No. 3--96--0054
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1996
IN RE THE MARRIAGE OF: ) Appeal from the Circuit Court of
) the 12th Judicial Circuit,
YOLANDA R. STEADMAN ) Will County, Illinois
)
Petitioner-Appellant, )
and ) No. 94--D--11554
JEFFREY H. STEADMAN ) Honorable
) Ludwig J. Kuhar,
Respondent-Appellee. ) Judge Presiding.
_________________________________________________________________
JUSTICE MICHELA delivered the opinion of the court:
_________________________________________________________________
Petitioner, Yolanda Steadman (wife), appeals the denial of her
motion to vacate a judgment authorizing the dissolution of her
marriage to respondent, Jeffrey Steadman (husband). She sought to
prevent the incorporation of an oral settlement agreement resolving
disputed issues arising from the dissolution of her marriage into
the final judgment entered by the circuit court of Will County on
October 5, 1995. For the reasons set forth below, we hold that the
trial court committed no abuse of its discretion when it approved
the terms of the negotiated oral settlement agreement.
In August of 1994, the parties separated. Wife left the
marital residence located in Bolingbrook and took the couple's
three youngest sons with her to a summer home while husband
remained in Bolingbrook with the two eldest sons. Husband remained
employed as a hospital administrator, earning a salary of $150,000
and wife, who had not worked since their marriage in 1975,
petitioned the court for maintenance and support. On November 2,
1994, the trial court ordered that husband pay $2,400 a month in
unallocated family support. The trial court further ordered that
husband retain temporary physical custody of the two eldest
children while wife would retain temporary physical custody of the
three youngest children.
Wife decided to relocate to Wixom, Michigan with the three
youngest children and the record is unclear as to whether husband
consented to this move. Nonetheless, wife and the three youngest
children moved to Wixom, Michigan and on August 28, 1995, husband
filed an emergency petition seeking to enjoin the permanent removal
of the three youngest children to Michigan. A hearing on husband's
petition was scheduled for September 1, 1995.
On September 1, 1995, wife, husband and respective counsel met
in court and commenced two hours of negotiations in the hallway
which formed the basis of the oral settlement agreement currently
at issue. Instead of arguing the merits of husband's emergency
petition to enjoin the removal of his children to Michigan, the
parties and their counsel presented the terms of their oral
settlement agreement to the trial court. During the course of this
settlement hearing, both wife and husband agreed that the following
terms comprised their agreement.
First, husband agreed to the removal of his three youngest
children to Michigan subject to certain visitation terms. Second,
husband agreed to pay $2,775 in unallocated support to wife for
three years. The monthly support was deemed non-modifiable and
non-reviewable and was taxable income to wife and a deductible
expense to husband; however, wife would be able to claim the
children as exemptions for federal and state income tax purposes.
At the end of the three years, wife would cease to receive
maintenance and, at that time, child support would be calculated
using the guidelines enumerated in section 505(a)(1) of the
Illinois Marriage and Dissolution of Marriage Act (the Act). 750
ILCS 5/505(a)(1) (West 1994).
The terms of the property division provision left wife with a
Florida condominium, a parcel of land in Colorado, a 1989 Yamaha
motorscooter and a 1989 GMC van. Husband's share of the property
was the marital home, vacation property in Kankakee County and a
1989 radian motorcycle. Additionally, wife and husband agreed that
each would receive the bank accounts, securities and individual
retirement accounts in his or her possession. Further, husband had
a tax deferred annuity account through his employer which, at the
time of the judgment of dissolution, had a present day cash value
of $116,000. Husband and wife agreed that after paying attorney
fees, repaying a loan obtained from borrowing against an insurance
policy and paying interest penalties and taxes, the remainder would
be divided equally between them.
At the hearing wife testified that her goal was to become
self-sufficient and, to this end, she was currently enrolled in a
three year program to become a real estate broker in Wixom,
Michigan. At the settlement hearing, wife engaged in the following
testimony with her attorney and with the trial court:
MR. KOZLOWSKI [Counsel for wife]: And that's
the agreement we worked out today in the hall, and we will reduce
it to writing with the joint custody [agreement], and you're
satisfied with that?
