2024 IL App (2d) 230525-U No. 2-23-0525 Order filed June 18, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re MARRIAGE OF LYNN HAGAN, ) Appeal from the Circuit Court ) of Lake County. Petitioner-Appellee, ) ) and ) No. 20-D-411 ) JOHN HAGAN, ) Honorable ) Jacquelyn D. Melius, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices Schostok and Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in finding conscionable and enforcing the parties’ marital settlement agreement and in awarding petitioner attorney fees. Affirmed.
¶2 Petitioner, Lynn Hagan, petitioned to dissolve her marriage to respondent, John Hagan.
The parties entered into a marital settlement agreement, and John sought to vacate it. The trial
court denied John’s motion and his subsequent motion to reconsider and awarded Lynn attorney
fees. John appeals, arguing that (1) the agreement is unenforceable because it lacks the requisite
specificity and definiteness; (2) it should be rescinded because the court liquidated an account from
which John was due funds, as provided in the agreement; (3) it is unconscionable because it is one- 2024 IL App (2d) 230525-U
sided and he felt deprived of meaningful choice when he executed it; and (4) the court abused its
discretion in ordering him to contribute $35,000 toward Lynn’s attorney fees. We affirm.
¶3 I. BACKGROUND
¶4 The parties were married in 1987 and had two children who are emancipated. On March
9, 2020, Lynn petitioned to dissolve the marriage. Both parties were 58 years old at that time.
John is employed by SEI as a client portfolio manager and earns about $300,000 per year. Lynn
was a homemaker during most of the marriage and is unemployed.
¶5 In an agreed order, dated October 28, 2020, the parties decided that, upon the sale of their
listed marital residence, the net proceeds would be deposited into a trust account. In November
2020, $95,407.32 in net sales proceeds were deposited into the trust account. In an agreed order,
dated December 9, 2020, the court ordered the following sums be distributed from the trust
account: $20,000 to Lynn, $20,000 to John, and $5000 each to the parties’ attorneys. John agreed
to pay Lynn’s bills and expenses and to deposit $1500 per month in their joint checking account
for Lynn’s sole use.
¶6 In a June 7, 2021, order, the trial court directed John to pay Lynn maintenance of $5700
per month (based on his $296,868.87 in gross income and Lynn’s zero income). Lynn sought
reconsideration of this order, arguing that the maintenance amount should have been $7464.33 per
month (based on $298,572 in gross income) and that she was entitled to 32 years and 5 months of
maintenance. On August 2, 2021, the trial court issued a rule to show cause against John for
changing the beneficiary on the parties’ life insurance policies to exclude Lynn, for his failure to
provide documentation, and for his failure to provide an accounting of a bonus he received from
his employer. On September 20, 2021, the trial court denied Lynn’s request to reconsider the
maintenance amount, ordering that it remain at $5700 per month. The court also granted Lynn
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$10,000 as a partial distribution of her request for interim attorney fees, to be paid from the trust
account. The trial court subsequently, on November 10, 2021, ordered John to pay $7500 in
Lynn’s interim attorney fees and later, on July 7, 2022, ordered him to pay $34,000 in her interim
fees from the trust account. On October 7, 2022, Lynn petitioned for attorney fees contribution,
requesting $75,000 in contribution from John.
¶7 A. Memorandum of Understanding
¶8 The case was for set for trial on November 16, 2022, but the parties agreed to a pretrial
conference regarding all issues.
¶9 On that date, the parties entered into a memorandum of understanding, which provides as
follows. John will pay Lynn $5700 net per month in maintenance, which was “based upon John’s
based income and bonus income.” John also agreed to pay up to $850 per month toward Lynn’s
health insurance and to pay her $70,000 over six years. “All allegations of dissipation are hereby
resolved.” The parties would divide all marital assets 80/20, except that John would receive 125
points from a Disney timeshare and their jet skis and trailers. All debt, excluding IRS debt through
the 2022 year, would be divided 90/10, with John paying 90% and Lynn paying 10%. John would
receive $3500 from the trust account, and Lynn would receive any remaining proceeds. The parties
would equally share the existing marital frequent flyer miles and hotel points. The parties would
also exchange bank and credit card statements within 72 hours to facilitate drafting of the
dissolution judgment.
¶ 10 On December 1, 2022, the trial court ordered John to produce documentation of his
frequent flyer and hotel points and ordered Lynn to produce her father’s (with whom she lives in
Florida) bank statements.
