In re Marriage of Dave

2023 IL App (5th) 220114-U

• Court: Appellate Court of Illinois
• Decided: January 20, 2023
• Docket: 5-22-0114
• Status: Unpublished

Opinion

NOTICE 2023 IL App (5th) 220114-U NOTICE Decision filed 01/20/23. The This order was filed under text of this decision may be NO. 5-22-0114 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of SHRUTI DAVE, ) Champaign County. ) Petitioner-Appellee, ) ) and ) No. 20-D-94 ) MANISH DAVE, ) Honorable ) Sam A. Limentato, Respondent-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.

ORDER

¶1 Held: The trial court’s order granting the motion to enforce settlement agreement is affirmed where the oral settlement was neither vague nor unfair, and respondent’s claims of duress and objections to the agreement lacked credibility. The trial court’s judgment of dissolution is affirmed where language addressing the parties’ debts, assets, and valuation date was not against the manifest weight of the evidence; however, the trial court’s inclusion of language addressing the distribution of the parties’ personal property is vacated as being arbitrary.

¶2 Respondent, Manish Dave, appeals the trial court’s August 25, 2021, order granting

petitioner, Shruti Dave’s motion to enforce settlement agreement and the trial court’s September

15, 2021, judgment of dissolution of marriage. For the following reasons, we affirm in part and

vacate in part.

1 ¶3 I. BACKGROUND

¶4 Shruti and Manish were married on May 23, 1995, in Ahmedabad, India. On February 26,

2020, Shruti filed her petition for dissolution of marriage alleging irreconcilable differences.

Manish filed his answer on April 9, 2020, admitting all the allegations in Shruti’s petition and

raising an affirmative matter requesting temporary maintenance, permanent maintenance, and

payment of his attorney fees.

¶5 Shruti’s financial affidavit, filed on May 7, 2020, listed her annual gross income and the

parties’ assets which included the marital residence, numerous financial assets, and two vehicles

totaling approximately $2.4 million. The marital home and both vehicles were paid off. No debt

was listed.

¶6 On August 25, 2020, Shruti filed a petition requesting exclusive possession of the marital

home and a job search order. The petition alleged that she was employed as an endocrinologist and

Manish, although experienced as a communication engineer, remained unemployed and was not

seeking employment. She further alleged that Manish lived away from the marital home for almost

a decade with minimal contact but moved back into the marital residence during the COVID

outbreak, without invitation, and was living in the basement while she and their daughter resided

in the upper level of the home. The petition alleged that Manish’s continued presence in the home

was jeopardizing Shruti and their daughter’s mental health.

¶7 Manish’s attorney moved to withdraw on August 26, 2020, and he obtained new counsel

on September 8, 2020. Shruti’s motion for exclusive possession proceeded to hearing on

November 5, 2020. Following the hearing, the trial court denied the petition in a docket entry and

directed the parties to contact the clerk to schedule a two-day trial on financials. No transcript from

the November 5, 2020, hearing is contained in the record on appeal.

2 ¶8 On November 12, 2020, Manish filed his financial affidavit stating he was unemployed

and had no income. He listed assets that included the marital residence, financial assets, and

vehicles amounting to approximately $2 million. The affidavit confirmed the marital home and

vehicles were paid off. No debt was listed. The affidavit asserted that money in the investment

account, specifically, the Charles Schwab account, along with $101,000 in the Chase bank account

was nonmarital property belonging to him. The affidavit further stated that he expected he would

require between $7000 and $11,000 monthly after the divorce to keep in line with his current

standard of living.

¶9 On December 7, 2020, the court allotted two days for trial setting the matter for April 26,

2021, and April 28, 2021. On March 17, 2021, Manish’s second counsel withdrew, and Anne

Martinkus entered her appearance on behalf of Manish.

¶ 10 On March 19, 2021, Shruti filed an updated financial affidavit. The updated information

included Shruti’s annual gross income and the parties’ assets to incorporate those previously

disclosed by Manish. The assets included the marital home, five bank accounts, one certificate of

deposit, two investment accounts, and eight retirement accounts equating to approximately $3.45

million. No debt was listed.

¶ 11 On April 12, 2021, Manish filed an updated financial affidavit. He remained unemployed.

The affidavit listed three additional bank accounts at Axis Bank in India with an approximate value

of 2.97 million rupees, and two stock accounts in India with no values provided. The other assets

remained as previously listed but contained updated values.

¶ 12 On April 20, 2021, Shruti filed an updated financial affidavit related to her annual gross

income. The listed assets remained the same but contained updated values.

3 ¶ 13 Following a pretrial conference on April 26, 2021, with the judge, the hearing was

continued until April 28, 2021. Thereafter, both parties, with the assistance of their counsel,

proceeded to engage in settlement negotiations.

¶ 14 On April 28, 2021, the parties presented before the trial court. Ms. Martinkus advised the

court that the parties reached a settlement agreement “on all issues” and recited the terms to the

court. The recitation included the following terms relevant to this appeal:

“The parties’ marital home *** in Champaign, Illinois shall be sold. ***

Respondent shall receive 60 percent of the net proceeds from the sale of said residence.

The *** Petitioner shall receive 40 percent of the net proceeds of said real estate. ***

Respondent shall receive 60 percent of the retirement assets, cash, and investments. The

Petitioner shall receive 40 percent of the retirement assets, cash assets, and investments.

The Respondent shall provide three years of his Fidelity statements for his retirement

assets. Each party shall pay their individual attorney’s fees. The Respondent shall receive

the sum of $113,758.00 from his Chase account prior to the 60/40 split ***, as it is his

nonmarital property. The Petitioner shall receive the Acura TL 2010. The Respondent shall

receive the 2010 MDX Acura. *** The Petitioner shall sign all documents necessary for

the Respondent to liquidate the account—the Axis account in India, including the

documents necessary to also liquidate the brokerage account linked to the Axis account.

The parties shall divide equally all gold located in the United States and India.”

¶ 15 Ms. Martinkus stated she would prepare the written order and advised the court that an

additional term for the agreement was that it would be “enforceable even though it has not been

memorialized in writing.” Shruti’s counsel agreed with Ms. Martinkus’s recitation of the oral

argument and requested “this be the Court’s order.” The court confirmed the agreement would be

4 binding immediately although it was not memorialized in writing. Upon query by the court, Shruti

affirmatively stated this was the agreement and that she entered into it freely and willingly. She

further confirmed this was the order that she wished to have entered and eventually enforced, if

necessary. Manish also affirmatively stated that the agreement was what he understood it to be,

and that it resolved all the matters, including “the waiver of maintenance.” When asked if he was

entering the agreement freely and willingly, Manish said, “Yes.” When asked if this was the order

he wanted the court to enter and enforce, if necessary, Manish responded, “Correct, yes.”

¶ 16 On May 25, 2021, Ms. Martinkus moved to withdraw as Manish’s counsel. On June 16,

2021, Shruti filed a motion to enforce the settlement agreement and for entry of judgment of

dissolution of marriage. Attached to the motion was a transcript from the April 28, 2021, hearing

as well as a proposed marital settlement agreement (MSA). Attached to the MSA was “Exhibit A”

which listed the marital residence along with the parties’ financial assets and provided the name,

type, and value for each financial account. The listed assets were in excess of $4 million.

