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In Re Marriage of Carney

OPINION FILED JANUARY 23, 1979.

IN RE MARRIAGE OF RONALD L. CARNEY ET AL. — (RONALD L. CARNEY, PETITIONER-APPELLEE,

v.

GAIL ELLEN CARNEY, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Vermilion County; the Hon. WILLIAM J. SUNDERMAN, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The defendant wife appeals from that portion of a decree for dissolution of marriage which disposes of marital property and provides maintenance for a minor child according to the provisions of a purported written post-nuptial settlement agreement.

The issues are beclouded by the tensions and conflicts arising by reason of the fact that the purported settlement, the complaint for dissolution of marriage and defendant's answer were drafted in the first one-half of 1977, but the evidence was heard and the decree framed after the effective date of the present statute, October 1, 1977.

The agreement, dated February 11, 1977, was drawn by an attorney for the plaintiff husband and essentially divided items of personal property in kind, providing that custody of a daughter, aged 15, be in the wife and with the husband to pay $20 per week for child support.

The marital residence was held in joint tenancy and was situated on 2 1/2 acres of ground. The agreement provided that the husband should receive the residence, except that the wife was to receive a parcel measuring 210 feet by 100 feet to be described by a subsequent survey.

The agreement provided:

"[T]his agreement shall be in force and effect upon the signing hereof and in the event that the marriage between the husband and wife is actually terminated upon the entry of a Decree of Divorce by a court of competent jurisdiction, this agreement shall be incorporated in and be made a part of said Decree of Divorce.

23. This agreement is entered into with full knowledge that each of the parties has a separate estate, and no claim or demand can be predicated upon the fact that there has been any misrepresentation or concealment as to the amount and condition of either separate estate. * * *."

The subsequent acts of the parties and the pleadings of plaintiff disclose a substantial uncertainty and contradiction as to the meaning and effect of the agreement. In March, the husband's counsel sent the wife a copy of a complaint for divorce and an entry of appearance and an accompanying letter requested that she take the documents to an attorney, as required by local rule of court, together with the settlement agreement. That letter, dated March 25, 1977, contained the following:

"It is my understanding that both you and Ron have agreed that there are no changes in the Post Nuptial Agreement which I previously prepared on your instructions, and that this is the agreement that will be presented to the Court for final approval. If I am mistaken in this matter, please feel free to contact me immediately so that we might discuss this matter further."

The evidence shows that after consulting with an attorney, the wife refused to sign the entry of appearance and in April filed a suit for the partition of the marital real estate. The wife testified that the attorney told her that the settlement agreement was unfair.

The husband thereafter filed suit for divorce on June 10, 1977. That pleading made no allegation or other reference to the purported settlement, but alleged a special equity in the marital real estate, and prayed that the wife be required to convey her interest therein for such reason. The complaint also prayed that the custody of the daughter be awarded to the wife and that the husband be required to pay a suitable and sufficient sum for child maintenance. The complaint further prayed that the court enter "an order declaring the rights, duties and obligations of the parties in their real and personal property in whatever fair and equitable manner it sees fit."

The wife answered the complaint by denying that the husband had special equities in the real estate.

At the hearing held for the disposition of property, the husband had new counsel appearing in his behalf and the attorney who drafted the agreement and the complaint and who appeared in the dissolution hearing withdrew. The latter, together with a law partner, ...


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