In re Marriage of Poulsom

2022 IL App (1st) 220100, 235 N.E.3d 1

• Court: Appellate Court of Illinois
• Decided: September 29, 2022
• Docket: 1-22-0100
• Status: Published

Opinion

2022 IL App (1st) 220100 No. 1-22-0100 Opinion filed September 29, 2022 Fourth Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ In re MARRIAGE OF CANDICE G. POULSOM, ) Appeal from the n/k/a/ Candice G. Merritt, ) Circuit Court of ) Cook County. Petitioner-Appellee and Cross-Appellant, ) ) and ) No. 92 D 3738 ) ROBERT C. POULSOM, ) ) Honorable Respondent-Appellant and Cross-Appellee. ) Lori Rosen, ) Judge, presiding.

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Hoffman and Rochford concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Candice G. Merritt, and respondent, Robert C. Poulsom, were married on March

15, 1968, and the marriage was dissolved by an agreed judgment entered on February 24, 1995.

On February 2, 2021, Merritt filed a motion for enforcement of judgment for dissolution of

marriage in the circuit court. Merritt specifically sought enforcement of two provisions in the

marriage settlement agreement, one pertaining to the sale of the marital home, which was supposed

to occur in 1999, and the other requiring Poulsom to pay her $50,946, which was to be paid within No. 1-22-0100

30 days of the date the judgment was entered. The trial court denied Merritt’s requested relief

regarding the sale of the home, but the court granted Merritt the requested relief on the claim that

she was due the money owed. Each party appeals the judgment adverse to them in the trial court.

¶2 For the reasons that follow, we affirm the judgment of the circuit court denying Merritt’s

request that Poulsom be forced to sell the marital home. We reverse the trial court’s judgment

ordering Poulsom to pay Merritt $50,946. 1

¶3 I. BACKGROUND

¶4 The parties’ agreed judgment for the dissolution of their marriage contained two provisions

at issue here. First, the agreement required that the marital home be placed on the market for sale

on or before March 1, 1999. The delay between the February 1995 judgment and sale date was to

allow the couple’s youngest child to live in the residence until he turned 18. Merritt was to receive

60% of the net proceeds from the sale or $96,054, whichever was greater. Second, Poulsom was

to pay Merritt $50,946 within 30 days of the February 24, 1995, judgment.

¶5 On February 2, 2021, Merritt filed a motion to enforce the February 1995 judgment. The

first count sought to force Poulsom to sell the marital residence. The motion alleged that Poulsom

still lived in the residence, and it had never been placed on the market for sale. The motion

requested a court order compelling Poulsom to immediately place the marital residence for sale.

Upon closing, the motion sought 60% of the net proceeds, calculated as the contracted sale price

less customary closing costs and $87,422, which was the stated mortgage amount as of March 1,

1995. The second count sought to force Poulsom to pay the $50,946, as ordered in the February

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.

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1995 agreed judgment. The motion alleged that Poulsom never made the payment. The motion

also sought attorney fees and costs because Poulsom’s failure to pay was without compelling cause

or justification.

¶6 Poulsom filed two pleadings in response to the motion to enforce. First, Poulsom filed a

motion to strike Merritt’s motion because it was outside the statute of limitations. Poulsom argued

that if the motion to enforce was treated as a motion to enforce a written agreement, it was time-

barred as outside the 10-year limit set out in section 13-206 of the Code of Civil Procedure (Code)

(735 ILCS 5/13-206 (West 2020)). Alternatively, if the motion was considered a motion to revive

the judgment, it was barred by the 20-year limit set out in section 13-218 of the Code (id. § 13-

218).

¶7 Second, Poulsom filed a response to the motion to enforce. Poulson claimed that he had

paid Merritt $115,800 in 1999 in exchange for Merritt signing a quitclaim deed. Poulsom also

alleged that he paid Merritt the full $50,946 in 1995. Poulsom requested that the court deny Merritt

the relief she requested in both counts of her motion to enforce.