¶ 17 The motion to withdraw and the motion to enforce settlement agreement were set for July

6, 2021. Following arguments, the trial court entered an order allowing Ms. Martinkus to withdraw,

granted Manish time to obtain new counsel, continued the hearing for Shruti’s motion to enforce,

and rescheduled that hearing for August 5, 2021.

¶ 18 Manish’s new counsel entered his appearance on July 23, 2021, and filed an objection to

the motion to enforce settlement agreement on August 4, 2021. The objection claimed the oral

settlement was unenforceable because it was the product of duress, stemming from last minute

settlement negotiations, and Manish’s counsel made statements indicating the court had a negative

impression of Manish due to his appearance at a prior hearing and would likely rule against Manish

if the case proceeded to hearing.

5 ¶ 19 The objection also contended the settlement was unenforceable because Manish learned

his father was “gravely ill” and “likely to die in the near future” during the settlement negotiations,

and that Manish had a hearing disability, and did not correctly hear the recited settlement

agreement. The pleading further contended the oral agreement was unconscionable based on

Manish’s contention that his waiver of maintenance cost him over $1 million and failed to

adequately address the parties’ assets, the parties’ debt, or allocate tax liability.

¶ 20 Hearings on the motion to enforce settlement were held on August 5, 2021, and August 25,

2021. On August 5, 2021, Shruti’s attorney called Ms. Martinkus, who testified that she met with

Manish multiple times during the four months she represented him, and they discussed, at length,

the parties’ nonmarital and marital assets.

¶ 21 With regard to Manish’s allegations of diminished hearing, Ms. Martinkus testified that

about a week before the oral settlement, Manish advised her that his job opportunities were limited

due to his diminished hearing. She asked if he had any medical or physician evidence regarding

the condition and he stated he did not. Ms. Martinkus testified that at no time during the settlement

negotiations did Manish indicate to her that he could not hear any of the conversation. She

confirmed that she recited the parties’ oral agreement to the court and that Manish never told her,

either when they were in the courtroom or when they were outside the courtroom, that he had any

trouble hearing what was stated in the courtroom. Ms. Martinkus met with Manish one time after

the hearing and Manish did not state that he could not hear what transpired in the courtroom at that

meeting.

¶ 22 Ms. Martinkus confirmed that she had an asset list that she reviewed with Manish prior to

the settlement negotiations. She stated that opposing counsel also had an asset list and she went

over that list with Manish as well. She stated that at no time did Manish ever indicate there were

6 missing assets from the lists. Ms. Martinkus confirmed that she knew Manish’s father had COVID.

She stated Manish never expressed a desire to stop negotiations or indicated he was too

traumatized, due to his father’s illness, to continue negotiations or proceed that day. At no time,

either during the negotiation process or thereafter, did Manish state that he felt coerced into the

settlement, that he was under duress during the negotiations, that the agreement was

unconscionable, or refer to the negotiations as “last minute.” She stated that she and Manish spent

several hours the day before negotiations and then came back and spent several hours more

working through negotiations.

¶ 23 When asked if she told Manish that the court had a negative impression, Ms. Martinkus

stated that she told Manish the judge had some credibility issues with him based on his job search.

She denied telling Manish the judge did not like him or was going to rule against him.

¶ 24 Ms. Martinkus testified that Manish never indicated that he wanted to see a written

agreement on all the financial issues before settling the case. She further stated that she told Manish

the oral agreement would be a binding final agreement. She stated there were numerous

negotiations and a great amount of time was spent with him going through things. She never

observed, either prior to or after the recitation of the agreement to the court, anything that indicated

Manish lacked the free will or quality of mind necessary to enter into a valid contact.

¶ 25 Ms. Martinkus identified Exhibit A as the list she used during the negotiations that

contained all of the marital assets and stated both parties agreed those were the assets. The list

contained no debt because the parties had no debt. She stated Manish reviewed the exhibit,

calculated the value of the assets, obtained updated information for the accounts, including the

Indian accounts, and acknowledged to her that he was in agreement with the exhibit. She stated

that Manish did not want the Indian accounts to be part of the MSA, but she told him they were

7 jointly owned assets and they had to be part of the agreement, even though he was the only one

who could access that account. The parties agreed this was all the money in India and how it was

going to be divided. She stated that it was agreed that Manish would initiate the withdrawal

because Shruti did not have the ability to access those funds under Indian law.

¶ 26 Ms. Martinkus testified that she believed the settlement was fair and equitable and why she

did not believe this was a permanent maintenance case. Although Manish was unemployed for two

years, she believed he was capable of working. With the 60/40 split, and the amount Manish was

receiving, no job search would be necessary, and he would not have to return to court. She stated

that Manish twice left the negotiations to speak to his adviser. She disputed coercing Manish into

settlement. She told him she believed it was a fair settlement and that an award of maintenance

was not automatic. She never threatened him or said anything that would make him think she

would not take the case to trial.

¶ 27 On cross-examination, Ms. Martinkus agreed that she first time she discussed this “not

being a maintenance case” with Manish was following the court’s settlement conference on April

26, 2021. After the conference, she advised Manish that the court recommended a 60/40 split in

lieu of maintenance because the court believed Manish was qualified to work. With regard to

Exhibit A, she again confirmed that it was the document she and Shruti’s counsel were relying

upon and both lawyers, as well as their clients, knew it was the exhibit that would be included with

the MSA.

¶ 28 When questioned about assets not contained on the exhibit, Ms. Martinkus was unaware of

any other asset beyond those determined through discovery. She stated that if Manish was claiming

additional assets, he never disclosed them to her and all assets he presented to her were included

in the exhibit.

8 ¶ 29 As to the Charles Schwab account, Ms. Martinkus disputed ever saying it was a nonmarital

account. She said the account was “established 20-some years ago and it was jointly held and had

been jointly held for the last 20 years.” She knew the details about how the money was received

and stated Manish never provided her with any documents related to the account.

¶ 30 Ms. Martinkus disputed Manish telling her that he was leaving the negotiations to speak

about his father; she stated he told her he was leaving to speak with an adviser. She again disputed

Manish having hearing difficulties at the hearing. She stated she and Manish went over what would

be recited to the court and “he knew based on what he and I had discussed that this was the exhibit,

that this was going to be divided 60/40. That was exactly what our agreement was[,] and he knew

exactly *** what was going to be recited in open court. *** and *** was recited in open court.”

¶ 31 With regard to the prior hearing where Manish’s credibility was questioned, Ms. Martinkus

clarified that she was not Manish’s attorney at that time but Manish’s position at that hearing

lacked credibility and she told him there were credibility issues. She disputed ever telling Manish

he had to settle the case. She stated she had been practicing for 25 years and never forced,

threatened, or coerced anybody to settle a case. Thereafter, Shruti rested.

¶ 32 Respondent’s counsel called Manish to testify. He stated he was previously employed as a

systems engineer and Shruti was a physician. He stated they had been married for close to 24 years

and Ms. Martinkus told him he would receive $59,886 per year in maintenance. They arrived at

the courthouse on April 26, 2021, and he was placed in a conference room for about 45 minutes.

