{ "id": 2946220, "name": "DAVID TABER, Plaintiff-Appellant, v. EDITH S. TABER, n/k/a Edith S. Moore, et al., Defendants-Appellees", "name_abbreviation": "Taber v. Taber", "decision_date": "1993-06-07", "docket_number": "No. 1 \u2014 91\u20141317", "first_page": "435", "last_page": "441", "citations": [ { "type": "official", "cite": "248 Ill. App. 3d 435" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "410 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 543", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171097 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0543-01" ] }, { "cite": "372 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3413426 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0629-01" ] }, { "cite": "479 N.E.2d 1152", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530086 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0963-01" ] }, { "cite": "410 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "81 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481388 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/81/0364-01" ] }, { "cite": "378 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 375", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621708 ], "pin_cites": [ { "page": "378-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0375-01" ] } ], "analysis": { "cardinality": 594, "char_count": 12867, "ocr_confidence": 0.781, "pagerank": { "raw": 5.311089344023715e-08, "percentile": 0.33519097059326625 }, "sha256": "df4ee5bda867b30af539da0af1a4a87c0ca4fc680abf873c862969fb14352074", "simhash": "1:04a46cf3fe9bb145", "word_count": 2069 }, "last_updated": "2023-07-14T21:04:37.974036+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAVID TABER, Plaintiff-Appellant, v. EDITH S. TABER, n/k/a Edith S. Moore, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nThis is an appeal in a post-judgment dissolution of marriage case.\nEdith Taber and David Taber were married on August 29, 1948. On June 24, 1974, David, then age 51, filed a complaint for divorce against Edith, then age 49. On September 26, 1974, a judgment for divorce was entered. On that date, the parties\u2019 three children \u2014 Alan, Michael and Jessie \u2014 were 22, 20 and 16 years old, respectively.\nThe judgment incorporated the parties\u2019 \u201coral agreement with respect to their property.\u201d The agreement included the following provisions:\n\u201cBoth Plaintiff [David] and Defendant [Edith] are employed, Plaintiff at a gross salary of $30,000 per year and Defendant at a gross salary of $22,000 per year;\nThe residential property at 2000 Lincoln Street, Evanston, is in joint tenancy and shall remain in joint tenancy, but that the Defendant shall reside and be entitled to\" exclusive possession of said premises as long as she wishes;\nThat while in such occupancy Defendant shall pay the mortgage, taxes, upkeep and insurance upon the said premises;\nAt Defendant\u2019s option the property may be sold and the net proceeds divided equally between the parties;\nThe furniture and furnishings in the house at 2000 Lincoln Street shall remain for the use of the Defendant as long as she lives there but at such time as she may remove [sic], then the parties will determine who shall have possession of said such furniture and furnishings as of the time of such removal.\u201d\nOther property which the parties\u2019 agreement addressed included books, photographic equipment, a baby grand piano, vehicles, savings accounts, and securities. The parties also agreed to waive alimony and that they would equitably divide the educational expenses of the children.\nThe judgment \u201cOrdered, Adjudged and Decreed\u201d that: Edith shall receive custody of Jessie, with David having full rights of visitation; the question of child support was reserved for further consideration; David shall maintain his life and hospitalization insurance for the benefit of the children; and David would be responsible for extraordinary medical and dental expenses for Jessie. Edith and David, the latter through his attorney, signed the divorce judgment.\nEdith married James Moore in December 1975. Edith and James have resided at 2000 Lincoln Street, Evanston, since their marriage.\nOn December 15, 1989, David filed a \u201cpetition for declaratory judgment and for order of sale of marital home or, in the alternative, for order that James Moore be evicted from the premises.\u201d The petition sought a declaration that the award of the Evanston home to' Edith \u201cwas a form of child support,\u201d modifiable upon a showing of a substantial change of circumstances. David alleged that Jessie\u2019s cessation of use of the Evanston home as of 1981 constituted such a change of circumstances. David asserted that his delay in bringing this action was due to \u201cpersonal tragedies\u201d and, in any event, did not prejudice Edith. The petition alternatively sought eviction of James Moore from the Evanston home on the ground that the award of \u201cexclusive\u201d possession to Edith prohibited her from living with a second husband.