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¶ 11 On December 15, 2022, John moved to vacate the memorandum of understanding,
asserting that, upon exchanging bank statements, he learned that Lynn received several bank
deposits: $4000 in September and $3000 and $100 in November. He argued that Lynn was
receiving a stream of income for which he was entitled to additional information, as she
represented that she was unemployed and did not receive income. John also argued that he
believed that his contribution to Lynn’s health insurance should terminate when she becomes
eligible for Medicare (asserting this was explicitly memorialized in his and Lynn’s settlement
letters, which are not contained in the record on appeal). He asserted that, given this newly
discovered information regarding Lynn’s stream of income, the memorandum of understanding
should be vacated as inequitable and unjust. Alternatively, he argued that the agreement be
modified to account for the stream of income or to allow him time to investigate.
¶ 12 Also on December 15, Lynn filed an emergency petition to enforce the memorandum of
understanding and for attorney fees. She noted that she has a high school education and is in poor
health. John, Lynn alleged, began having an extra-marital affair with her best friend about 10
years earlier, and he depleted the marital estate, including all retirement plans. She also asserted
that John had refinanced the marital residence and withdrawn $100,000 in equity. Lynn argued
that the memorandum of understanding was clear and unambiguous and asserted that John was
attempting to financially undermine her. She also asserted that the stream of income he referenced
consisted of his maintenance payments to her. Lynn also sought attorney fees from November 16,
2022, to date and sought entry of her redlined marital settlement agreement (which is not contained
in the record on appeal)+.
¶ 13 On January 6, 2023, the trial court ordered John to produce, within five business days, all
documents relating to the frequent flyer miles, hotel points, and updated bank statements. It also
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ordered Lynn to produce, within five business days, all documents concerning late fees on credit
cards, tax payments, a Discover credit card statement, and updated bank statements. It set the case
for final prove-up.
¶ 14 On March 20, 2023, Lynn petitioned for a rule to show cause for John’s alleged violation
of various orders and for attorney fees. She asserted that John was ordered to pay all credit card
debt but did not do so and opened credit card accounts in Lynn’s name without her knowledge and
that they had outstanding balances that had gone into collections. Lynn also asserted that John had
removed her as a beneficiary on their life insurance policies, even though he had been ordered to
reinstate her as a beneficiary on the policies.
¶ 15 On March 22, 2023, the trial court awarded Lynn $10,000 as John’s contribution toward
her attorney fees (of which $6404.32 would come from the remaining funds in the trust account).
¶ 16 On May 4, 2023, Lynn moved to compel entry of a dissolution judgment or to hold John
in default. She argued that the parties had reached a binding settlement agreement on all terms
related to their divorce. Further, Lynn asserted that: both parties signed the memorandum of
understanding, they were each represented by counsel, and John’s counsel drafted a marital
settlement agreement that was agreed to by the parties (except for a few details regarding current
outstanding debt and the payment of Lynn’s attorney fees). In response, John raised the affirmative
defense of fraudulent representation, arguing that Lynn delayed producing her bank statements
and, once John received them, he learned that Lynn had been untruthful regarding her income.
Specifically, John asserted, she received the stream of payments (via Venmo) solely in her name,
he never received a copy of her Venmo account history, and she did not disclose in her financial
affidavit the existence of the account. He argued that Lynn’s assertion that she had no other source
of income besides maintenance from him was false and that she made the statement to have John
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accept settlement terms that gave her a disproportionate share of the marital estate and an
extremely limited amount of marital debt.
¶ 17 On May 30, 2023, the trial court (Judge Michael G. Nerheim) entered an order granting
Lynn’s motion to compel entry of the dissolution judgment and ordering that the memorandum of
understanding be incorporated into the marital settlement agreement. It denied Lynn’s request for
attorney fees and denied John’s motion to vacate the memorandum of understanding (finding it
conscionable). (The record on appeal contains no transcript from this hearing.) In a September
14, 2023, order, the trial court (Judge Nerheim) again granted petitioner’s motion to compel entry
of a dissolution judgment or, in the alternative, to hold John in default. It found that the
memorandum of understanding and order entered on November 16, 2022, were binding on the
parties and that the court would “enforce the same.”
¶ 18 On September 22, 2023, John moved to reconsider the court’s May 30 and September 14,
2023, orders, arguing for the first time that the memorandum of understanding lacked definite and
certain terms (i.e., it specified no time period for the maintenance obligation, did not specify which
assets are marital and which are non-marital, and did not specify what the marital debts are and
how they will be allocated to meet the ordered division) and that there was no meeting of the minds
for it to be binding. Also, he argued that the memorandum was unconscionable, as he was ordered
to pay maintenance more than the statutory guidelines and that no basis was recited specifying
what income was used. John argued that the court changed the contract terms when it ordered that
John receive $3500 from the trust, but, in a March 22, 2023, order, liquidated the account, thereby,
leaving no proceeds from which he could receive the $3500. Finally, he raised again the argument
that there was no term specified for the duration of his contribution toward Lynn’s health
insurance.