When Ms. Martinkus entered, she was looking down, would not make eye contact, and told him

the judge did not like him. He asked her if it was about the exclusive possession of the home, and

she said yes. Manish said he was surprised because he did not speak during that hearing. He stated

Ms. Martinkus also informed him of the trial court’s recommended 60/40 split, which was

9 surprising and eroded his confidence. He did not know what to do. He testified that he told his

attorney that he did not agree to this and thought they were going to do spousal maintenance. She

responded by saying, “this is what is. We will go from here.” He told her that he did not want to

move forward; they talked a bit, did not come to any agreement, and he left for the day.

¶ 33 Manish then met with Ms. Martinkus the next day and discussed spousal maintenance. It

was his impression they would be moving forward with maintenance and did not consider the

60/40 division. He stated he wanted spousal maintenance and a 50/50 split. Ms. Martinkus told

him she believed he was going to get it and getting spousal maintenance was the right course to

go. He stated she never advised him that she had any doubts about him receiving maintenance.

¶ 34 Manish testified that when he arrived at the courthouse on April 28, 2021, he was still

intending to seek maintenance; however, his lawyer provided him with a case where the parties

agreed on a split rather than spousal maintenance. He told her he was not going to read it because

she was the lawyer. She told him it was a good case, to look at it, read it, and consider it. He stated

thereafter, they went into separate rooms to negotiate. The only time they were all in the same

room was when they were reading what she had written on a piece of paper as a 60/40 split. That

paper was not Exhibit A, and he never saw Exhibit A until it was attached to the proposed MSA.

¶ 35 Manish stated that he left during negotiations because he needed to breathe. He walked

around the parking lot to clear his head because everything had changed. He also looked at his

phone and had a long message from his sister stating that his father was close to dying. After

listening to the message, he did not know what to do. He choked up, sat there for a while, walked

into the courtroom, and just wanted to cry. He disputed ever telling Ms. Martinkus that he wanted

to call some advisors to talk about the settlement agreement.

10 ¶ 36 When he came back into the negotiations, the frustration began again because Ms.

Martinkus said, “it’s a good thing, take it. It is right thing to do. It is the most logical thing to do

because you are in such a spot.” At that point, he did not know what to do and it was impossible

for him to think so he decided to go along with it.

¶ 37 Thereafter, they went to the courtroom to recite the agreement. He stated that he was aware

that he was in the courtroom, but his heart and his thoughts were not there. Prior to the recitation,

he stated that he told Ms. Martinkus he was not willing to agree to everything she was writing and

wanted the agreement in writing. She explained the agreement would be recited to the court and

written later. He stated he was sad and depressed when he was in court.

¶ 38 Manish admitted knowing what the agreement was and that it would be recited to the court.

He stated he was not “in the mood” to make choices at that time. He stated that he “didn’t think

anything mattered at that point and he just did not want to be there.” He stated that the assets that

were to be split 60/40 were on the piece of paper Ms. Martinkus received from opposing counsel.

He did not believe the Charles Schwab account, which contained gifted funds from his family in

1990, was marital and stated the money from his family “was for me.”

¶ 39 Manish stated that he suffered from 50% hearing loss in his right ear and 20% loss in his

left ear. He was sitting on the left side of his attorney in court and did not hear what she was saying.

He thought she was doing some kind of due diligence required in the court room. He stated that he

still needed to know what exactly was being divided and anticipated reviewing the written

document. He did not know what was being divided 60/40 following the hearing because it was

never clarified and there was a different document that resembled Exhibit A.

¶ 40 Manish also stated that Ms. Martinkus did not say the oral argument was going to be

binding and he “had no idea” what the word “binding” meant. When he did see Exhibit A, he was

11 surprised to see the Charles Schwab account on the list. He explained the funds came from the sale

of a liquor store, and stated,

“Those proceeds were then channeled into an investment in Charles Schwab, and we put—

I put the money in there and—and that money just sat there in the stocks which was

purchased. Initially there was some shuffling. We—I bought some mutual fund and then

we invested in some stocks, and that’s how it was.”

He stated that he tried to explain to Ms. Martinkus that the account was nonmarital and she

repeatedly told him it was a joint account. He stated that he never agreed that the marital asset

should be a 60/40 split. Thereafter, court recessed.

¶ 41 The hearing continued on August 25, 2021. Manish stated that his father died the day after

the April 28, 2021, hearing. He agreed that the settlement agreement recited to the court made no

reference as to how debts were going to be divided. He stated that he and his wife had joint debts,

stemming from assets in India which required them to pay taxes in both the United States and

India, that needed to be divided.

¶ 42 Manish again addressed how the Charles Schwab account was funded by the sale of a liquor

store and referenced exhibits to support his testimony. He testified that he received about $50,000

following the liquor store sale and referenced July 7, 1998, correspondence (Exhibit 2), related to

the liquor store sale.1 He further stated that his Crestor bank statement (Exhibit 1) reflected his

proceeds from the sale by the December 29, 1997, deposit in the amount of $50,551.90. He

referenced two checks written on that account, each in the amount of $20,000 and stated those

checks were deposited in the Charles Schwab account. 2 He stated the total (and current) amount

1 Exhibit 2 indicates that Manish received $25,000 following the liquor store sale. 2 No copy of the checks was included in the bank statement. 12 in the Charles Schwab account was an accumulation of interest and earnings on that initial deposit

from the sale of the liquor store and stated he was claiming that as his nonmarital property. 3

¶ 43 Manish also testified that other assets were not accounted for in the proposed MSA. He

stated there were assets in India, held by an investment account named Motilal Oswal, “which had

periodic dividends which he was liable for taxes.” He also stated there were other bank accounts

in his wife’s and her father’s names that were not listed on the MSA, or Exhibit A. Manish

reviewed Exhibit 3, which was an Axis Bank statement. He identified other assets that were owned,

either by him or his wife, in India. He further testified that the deposits listed on the statement, as

well as emails sent directly to him (Exhibit 4), were dividends, but he did not know the source

although “[m]ost likely, it is stock.” He did not know who owned the stock that was providing the

dividends. Manish stated that the settlement agreement failed to mention how the stock that was

paying the dividends was going to be divided.

¶ 44 Manish next identified Exhibit 5, which he stated was the Indian equivalent of a W-2, for

the tax due on the dividends. Following an objection based on the documents not being provided

in discovery, which was overruled, the court reminded the parties of the issue at the hearing and

urged them to “move along.”

¶ 45 Manish identified Exhibit 6 as a statement from Motilal Oswal and claimed the document

stated there were additional assets with that company. Counsel again objected due to failing to

provide the document in discovery. The court looked at the document and asked why they were

addressing $934 in a $3 million estate to which Manish’s counsel stated, “I think that’s just one

piece of the puzzle.” After questioning Manish about the document, to which Manish speculated

3 No Charles Schwab account statement addressing any part of the period from December 1997 to the present was submitted into evidence. 13 as to the value, he stated he did not know who owned the asset, but it was “just trickling *** as a

dividend into my account that’s all.”

