In Re Marriage of Osborn

564 N.E.2d 1325, 206 Ill. App. 3d 588, 151 Ill. Dec. 663, 1990 Ill. App. LEXIS 1911, 1990 WL 201438
CourtAppellate Court of Illinois
DecidedDecember 14, 1990
Docket5-88-0739
StatusPublished
Cited by39 cases

This text of 564 N.E.2d 1325 (In Re Marriage of Osborn) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Osborn, 564 N.E.2d 1325, 206 Ill. App. 3d 588, 151 Ill. Dec. 663, 1990 Ill. App. LEXIS 1911, 1990 WL 201438 (Ill. Ct. App. 1990).

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

The parties were married in Quebec, Canada, on July 4, 1970. Five days prior to the marriage, Jonathan and Patricia entered into a written marriage contract in Montreal, Canada. The parties moved to Illinois in 1979 and were separated in 1985. Upon separation, Patricia returned to Canada with the parties’ four children. On November 26, 1985, she filed a verified petition for dissolution of marriage in the circuit court of Clinton County. The court entered a judgment for dissolution of marriage on June 8, 1988. On July 27, 1988, the court entered its ruling on the issues of the validity of the marriage contract, the appropriate value of Jonathan Osborn’s medical practice, child support, division of marital assets, award of attorney fees, medical and transportation expenses for the children, insurance benefits for the children, and visitation. Jonathan filed a post-trial motion addressing these issues. It is from the denial of said motion that Jonathan Osborn appeals.

We first turn our attention to the choice of laws question of whether to apply Canadian law in this case. Jonathan Osborn claims that this court should apply both Canadian and Illinois law in determining if the decision of the trial court was correct. Like Jonathan, Patricia makes general reference to Canadian common and statutory law. While we respect the parties’ request to consider Canadian law, we are compelled to remind the parties that it has long been the rule that courts will not take judicial notice of the laws of another country, but they must be alleged and proved as facts. (Shannon v. Wolf (1898), 173 Ill. 253, 260, 50 N.E. 682, 684; Crouch v. Hall (1853), 15 Ill. 263, 266; see also Dempster v. Stephen (1895), 63 Ill. App. 126.) In the case at bar, scant reference is made to Canadian law. Included in the appendix to respondent’s brief is a one-paragraph excerpt taken from the Canadian Family Law Reform Act (Que. Rev. Stat. ch. 41 (1978)). Other than references to a few Canadian cases in the parties’ briefs and in a memorandum submitted to the trial court, no formal proof of the law of Canada has been submitted. When a party interested in claiming the benefit of a foreign law or statute fails to show by appropriate pleading and proof the status of the law of the place where the contract was made or was to be performed, the courts of the State where the suit is brought will apply the law of the latter State to the contract. (Shannon, 173 Ill. at 260.) Under the circumstances, we apply the law of Illinois, without consideration of Canadian law, to determine the issues in this case.

In his post-trial motion and on appeal, Jonathan Osborn argues that the court erred in finding the marriage contract to be unconscionable and in refusing to apply the contract in deciding issues of property division. Jonathan contends that Patricia made a judicial admission that the marriage contract settled and disposed of all issues involving property division, thereby resolving those issues.

It is undisputed that Patricia filed a verified petition for divorce on November 26, 1985. Attached to that petition was a copy of the parties’ antenuptial agreement. Paragraph 6 of the petition alleges that “with respect to the issues of property division and payment of outstanding debts *** the parties did on June 30, 1970, enter into a Marriage Contract, which settled and disposed of the issues of property division and debt payment, which would otherwise be issues before this court.” In January of 1987, Patricia was granted leave of court to file an amended petition for dissolution of marriage. The amended petition did not include a copy of the marriage contract, nor did it refer to the contract. Patricia argues that although she initially took the position that the marriage contract was' applicable to the property division, upon the filing of her amended complaint and throughout the case she has taken the position that the marriage contract is inapplicable to the property division.