¶8 Prior to the hearing on Merritt’s motion to enforce, the trial court denied Poulsom’s motion

to strike. The trial court also initially limited the evidentiary hearing to testimony from Merritt and

Poulsom, along with any documentary exhibits attached to the motion to enforce and the response.

Poulsom filed a motion to modify the trial court’s order limiting the evidence. Poulsom sought to

present a handwriting expert to establish that Merritt’s signature on the quitclaim deed was

genuine. Poulsom also sought to present the testimony of Joyce Brackett (Joyce), who notarized

the quitclaim deed and would testify that she personally witnessed Merritt sign the quitclaim deed.

Poulsom argued that the evidence was necessary due to the loss of other probative evidence

because of the passage of time. The trial court denied the motion in total.

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¶9 Merritt testified that she was 72 years old and currently lived in Florida. Merritt divorced

Poulsom in February 1995 and moved to Indiana later that year. In 1999, Merritt moved to Florida

with her husband Harlie Merritt. Merritt testified she never returned to Illinois between her move

to Indiana in 1995 and 1999, despite having a minor child in Illinois during that time. Merritt

explained that the minor child would visit her outside of Illinois. Merritt testified that she did not

initiate any action to force the sale of the house in 1999 because she was busy selling her house in

Indiana and moving to Florida. Merritt did not initiate any action prior to 2021 because interactions

with Poulsom were “never easy” and she was “having too much fun” and “didn’t want to get

bogged down.”

¶ 10 Merritt testified that the marital house was never sold, the divorce decree was never

amended to allow Poulsom to buy her out, and the two never had an out-of-court agreement that

Poulsom would buy her out. Merritt never signed a quitclaim deed and never received a check that

appeared to be a buyout. Joyce was the widow of Poulsom’s business partner Robert Brackett

(Robert) and could be considered Poulsom’s friend. Merritt had never seen the quitclaim deed that

purported to include her signature. Merritt also testified that Poulsom never paid her the $50,946

that was due within 30 days of the February 1995 judgment date.

¶ 11 Poulsom testified that he paid Merritt $50,945.71 on March 24, 1995. The money came

from an inheritance that was held in an account at Northern Trust Bank. Poulsom paid Merritt with

two cashier’s checks, one for $47,000 and another for $3,945.71. In the preceding 26 years Merritt

had never mentioned not receiving the money provided for in the settlement agreement. According

to Poulsom, he and Merritt agreed that he would buy her 60% stake in the marital residence to

avoid having to place the property on the market. Merritt agreed that Poulsom would refinance the

mortgage and pay her out of the proceeds. In return, Merritt signed a quitclaim deed transferring

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her interest in the property to Poulsom. Merritt signed the quitclaim deed in front of three people:

Poulsom, Robert, and notary Joyce. A week later Poulsom and Merritt met for the closing at

Regional Mortgage Center in Schaumburg. Merritt received a check at the closing. Merritt never

mentioned the non-sale of the marital residence to Poulsom in the period between 1999 and 2021.

On cross examination, Poulsom agreed that he had no documentation demonstrating that Merritt

received a check worth 60% of the value of the marital residence. Poulsom testified that he had

very few documents from the 1999 refinance because he typically purged documents after 10

years. Poulsom attempted to recover records through the mortgage company and bank, but those

entities did not retain records that far back.

¶ 12 Based on Poulsom’s testimony that he could not obtain documents to prove that Merritt

had been involved in the refinance process, the trial court allowed Poulsom to call Joyce as a

witness. Joyce testified that she notarized the quitclaim deed between Merritt and Poulsom. Joyce

saw Merritt sign the deed in Poulsom’s breakfast room. Joyce testified that Poulsom had been her

boss at both his law office and periodontist office. Joyce was married to Poulsom’s business partner

and frequently had meals with Poulsom. Poulsom was still Joyce’s dentist for checkups.