¶ 46 Manish identified Exhibit 7 as stock certificates in Shruti’s and her father’s names. Counsel

again objected due to the failure to produce the document in discovery. When asked if the

document was an example of Shruti’s assets that were not accounted for in the MSA, Manish

replied, “Possibly, yes.”

¶ 47 On cross-examination, Manish agreed Shruti brought the account passbook to the

settlement negotiation but did not recall her stating that she tried to close it but could not, due to

Indian protocol. He further stated that he was not sure if the money in that account was moved to

the Axis account. He stated the brokerage account was not the same as Axis Bank although he

agreed that in the MSA it indicated that any investments, and the brokerage accounts, were

investment accounts. Manish agreed the Charles Schwab account was a joint account but disputed

telling Shruti it was also her money.

¶ 48 On redirect, Manish agreed that the documents he presented traced by clear and convincing

evidence that the source of the money was a nonmarital gift from his father. He stated that he put

both names on the Charles Schwab account because he did not know “any better” and never

intended to make a gift to Shruti with any portion of that money. On recross, Manish admitted that

he never took Shruti’s name off the Charles Schwab account after it was opened. Exhibits 1-7 were

admitted with no objection, and Manish’s counsel rested.

¶ 49 Thereafter, Shruti’s counsel called Manish as an adverse witness. He stated that the reason

they were now in court was because he felt “that whatever agreed to, I didn’t want to do that. That

is not what I intended to do.” When asked if when he left the courthouse that day if it was his

understanding that there was an agreement, Manish replied, “We had an agreement—well I

14 decided in—in court basically that’s what I’m trying to say, that I asked Ms. Martinkus, can I have

it in writing? And she says yes, you will have it in writing.” When asked whether he recalled

answering very candid questions from court about whether or not he understood the agreement

and whether or not he agreed with the agreement, Manish replied, “I was, as I said, in a very

stressful state of mind, so I was—I wanted to—actually I didn’t want to do anything.”

¶ 50 During closing arguments, Shruti’s counsel noted that there was testimony at the exclusive

possession hearing, as well as Manish’s financial affidavit, that there was no debt. He lived in the

house for over two years and paid no water bill, no electric bill, no mortgage, no taxes, and no

insurance. He received $2.4 million as his portion of the 60/40 division, plus an additional

$113,758 in nonmarital funds. He had $2.5 million and no debt. To claim the agreement was

unconscionable or unfair was “unthinkable.” There was no duress or coercion. Manish came into

the courtroom and willingly agreed to abide by the terms recited to the court. Counsel further stated

that during the two days of negotiations at the courthouse, Manish could have fired his attorney,

told the court he disagreed with everything, and wanted a trial. None of that occurred. Instead,

Manish advised the court that he agreed with the settlement terms and wanted them enforced.

¶ 51 Manish’s counsel argued that it presented three contractual defenses to this case. Starting

with duress, counsel claimed that the change in positions from requesting maintenance to no longer

requesting maintenance was a drastic change that amounted to duress. He then addressed the

amount and duration of maintenance to which Manish was entitled. He further argued that the

decline in health of Manish’s father also amounted to duress and therefore, the oral settlement

agreement should not be enforced.

¶ 52 Manish’s counsel also argued that the agreement was unconscionable stating that while the

60/40 split looked good on paper, it was no bargain for Manish because he would have received

15 substantially more, almost $1.5 million more, with a 50/50 split and maintenance. Further, he

would have no tax consequence with the maintenance unlike the other financial assets.

¶ 53 Manish’s counsel also argued that the agreement was vague and ambiguous to such extent

that it could not be said there was a meeting of the minds. He stated that Manish never saw Exhibit

A prior to the oral recitation, and he would never have agreed to split the Charles Schwab account

because that was all nonmarital. Counsel also argued the agreement was vague because there was

no allocation of debts. As to Exhibit A, counsel stated that even if the court allowed for

enforcement of the agreement, inclusion of the exhibit was wrong and the parties should be allowed

to “fight it out and figure out what assets *** are out there, and if they can’t figure it out, we’ll be

back in court, and have the court decide what assets” each party owns. Finally, Manish’s counsel

stated that if the settlement was going to be enforced, the written document should be a judgment,

not an MSA because his client would not voluntarily sign an MSA.

¶ 54 Following closing arguments, the court indicated that it considered the evidence,

testimony, and credibility of the parties and stated, credibility was “certainly a key factor in this

ruling.” The court continued:

“There are some presumptions that have been made and a lot of reference to the

maintenance statute and the—and the emphasis on 504(B), but it ignores all of 504(A),

which says the court shall first make a finding as to whether a maintenance award is

appropriate, after consideration of all relevant factors. Now I’m not going to fall down the

temptation of the rabbit hole that I think that our respondent wants me to go, which is to

try the case again through this hearing.

There was an opportunity to try the case. Court made itself available, made its court

calendar more than available to do so. I made myself available to facilitate whatever the

16 parties wanted, whether it was a settlement or not. In fact[,] we went through the effort and

the method by which to go into the courtroom and put the settlement agreement on the

record with me asking not just the attorneys, and there was no dispute, and no evidence

ever presented that Ms. Martinkus did not have the authority to speak on behalf of the

respondent to make any agreement.

But yet I still went and spoke to each party and asked if—is this the agreement that

you understand it to be? The respondent, yes. Resolve all these matters? Yes. Including the

waiver of maintenance? Yes. All right, and you do so freely and willingly? Yes. And this

is the order you want the court to enter and enforce if necessary? Correct, yes. There was

never any indication that he couldn’t even hear me at any point in time during that.

So that’s also a factor in terms of credibility that’s present here. *** [B]oth parties

had the benefit of competent counsel that have appeared before this court over and over

again. And they are officers of the court. And in fact[,] in this situation[,] we had extensive

testimony from Ms. Martinkus, which I find credible.

As to the basis of that Mr. Dempsey has ably put forth in terms of outlining for the

court in terms of duress, court finds that the respondent hasn’t met his burden of proof.

Even in his own testimony he contradicts himself. *** [T]hat’s a credibility issue, and a

problem just right there alone.

But that’s not the main part of all this. Regardless I am going to grant the motion

to enforce settlement. I’m denying the objection. *** [I]t’s clear that the respondent agreed

to the settlement, *** Even today he’s saying, I still don’t know what assets there were in

India. *** So[,] when you find them out it’s 60/40, it’s a real easy split there. Being

17 unconscionable, unconscionable, I find it to be fair and equitable. *** so that burden of

proof hasn’t been met.”

¶ 55 The court then asked what the parties intended to do with the settlement—whether an MSA

would be signed or if a judgment was necessary. Shruti’s attorney said she would prepare either

document but believed Manish’s attorney would require a judgment. Manish’s attorney stated,

“My suggestion would just be to prepare a judgment and send it to the court, and if the court feels

it accurately reflects what’s in the agreement, the court enter it.”

