Goodman (1970), 125 Ill.App.2d 190.\nIn McDonald v. Neale (1962), 35 Ill.App.2d 140, 151, the remarriage of the petition was found to be dispositive of the controversy. As the court stated:\n\u201c* * * The rule of estoppel, founded upon the public policy of protecting the marital status and good character of innocent third persons, the legitimacy of children, and the rights and position of persons whose status has been finalized by decree of divorce, will not permit parties to assert inconsistent legal rights as petitioner has here attempted * \u00ae\nAppeals Nos. 70-43 and 70-95 concern awards given in supplemental decrees. The defendant argues that the court erred in requiring him to pay excessive amounts of money for alimony, both permanent and temporary child support and plaintiff\u2019s attorney\u2019s fees.\nIt is within the sound discretion of the trial court to determine the form and amount to be awarded for alimony and attorney\u2019s fees. (Canady v. Canady, 30 Ill.2d 440.) The findings and judgment of the trial court will not be reversed unless found to be against the manifest weight of the evidence.\nIn the instant case, the court had the opportunity to observe the parties during the many sessions the parties were in court. They testified on several occasions on different days, exhibits were introduced and other witnesses testified. Hearings were had in 1967, 1968 and 1969. The court was in a position to determine the parties\u2019 stations in life, the children\u2019s needs, the plaintiff\u2019s needs, the defendant\u2019s ability to pay and the equities of the case. As stated in Lewis v. Lewis (1970), 120 Ill.App.2d 263, 269-270:\n\u201c* * * Numerous factors must be considered by the judge. The demeanor of the witness, his or her apparent honesty or lack of it and candor and forthrightness, are but a few of the elements that cannot be transcribed into a record on appeal. These intangibles are of great importance in assisting the trial judge in reaching a decision when the evidence is conflicting. It is tire trial court that observes and hears the witnesses and analyzes the testimony. It is not for a court of appeal to substitute its findings for those of the trial court unless such findings are clearly and palpably erroneous and against the manifest weight of the evidence.\u201d\nWe find that the alimony and child support awarded by the trial court are not excessive and are amply supported by the evidence. The parties maintained a station in fife commensurate with living in a $65,000.00 home located on 5 acres. Five years ago, the cost of maintaining the household was approximately $20,000.00. The defendant had been paying the plaintiff $150.00 per month total since 1965. She bore the entire cost of maintaining the household, paying taxes and the mortgage. By economizing, she was spending $15,000.00 a year to maintain the household. She went to work as a school teacher and her take-home pay, after taxes, amounted to $5,112.00 per year. She also owned certain securities, by virtue of inheritance, from which she derived an annual interest income of about $4,000.00 before taxes.\nThe defendant is an airline pilot with a take-home pay, after taxes, of about $27,600.00 annually. At the end of 1968, he had $41,724.00 in his employer\u2019s retirement income plan, security which could not presently be reached.\nThe decree awarded $200.00 per week child support and $35.00 per week alimony, a total of $12,220.00. The plaintiff received possession of the marital home and the defendant was to pay one-half of the mortgage payments, real estate taxes, insurance, maintenance and upkeep on the home, which amounted to approximately $2,160.00 per year. This totals a yearly expense for the defendant of $14,380.00.\nThe defendant contends that the plaintiffs personal income must be taken into consideration as well as his own. This is true and this we feel the trial court has clearly done. However, the defendant cites the formula of Harding v. Harding (1892), 144 Ill. 588 and Goldstine v. Goldstine, 25 Ill.App.2d 319, as controlling. There, allowances of alimony were made pendente lite with which we are not here concerned.\nHere the trial court has found $10,400.00 per year to be a necessary amount for the support of the defendant\u2019s children. The plaintiff has no duty to share this burden. The court further found $1,820.00 per year to be a necessary amount for the support of the plaintiff when added to her present income of about $9,000.00 per year. We find t\u00edrese amounts amply supported by the evidence and not excessive under the circumstances of this case. This holding is applicable to the permanent award for child support and alimony. The lesser award allotted by the court under Section 16 of the Act is also subject to the same conclusion.\nDefendant\u2019s final contention is that the trial court erred in requiring him to pay plaintiffs attorney\u2019s fees. The law applicable is stated in Canady v. Canady, supra, where at page 446, the Court said:\n\u201c9 9 9 The allowance of attorney\u2019s fees in a divorce proceedings rests in the sound discretion of the trial court, and unless such discretion is clearly abused, its exercise will not be interfered with\u2019.\u201d\nA hearing was held on the question of attorney\u2019s fees. The record discloses that a substantial amount of services were performed by plaintiff s counsel. Defendant has cited two cases for tire proposition that the award is not proper unless it is shown that there is an inability to pay on the part of the person for whom the fees are awarded. The cases cited do not so hold and both were referred to in the case of Quagliano v. Quagliano (1968), 94 Ill.App.2d 233, 243, as follows:\n\u201cBerg v. Berg, 85 Ill.App.2d 98, and Jones v. Jones, 48 Ill.App.2d 232, are not authority for the proposition that findings of fact relating to petitioners financial inability to pay attorney\u2019s fees or the ability of the respondent to do so are required if an order allowing attorney\u2019s fees is to be deemed valid, rather these cases support the conclusion that hearings should be held if requested and that findings of fact may supply deficiencies which otherwise might exist.\u201d\nWe hold that the allowance of attorney\u2019s fees herein were proper.\nFor the reasons stated, the motion to dismiss defendant\u2019s appeal No. 69- 187, which was taken with the case, is allowed; appeals in cases Nos. 70- 43 and 70-95 are affirmed and appeal No. 70-109, on stipulation of the parties, is dismissed.\nJudgments affirmed in cases 70-43 and 70-95;\nAppeals dismissed in cases 69-187 and 70-109.\nDAVIS, P. J. and ABRAHAMSON, J., concur.", "type": "majority", "author": "Mr. JUSTICE THOMAS J. MORAN" } ], "attorneys": [ "Peter Bianco, Jr., of Chicago, for appellant.", "Morris L. Simons, Julian R. Wilheim, of Chicago, for appellee." ], "corrections": "", "head_matter": "Betty Webb, Plaintiff-Appellee, v. Wallace Webb, Defendant-Appellant.\n(Nos. 69-187, 70-43, 70-95, 70-109, cons.;\nSecond District\nDecember 3, 1970.\nPeter Bianco, Jr., of Chicago, for appellant.\nMorris L. Simons, Julian R. Wilheim, of Chicago, for appellee." }, "file_name": "0618-01", "first_page_order": 624, "last_page_order": 629 }