¶ 13 The trial court found parts of each party’s testimony credible. The trial court found

Poulsom’s testimony, supported by Joyce’s testimony, that Merritt quitclaimed her interest in the

marital residence in exchange for approximately $115,000 more credible than Merritt’s testimony

that she never received a check in exchange for the quitclaim deed and failed to pursue the sale of

the marital residence for decades. However, the trial court found Merritt’s testimony that she did

not receive the $50,946 within 30 days of the judgment more credible than Poulsom’s testimony,

unsupported by any other evidence, that he issued two checks to Merritt. The trial court also

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rejected Poulsom’s statute of limitations arguments, as well as his argument that Merritt’s

requested relief regarding the marital residence was barred by estoppel.

¶ 14 The trial court entered the final judgment on January 18, 2022. No posttrial motions were

filed. Poulson filed his notice of appeal on January 24, 2022. Merritt filed a notice of cross-appeal

on February 10, 2022.

¶ 15 II. ANALYSIS

¶ 16 The trial court’s resolution of both counts of Merritt’s motion to enforce is at issue between

the appeal and cross-appeal. We start our analysis with the claim that Poulsom never paid Merritt

the $50,946, as required by the February 1995 judgment. Poulsom argues that Merritt’s claim was

time-barred as it occurred 26 years after the judgment was entered. Poulsom also argues that the

trial court’s finding that he did not pay Merritt the money owed was against the manifest weight

of the evidence. Merritt responds that Poulsom has forfeited his argument regarding the statute of

limitations. Merritt also argues that, based on the favorable standard of review, we should affirm

the trial court’s finding that Poulsom never made the necessary payment because the finding was

based on the trial court’s assessment of each of their testimony.

¶ 17 We conclude that Merritt’s claim that she was owed $50,946 was time-barred. We also

reject Merritt’s appellate argument that Poulsom forfeited the limitations defense by labeling his

motion as a motion to strike as opposed to a motion to dismiss. Because the trial court should have

dismissed Merritt’s claim that she was owed $50,946 from the February 1995 judgment as time-

barred, we reverse that portion of the trial court’s judgment.

¶ 18 Initially, we reject Merritt’s argument that Poulsom forfeited review of the limitations

defense by failing to correctly label his motion and the statutory basis for his request in the trial

court. Merritt cites several cases for the proposition that a motion in the trial court should clearly

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state the statutory basis for the requested relief and that an answer and motion to dismiss should

not be on file simultaneously. However, none of the cases support a conclusion on appeal that an

issue, such as statute of limitations, is waived for failing to correctly label a motion in the trial

court. Here, where the statute of limitations defense was presented to the trial court, and no

objection was made to the form of Poulsom’s motion, Poulsom adequately preserved the issue for

appellate review. See Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484 (1994) (explaining that

where a motion is not labeled according to the statutory basis for dismissal, a reviewing court will

“typically review the nondesignated motion according to its grounds, its requests, or its treatment

by the parties and the trial court”).

¶ 19 Section 12-108 of the Code provides that “no judgment shall be enforced after the

expiration of 7 years from the time the same is rendered, except upon the revival of the same by a

proceeding provided by Section 2-1601 of this Act.” 735 ILCS 5/12-108 (West 2020). Section 2-

1602 of the Code provides that

“a judgment may be revived by filing a petition to revive the judgment in the seventh year

after its entry, or in the seventh year after its last revival, or in the twentieth year after its

entry, or at any other time within 20 years after its entry if the judgment becomes dormant

and by serving the petition and entering a court order for revival as provided in the

following subsections.” Id. § 2-1602.

Finally, section 13-218 of the Code provides: “A petition to revive a judgment, as provided by

Section 2-1601 of this Code, may be filed no later than 20 years next after the date of entry of such

judgment.” Id. § 13-218.

¶ 20 Illinois courts have applied the above provisions to money judgments emanating from

divorce decrees. See Atwater v. Atwater, 18 Ill. App. 3d 202, 208 (1974) (noting that “a decree for

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alimony (herein a lump sum settlement) is a money decree and the 20-year statute of limitations

applicable to judgments applies”); In re Marriage of Yakubec, 154 Ill. App. 3d 540, 544 (1987)

(“A divorce decree is a money decree and the 20-year statute of limitations applicable to judgments

applies.”); James T. Haddon, Ltd. v. Weiss, 342 Ill. App. 3d 144, 148-49 (2003) (Section 13-218

of the Code “provides for the revival of a judgment so long as such proceedings are commenced

within 20 years from the date of the entry of the underlying judgment, in this case the judgment

for dissolution of marriage.”). Based on this clear and uncontroverted authority, the money

judgment set out in the marital settlement agreement was subject to the 20-year limitations period.