¶ 56 After the parties disputed what should be contained in the judgment, the court stated,

“I would caution against any game-playing relative to my rulings and what I’ve

heard today. It’s in every single marital settlement agreement we don’t necessarily specify

to the penny when we say we’re going to split something in a certain way, whether equally

or 60/40. *** I would suggest some reasonableness and move this matter forward because

at this point it seems like delay is not the chief goal here, it’s to move this matter forward

for both parties so they can move on to the next chapter of their lives.”

¶ 57 The parties returned on September 15, 2021, after the judgment of dissolution was

prepared. Manish’s attorney objected to the proposed judgment stating the document went beyond

the oral recitation by adding terms and provisions that embellished the agreement after the fact.

He stated that any time frames orally stated at the April 28, 2021, hearing, should be based on the

date of the judgment, not the date the agreement was recited to the court.

¶ 58 Manish’s counsel also argued that paragraphs D and E included additional information that

was not addressed during the recitation of the agreement to the court. Paragraph D awarded each

party the personal property in his or her possession, and paragraph E, which dealt with the parties’

vehicles, added language that placed responsibility for any vehicle debt on the party who received

18 the vehicle and further required the party receiving the vehicle to hold the other party harmless.

Manish’s counsel further argued that the valuation of the financial assets should be valued as of

the date of the judgment, not the date of the oral recitation. He objected to Exhibit A being attached

to the judgment and the inclusion of the Charles Schwab account in the 60/40 division because it

was nonmarital property.

¶ 59 Following counsel’s argument, the trial court went to paragraph D, which awarded the

personal property in each party’s possession, and asked Manish’s counsel what his client’s desire

was with that issue. Manish’s counsel stated that the parties continued to live in the same home

and were “going to have to come to an agreement on that issue.” The court asked if it was Manish’s

intent to quibble over every piece of personal furniture, and his counsel replied, “I hope not, but I

don’t know.” The court asked if the personal property involved substantial assets as opposed to

another $900 argument in a $4 million estate, asking Manish’s counsel, “Is there some personal

property that’s of substantial value that is not immaterial to the context of this case?” Manish’s

counsel replied, “No, I don’t know that there’s going to be a dispute.” The court then asked for

proposed language from Manish’s counsel and asked if he was suggesting that all the personal

property be sold and split 60/40. Manish’s counsel stated, “No. It’s my understanding that there

may be an agreement upon that *** but I don’t know about that.”

¶ 60 Thereafter, the trial court stated the following regarding the personal property language:

“Not only did the respondent have the benefit of an extensive hearing regarding objections

to a settlement agreement which the Court found he clearly assented to, even with my

asking the parties directly [if] any personal property is negligible in the context of a four

million dollar plus estate, and I asked today even whether there are some significant

personal property assets that are in dispute like some priceless oil painting or art collection

19 or something along those lines, but it seems like that that’s not present. So[,] I’m overruling

the objection and leaving paragraph D in.”

Regarding the debt language, the court stated, “Since there was no mention of it, and there still

is no outline or testimony regarding debts or obligations, I’m overruling the objection and leaving

that language in.”

¶ 61 With regard to Exhibit A, the court stated that it was going to allow that exhibit to “remain

attached, and the valuation date should be April 28th, the date of the agreements agreed to fully

and willingly in court that date.” Thereafter, the trial court entered the judgment of dissolution.

¶ 62 The judgment of dissolution, inter alia, barred the parties forever from seeking

maintenance. The parties’ home was to be sold and split 60/40. Each party was awarded the

personal property in their possession. Each received their automobiles. Except for $113,758 in the

Chase account, all financial assets would be split 60/40 with Manish receiving 60% and Shruti

receiving 40%. Manish was required to provide three years of records related to his Fidelity 401k,

Shruti would sign documents to liquidate the Axis account in India, the parties would divide the

gold, and the parties would sign all documents necessary to effectuate the split.

¶ 63 On October 15, 2021, Manish filed a motion to reconsider or modify. The motion claimed

the judgment of dissolution did not accurately reflect the oral agreement recited to the court on

April 28, 2021. The pleading further claimed the Charles Schwab account should not be divided

because it was Manish’s nonmarital property and proceeded to address Manish’s testimony

regarding the liquor store proceeds. The pleading further argued that the parties did not agree that

the valuation date for the division would be the date of oral agreement. He argued that by using

April 28, 2021, as the valuation date, Shruti was permitted to keep all income and property

acquired between April 28, 2021, and September 15, 2021, despite that being marital property

20 subject to equitable division. He further stated that by attaching Exhibit A to the settlement

agreement it would be made part of the agreement and division of the personal property was not

addressed in the oral recitation. Finally, Manish contended that the trial court erred by finding the

oral recitation was not too vague, ambiguous, or uncertain to constitute a valid oral contract and

further erred by failing to find the oral agreement was not the product of duress and was not

unconscionable.

¶ 64 On January 31, 2022, the trial court reiterated his previous credibility findings, specifically

finding that Ms. Martinkus’s testimony about Exhibit A was credible, and Manish’s denials were

not. The court further found any delay in valuation was caused by Manish and denied the motion

to reconsider in its entirety. Manish timely appealed.

¶ 65 II. ANALYSIS

¶ 66 Although not mentioned by Manish, this appeal stems from the denial of Manish’s motion

for reconsideration. “The purpose of a motion for reconsideration is to inform the trial court of

(1) newly discovered evidence previously unavailable at the time of the original hearing,

(2) changes that have occurred in the law since the original hearing, or (3) errors in the court’s

earlier application of the law.” Weidner v. Midcon Corp., 328 Ill. App. 3d 1056, 1061 (2002).

¶ 67 Typically, “[w]hether to grant a motion for reconsideration is a matter of discretion for the

trial court, and its decision will not be overturned absent an abuse of discretion.” Id. However,

when a motion for reconsideration merely recites prior arguments, it should not be granted. Id. As

Manish’s reconsideration simply readdressed the arguments previously presented in the original

objection, the trial court’s denial of the reconsideration must be affirmed, and therefore we shall

only address the trial court’s findings appealed by Manish.

21 ¶ 68 On appeal, Manish contends that the trial court (1) erred when it incorporated the parties’

oral settlement agreement into a judgment of dissolution despite Manish’s objections to the oral

settlement agreement prior to the entry of judgment; and (2) erred by entering a judgment of

dissolution that added terms not included in the oral settlement agreement. We shall first determine

whether there was a valid contract and then determine whether the written judgment correctly

incorporated the terms of the oral settlement.

¶ 69 Validity of Oral Settlement

¶ 70 A settlement agreement is a contract governed by principles of contract law. Solar v.

Weinberg, 274 Ill. App. 3d 726, 731 (1995). Oral settlement agreements are enforceable if there is

an offer, an acceptance, and a meeting of the minds between the parties regarding the terms of the

agreement. Johnson v. Hermanson, 221 Ill. App. 3d 582, 584 (1991). A meeting of the minds is

found whenever the parties’ conduct objectively indicates an agreement to the terms of the

settlement, even if one or more of the parties did not subjectively intend to be bound. Urban Sites

of Chicago, LLC v. Crown Castle USA, 2012 IL App (1st) 111880, ¶ 51.

