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In Re Marriage of Nitzkin

OPINION FILED NOVEMBER 6, 1978.

IN RE MARRIAGE OF MURIEL NITZKIN ET AL. — (MURIEL NITZKIN, PETITIONER-APPELLANT,

v.

DONALD L. NITZKIN, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. REUBEN J. LIFFSHIN, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Muriel Nitzkin (petitioner) has appealed from a judgment dissolving her marriage and from an order entered on the same day denying her petition for varied relief.

In this court, petitioner has limited her contentions to the entry of the judgment dissolving the marriage. Petitioner urges that the property settlement agreement incorporated into the judgment was not voluntarily entered into and was unfair to her. Donald L. Nitzkin (respondent) urges that property settlement agreements are favored in actions for dissolution of marriage; the settlement agreement embodied in the judgment was voluntarily approved by petitioner in open court and the agreement was not unfair to petitioner.

These parties were married in 1948. Three children, all of legal age, were born. There is no contest regarding the grounds for dissolution of the marriage.

Concerning the property settlement agreement, petitioner commenced the action on February 17, 1976. Petitioner owns and operates a retail store in Evanston for women's clothing. She has been in this business for 7 years. She has three employees and she performs various services in connection with the business, including buying trips. The record is not definite regarding the employment of respondent.

Petitioner was represented by counsel of her own choice. It is evident from the record that her attorney handled the matter with diligence and ability. The case was brought to issue, there was considerable legal skirmishing and depositions were taken.

Trial was commenced on March 9, 1977. The trial court was advised that no issue would be raised on the merits of the marriage dissolution and that the problems between the parties arose out of settlement of property rights. Prior to March 9, 1977, the parties and their counsel had participated in four pretrial conferences. Four settlement proposals had been considered by petitioner and her counsel. The trial court had entered into discussion with the parties and counsel regarding a possible property settlement. The trial court suggested that perhaps the parties could work out a sale of the marital home and division of the proceeds.

Petitioner testified briefly on the grounds for dissolution and then related her business activities. Joint Federal income tax returns filed by the parties for 1974 and 1975 were offered in evidence. These returns showed, among other figures, that petitioner's business grossed $227,000 in 1975. Petitioner's income for that year was $34,395 and respondent reported no income. For 1974, petitioner reported a net income of $40,219.96. Respondent reported total income of $16,370 from commissions. After a colloquy between the parties, the court directed further consideration of a possible settlement agreement between the parties and suggested that they obtain an independent appraisal of the marital home.

The trial was resumed on May 16, 1977. Petitioner's trial counsel, John Rinella, Esquire, advised the court that an oral agreement had been reached. Petitioner then testified further on direct examination. She affirmed that the parties, with assistance from the trial court, had entered into an oral agreement. Her testimony then covered the following aspects of the property settlement between the parties:

(1) An appraisal showed the value of the marital home to be $129,000 with a mortgage of $25,000. Petitioner testified that she would attempt the sale of the home herself with the understanding that if she did not succeed the property would be sold by a broker. The home was owned in joint tenancy. All net proceeds of the sale were to be evenly divided.

(2) Various shares of stock were jointly owned by the parties. The value of this stock approximated $30,000. All of these shares were to become the sole property of petitioner and respondent would sign all necessary documents to effect the transfer to her.

(3) The parties had a joint bank account with a balance of $17,000 or $18,000 which petitioner had withdrawn. She was to be permitted to keep all of these funds.

(4) Petitioner was the sole owner of 15 shares of stock in Meyer Bros., Inc., a family business apparently owned in part by the respondent's father. The parties agreed that this stock would be equally divided between petitioner and respondent.

(5) All furniture and furnishings in the marital home would become the property of petitioner except a list of items, upon which the parties were to agree, which would be transferred to respondent. Each ...


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