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¶ 19 On October 2, 2023, the trial court (Judge Nerheim) denied John’s motion to reconsider,
finding it untimely. It noted that, on May 30, 2023, it had addressed the issues when ruling on
John’s motion to vacate and Lynn’s motion to compel. The court rejected John’s argument that,
because he raised the issue pre-decree, it was timely.
¶ 20 A prove-up hearing (before Judge Jacquelyn Melius) was also held that day. Lynn testified
that she lives in Florida with her father and has health issues, including rheumatoid arthritis,
fibromyalgia, ulcerative colitis, and a hiatal hernia. She filed a financial affidavit and testified to
various credit and debit cards and bank accounts. John testified that he was represented by counsel
on November 16, 2022. He tendered his 2022 W-2 during discovery, and it showed a gross income
of $302,000. He listed credit cards in his (September 5, 2023) financial affidavit.
¶ 21 John further testified that he signed the memorandum of understanding but that he was told
twice during the hearing by the trial judge (Judge Slavin) that, if he did not sign it, he would not
like the consequences. “She just said that if you don’t reach an agreement, that you will not like
the outcome.” “[T]hat’s what made me sign it basically.” Addressing the maintenance provision,
John testified that it lacked a duration. Similarly, the medical insurance provision lacked a
duration; John understood that his obligation would end when Lynn became eligible for Medicare.
Marital assets were not defined, nor were nonmarital assets. The trust account had no assets, he
asserted, as the proceeds were used for Lynn’s attorney fees. He received no money from the
liquidation of the account. The memorandum did not list the marital assets, but he filed a financial
affidavit that listed all his bank accounts.
¶ 22 John stated that he did not agree, on November 16, 2022, that certain of Lynn’s accounts
would be designated as nonmarital accounts. During the marriage, John withdrew funds from his
retirement accounts and incurred a tax penalty as a result.
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¶ 23 The trial court noted that it did not find it credible that Judge Slavin pressured the parties.
On October 19, 2023, the court entered an order noting that it had denied John’s motion to
reconsider, finding that the matter was not proved up, and setting the case for an evidentiary
hearing on Lynn’s petition for contribution to attorney fees.
¶ 24 On October 23, 2023, the court heard argument on the proposed dissolution settlement.
Lynn testified that John did not pay her $11,666 by March of 2023. She does not have funds to
further litigate the memorandum of understanding or the means to pay outstanding attorney fees.
She receives $5700 per month in maintenance, does not pay rent or utilities, and she owes over
$70,000 to her attorney.
¶ 25 On October 24, 2023, the trial court found that a final prove up was entered on the record
and that a final dissolution judgment would be submitted to the court for entry. It continued the
case for an evidentiary hearing on Lynn’s petition for contribution to attorney fees. The court
found that the parties could determine what is a marital asset and what was not a marital asset.
¶ 26 B. Dissolution Judgment
¶ 27 On November 1, 2023, the trial court entered a judgment of dissolution of marriage. In its
order, the court recounted that the parties had entered into the memorandum of understanding and
order (which it attached to its order), which had been signed after “several conferences over several
hours regarding all issues.” Further, it noted that Lynn’s motion to compel entry of a dissolution
judgment had been granted, John’s motion to vacate the memorandum was denied, and the matter
was proved up on October 23, 2023. The court dissolved the marriage, incorporating by reference
into the record the memorandum and order. The court ordered John to pay Lynn $5700 in
maintenance as agreed to in the memorandum and order, plus up to $850 per month toward
contribution for her health insurance premiums, with Lynn to obtain her own policy. It ordered
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that John receive 125 points from the Disney timeshare (to be used by February 29, 2024) and that
Lynn receive the timeshare as her sole property and with all remaining points. The court divided
the parties’ marital bank accounts 80/20, with Lynn receiving 80% of the value of the accounts
and John receiving 20% of the value as of November 16, 2022. The jet skis and trailers were
awarded to John. Addressing retirement accounts, the court ordered that they be divided 80/20,
with Lynn receiving 80% of the value (as of November 16, 2022) and John receiving 20%. The
parties were to equally divide their frequent flyer miles and hotel points as of November 16, 2022.
Addressing the dissipation settlement, the court ordered John to pay Lynn $70,000 over six years
as and for a property settlement. Beginning in 2024, John will “pay Lynn a sum, after the receipt
of his bonus in January, but the payment shall be not later than March. The payment shall be no
less than $11,666.00. Payments shall continue until the sum is paid off.”