THE WITNESS [Wife]: I have no choice.
THE COURT: Well, ma'am, I want you to
understand that you do have a choice. We can sit down right now
and have a formal hearing and the parties can present evidence on
both sides and call any witnesses that you want and the Court will
make a decision.
THE WITNESS: Okay.
THE COURT: The question I have is, is this
your agreement?
THE WITNESS: At this time, yes, sir."
The judgment was scheduled to be entered on October 5, 1995.
On that date, wife's attorney, Mr. Kozlowski, withdrew his
representation at her request. Wife's new counsel, Mr. Holden, was
present and petitioned the trial court for a continuance. The
trial court denied the motion to continue and entered the judgment
of dissolution over Mr. Holden's continuing objection. On November
5, 1995, wife filed a motion to vacate the judgment of the
dissolution of her marriage. Following a hearing on the petition,
the trial court denied the motion to vacate the judgment of
dissolution and wife now appeals.
We first address the husband's argument that wife's appeal
should be dismissed pursuant to the release of errors doctrine
which states that generally "a litigant cannot attack a decree
whose benefits he has enjoyed, especially if to do so would place
the opposing party at a distinct disadvantage upon the reversal of
the decision." Lemon v. Lemon, 14 Ill. 2d 15, 17, 150 N.E.2d 608,
610 (1958). Specifically, husband argues that wife should not be
allowed to attack the judgment of dissolution of marriage on appeal
when she has already enjoyed the benefits of the judgment by being
allowed to remove their three youngest children from Illinois.
Husband states that he is placed at a distinct disadvantage because
he gave up his right to challenge the removal of his children when
both parties assented to the oral settlement agreement. Thus,
while wife may have a re-hearing on the financial issues she
challenges on appeal, husband has been disadvantaged because the
court cannot recreate the status quo that existed with respect to
the children because the children have been living in Michigan
since September 1, 1995, under court approval.
Wife directs our attention to an exception to the release of
errors doctrine which states that where the benefit being enjoyed
is separate from the judgment being appealed, no waiver of
appellate rights has occurred. Spanel v. Berkman, 171 F.2d 513
(1949). We agree that this exception is applicable to the instant
case because the removal of the children is not being challenged on
appeal. Further, the removal of the children is independent from
the economic provisions wife challenges on appeal. Accordingly, we
decline to apply the release of errors doctrine and will consider
the merits of wife's argument on appeal that the trial court abused
its discretion in denying her petition to vacate the judgment
authorizing the dissolution of her marriage. Harris v. Harris, 45
Ill. App. 3d 820, 360 N.E.2d 113 (1977).
On appeal, wife first argues that the trial court erred in
approving an award of nonmodifiable child support. While parties
to a dissolution of marriage settlement agreement may agree to make
maintenance provisions nonmodifiable, provisions pertaining to
child support may not be made nonmodifiable. In re Marriage of
Corkey, 269 Ill. App. 3d 392, 397, 645 N.E.2d 1384, 1388 (1995).
This general rule applies to agreements involving unallocated
support. See In re Marriage of Gleason, 266 Ill. App. 3d 467, 639
N.E.2d 982 (1994). However, we find that this issue is rhetorical
when it is plain that no award of child support is nonmodifiable.
See 750 ILCS 5/502(f) (West 1994); 750 ILCS 5/510 et seq. (West
1994). Thus, "the unallocated combination of child support into a
taxable maintenance amount, as exists here, necessarily carries
with it the statutory right to modification of child support."
Gleason, 266 Ill. App. 3d at 468, 639 N.E.2d at 983. In the
instant action, neither party's statutory right to petition for a
modification of child support due to a substantial change of
circumstances is impaired. Moreover, we find that the three year
limitation agreed to by husband and wife for the term of
nonmodification was bargained for by wife, particularly when this
three year term coincides with her completion of her education and
training as a real estate broker and her goal of becoming self
sufficient.