¶ 71 Whether a contract exists, its terms and the parties’ intent are questions of fact to be

determined by the trier of fact, and an appellate court will not reverse the judgment unless it is

contrary to the manifest weight of the evidence. In re Marriage of Gibson-Terry, 325 Ill. App. 3d

317, 322 (2001); Webster v. Hartman, 309 Ill. App. 3d 459, 460 (1999); In re Marriage of Baecker,

2012 IL App (3d) 110660, ¶ 25. A finding regarding the validity of a settlement agreement is

against the manifest weight of the evidence only if the opposite conclusion is clearly apparent or

where a decision is palpably erroneous and wholly unwarranted. Kulchawik v. Durabla

Manufacturing Co., 371 Ill. App. 3d 964, 969 (2007).

22 ¶ 72 On appeal, Manish first contends that the property settlement could not be concluded by

an oral agreement due to the parties’ substantial financial assets and the length of the marriage.

This argument was never presented to the trial court. An argument cannot be considered on appeal

where it was never raised by the appellant in the trial court. Village of Lake Villa v. Stokovich, 211

Ill. 2d 106, 121 (2004). As such, this argument is forfeited.

¶ 73 Manish next contends that he diligently challenged the oral settlement agreement before a

judgment was entered; however, the argument presented claimed “the parties’ marriage was not

the kind of marriage that could be concluded through an oral agreement hastily conceived shortly

before it was recited to the trial court on April 28, 2021.” As this argument is similar to the initial

argument and was never presented to the trial court, it too is forfeited. Id.

¶ 74 Manish also argues that the trial court erred by enforcing the oral settlement agreement

when the terms were vague because the settlement was “hastily conceived” and “remarkably

lacking in detail” as the oral agreement failed to address how the parties would divide the personal

property or debts, and failed to specify which “retirement assets, cash, and investments, [were]

subject to the 60/40 division.” We disagree.

¶ 75 First, the evidence fails to support Manish’s claim that the oral settlement was “hastily

conceived.” Both Ms. Martinkus’s testimony and Manish’s testimony revealed three days of

settlement negotiations took place before the agreement was presented to the trial court on April

28, 2021. Reviewing courts have upheld oral settlement agreements when the parties negotiated

“over a lunch break” (In re Marriage of Gibson-Terry, 325 Ill. App. 3d at 326), for two hours

(In re Marriage of Steadman, 283 Ill. App. 3d 703, 710 (1996)), or simply on the morning trial

was set (In re Marriage of Haller, 2012 IL App (5th) 110478, ¶¶ 4, 35-36). No argument was

presented why three days was insufficient to negotiate the pending issues between the parties. As

23 such, we find the record fails to support Manish’s claim that the settlement agreement was “hastily

contrived.”

¶ 76 Nor does the evidence support Manish’s claim that the settlement agreement was

“remarkably lacking in detail.” An oral agreement that failed to contain either language addressing

a nonexistent item, or an immaterial term, fails to establish the agreement was “remarkedly lacking

in detail.” See First National Bank of Oak Lawn v. Minke, 99 Ill. App. 3d 10, 14 (1981) (a lack of

nonessential details will not render the contract unenforceable). Here, the record fails to support

the contention that marital debt and the personal property were material terms of the agreement.

¶ 77 As to the parties’ debts, none of the financial statements listed any marital debt, and

Manish’s prior counsel testified that the parties had no debt. The agreement was therefore not

lacking in detail based on nonexistent debt.

¶ 78 As to the personal property, the record is clear that the parties were focused on their most

valuable assets which included the financial accounts and the marital residence. The only

remaining assets listed on the financial affidavits were the parties’ two vehicles, and they were

addressed during the oral recitation. Given the lack of information regarding any other property,

the trial court could have properly inferred that any other property was not a material term of the

settlement. Supporting such inference is the lack of testimony or evidence regarding the personal

property. Despite Manish testifying on both days during the hearing on the motion to enforce, at

no time did Manish provide any information, testimony, or evidence regarding the personal

property or why the failure to address the alleged personal property during the oral recitation was

error. In fact, Manish’s own counsel conceded that no specific object was desired by his client or

had a significant value requiring consideration by the court. Here, the record lacks any evidence

that the parties’ personal property was essential, material, or even had calculable value. As such,

24 we cannot find that the trial court’s enforcement of the oral agreement, despite not addressing

personal property, was error.

¶ 79 Nor does the record support Manish’s contention that the oral contract was vague because

it was insufficiently specific regarding the financial assets. Ms. Martinkus’s recitation stated the

agreement involved “all issues” specifically including the parties’ “retirement assets, cash assets,

and investments.” The parties’ financial affidavits listed their financial assets, and we note that all

of the assets, for which values were provided, were included on Exhibit A. Manish’s counsel

testified that she used Exhibit A when she discussed the assets with Manish as well as when she

was reciting the oral agreement. She further testified that prior to the recitation, all the parties—

including Manish—were aware of what assets were contained on Exhibit A and were aware the

exhibit would be included in the written settlement agreement.

¶ 80 While Manish claims he never saw Exhibit A prior to the recitation of the settlement

agreement and was unaware the Charles Schwab account was included in the assets, such

contentions were controverted by Ms. Martinkus’s testimony, which the trial court unequivocally

found more credible. “[A] reviewing court will not disturb the trial court’s determination of

credibility because the trial court has a superior vantage point, which cannot be reproduced from

the cold record, to observe and judge the witnesses’ demeanor and credibility.” In re Marriage of

Diehl, 221 Ill. App. 3d 410, 424 (1991).

¶ 81 Manish further claims the oral settlement agreement was too vague to be enforced because

even if Exhibit A was accepted, it failed to address Shruti’s Indian assets. This argument is also

rebutted by the record. Manish testified that Shruti’s Indian assets provided the dividends that were

deposited in the Axis bank account. The oral agreement provided for division of the Axis account

25 as well as liquidation of the brokerage account linked to the Axis account. The record is devoid of

any evidence that Shruti held any asset that did not deposit dividends into the Axis account.

¶ 82 In sum, there was either no evidence supporting, or evidence directly contradicting,

Manish’s claims that the oral agreement was vague because it was hastily contrived, remarkably

lacking in detail, or insufficiently specific regarding the financial assets. As no opposite conclusion

is apparent, we find that the trial court’s determination that the oral agreement was not vague is

not against the manifest weight of the evidence.

¶ 83 Unfairness or Inequity

¶ 84 Manish also argues that the trial court erred by enforcing the oral settlement agreement

because it was neither fair, nor equitable, to award Shruti any portion of the Charles Schwab

account as that was his nonmarital property. First, he claims the 60/40 division as pronounced in

the oral recitation related solely to the marital assets and therefore did not include the Charles

Schwab account. Manish’s claim is controverted by the record which reveals the recitation

addressed both the marital and nonmarital assets as Manish was granted over $100,000 from the

Chase account as a nonmarital asset. Further, the evidence revealed that the Charles Schwab

account was jointly titled for over 20 years. Such title presumes the property was marital property.

In re Marriage of Olson, 96 Ill. 2d 432, 439 (1983).