¶ 28 Next, addressing debts and liabilities, the trial court ordered that the parties’ debt
(excluding the IRS debt) be divided 90/10, with John paying 90% and Lynn paying 10% of their
debt as of November 16, 2022. It ordered that John be solely responsible for all IRS debt through
the tax year 2022. “The Court believes that the parties can determine what’s a marital asset and a
nonmarital asset.” The court also noted that, if a modification needed to be made, a motion could
be filed. Finally, the court addressed attorney fees and costs, noting that, on October 7, 2022, Lynn
petitioned for contribution to attorney fees and that the petition was set for final hearing on
November 1, 2023. The court ordered the parties to exchange account statements to facilitate the
division of their accounts.
¶ 29 C. Attorney Fees
¶ 30 On the same date, the court held an evidentiary hearing on Lynn’s petition for contribution
to attorney fees. John testified that he was the primary wage earner during the parties’ 35-year
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marriage. His gross income was $298,577 in 2020, $297,424 in 2021, and $302,066 in 2022. John
lives alone in Deer Park in a two-bedroom, two-bath apartment. On his September 5, 2023,
financial affidavit, he listed his monthly gross income at $18,125, which equals $217,500 per year;
he did not list a bonus because it is not guaranteed and “it could be zero.” (Unlike in the past,
there has been no guidance from management this year as to whether there will be a bonus.) In
each of the prior three years, he received a bonus of about $80,000. In the affidavit, John listed
paying $5800 per month in maintenance, whereas he pays $5700 per month; John testified this
was a typographical error. John listed the following additional monthly expenses: $2771 in living
expenses; $296 for the Disney timeshare and storage unit (which is possibly double counted and
may be included in household expenses); $833 in legal fees (but testified he pays more than that
and paid $5000 in monthly legal fees in 2022); $750 in groceries; $5675 in household expenses;
$800 on entertainment expenses; $250 on vacation expenses; and $154 in long-term disability
insurance. Thus, John’s total monthly living expenses total either $8771 or $8475 (the latter of
which equals $101,700 per year). He testified that he uses his remaining income for debt service,
which is about $2723 per month (or $32,676 per year). John further testified that his 401(k) plan
account has a balance of $44,723 (as of June 30, 2023), and his Vanguard IRA has a value of
$2812 (as of August 31, 2023).
¶ 31 John further testified that he paid his former attorney (Weis Kunz) $70,000 in fees. He
paid $24,500 to his former attorney Evan Mammas, and $13,000 to his current attorney. He is not
of an age where he can access his retirement accounts and can only take a withdrawal from one
account. When asked about his $80,000 bonus that he received in early 2023, John testified that
he spent it all on attorney fees. If the court ordered him to pay Lynn’s fees, he has no ability to
pay them. Per regulations affecting his employment, he cannot default or claim bankruptcy; if he
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does, he is subject to dismissal. Every year, he is allowed to take (and does take) a $20,000 draw
against his bonus.
¶ 32 Lynn testified that she paid her current attorney about $85,000 (paid from interim fees,
maintenance, and her $20,000 premarital distribution). She still owed about $70,000 to $75,000
in fees. Lynn is unemployed, lives with her father, is in poor health, and has no job training. Lynn
does not pay rent to her father and does not believe she can live on her own. She has about $2300
in her bank account, and her only income is the $5700 in monthly maintenance from John. Most
of her expenses, she testified, are paid by her father. Lynn pays $120 per month for a phone, $870
in monthly household expenses, $1105 in transportation expenses, and $752 for a car payment.
Personal expenses equal $2300 per month. Lynn has a Morgan Stanley (formerly Vanguard)
401(k) plan that has about $18,649 in assets, but she cannot draw from it and a portion will go to
John. John has a retirement account through his employer with $45,000 in assets, but Lynn is not
able to draw from it.
¶ 33 Lynn completed a financial affidavit with estimated living expenses in May 2022. Rent
for an apartment in Florida where she lives would cost $1800 for a one-bedroom unit and $2400
for a two-bedroom unit. Monthly living expenses would be $3421, and health insurance would be
$1670. She bought a new 2022 Ford Bronco for $33,000. She paid her first attorney (David
Kerpel) $10,000. Lynn testified that she does not have the means to pay her outstanding attorney
fees or the ability to earn any income. She is asking John to contribute $75,000 to her outstanding
attorney fees.
¶ 34 Lynn further testified that, during the marriage, she lived in a four-bedroom house with a
pool, went out to dinner, and traveled frequently.
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¶ 35 Lynn’s attorney asserted that Lynn’s outstanding balance with her is $68,176. She testified
that she has practiced law for over 30 years and charges $375 per hour. Lynn paid her $85,000 to
date.
¶ 36 The trial court found that the attorney fees were reasonable and necessary and entered a
judgment in the amount of $35,000 against John. It noted that Lynn received $5700 in monthly
maintenance, had a car payment of $752 per month, and spent $200 per month on grooming,
reflecting “some liquid money available to pay expenses.” The court also noted that John spent
$800 per month on dining and entertainment, $250 for vacations, $100 for grooming, and $2771
for rent. He also deposited funds in his bank accounts. Thus, “[b]oth parties have some money to
spend.” John appeals.