Thus, we conclude that the trial court should have granted Poulsom’s motion and dismissed the

count requesting enforcement of the February 1995 $50,946 money judgment. Accordingly, we

necessarily reject Merritt’s claim that the trial court erred in not awarding attorney fees based on

the motion to enforce that judgment

¶ 21 Next, we address the timeliness of Merritt’s claim to the greater of 60% of the net proceeds

of the sale of the marital residence or $96,054. This court has held that the reference to “judgment”

in sections 12-108 and 2-1602 is limited to “money judgments against judgment debtors.” In re

Estate of Pigott, 2019 IL App (1st) 181716, ¶ 17. In Pigott, this court analyzed whether a provision

in a marital settlement agreement was subject to the 20-year limitations period. Id. ¶ 14. The

provision required each party to the divorce to execute a will bequeathing at least 50% of his or

her estate to the parties’ six children in equal shares. Id. ¶ 7. There was also an enforcement

provision that granted the children “a provable, liquidated claim, lien and charge against the estate

of [the husband] and [wife] for such amount as a child would have received had such deceased

party made a will as hereinabove required.” (Internal quotation marks omitted.) Id.

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¶ 22 The husband failed to fulfill that obligation, and 35 years after the judgment was entered

on the marital settlement agreement, the parties’ six children filed claims against the husband’s

estate seeking one-sixth each of 50% of his estate. Id. ¶¶ 8-9. This court concluded that the

children’s claims were not time-barred because no money judgment had been entered against the

husband. Id. ¶ 18. Instead, the provision was injunctive in nature, and “an injunctive order remains

enforceable after 20 years, even in the absence of a revival action, until it is set aside on appeal or

otherwise vacated or modified by the court that granted it.” Id. ¶ 20. This court reasoned that the

provision requiring the husband to create a particular will was injunctive because it required him

“to perform a positive act, i.e., to make a will bequeathing at least 50% of his net estate” to the

parties’ six children. Id. ¶ 21. Thus, the children’s claims were not time-barred under the 20-year

limitations period. Id. ¶ 22; see In re Marriage of Peck, 2019 IL App (2d) 180598, ¶¶ 14, 17

(holding that a trial court’s order awarding the parties’ equal shares of the equitable interest in

property was not a judgment subject to the revival provision in section 2-1602).

¶ 23 The Illinois Supreme Court, in the context of Illinois Supreme Court Rule 307(a)(1) (eff.

Nov. 1, 2017), which provides for interlocutory appeals of court orders granting or refusing an

injunction, broadly construed the meaning of injunction as “a judicial process operating

in personam and requiring [a] person to whom it is directed to do or refrain from doing a particular

thing.” (Internal quotation marks omitted.) Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 221

(2000); see also In re A Minor, 127 Ill. 2d 247, 262 (1989) (explaining that injunctive orders “affect

the relationship of the parties in their everyday activity apart from the litigation”). The court’s

order in this case, premised on the parties’ agreement, shares characteristics of both a money

judgment and an injunctive order. The order provided a definitive baseline amount, $96,054, that

Merritt would receive after the sale of the marital residence. The alternative payment would be

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60% of the net proceeds from the sale of the marital residence, if greater than $96,054. The order

also has injunctive characteristics, as the parties were ordered to agree upon a real estate agent,

agree to a sale price, and, if unable to agree to a sale price, to use the average of three appraisals

as the initial price. The parties were then ordered to reduce the sale price of the home incrementally

if the home did not sell within a specified period. Thus, the parties were jointly ordered to perform

numerous positive acts leading up to the sale of the marital residence. We conclude that the order

at issue is an injunction, and not a money judgment, because it required Poulsom to perform several

positive acts to sell the residence, which necessarily must occur before the parties could determine

the amount owed to Merritt. We conclude that Merritt’s requested relief regarding the marital

residence is not time-barred.

