¶1dissenting:
¶2Glaring factual differences serve to distinguish this case from, and render inapplicable, the cases of Chamberlin v. Chamberlin, Pope v. Pope and Barlow v. Barlow. Having placed sole reliance upon those cases, and the rule for which they stand, the trial court and the majority have reached an erroneous result and I accordingly respectfully dissent.
¶3The distinguishing factors which set this case apart are (1) that the residence in question was owned in joint tenancy by the parties and, (2) the provision of the December 3, 1974, decree of divorce which granted Susan possession of the residence for a stated period was the result of a contract or agreement for division of property. The judgment of the trial court and the majority opinion have deprived Susan of the benefits of her contract and of her one-half ownership of the residence by the application of what was found to be a “change in circumstances,” a wholly inapplicable standard.
¶4The order of the trial court which we review expressly made the following finding of fact:
“1. That the decree of December 3rd, 1974, was not the result of a contested hearing reflecting the decision of the Court. Rather, the support and property provisions therein were the result of negotiations between the parties and approved by the Court.”
¶5Thus, the disposition of the property of the parties, and in particular the term of possession of the residence granted to Susan, was not derived by the court as the result of contested litigation but was instead the adoption and recital in the court’s decree of the agreement of the parties. That there was consideration for the agreement flowing both ways cannot be questioned. The agreement regarding Susan’s possession of the residence for the stated term was in no way tied to or conditioned upon the custody or place of residence of the children.
¶6A judgment by consent is in substance a contract of record made by the parties and approved by the court. A judgment by consent is not a judicial determination of any litigated right, and it is not the judgment of the court, except in the sense that the court allows it to go upon the record and have the force and effect of a judgment; it is merely the act of the parties consented to by the court. 49 C.J.S. Judgments §173 (1947).
“A consent decree is not a judicial determination of the rights of the parties. It does not purport to represent the judgment of the court but merely records the agreement of the parties. A decree so entered by consent can not be reviewed by appeal or writ of error. (Paine v. Doughty, 251 Ill. 396; Galway v. Galway, 231 id. 217.) It can only be set aside by an original bill in the nature of a bill of review. (Hohenadel v. Steele, 237 Ill. 229.)” Bergman v. Rhodes (1929), 334 Ill. 137, 143, 165 N.E. 598.
¶7The rule regarding the nature of consent judgments as contracts, as above set forth, has been followed by the courts of Illinois in many cases, the citations of which are too numerous to mention. Typical of these is the following from Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 127, 309 N.E.2d 356, 359:
“A consent decree is based upon the agreement of the parties. It may supersede both pleadings and evidence and even go to the extent of pointing out and limiting the relief to be granted. Such a decree is conclusive upon the parties and cannot be amended or varied without the consent of each of them. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912), 253 Ill. 479, 97 N.E. 1042.) A consent decree reflects the determination of the parties to end their controversy. It is like a written contract and should be enforced as written. City of Kankakee v. Lang (1944), 323 Ill. App. 14, 54 N.E.2d 605.
A written contract cannot be set aside on the ground that it is fraudulent where the alleged fraudulent provision appears on the face of the contract so that it was equally open to the knowledge of both parties, or where the party charged with the fraud neither urged its acceptance upon the other nor misled or induced the other to accept and execute it by any statement or misrepresentation as to its meaning or legal effect. (Paine v. Doughty (1911), 251 Ill. 396, 96 N.E. 212.) Likewise, a court will not vacate a consent decree without a showing of fraudulent misrepresentation or coercion in the making of the agreement, or the incompetence of a contracting party or gross disparity in the position or capacity of the parties. Guyton v. Guyton (1959), 17 Ill. 2d 439, 161 N.E.2d 832, Jackson v. Ferolo (1972), 4 Ill. App. 3d 1011, 283 N.E.2d 247.”
¶8In the cases of Chamberlin, Pope and Barlow relied upon by the majority the court was construing the property disposition portions of divorce decrees which had been rendered following adversarial litigation. Section 18 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 19) furnished the authority for the courts in those cases to allocate the parties’ rights and liabilities respecting their property and the support of their children. The court was thus free to interpret the decrees to determine whether there was some interplay between the possession of the residences and the custody of children during their minority.
¶9Precluding such interpretation in this case is the fact that the possession of the residence was conferred upon Susan by a contract or agreement.
“The jurisdiction of courts of equity to hear and determine divorce cases is conferred only by statute. The court hearing divorce matters does not exercise general equity powers. (Smith v. Smith, 334 Ill. 370, 379 (1929); Smith v. Johnson, 321 Ill. 134, 140 (1926); Farah v. Farah, 25 Ill. App. 3d 481, 487 (1975).) The court in a divorce action may adjust the equities of the parties in any property owned by them jointly. (Podgornik v. Podgornik, 392 Ill. 124, 126 (1945); (Ill. Rev. Stat. 1973, ch. 40, par. 18).) However, where the parties do not rely upon the statutory powers of the court for the adjustment of their property rights but instead adjust those rights by mutual agreement, the parties are concluded by their agreement. (Smith v. Smith, 334 Ill. 370, 378-79 (1929); Gold v. Gold, 17 Ill. App. 3d 11, 14 (1974).) When a property settlement agreement is approved by the court and embodied in a divorce decree, the trial court is without authority to modify it, set it aside, or enter a decree contrary to it except upon proof that the agreement was secured by fraud or coercion or is contrary to any rule of law, public policy, or morals. (Swannell v. Wilson, 400 Ill. 138 (1948); Smith v. Smith, at 379; Gaddis v. Gaddis, 20 Ill. App. 3d 267, 270 (1974).)” Chodl v. Chodl (1976), 37 Ill. App.3d 52, 53, 344 N.E.2d 711, 713.
¶10In this case Susan was the owner in fee simple of an undivided one-half interest in the residence. The only means or manner whereby that interest was submitted to the court was the property settlement agreement which was submitted to the court at the time of the original divorce action and incorporated in the decree. By the terms of that agreement Susan continued as the owner of her interest and, in addition, obtained an agreement that she could remain in possession of the property until her youngest child reached age 18 or until her remarriage. The agreement further provided that upon the occasion of either of the two stated conditions the residence would be sold and the proceeds divided in accordance with the agreement.
¶11The exact nature of Susan’s interest in the residence need not be determined. But as a minimum she remained the owner of a one-half interest subject to an agreement to sell at a future determinable time; in addition she was in possession until the time of sale. She was thus in possession both as an owner (the right to possession is an incident of ownership) and under her agreement with Robert. The agreement for possession also granted possession as a matter of right and under the circumstances it was at least a chattel real and constituted a valuable interest in property.
¶12By the order under consideration Susan has been prematurely deprived of the ownership of her one-half interest in the residence and has lost her rights to possession to which she was entitled both as an owner and a contract beneficiary. That Susan’s loss thus suffered is attributed to “a change in circumstances” is totally irrelevant. As applied in this case the phrase is a mere vagabond, a meaningless generality without association or meaning in the case. Under the applicable case and statutory law all the court could do was enforce the contract as made.
¶13I would reverse the order of the trial court.