¶ 37 II. ANALYSIS
¶ 38 John argues that the trial court erred in enforcing the memorandum of understanding
(specifically, denying John’s motion to vacate, granting Lynn’s motion to compel, and denying
John’s motion to reconsider), where (1) it lacked definite and certain terms to be an enforceable
agreement; (2) he had grounds to rescind the agreement, where the court liquidated the trust
account and changed the terms by making it impossible for him to be awarded the funds; (3) it was
unconscionable, given the conditions under which it was made and the fact that it is one-sided; and
(4) the attorney fee contribution award is thereby erroneous or, alternatively, the court erred in
awarding Lynn $35,000 in fees because she has an ability to pay and John does not. For the
following reasons, we reject John’s arguments.
¶ 39 As a preliminary matter, we note that Lynn did not file a brief in this appeal. We will
nevertheless address the merits of the appeal under the principles set forth in First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). Pursuant to Talandis,
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in the absence of an appellee’s brief, a reviewing court should address an appeal on the merits
where the record is simple and where the claimed errors are such that the court may easily decide
the issues raised by the appellant. In re Marriage of Earlywine, 2013 IL 114779, ¶ 13.
¶ 40 1. Enforceability
¶ 41 Turning to the merits, John argues first that the memorandum of understanding is an
unenforceable contract because it lacks definite and certain terms required for the formation of a
contract. First, he contends, it does not define the duration of the maintenance obligation (he
believes the obligation is reviewable when he reaches social security retirement age, denies the
trial court told him it is permanent, and Lynn believes it is permanent). Second, it does not state
on what basis maintenance was calculated, asserting that this is an essential term for nonguideline
maintenance awards. 750 ILCS 5/504(b-2)(2) (West 2022). On this point, John asserts that the
$5700 maintenance award is an upward deviation from the statutory guidelines ($302,000 gross
income for John and zero for Lynn, yields $5488 per month, he asserts, under the guidelines).
Third, John argues that the memorandum lacks a duration for his obligation to pay Lynn’s health
insurance premiums (he believes it is short term until she is eligible for Medicare, and Lynn
disagrees). Fourth, John asserts the memorandum is incomplete and uncertain as to the division
of assets. Assuming the 80/20 split is in Lynn’s favor, the agreement, he notes, does not state
which assets are marital and which are nonmarital, the valuation date, and who is responsible for
any tax consequences and transfer fees. Fifth, John argues that the memorandum does not include
a date by which he needs to use his awarded Disney points and that the court ultimately supplied
a date that is unrealistic. Finally, John asserts that the memorandum allocated 90% of the debt to
him but does not state what the debts are or how the allocation will be accomplished. Because the
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memorandum does not contain several essential terms, he argues, it does not rise to the level of an
enforceable contract.
¶ 42 It is well settled that Illinois law favors the amicable settlement of property rights in cases
of marital dissolution. In re Marriage of Lorton, 203 Ill. App. 3d 823, 825 (1990). To promote
the amicable settlement of disputes between parties in a divorce action, the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2022)) provides that parties may
enter into an agreement containing provisions for disposition of their property, maintenance,
support, and parental responsibility allocation. Id. § 502(a). The terms of the settlement
agreement, except for those providing for support and parental responsibility allocation, are
binding on the court, unless it finds, after considering the economic circumstances of the parties
and any other relevant evidence produced by the parties, that the agreement is unconscionable. Id.
§ 502(b). Thus, settlement agreements are binding absent a finding of unconscionability. In re
Marriage of Wig, 2020 IL App (2d) 190929, ¶ 19. “If the parties decide to settle their property
rights by mutual agreement rather than by statute, they are bound to the terms of their agreement.”
In re Marriage of McLauchlan, 2012 IL App (1st) 102114, ¶ 21.
¶ 43 The terms of the settlement agreement are subject to the rules of construction for contracts,
and the burden rests on the party asserting the agreement to establish its existence by clear and
convincing evidence. Lorton, 203 Ill. App. 3d at 826; In re Marriage of Doermer, 2011 IL App
(1st) 101567, ¶ 27. For the agreement to be enforceable, the material terms must be definite and
certain, so that the trial court can determine from the terms and provisions, under the rules of
construction and applicable principles of equity, what the parties have agreed to do. In re Marriage
of Haller, 2012 IL App (5th) 110478, ¶ 26. Property settlement agreements, which have been
assented to by both parties, may not be cancelled solely because one party withdraws his or her
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assent prior to the entry of the judgment; a settlement agreement should not be disregarded simply
because one party has second thoughts. Id. ¶ 44. Where the contents of the agreement are testified
to and the objecting party fails to object or to give evidence to the contrary, the agreement is
established. Id.