¶ 24 The trial court here found that Poulsom satisfied the judgment by paying Merritt $115,800

for her interest in the marital residence. “When a trial court makes a finding by a preponderance

of the evidence, this court will reverse that finding only if it is against the manifest weight of the

evidence.” Best v. Best, 223 Ill. 2d 342, 348-49 (2006). “A finding is against the manifest weight of

the evidence only if the opposite conclusion is clearly evident or if the finding itself is

unreasonable, arbitrary, or not based on the evidence presented.” Id. at 350. “Under

the manifest weight standard, we give deference to the trial court as the finder of fact because it is

in the best position to observe the conduct and demeanor of the parties and witnesses.” Id.

¶ 25 Here, the trial court’s finding was not against the manifest weight of the evidence. Both

Poulsom and Joyce testified that Merritt signed a quitclaim deed to the marital residence on May

20, 1999. Poulsom detailed the process to refinance and buy out Merritt, including witnessing

Merritt sign the quitclaim deed, her attendance at the closing, and her acceptance of a check at the

closing. Poulsom explained that he refinanced through Regional Mortgage Center. He received

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$182,450, which went to pay off the old mortgage, pay the closing costs, and the balance

($115,800) went to Merritt for her 60% share of the marital residence. Poulsom’s detailed and

partially corroborated testimony that he paid Merritt for her 60% interest in the marital residence

in May 1999 was only rebutted by Merritt’s general testimony that she never signed the quitclaim

deed, that she had returned to Illinois only once between 1995 and 1999, despite having a minor

child in Illinois at the time, and that she declined to pursue any relief over the previous 22 years

because she was “having too much fun.” The trial court’s decision to credit Poulsom and Joyce

over Merritt was not unreasonable or arbitrary.

¶ 26 We also reject Merritt’s argument that the trial court violated her right to due process by

not allowing her handwriting expert to testify about the genuineness of her signature on the

quitclaim deed. Without delving into the constitutional right at issue and the appropriate standard

for appellate review of an evidentiary decision, we reject Merritt’s argument because this issue

was not preserved below.

¶ 27 “When a trial court refuses evidence, no appealable issue remains unless a formal offer of

proof is made.” People v. Peeples, 155 Ill. 2d 422, 457 (1993). “The purpose of an offer of proof

is to inform the trial court, opposing counsel, and a court of review of the nature and substance of

the evidence sought to be introduced.” Biundo v. Bolton, 2020 IL App (1st) 191970, ¶ 19. “Where

it is not clear what a witness would testify to, or what the basis for his testimony is, the offer of

proof must be considerably detailed and specific, so that a reviewing court can thereby review

whether the exclusion was proper.” Torres v. Midwest Development Co., 383 Ill. App. 3d 20, 26

(2008).

¶ 28 Here, Merritt’s trial counsel only generally referenced the potential for a handwriting

expert. Counsel stated before the parties argued Poulsom’s motion to strike that, if the case went

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forward, there would be “handwriting experts and discovery and all of that.” Later Merritt’s

counsel mentioned that there would be “dueling handwriting experts.” That was the extent of the

presentation below from Merritt’s side. Merritt never indicated the expert’s identity or the basis

and substance of the expert’s testimony. Without any of that information, we cannot review

Merritt’s argument that the trial court erred in excluding the handwriting expert evidence.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court in part and reverse

in part.

¶ 31 Affirmed in part and reversed in part.

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In re Marriage of Poulsom, 2022 IL App (1st) 220100

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 92-D-3738; the Hon. Lori Rosen, Judge, presiding.

Attorneys Richard M. Kates, of Winnetka, for appellant. for Appellant:

Attorneys Paul L. Feinstein, of Paul L. Feinstein, Ltd., of Chicago, for for appellee. Appellee:

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