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Crawford v. Crawford





APPEAL from the Circuit Court of Cook County; the Hon. NORMAN N. EIGER, Judge, presiding. MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Gloria P. Crawford, commenced an action for divorce against the defendant, Oliver Crawford, on the basis of the latter's mental cruelty. In response to the plaintiff's complaint for divorce, the defendant not only submitted an answer which sought a dismissal of his estranged spouse's complaint for want of equity, but he also filed a countercomplaint for divorce. After this cause was set for trial, the parties purportedly entered into an oral agreement settling and disposing of the rights of alimony and property arising out of the matrimonial relationship. Moreover, on the date this oral settlement agreement was allegedly entered, a prove-up hearing was conducted in which subsequent to (1) counsel for the plaintiff eliciting testimony from his client concerning the terms of the agreement and (2) the defendant withdrawing his countercomplaint, the trial court granted the plaintiff a divorce.

Prior to the entry of the divorce decree, however, the plaintiff retained new counsel, who, in addition to filing a substitution of attorneys, submitted petitions to stay the proceedings and return the case to the trial call. At a hearing conducted on these petitions, the plaintiff denied that her former attorney ever consulted or advised her of the terms of the oral settlement agreement before she testified at the prove-up hearing. She further indicated that she did not comprehend the significance of this prior hearing. Upon completion of the evidence presented by both sides, the trial court concluded that the plaintiff had voluntarily entered in the oral settlement agreement and fully understood its terms. The court then incorporated, over the plaintiff's objections, the provisions of said agreement into a consent decree dissolving the parties' marital relationship.

On appeal, the plaintiff contends that the trial court should not have entered the divorce decree since (1) the element of consent between the parties was never present so as to make the alleged consent decree valid; (2) a settlement which must be reduced to writing before being considered final is not final until the writing is, in fact, executed; and (3) the trial court lacked jurisdiction to hear the case after it had been dismissed for want of prosecution.

A review of the record reveals that on September 18, 1971, the approximately 26-year-old marriage between the plaintiff and the defendant resulted in the institution by the former of divorce proceedings. Besides designating mental cruelty as the grounds for divorce, the plaintiffs complaint also related that (1) the parties had a son, age 22 and a daughter, age 18; (2) the plaintiff was unemployed, without any source of income or funds with which to support herself or her children; and (3) the defendant was a physician with ample resources to support her as well as their children. Subsequent to being served with summons on June 8, 1972, the defendant filed an answer to the plaintiff's complaint for divorce in which he maintained that said complaint failed to state a cause of action and that it should be dismissed for want of equity. He further submitted a countercomplaint for divorce on August 23, 1973, which alleged mental cruelty as the basis for the termination of the parties' marital union.

After various continuances, this cause was set for trial on the contested trial call on July 10, 1974. On that date, counsel for the plaintiff informed the trial court that the parties arrived at an oral agreement settling and disposing of the alimony and property rights stemming from the marital relationship. The defendant then withdrew his countercomplaint for divorce, and a prove-up hearing ensued in which testimony was elicited from the plaintiff and the defendant. The plaintiff testified that pursuant to this oral settlement agreement, (1) the family home was to be sold and the net proceeds of the sale were to be divided equally between the parties and (2) the defendant would pay alimony in the form of $700 per month for 121 months with the further provision that if she remarried after five years from the date of the decree, any unpaid amount would abate. She further stated, in response to her own counsel's inquiry, that she was not subjected to any coercion or duress to enter this agreement.

At the conclusion of the plaintiff's testimony, a colloquy between the trial court and the parties' counsels arose over the payment of the plaintiff's attorney's fees. Besides informing the court that his client had no income, counsel for the plaintiff related that the defendant had a gross earnings of $87,994 for the year ending September 30, 1973, which included a gross salary of $44,800 as well as the placement of $10,500 into an employee's pension and profit-sharing plan. Subsequent to the defendant confirming these gross salary and pension plan figures on cross-examination, the trial court (1) awarded the plaintiff's attorney a fee of $2500 to be paid by the defendant and (2) orally granted a judgment for divorce.

After the prove-up hearing, the plaintiff discharged her attorney and retained new counsel who sought to preclude the entry of the divorce decree by filing a substitution of attorneys and separate petitions which respectively sought to stay the proceedings and return the case to the trial call. On August 21, 1974, the trial court responded to the plaintiff's petition to return the case to the trial call by not only ordering the defendant to prepare and submit to the plaintiff's counsel a proposed decree in accordance with the proceedings conducted on July 10, 1974, but it also set a hearing for September 23, 1974 on both petitions submitted by the plaintiff. Moreover, on September 16, 1974, an order was entered that (1) gave the plaintiff leave to file an emergency petition to stay the entry of the divorce decree and (2) postponed the hearing on the plaintiff's petitions to October 21, 1974. However, without notice to the parties at bar nor to the trial judge hearing this matter, the presiding judge of the divorce division of the circuit court of Cook County entered an order on September 25, 1974, dismissing this cause for want of prosecution.