¶ 44 The determination of whether a valid settlement agreement occurred is in the discretion of
the trial court, and its decision will not be reversed unless the court’s determination is against the
manifest weight of the evidence. In re Marriage of Baecker, 2012 IL App (3d) 110660, ¶ 25. The
interpretation of a marital settlement agreement is a question of law. In re Estate of Braun, 222
Ill. App. 3d 178, 184 (1991).
¶ 45 We reject John’s arguments. The parties negotiated the memorandum of understanding,
they were represented by counsel during the negotiations, and they both signed the memorandum.
The memorandum provides that John will pay Lynn $5700 in monthly maintenance. In the absence
of a term, we construe it to be indefinite. The Act permits maintenance awards for an indefinite
term (750 ILCS 5/504(b-1)(1)(B), (2), 504(b-2)(3) (West 2022)), and such awards are often
granted in marriages, such as here, of long duration and disparate earning potentials (In re
Marriage of Culp, 341 Ill. App. 3d 390, 398 (2003)). Further, John’s arguments concerning
deviation from statutory guideline maintenance are unavailing because the parties contracted for a
specific maintenance amount; the court did not set maintenance.
¶ 46 Similarly, John’s agreement to pay up to $850 per month toward Lynn’s health insurance
contains no time limit and makes no reference to a Medicare-triggered termination date. Thus, the
only reasonable interpretation is that his obligation is indefinite. Again, the parties chose to forego
having the trial court resolve this issue, contracted for this, and were represented by counsel.
Furthermore, we note that John first raised this argument in his December 15, 2022, motion to
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vacate the memorandum of understanding, asserting that the Medicare-triggered termination date
was memorialized in his and Lynn’s settlement letters; however, those letters are not contained in
the record on appeal. Nor does the record contain a transcript from the hearing where the court
heard argument on, and rejected, John’s motion to vacate. Accordingly, we resolve any doubts
that arise from the incompleteness of the record against John. Foutch v. O’Bryant, 99 Ill. 2d 389,
392 (1984).
¶ 47 As to John’s arguments that the memorandum does not specify which assets are marital
and which are non-marital and that the marital debts are not specified or allocated, we find them
forfeited because they are undeveloped. He does not specify the assets, if any, over which the
parties disagree as to their categorization. In re Marriage of Heinrich, 2014 IL App (2d) 121333,
¶ 44. Finally, as to John’s argument concerning the Disney points, we find it forfeited because it,
too, is undeveloped. Id.
¶ 48 2. Recission
¶ 49 Next, John argues that, even if the memorandum of understanding does not lack definite
and certain terms, it was “within his rights to rescind his agreement to the document” when the
trial court, on March 22, 2023, liquidated the funds in the trust account. He notes that the
memorandum of understanding awarded him $3500 from the remaining home proceeds held in
trust, but the trial court, he asserts, changed the terms of the agreement when it liquidated the trust
account and awarded the funds to Lynn. This was impermissible, he asserts, and created an
impossibility of performance. Thus, John argues, the trial court abused its discretion by not
permitting him to abandon the memorandum of understanding. He requests that we vacate the
memorandum and the portion of the dissolution judgment based on it.
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¶ 50 “ ‘Rescission is the cancelling of a contract so as to restore the parties to their initial
status.’ ” Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App.
3d 156, 165 (2004). A reviewing court will not disturb the trial court’s decision granting or
denying rescission unless it clearly resulted from an abuse of discretion. Klucznik v. Nikitopoulos,
152 Ill. App. 3d 323, 327 (1987).
“ ‘The doctrine of legal impossibility, or impossible performance, excuses
performance of a contract only when performance is rendered objectively impossible either
because the subject matter is destroyed or by operation of law.’ Innovative Modular
Solutions v. Hazel Crest School District 152.5, 2012 IL 112052, ¶ 37. Performance can be
made impossible by judicial action. Felbinger & Co. v. Traiforos, 76 Ill. App. 3d 725, 733
(1979). Impossibility of performance is an affirmative defense to a breach of contract claim
and grounds to rescind or abandon a contract. YPI 180 N. LaSalle Owner, LLC v. 180 N.
LaSalle II, LLC, 403 Ill. App. 3d 1, 2-3 (2010). The doctrine is narrowly applied based on
‘judicial recognition that the purpose of contract law is to allocate the risks that might affect
performance and that performance should be excused only in extreme circumstances.’
Rosenberger v. United Community Bancshares, Inc., 2017 IL App (1st) 161102, ¶ 24. The
party advancing the doctrine has the burden of proving impossibility. Id.” Pepper
Construction Co. v. Palmolive Tower Condominiums, LLC, 2021 IL App (1st) 200753, ¶
87.