¶ 85 Manish contends that he presented clear and convincing evidence rebutting the

presumption that the Charles Schwab account was marital at the hearing on the motion to enforce

the settlement. However, the issue at that hearing was whether the parties entered into a valid oral

settlement agreement on April 28, 2021. Neither during the oral recitation by Manish’s counsel,

nor when the court queried Manish as to whether he agreed with the recitation, did Manish express

confusion, or request clarification, regarding the classification of the Charles Schwab account as

26 marital property. Nor would any confusion be expected when Manish admitted his prior counsel

always classified that account as marital property and the sole exception, due to a nonmarital

classification, recited to the court was the Chase bank account.

¶ 86 All of Manish’s testimony regarding the Charles Schwab account was information Manish

held both prior to, during, and after, the time of the settlement. The fact that Manish later found

counsel who advised him the account could have been classified differently does not change the

fact that Manish voluntarily and willfully agreed with a 60/40 division of all the financial assets,

except the Chase account, when the court questioned him regarding his acceptance of the terms of

the settlement. See Filko v. Filko, 127 Ill. App. 2d 10, 17-18 (1970) (where a party already

consented to terms of settlement in open court, that party cannot change their consent merely by

changing attorneys).

¶ 87 Manish next claims the trial court erred by enforcing the parties’ settlement agreement

because the agreement was uncertain, lacking in essential terms, and therefore not binding on the

parties. Once again, Manish contends that the failure to address the parties’ debts or their personal

property during the oral recitation renders the contract unenforceable because there was no meeting

of the minds on those subjects. However, as noted above, the parties had no debt and there is no

evidence that the parties’ personal property was material.

¶ 88 Here, Manish also claims that his testimony about joint income tax liability based on the

rupee dividends in the Indian account set forth on Form No. 16A (Exhibit 5) revealed marital debt.

We disagree. Upon review of the exhibit, and contrary to Manish’s contention, the document is

not a statement of debt. The document is a certified statement from the Indian government

revealing that it had already deducted the amount of tax due on the dividends from the bank

account at issue and thereafter deposited the tax payment in the government bank account on or

27 before July 7, 2020. The document does not reveal debt; it reveals payment of the debt. As such,

this argument fails to alter our previous conclusion regarding the alleged marital debt.

¶ 89 Manish further argues that the trial court’s enforcement of the settlement was unfair and

inequitable based on his waiver of maintenance and the amount he would have received had he

not waived maintenance. We find this argument both presumptuous and speculative. As noted by

the trial court, Manish’s argument is premised on the language in section 504(b-1) of the Illinois

Marriage and Dissolution of Marriage Act (750 ILCS 5/504(b-1) (West 2020)) and ignores the

language in section 504(a) (id. § 504(a)). Section 504(b-1) provides the calculations associated

with the amount and duration of maintenance. Id. § 504(b-1)(1)(A), (B). Section 504(a) lists 14

factors to assist the trial court in determining whether an award of maintenance is even appropriate.

Id. § 504(a)(1)-(14). There is no evidence in the record that the trial court would have found an

award of maintenance appropriate after review of the statutory factors. As such, we find this

argument has no merit.

¶ 90 Nor do we find Manish’s arguments that it would have been more proper to (1) attribute

60% of the marital debt to Shruti, (2) provide him with 60% of the personal property, as opposed

to the 50%, because he waived maintenance, and (3) that the failure to recite each financial asset

caused the agreement to be so “uncertain” that it was not binding to have merit. For a contract to

be enforceable, “the material terms must be definite and certain, meaning that the court is enabled

from the terms and provisions, under proper rules of construction and applicable principles of

equity, to ascertain what the parties have agreed to do.” In re Marriage of Haller, 2012 IL App

(5th) 110478, ¶ 26. Here, the oral recitation stated the settlement was on “all issues” and then

provided the material terms of the agreement. There was no evidence of debt, or that the parties’

personal property was of significant value. Further, the credible testimony confirmed that Exhibit

28 A, which clearly delineated the Charles Schwab account as a joint marital asset, was reviewed by

the parties and all agreed it would be attached to the settlement. Under such circumstances, and

the specific language used during the oral recitation, the requirements for an enforceable contract

are met.

¶ 91 In sum, Manish’s claims are either directly rebutted by the record, controverted by

testimony of his prior counsel—who was found more credible, or have no support in the record.

As such, we cannot find that the trial court’s conclusion that the settlement was not unfair or

inequitable because it was vague, or failed to include material terms, was against the manifest

weight of the evidence.

¶ 92 Duress

¶ 93 Manish also contends the trial court erred when it enforced the agreement because the

agreement was the product of duress. “Duress has been defined as a condition where one is induced

by a wrongful act or threat of another to make a contract under circumstances which deprive him

of his free will ***.” Kaplan v. Kaplan, 25 Ill. 2d 181, 185 (1962). “Acts or threats cannot

constitute duress unless they are wrongful,” and include acts “that are wrongful in a moral sense.”

Id. at 186. “[T]he threat must be of such nature and made under such circumstances as to constitute

a reasonable and adequate cause to control the will of the threatened person, and must have that

effect, and the act sought to be avoided must be performed by the person while in that condition.”

(Internal quotation marks omitted.) Id.

¶ 94 Here, Manish argues that the record demonstrates that he was “subjected to extreme

pressure to settle the case.” He claims he “was left with the impression that he had no choice in

the matter except to accept the settlement that was recited to the court” because the agreement was

completed only minutes before the settlement agreement was announced to the court. However, as

29 noted above, it is undisputed that the parties negotiated the settlement, at arm’s length with their

attorneys, for three days before the settlement was announced.

¶ 95 Manish also claims that his father’s illness, coupled with his counsel’s statements that the

judge did not like him, created a level of stress greater than other litigants and “these factors all

combined to impair” his “free will to reject a hastily conceived settlement.” However, Manish fails

to explain how his stress was different, or greater than, that of other litigants. Stress is common in

dissolution proceedings and stress alone is insufficient to establish duress or coercion. In re

Marriage of Flynn, 232 Ill. App. 3d 394, 401 (1992). Nor does Manish address Ms. Martinkus’s

testimony that (1) controverted Manish’s claims about what she said to him following the

prehearing conference with the judge, (2) stated that despite his father’s illness, Manish never

asked to continue the negotiations, and (3) stated Manish acted in a manner that gave no indication

that his father’s illness affected him. As noted above, the trial court found Ms. Martinkus’s

testimony credible.

¶ 96 Manish also argues that he was under duress because his attorney refused to provide a

written settlement agreement. Again, Manish’s claim is contradicted Ms. Martinkus’s testimony

that indicated Manish never requested a written copy of the agreement before the agreement was

recited to the court. Further, Manish was in the courtroom when his attorney read the agreement

into the record. When questioned about the agreement by the court, Manish did not express concern

regarding any of the terms or ask to wait until the agreement was in writing. Instead, he advised

the court that he was in agreement with the recited terms and wished to be bound by them. While

Manish contends that he was “bereft of the quality of mind necessary to make the agreement,” the

contention is undermined by Manish’s admission during the enforcement hearing that he was

30 aware of the agreement terms that were going to be recited to the court; he was just “not in the

mood” to make “choices at that time.”