\nOn April 1, 1991, without holding an evidentiary hearing, the circuit court entered a final written order which denied David\u2019s petition in its entirety. The order provided that: \u201cthe award of exclusive possession of the Evanston home created a property right (as to which the Court has no jurisdiction to modify) and was not a form of child support\u201d; and \u201cJames Moore\u2019s occupation of the Evanston home as his residence along with Edith Moore did not terminate Edith Moore\u2019s exclusive possession of the Evanston home.\u201d\nOn appeal, David asserts that the circuit court erred in denying his petition without first holding an evidentiary hearing. David asserts that the 1974 divorce judgment is ambiguous and, thus, the court erred in not considering extrinsic evidence to clarify whether the award of possession of the Evanston home to Edith was intended to be an indefeasible property right or a modifiable award of nonmonetary child support or other modifiable subsidy. David further asserts that the circuit court erred by not interpreting the word \u201cexclusive\u201d to prohibit James Moore from residing in the Evanston home with Edith.\n\u201cThe normal rules pertaining to the construction of contracts are applicable to the interpretation of the provisions of a divorce decree. [Citation.] The settlement provisions within the divorce decree should be construed so as to give effect to the intention of the parties. [Citations.] The intent of the parties must be determined from the contract as a whole and not from any one clause standing alone. [Citations.] Further, in construing a contract, meaning and effect must be given to every part, and no part should be rejected as surplusage unless absolutely necessary since it is presumed that each provision was inserted deliberately and for a purpose. [Citations.] The parties\u2019 intent must be determined solely from the language of the contract unless the language is ambiguous, in which case extrinsic evidence may be introduced to explain the language. [Citation.] A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. [Citation.] Language is not rendered ambiguous simply because the parties do not agree upon its meaning.\u201d White v. White (1978), 62 Ill. App. 3d 375, 378-79, 378 N.E.2d 1255.\nApplying the foregoing rules of construction to the 1974 divorce judgment, we find the exclusive possession provision to be unambiguous. Further, we conclude that the award of exclusive possession of the Evanston home to Edith constituted a property disposition which cannot be modified (see Ill. Rev. Stat. 1989, ch. 40, par. 510(b)) and not an award of nonmonetary child support or other modifiable subsidy.\nFirst, we must construe the 1974 judgment as a whole. It speaks in terms of incorporating the parties\u2019 \u201coral agreement with respect to their property.\u201d Indeed, the first four of five paragraphs of the agreement relate to the Evanston home. The second paragraph contains the exclusive possession provision in question. Following the fifth paragraph, the next five paragraphs address various properties, including books, photographic equipment, automobiles and savings accounts. Only the last two paragraphs of the agreement address matters other than property. The fact that substantially all of the parties\u2019 agreement related to the disposition of the parties\u2019 marital property undermines David\u2019s claim that the exclusive possession provision was other than what it purports to be \u2014 a disposition of property.\nSecond, the parties\u2019 situation in life demonstrates that the exclusive possession provision was intended to be a property disposition. The judgment states that both David and Edith were gainfully employed. Both parties waived alimony. Of their three children, only Jessie was a minor. Jessie, however, was nearing his majority. His needs, therefore, were diminished. The judgment\u2019s provisions relative to Jessie reflect this diminished need. Given the parties\u2019 life situation, it was reasonable for them to focus on finally disposing of their marital property rather than providing for their children or each other. The judgment and agreement reflect this theme.\nOther provisions of the agreement demonstrate that the parties intended their disposition of the marital home to be final. Most importantly, Edith received exclusive possession of the Evanston home \u201cas long as she wishes.\u201d The plain meaning of these words connotes finality. Also, under the agreement, Edith was to pay during her possession the mortgage, taxes, insurance and upkeep of the property. The judgment gave her no corresponding allowance for these expenses, and David was to contribute nothing. These provisions similarly connote finality of the award.