¶ 51 John argues that it would be unfair to hold him to the burdensome obligations in the
memorandum of understanding, such as paying maintenance and a health insurance contribution
and relinquishing 80% of the marital assets while bearing 90% of the debt, but to then take away
one of the few benefits he received. He contends that he should have been allowed to abandon the
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agreement once the court changed the terms and rendered performance impossible by awarding
Lynn the funds he was supposed to be awarded.
¶ 52 We reject John’s argument. On March 22, 2023, the court held a hearing on Lynn’s petition
for interim and prospective fees. At the conclusion of the hearing, for which no transcript is
contained in the record on appeal, the court awarded Lynn $10,000 in attorney fees contribution,
of which $6407.32 would be paid from the trust account and tendered to her attorney. John
apparently did not raise his present argument until September 22, 2023, in his motion to reconsider.
We disagree with him that the agreement should be rescinded due to impossibility of performance.
To the extent he is owed any monies, they can be paid or credited from other sources. Accordingly,
as he failed to establish impossibility, there is no basis for rescinding the memorandum of
understanding.
¶ 53 3. Unconscionability
¶ 54 Next, John argues that the memorandum of understanding is substantively and procedurally
unconscionable. He contends that it is substantively unconscionable because it is one-sided.
Specifically, John complains that it strips him of nearly everything he earned over the course of
the parties’ marriage. He received, he notes, only 20% of the assets, was assigned 90% of the debt,
and must pay Lynn well over guideline support. Meanwhile, he asserts, Lynn was awarded 80%
of the assets and assigned only 10% of the debt. John asserts that he is left with $5692.30 per
month to pay for rent, food, and other fixed expenses that he claims total up to $5379 per month.
This leaves him, he contends, with a few hundred dollars for automobile expenses, gas, insurance,
health care, and other expenses. Addressing procedural unconscionability, John argues that the
trial court twice noted that John would not like the consequences if he did not agree to the
memorandum of understanding.
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¶ 55 A settlement agreement will only be set aside if procured by fraud or coercion or if contrary
to any rule of law, public policy, or morals. Lorton, 203 Ill. App. 3d at 825. The party asserting
duress or coercion must prove the allegation by clear and convincing evidence. In re Marriage of
Smith, 164 Ill. App. 3d 1011, 1017 (1987); In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209,
215 (1994). When determining whether the agreement was unconscionable, the trial court assesses
the facts existing immediately after the agreement is made. In re Marriage of Wig, 2020 IL App
(2d) 190929, ¶ 19. A settlement agreement is unconscionable where there is an absence of
meaningful choice on the part of one of the parties combined with contract terms that are
unreasonably favorable to the other party. In re Marriage of Baecker, 2012 IL App (3d) 110660,
¶ 41. To determine whether an agreement is unconscionable, the court must consider (1) the
conditions under which the agreement was made and (2) the economic circumstances of the parties
that result from the agreement. Wig, 2020 IL App (2d) 190929, ¶ 19. Duress can make a settlement
agreement between spouses unconscionable. Baecker, 2012 IL App (3d) 110660, ¶ 41.
¶ 56 On October 2, 2023, John testified, over counsel’s objection, that the trial court (Judge
Slavin) twice made the statement about signing the memorandum and that this was the reason he
signed the agreement. He argues here that Lynn never testified that the statement was not made,
her attorney argued it was not admissible because it was made in the settlement conference (not
that it was untrue), and Lynn’s attorney never cross-examined John on this point. John argues that
the comments were made on the day trial was to begin and after a six-to-seven hour conference.
Thus, his stress level would have heightened to a level where he felt deprived of a meaningful
choice, and an objective person in this scenario would assume the court intended to impose a trial
tax if he did not agree to the proposed settlement.
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¶ 57 We reject this argument. The trial court found incredible John’s testimony that Judge
Slavin pressured the parties. We cannot conclude, without more, that this determination was
unreasonable. In re Marriage of Walker, 386 Ill. App. 3d 1034, 1042 (2008) (“A reviewing court
will defer to a trial court’s determination of credibility because the trial court is in the best position
to observe the conduct and demeanor of witnesses.”). In any event, even if John’s assertion was
credible, his argument that the court’s comment coerced him into signing the agreement still fails.
During the negotiations, John was represented by counsel and signed the memorandum. To
suggest, without more evidence, that he felt had no option when counsel was present to advocate
for his interests is not well taken.
¶ 58 4. Attorney Fees
¶ 59 John’s final argument is that, if we conclude that the memorandum of understanding is
unenforceable, the attorney fee award should be vacated on the same basis and, alternatively,
notwithstanding the enforceability of the memorandum, the trial court abused its discretion in
awarding Lynn $35,000 in attorney fees.