¶ 97 A party’s change of heart or second thoughts regarding an agreement fails to affect the

enforceability of the agreement. In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 32; In re

Marriage of Stoker, 2021 IL App (5th) 200301, ¶ 47. To hold otherwise would allow parties to

change their minds at will, which would result in dilution of the binding effect of oral settlements.

In re Marriage of Lorton, 203 Ill. App. 3d 823, 826 (1990). Given the evidence of record, we

cannot find the trial court erred by enforcing the settlement because the terms were obtained under

duress, as an opposite conclusion is not apparent.

¶ 98 For the above-stated reasons, we find the trial court’s enforcement of the oral settlement

was not against the manifest weight of the evidence. Therefore, we affirm the court’s finding that

the settlement was valid and enforceable.

¶ 99 Terms of the Judgment

¶ 100 Manish also argues that the trial court erred by entering a judgment of dissolution of

marriage that added terms not included in the parties’ oral settlement agreement. More specifically,

Manish contends that the judgment of dissolution (1) directed the parties to pay their own debt and

hold the other spouse harmless for said debt, (2) allowed for the inclusion of Exhibit A,

(3) provided a valuation date of the property despite no such valuation date being addressed in the

oral agreement, and (4) addressed a division of personal property beyond the financial assets. As

many of these issues were previously addressed, we shall only briefly address them here.

¶ 101 We initially address the fact that, unlike the argument below, Manish now contends that

the trial court’s inclusion of additional language was contrary to law and cites statutes and case

law in support thereof. Neither the argument nor the citations provided on appeal were presented

31 to the trial court. It is “axiomatic that questions not raised in the trial court are deemed waived and

may not be raised for the first time on appeal.” Western Casualty & Surety Co. v. Brochu, 105 Ill.

2d 486, 500 (1985). The current argument, which includes aspects distinct from that raised below,

is also waived. Jeanblanc v. Sweet, 260 Ill. App. 3d 249, 254 (1994).

¶ 102 The arguments presented by Manish before the trial court required the court to determine

whether an oral contract existed, its terms and conditions, and the intent of the parties, which are

all questions of fact determined by the trial court. Emmenegger Construction Co. v. King, 103 Ill.

App. 3d 423, 427 (1982). The trial court’s findings as to the terms of the settlement must be

affirmed unless they are against the manifest weight of the evidence. In re Marriage of Gibson-

Terry, 325 Ill. App. 3d at 322. A judgment is against the manifest weight of the evidence only

when an opposite conclusion is apparent or the findings appear unreasonable, arbitrary, or not

based on the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995).

¶ 103 As to the marital debt, none was listed on any of the five financial affidavits filed with the

courts. While Manish contended that the Indian Form No. 16A was similar to an American W-2

and listed tax debt related to the dividends obtained on the Indian assets, we reviewed the exhibit

and determined that it was not evidence of debt, it was evidence of debt already paid. As there is

no evidence of any marital debt, the inclusion of language regarding debt in the judgment is

superfluous, fails to alter substantive rights of the parties, and is of no merit. As such, inclusion of

language addressing the parties’ debt was not against the manifest weight of the evidence.

¶ 104 With regard to the inclusion of Exhibit A, the trial court heard conflicting testimony, and

ultimately found the testimony of Ms. Martinkus—that stated the document was used during the

settlement negotiations and the parties knew the document would be included in the written

settlement—was more credible than Manish’s testimony to the contrary. As the trial court was in

32 the best position to determine the credibility of the witnesses, we defer to the trial court’s

credibility ruling. In re Marriage of Manker, 375 Ill. App. 3d 465, 477 (2007). Here, we do not

believe any document specifically listing the material assets, as an attachment to a judgment of

dissolution, is improper when the parties’ agreement covered “all issues,” the assets set forth on

the exhibit were identical to those set forth in the parties’ financial affidavits, and the parties were

aware that the exhibit would be attached to the MSA. As such, the trial court’s inclusion of Exhibit

A as an attachment to the judgment was not against the manifest weight of the evidence.

¶ 105 As to the valuation date, it is clear upon review of the oral recitation that the parties advised

the court that they wanted the settlement to immediately bind them. Counsel for both parties, as

well as both Manish and Shruti, confirmed the terms of the agreement. Given these personal

affirmations to the court, as well as Ms. Martinkus’s testimony regarding Manish’s providing the

updated asset values found on Exhibit A during the settlement negotiations, we cannot find that

the trial court’s setting the valuation date to run with the oral settlement was against the manifest

¶ 106 Finally, we address the inclusion of the personal property language. Here, it is undisputed

that although the settlement agreement was for “all issues,” the oral recitation failed to address

how the personal property would be divided. As noted above, we do not find the lack of

information critical as the personal property was clearly not a material term of the settlement.

While the court repeatedly questioned Manish, as well as his counsel, about this issue while trying

to determine the intent of the parties, no proposed language on this issue was acceptable to Manish

or his counsel. Instead, Manish’s counsel inferred that the parties had already reached a settlement

on this issue, which if true, moots this issue.

33 ¶ 107 Regardless, no such agreement addressing the personal property is contained in the record.

While the judgment language incorporates the parties’ intent to settle all the issues, the language

utilized fails to assist the parties in distributing the personal property if no subsequent agreement

regarding distribution of their personal property was ever reached. Therefore, we find the trial

court’s inclusion of the language in paragraph D is unsupported by the record and against the

manifest weight of the evidence. Therefore, the language is vacated, and we remand the case back

to the trial court to determine whether settlement on this issue was reached, and if not, to provide

the parties an opportunity to address distribution of the personal property owned at the time the

oral settlement was reached.

¶ 108 As a final note, we admonish appellant, and his counsel, of the sanctions provided by

Illinois Supreme Court Rule 375(b). Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). An appeal is frivolous,

and therefore warrants sanctions or there are grounds for sanctions, when (1) it is not reasonably

well-grounded in fact, (2) it is not warranted by existing law, (3) it is not a good faith argument

for the extension, modification, or reversal of existing law, or (4) a reasonable attorney would not

have brought the appeal. Enbridge Pipeline (Illinois), LLC v. Temple, 2019 IL App (4th) 150346,

¶ 64. An appeal not taken in good faith can serve as grounds for sanctions when the primary

purpose is to delay, harass, or cause needless expense. Id.

¶ 109 Despite this decision vacating one sentence of the judgment, we find the majority of

Manish’s contentions, and assertions on appeal, were arguably not brought in good faith because

they were not reasonably well-grounded in the facts or the record in this case, and/or were brought

with the primary purpose to delay, harass, and cause needless expense. Accordingly, we remind

counsel, and caution his client, with regard to any future filings, that sanctions, including an award

34 of reasonable attorney fees and costs as a result of defending against a frivolous appeal, could be

warranted, if it is found the filings were not made in good faith.

¶ 110 III. CONCLUSION

¶ 111 For the reasons stated herein, we affirm the trial court’s finding that the parties’ oral

argument was valid and enforceable. We also affirm the trial court’s judgment of dissolution

except for paragraph D and remand the case back to the circuit court solely to allow the parties to

address the distribution of personal property possessed as of April 28, 2021.

¶ 112 Affirmed in part and vacated in part; cause remanded.