Despite the above edict and the fact that a subsequent order vacating this dismissal was never entered, the litigious efforts between the parties continued. In fact, on November 22, 1974, the same presiding judge who previously dismissed this cause accepted the plaintiff's motion for support and set such matter for hearing on December 4, 1974. Moreover, on December 19, 1974, the plaintiff submitted an emergency petition as well as memorandum of law which sought to set aside the oral property settlement agreement. After the defendant presented, on the same date, his motion to strike the plaintiff's emergency petition and all other petitions previously filed on August 21, 1974, the trial court conducted a hearing to adjudicate the contentions raised by such petitions.

The plaintiff was first to take the stand and gave a definitive account of what transpired before, during, and after the prove-up hearing conducted on July 10, 1974. She related that prior to testifying on July 10, 1974, she was neither consulted nor advised as to the nature of the oral settlement. Moreover, she told her former counsel that $700 per month for alimony was inadequate and unacceptable. However, she failed to raise an objection to this amount on the witness stand because she said she did not know that this subject would be mentioned. Besides relating that she was nervous and did not understand the significance of the prove-up hearing, the plaintiff testified that when she departed the witness stand, she asked her attorney if she could register her objections to the settlement with the trial judge, but was informed that he would have to arrange it.

Following the cross-examination of the plaintiff, the calling of the defendant as a witness, and the respective closing arguments of the parties' counsels, the trial court reviewed what transpired on July 10, 1974, and concluded that there was no coercion nor duress imposed upon the plaintiff to enter the oral settlement agreement. The court then, over the plaintiff's objection, entered a consent decree for divorce pursuant to the terms of the oral agreement. On January 14, 1975, a notice of appeal was filed with the clerk of the circuit court of Cook County. Thereafter, the defendant submitted on August 5, 1975,, a petition to expunge the order entered on September 25, 1975, that dismissed this cause for want of prosecution. The presiding judge of the divorce division denied such request on the basis that he lacked jurisdiction to consider such petition since the case was pending before this reviewing court.

While the plaintiff proffers three issues for consideration, we believe that the crux of the instant controversy revolves around whether a party to an oral settlement agreement, which subsequently forms the basis of a consent decree for divorce, can set aside said decree because of her dissatisfaction with the terms of the settlement agreement. In seeking an affirmative response to this question, the plaintiff maintains that she was not a consenting party to the purported oral settlement agreement incorporated into the divorce decree not did she have knowledge of all of the facts prior to the entry into this agreement. Rather, her apparent satisfaction with the terms of the agreement at the prove-up hearing was not deliberate, but caused by her former counsel's failure to adequately advise her as to the terms of the agreement as well as her own inability to comprehend the nature of such proceedings.

In contradistinction to the plaintiff's assertion, the defendant argues that the decree for divorce should be upheld since the record amply demonstrates that the plaintiff's consent was voluntarily and understandingly given. To buttress such position, heavy reliance is placed on two decisions (Lagen v. Lagen, 14 Ill. App.3d 74, 302 N.E.2d 201; Filko v. Filko, 127 Ill. App.2d 10, 262 N.E.2d 88) wherein the respective reviewing courts rejected the wife's attempt to avoid the divorce decree which had been based upon her prior oral agreement that was made in open court. Moreover, the defendant strenuously argues that even disregarding the plaintiff's consent to the agreement, the decree was still eminently justified in light of the trial court's extensive review of the evidence. Although we do not controvert the fact that the trial court comprehensively reviewed the evidence surrounding this marital entanglement, we are of the opinion that neither assertions proffered by the defendant warrant an affirmance of the divorce decree.

• 1 While it is well settled in Illinois that the law looks with favor upon the amicable settlement of property rights between a husband and wife prior to their divorce (e.g., Bergstrom v. Kuhn, 17 Ill. App.3d 135, 307 N.E.2d 667 (abstract opinion); Nogle v. Nogle, 53 Ill. App.2d 457, 462, 202 N.E.2d 683, 686; see Gold v. Gold, 17 Ill. App.3d 11, 14, 308 N.E.2d 75, 77), it has also been held that a settlement agreement will be set aside and vacated if said agreement is procured by fraud, coercion, or if contrary to any rule of law, public policy, or morals. (E.g., James v. James, 14 Ill.2d 295, 305, 152 N.E.2d 582, 587; Gaddis v. Gaddis, 20 Ill. App.3d 267, 270, 314 N.E.2d 627, 630-31.) Moreover, in ascertaining whether a particular settlement agreement violates public policy, reviewing courts not only focus on whether such contracts are free of actual fraud and coercion, but emphasis is also placed on whether they are reasonably fair and sufficient in light of the station in life and the circumstances of the parties. E.g., James v. James, 14 Ill.2d 295, 305, 152 N.E.2d 582, 587; see Guyton v. Guyton, 17 Ill.2d 439, 445, 162 N.E.2d 832, 835.

Applying these legal precepts to the case at bar, we believe that public policy required the instant property settlement agreement be set aside for its manifest inequity and unfairness. Although the record reveals that the agreement was preceded by negotiations between the parties' counsels, it is devoid of any evidence demonstrating that the plaintiff was consulted or advised by her former attorney, prior to testifying at the prove-up hearing, of the terms of the property and alimony settlement. On the contrary, she testified at the hearing conducted on December 19, 1974, that prior to taking the stand, (1) she never ...

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