¶ 60 We review a trial court’s decision to award attorney fees for an abuse of discretion. In re
Marriage of Heindl, 2014 IL App (2d) 130198, ¶ 28. A trial court abuses its discretion only where
its ruling is unreasonable. In re Marriage of Iqbal & Khan, 2014 IL App (2d) 131306, ¶ 44.
¶ 61 “[A]n award of contribution is appropriate when the petitioning party is unable to pay his
or her attorney fees and the other party has an ability to do so.” In re Marriage of Heroy, 2017 IL
120205, ¶ 5. The court should “apply a list of factors to determine whether one party should be
required to contribute to the attorney fees of the other, including the criteria used to divide marital
property and award maintenance.” Id. Section 508 of the Act states that “[t]he court *** after due
notice and hearing, and after considering the financial resources of the parties, may order any party
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to pay a reasonable amount for his [or her] own or the other party’s costs and attorney[ ] fees.” 750
ILCS 5/508(a) (West 2022). It explains that “contribution to attorney[ ] fees and costs may be
awarded from the opposing party in accordance with subsection (j) of Section 503 and in any other
proceeding under this subsection.” Id.
¶ 62 Subsection 503(j) of the Act states that “[a]ny award of contribution to one party from the
other party shall be based on the criteria for division of marital property under this Section 503
and, if maintenance has been awarded, on the criteria for an award of maintenance under Section
504.” Id. § 503(j)(2). The criteria for dividing marital property in subsection 503(d) include:
“(1) each party’s contribution to the acquisition, preservation, or increase or decrease in
value of the marital or non-marital property, including *** the contribution of a spouse as
a homemaker or to the family unit ***;
(2) the dissipation by each party of the marital property ***;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to
become effective ***;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
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(11) the reasonable opportunity of each spouse for future acquisition of capital assets and
income; and
(12) the tax consequences of the property division upon the respective economic
circumstances of the parties.” Id. § 503(d).
¶ 63 The criteria for an award of maintenance under subsection 504(a) include:
“(1) the income and property of each party ***;
(2) the needs of each party;
(3) the realistic present and future earning capacity of each party;
(4) any impairment to the present and future earning capacity of the party seeking
maintenance due to that party devoting time to domestic duties or having forgone or
delayed education, training, employment, or career opportunities due to the marriage;
(5) any impairment to the realistic present and future earning capacity of the party against
whom maintenance is sought;
(6) the time necessary to enable the party *** to acquire appropriate education, training,
and employment, and whether that party is able to support himself or herself through
appropriate employment;
(7) the standard of living established during the marriage;
(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and sources of income, vocational skills,
employability, estate, liabilities, and the needs of each of the parties;
(10) all sources of public and private income ***;
(11) the tax consequences of the property division upon the respective economic
circumstances of the parties;
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(12) contributions and services by the party seeking maintenance to the education, training,
career or career potential, or license of the other spouse;
(13) any valid agreement of the parties; and
(14) and any other factor that the court expressly finds to be just and equitable.” Id. §
504(a)(1)-(14).
¶ 64 John argues that Lynn did not establish that she has an inability to pay. He contends that
Lynn has, as the court found, money to pay expenses. She also receives $5700 in monthly
maintenance and few expenses. Next, John argues that Lynn did not establish that John has an
ability to pay. He asserts that his income can only stretch so far, as he pays the following court-
ordered obligations: maintenance, $850 toward Lynn’s health insurance, $800 per month to the
IRS, $2450 in other debt responsibility, and $972 per month for the dissipation settlement. After
his payments, he contends, he is left with $5692 per month (less than Lynn’s maintenance) to pay
for his living expenses, including rent, food, and other expenses. John also contends that the parties
incurred nearly equal amounts of attorney fees during the divorce proceedings, and it was
unreasonable for the trial court to order him to pay $35,000 of Lynn’s attorney fees, where he was
burdened with court-ordered obligations, the debt, and was awarded no assets.
¶ 65 We conclude that the trial court did not abuse its discretion in awarding Lynn $35,000 in
attorney fees. The evidence reflected that Lynn’s only income (other than the contribution to her
health insurance) is the $5700 in monthly maintenance she receives from John, and the assets she
received consisted of portions of the retirement accounts (which have minimal assets). She was
not employed during the marriage, has health issues, and, excluding the $35,000 attorney fee
award, still owes her attorney over $30,000 in fees. John’s gross income in 2022 was $302,000,
he listed $18,125 in gross monthly income (not including his bonus), and, although he agreed in
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the memorandum of understanding to be allocated 90% of the debt, he testified that he is able to
make his debt service payments and has funds for personal expenses such as entertainment,
vacation, etc. Based on the evidence, we cannot conclude that the trial court’s determination was
unreasonable.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 68 Affirmed.
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