Wife next argues that the trial court's award of unallocated
support is reversible error because the award does not comport with
the statutory guidelines enumerated in the Act. 750 ILCS
5/505(a)(1) (West 1994). When parties to a dissolution of marriage
settlement agreement, as in the instant action, agree to divide the
custody of their children, there are no specific guidelines to
follow. In re Marriage of White, 204 Ill. App. 3d 579, 582, 561
N.E.2d 1387, 1389 (1990). Wife directs our attention to several
cases which deal with a split custody situation and the methodology
employed by courts to determine a reasonable child support award.
In re Marriage of Duerr, 250 Ill. App. 3d 232, 621 N.E.2d 120
(1993); In re Marriage of Flemming, 143 Ill. App. 3d 592, 493
N.E.2d 666 (1986); In re Marriage of Pahlke, 154 Ill. App. 3d 256,
507 N.E.2d 71 (1987); In re Marriage of Keown, 225 Ill. App. 3d
808, 587 N.E.2d 644 (1992).
These cases are distinguishable from the case at bar because
they involve situations where both spouses are employed or possess
the skills and education necessary to obtain employment and where
the court is fashioning an appropriate award of child support
rather than approving an award of unallocated family support agreed
to by the spouses as a term of their dissolution of marriage
settlement agreement. Thus, the trial court was not obligated to
rely on the statutory guidelines enumerated in the Act.
In split custody cases a trial court may disregard the
statutory guidelines in the Act and may instead consider the
factors listed in section 505 of the Act. 750 ILCS 5/505(a)(2) et
seq. (West 1994). In this respect, the trial court stated during
wife's petition to vacate the judgment of the dissolution of
marriage that in considering the monthly award of unallocated
support, it recognized that husband was caring for one minor son
while the other son, who had reached the age of majority, was
residing at husband's home while he attended college. We disagree
with wife's contention that the trial court was required to engage
in a separate and lengthy evidentiary inquiry when both husband and
wife, through sworn testimony, presented this term to the trial
court as a part of their settlement agreement.
Next, wife argues that the trial court erred by not stating
its reasons for deviating from the Act's statutory guidelines. 750
ILCS 5/505(a)(1) (West 1994). In support, wife relies on section
505 of the Act which states:
"If the court deviates from the guidelines,
based on consideration of the factors in
paragraphs 2(a) through 2(e) of subsection (a)
of this Section, or any other relevant factor,
it shall make express findings as to its
reasons for doing so." 750 ILCS 5/505(a)(2)
(West 1994).
We find that the mandate of the above section is inapplicable in
the instant case because the above section contemplates a situation
where the guidelines are applicable. The Act's statutory
guidelines are applicable where the trial court is asked to fashion
an award of child support when child custody is the responsibility
of a single parent. Therefore, the trial court was not required to
conform to section 505 of the Act and state its reasons for
deviating from the guidelines when it was not obligated to apply
the guidelines to a split custody situation.
Wife next argues that the trial court abused its discretion
because it approved an unconscionable dissolution of marriage
settlement agreement. Unconscionability is, among other things, a
statutory ground enabling the trial court to set an agreement aside
despite the fact that the law favors amicable settlements of
disputes between parties seeking to dissolve their marriage. 750
ILCS 5/502(a) (West 1994); 750 ILCS 5/502(b) (West 1994); In re
Marriage of Moran, 136 Ill. App. 3d 331, 483 N.E.2d 580 (1985); In
re Marriage of Smith, 164 Ill. App. 3d 1011, 518 N.E.2d 450 (1987).
Unconscionability exists where there is "'an absence of a
meaningful choice on the part of one of the parties together with
contract terms which are unreasonably favorable to the other
party.'" In re Marriage of Carlson, 101 Ill. App. 3d 924, 930, 428
N.E.2d 1005, 1010 (1981), quoting Williams v. Walker-Thomas
Furniture Co., 350 F.2d 445, 449 (1965). Thus, a trial court
examines the conditions under which the agreement was made and the
economic circumstances of the parties resulting from the agreement.