When an original pleading is verified it remains a part of the record upon the filing of an amended pleading. Furthermore, the admissions of a party contained in an original verified pleading are judicial admissions and bind the pleader even after the filing of an amended pleading which supersedes the original. (American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 1029, 452 N.E.2d 3, 6; Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 670, 307 N.E.2d 749, 752.) Notwithstanding these general rules, section 2—605 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—605) provides that verified allegations shall not constitute evidence, except by way of admission. However, this provision refers to admissions of fact, not admissions of law. (Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 494, 477 N.E.2d 1249, 1256.) Jonathan contends that paragraph 6 of Patricia Osborn’s verified petition constitutes a judicial admission that the contract is valid and enforceable. Such a theory fails to recognize, however, that the allegations in paragraph 6 are legal conclusions, not factual conclusions. Questions of contractual validity or interpretation are matters of law for the court to decide. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013, 1015.) Consequently, we find the argument that Patricia Osborn made a judicial admission that the marriage contract is valid is without merit. Based on our finding, we need not address petitioner’s allegation that Jonathan Osborn waived on appeal his right to claim a judicial admission was made by the petitioner.

The next issue on the merits is whether the contract entered into by the parties is valid and enforceable. Antenuptial agreements are generally enforceable as long as the contract is entered, into with .full knowledge and without fraud, duress or coercion. (In re Marriage of Byrne (1989), 179 Ill. App. 3d 944, 947, 535 N.E.2d 14, 16; Volid v. Volid (1972), 6 Ill. App. 3d 386, 392, 286 N.E.2d 42, 47.) In the instant case, Patricia does not allege that the contract was entered into because of fraud, duress or coercion. Rather, she contends that the contract is not valid because the parties did not intend for the contract to be used to divide the parties’ property in the event of divorce. Her position is reflected in the trial court’s ruling of July 27, 1988, where the court declared that it would not apply the parties’ antenuptial agreement in deciding issues of property division. The court found that it was the intent of the parties “to take advantage of Quebec law in dealing with possible creditors and that it was not the intent of the parties to reach a reasoned agreement as to dealing with property in event of dissolution.” The court concluded that “it would be unconscionable to apply the agreement herein under the intent and circumstances surrounding the entry of the agreement.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Marriage of Galati
2021 IL App (3d) 200361-U (Appellate Court of Illinois, 2021)
In re Marriage of Verhines
2018 IL App (2d) 171034 (Appellate Court of Illinois, 2019)
1550 MP Road LLC v. Teamsters Local Union No. 700
2019 IL 123046 (Illinois Supreme Court, 2019)
Verhines v. Hickey (In Re Verhines)
2018 IL App (2d) 171034 (Appellate Court of Illinois, 2018)
Royalty Farms, LLC v. Forest Preserve District
2017 IL App (1st) 161409 (Appellate Court of Illinois, 2018)
Royalty Farms, LLC v. Forest Pres. Dist. of Cook Cnty.
2017 IL App (1st) 161409 (Appellate Court of Illinois, 2017)
Gillespie Community Unit School District No. 7 v. Union Pacific R.R. Co.
2015 IL App (4th) 140877 (Appellate Court of Illinois, 2015)
In re Marriage of Patel
2013 IL App (1st) 112571 (Appellate Court of Illinois, 2013)
In re Marriage of Awan
Appellate Court of Illinois, 2009
Gershman v. Gershman
943 A.2d 1091 (Supreme Court of Connecticut, 2008)
In Re Marriage of Tabassum and Younis
881 N.E.2d 396 (Appellate Court of Illinois, 2007)
In re Marriage of Tabassum
Appellate Court of Illinois, 2007
Knauerhaze v. Nelson
Appellate Court of Illinois, 2005
First Springfield Bank & Trust v. Galman
Appellate Court of Illinois, 1998
First Springfield Bank and Trust v. Galman
702 N.E.2d 1002 (Appellate Court of Illinois, 1998)
Susan Bristow v. Drake Street Incorporated
41 F.3d 345 (Seventh Circuit, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
564 N.E.2d 1325, 206 Ill. App. 3d 588, 151 Ill. Dec. 663, 1990 Ill. App. LEXIS 1911, 1990 WL 201438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-osborn-illappct-1990.