\nLastly, the judgment does in fact address the subject of child support for Jessie (it reserved the question), alimony (the parties waived it) and other expenses which the parties may incur in completing the raising of their now mature children (e.g., education and extraordinary medical and dental expenses for Jessie). The fact that the judgment addressed these matters undermines David\u2019s claim that the exclusive possession provision was some undisclosed form of nonmonetary child support or nonmonetary alimony.\nDavid relies upon Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31, In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 479 N.E.2d 1152, and Barlow v. Barlow (1978), 56 Ill. App. 3d 629, 372 N.E.2d 422, to support his argument that the exclusive possession provision was other than a property disposition. These cases are distinguishable. In each of the cited cases, the particular circumstances surrounding the award of the marital home persuaded the court to conclude that it was not a property award.\nFor example, in Lamp, the wife received possession of the marital home until she remarried or until the youngest child reached majority. The husband was responsible for mortgage and taxes and the wife paid no rent. At the time of the husband\u2019s petition for modification, the youngest child was 12 years old, and all children lived with the defendant. The supreme court concluded that the award of possession was not a property award, but a form of support for the benefit of the minor children. Accordingly, the supreme court affirmed the sale of the house. Lamp is clearly distinguishable from the present case.\nIn Stanley, the decree provided that a 25/60 portion of the value of the use of the marital residence was to be allocable to maintenance and a 35/60 portion to child support. Possession was also to terminate upon the wife\u2019s remarriage. The award of possession to Edith in the present case is in no way similar to the award in Stanley.\nIn Barlow, a 1962 divorce decree gave the wife \u201cuse\u201d of the marital home without specifying any time limitation. The wife received custody of the parties\u2019 four minor children, and the husband was required to pay $65 per week in child support. Both parties waived alimony. One year later, the wife successfully petitioned for a modification of the divorce decree. The modification required the husband to pay one-half the mortgages and taxes on the marital home.\nIn 1976, the husband filed a petition to partition the marital home, terminate the wife\u2019s use and divide the sale proceeds. The husband asserted that the award of \u201cuse\u201d of the home to the wife was to provide a home to the couples\u2019 children. Since the youngest child had reached majority, the wife\u2019s use of the home no longer existed. The wife responded to the husband\u2019s petition that the decree gave her use of the home for life. After admitting extrinsic evidence to clarify the meaning of the award of use of the home to the wife, the court granted the husband\u2019s petition. This decision was affirmed on appeal. Again, the facts in this case are clearly distinguishable from these in Barlow.\nEach case must turn on its own facts. While we agree with David\u2019s argument that substance, not form, should control (see Warren v. Warren (1980), 88 Ill. App. 3d 543, 410 N.E.2d 915) and that an award of possession of the marital home has, in some cases, been determined to be other than an award of property, the judgment here, both in substance and form, constituted a property disposition with respect to the Evanston home. The judgment, in this regard, is unambiguous. Extrinsic evidence, therefore, was properly excluded. For these reasons, the circuit court properly determined that the award of the Evanston home to Edith unambiguously created a property right and not some form of nonmonetary child support of other modifiable subsidy.\nWe next address David\u2019s alternative argument that James Moore should have been evicted from the house. David\u2019s argument is spurious. The word \u201cexclusive\u201d within the judgment manifestly relates to the possession of the home as between David and Edith, not Edith and some third party. Taking David\u2019s argument to the extreme, Edith\u2019s possession would terminate in the event her own mother lived in the home. David\u2019s argument, to be accepted, would require this court to make a forced construction of the judgment. This we will not do.\nDavid makes other arguments on appeal which the foregoing analysis renders moot. We accordingly do not address these arguments.\nFor the foregoing reasons, the April 1, 1991, order of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL and BUCKLEY, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019CONNOR" } ], "attorneys": [ "Sheldon Engel, of Chicago, for appellant.", "Linda S. Kagan, of Chicago, for appellees." ], "corrections": "", "head_matter": "DAVID TABER, Plaintiff-Appellant, v. EDITH S. TABER, n/k/a Edith S. Moore, et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1 \u2014 91\u20141317\nOpinion filed June 7, 1993.\nSheldon Engel, of Chicago, for appellant.\nLinda S. Kagan, of Chicago, for appellees." }, "file_name": "0435-01", "first_page_order": 455, "last_page_order": 461 }