In re Marriage of Hamm-Smith, 261 Ill. App. 3d 209, 219, 633 N.E.2d
225, 232 (1994). Wife asserts that the conditions under which the
settlement agreement was made include hasty negotiations and duress
caused by her fear that she may lose custody of her children. She
further asserts that the financial terms of the agreement
unreasonably favor husband.
Wife claims that hasty negotiations deprived her of the
opportunity to make a meaningful choice. We disagree. It is true
that the oral settlement agreement was contrived during two hours
of negotiations. However, we decline to mechanically apply an
analysis based on the number of hours spent negotiating as a per se
formulation of unconscionability. Rather, the significance lies
not in the fact that the parties negotiated for two hours; but,
that they negotiated for two hours at arms length with the aid of
counsel.
Additionally, wife argues that the record is replete with
examples demonstrating her uneasiness and lack of true assent to
the terms of the settlement agreement. We find that the record
demonstrates wife may have been unhappy with the settlement terms;
but, this unhappiness does not negate the fact that she stated
under oath to counsel and the trial court that this was her
agreement. Moreover, when the trial court through close
questioning presented wife with the opportunity to forego the
provisions of the settlement and have a hearing, she declined and
stated the terms she testified to comprised her agreement.
Wife claims that she suffered from duress because of the
extreme pressure she endured because she was afraid she would lose
custody of her children when she removed them from the state of
Illinois. Wife bears the burden of showing duress by presenting
clear and convincing evidence that she was bereft of the quality of
mind necessary to make a contract. Hamm-Smith, 261 Ill. App. 3d at
215, 633 N.E.2d at 230. While wife's fear that she may lose
custody of her children no doubt caused her anxiety, we do not
recognize this as a factor impairing her ability to exercise her
free will and make a meaningful choice when the record reflects
that she agreed to negotiations, took part in the negotiations and
then presented the substance of these negotiations, under oath, to
the trial court. Many spouses may experience anxiety when
appearing in court because of a petition to dissolve a marriage and
this anxiety is no doubt heightened when one fears she may lose
custody of her children; however, this factor, without more, does
not clearly and convincingly demonstrate that one lacked the
ability to make a voluntary decision.
Wife asserts that misleading statements were made by husband
and his counsel when they allowed wife's new attorney, Mr. Holden,
to labor under the misapprehension caused by a typographical error
that the settlement hearing had occurred on September 11, 1995, not
September 1, 1995. Wife argues the significance of this error is
that it would naturally have appeared to Mr. Holden that there were
10 days in between the negotiations and the settlement hearing and
this tended to show that the settlement agreement was the result of
a lengthy and reasoned consideration. We agree that Mr. Holden
should have been apprised of this error particularly when the
record lends credence to the fact that husband and his counsel were
aware of the error and its significance. However, this error is
immaterial when the trial court was not laboring under the same
misapprehension and therefore, the error cannot be said to have
affected the trial court's approval of the settlement agreement.
Wife next argues that the economic terms of the settlement
agreement unreasonably favor the husband and this fact demonstrates
she agreed to a settlement which was unconscionable. The record
demonstrates that at the settlement hearing no testimony was
adduced valuing the marital assets except for the marital home.
The marital home was valued at $135,000 which wife testified was a
low but nevertheless close estimate of its value. Additionally,
income and expense affidavits were filed by both husband and wife
on November 3, 1994, and these affidavits form the basis of wife's
conclusion that the economic terms of the agreement unreasonably
favor husband.
Wife uses the 1994 affidavits to calculate that she received
either 16.7% or 23.7% of the marital estate and that this figure
renders the settlement agreement economically unconscionable.
Wife's argument relies particularly on the retirement assets
retained by husband which include the tax deferred annuity and a
second unnamed employee retirement benefit which is valued at
$39,000 on husband's 1994 affidavit of income and expenses. At the
settlement hearing wife testified regarding the retirement assets:
"MR KOZLOWSKI: [Counsel for wife] Now, in
addition to all the property, there exists a retirement savings
plan which Mr. Steadman has through his employment, is that
correct?
THE WITNESS [Wife]: I guess so, yes.
MR. KOZLOWSKI: And many bills have been paid
out of that account, and you and your husband have previously
agreed that he would pay off a bunch of charges through that
[retirement savings plan] [by] borrow[ing] the money from that
[retirement savings plan], is that correct?
THE WITNESS: Yes, sir.
MR. KOZLOWSKI: Well, it was borrowed through
an insurance policy and it's going to be reimbursed through that
[retirement savings] plan, is that correct?
THE WITNESS: That's correct.
MR. KOZLOWSKI: In addition, there is a
retirement plan and your husband is going to split the assets of
that retirement plan, is that correct?
THE WITNESS: Yes."
Wife contends that this unchallenged testimony establishes
that in addition to the "retirement savings plan" or tax deferred
annuity account, a second retirement benefit existed which the
parties intended be split equally between themselves. However,
this second retirement benefit was not incorporated in the October
5, 1995, written judgment of dissolution of marriage and wife
argues that because of this omission, husband now receives this
marital asset by default, which further contributes to the economic
unconscionability of the settlement agreement.
We first address husband's argument that this issue has been
waived because no specific objection was raised below. We
disagree. Although no specific objection to the financial terms
was made below, we will consider the issue because in a non-jury
proceeding a litigant may forego filing a post-trial motion and may
assert as error grounds raised for the first time on appeal. In re
Marriage of Wright, 212 Ill. App. 3d 392, 397-98, 571 N.E.2d 197,
200-01 (1991); 134 Ill. 2d R. 366(b)(iii)(ii).
The October 5, 1995, judgment of dissolution of marriage
stated that the division of the tax deferred annuity account would
be effectuated through a subsequent qualified domestic relations
order. Counsel for husband, Mr. Howard LeVine, sent notice to
wife's counsel, Mr. Holden, that such a qualified domestic
relations order was scheduled to be presented instanter in court on
October 19, 1995. Thus, wife had ample opportunity to discover the
error and petition the trial court to include this omitted term in
the qualified domestic relations order. Accordingly, we find the
record does not support the conclusion that this omission renders
the agreement economically unconscionable.
Additionally, wife argues that the value of the tax deferred
annuity account is undermined because the amount of the life
insurance loan which husband was to pay back from the funds of the
tax deferred annuity account had jumped from the $43,000 to which
he testified at the September 1, 1995, settlement hearing to
$63,645.91 which was the figure incorporated in the final judgment
of dissolution of marriage entered on October 1, 1995. However,
this fact does not render the settlement agreement economically
unconscionable when the October 5, 1995, judgment for dissolution
of marriage expressly states that marital debts were to be paid
from the tax deferred annuity account, unambiguously expressing the
intent of the parties. The record supports the reasonable
inference that marital debt had been paid between September 1, 1995
and October 1, 1995, from the proceeds of the tax deferred annuity
account. Moreover, as noted above, wife had ample opportunity to
challenge any discrepancies in the valuation of the retirement
benefits at the October 19, 1995, court date and object to the
presentation and entry of the qualified domestic relations order.
Thus, we do not find that the fact that the parties agreed to
equally divide the tax deferred annuity account, after paying
marital debt which necessarily lessened the amount to be shared,
constitutes economic unconscionability.
We have examined the record and are unconvinced that the
economic positions of the parties following the dissolution of
their marriage are so inequitable that the settlement agreement
must be set aside as unconscionable. Rather, it appears from the
record that there was much quid pro quo in reaching the settlement
agreement, that there were sentimental attachments to certain
parcels of realty which wife bargained for and was subsequently
awarded, coupled with both parties' desire to amicably end the
marriage. The mere appearance that an agreement favors one party
over another does not render the agreement unconscionable. Hamm-
Smith, 261 Ill. App. 3d at 220, 633 N.E.2d at 233. Thus, we hold
the settlement agreement was not economically unconscionable and
find that the circuit court of Will County did not abuse its
discretion in denying wife's petition to vacate the judgment of
dissolution of marriage.
Affirmed.
BRESLIN, P.J. and McCUSKEY, J., concur.